It’s time to shut down Yale Law School until etc.

Mr. Amy Chua, everybody:

The Free Press, newly representative of that strata now that its editor-in-chief also runs CBS News, provided a handy example on Thursday, with a piece by Yale Law School professor Jed Rubenfeld titled, “Trump’s Been Bombing Boats in the Caribbean. Is This Legal?” and subtitled, “I thought the answer was an obvious no. It turns out to be much more complicated.”

[…]

The Free Press’s readership is somewhat more honest in its allegiance, and they aren’t looking for reassuring quantum uncertainty so much as for the most nakedly cynical conceivable bullshit to fling, with a sneer, into the faces of Trump’s critics; “Jed Rubenfeld is a professor of constitutional law at Yale Law School” would probably suffice for them. But the phenotype of this work is virtually identical to the Times‘: a hem here, a haw there, a theatrical brow-wrinkling, an utter abdication of critical reasoning, and at the end of it all, hands thrown up to declare the epistemological unknowability of, like, anything.

He then cites the core of Rubenfeld’s just-asking-questions apologia:

The question then becomes: Are these air strikes clear and obvious acts of murder under ordinary criminal law?

The answer is no. Not because Trump has designated Tren de Aragua as a terrorist organization, but because ordinary criminal law does not apply if a state of war exists. Instead, a whole other legal paradigm—the law of war—kicks in. Under the law of war, a sovereign can do many things that would be illegal under ordinary law. Including killing people.

But wait—surely we’re not at war in the Caribbean, are we?

For legal purposes, we might be. A notice sent this month by the administration to Congress (a copy of which is reportedly here) states that the president has determined that we are in “armed conflict” with “non-state” “paramilitary” drug cartels engaging in an “armed attack against the United States,” “caus[ing] the deaths of tens of thousands of American citizens each year.” And under long-standing Supreme Court case law, this determination may be conclusive.

Back to the OP:

In total here, Rubenfeld’s argument is as follows: The question of the legality of summarily slaughtering all aboard a non-military boat in the Caribbean Sea is complicated by the very guy who’d bear responsibility for that crime saying that it’s OK for him to do it. In other words, the FP commissioned an entire blog to say “When the president does it, that means it is not illegal.” Those old enough to remember the Bush presidency may get a flashback to the argument that the United States does not torture, and therefore whatever it does to the people it disappeared without trial into its global network of black sites is by definition not torture.

Again: The objective of this crap is not to mount a convincing affirmative argument for the lawfulness of Trump’s tropical murder campaign. That kind of definitive claim-making is professionally unbecoming for establishment journalists and pundits, and anyway it’s not actually possible to make one. It’s the classic “Gotta hear both sides” gambit: The legal status of any presidential action must necessarily reside at some unknowable point between those saying it’s a crime and those saying it’s not. (The fun is in pretending not to know this is a binary and not a spectrum, and thus that any argument for the issue’s uncertainty is, in effect, no different from a plain assertion that summarily killing people is not a crime.) Rather, the objective is to bait the public into switching off its moral faculties, by presenting its members with a bewildering swamp: impenetrable legal opinions, unverifiable summaries of classified memos, the eely slipperiness of the terms. Looks pretty murky to me. Are you sure you’re qualified to find the answer in there?

This is all correct, and I would add that under Rubenfeld’s “analysis” 1)every authorization to use mlitary force has been superfluous and 2)the Congressional power to declare war (that also underlines the more recent practice of delegating through authorization instead) is a nullity. Rubenfeld knows this, which is why he is careful not to outright endorse it, just throw up enough of a Reasonable People Disagree fog to justify the random murder of people without due process. Murders that are not in fact either authorized by Congress or within the inherent authority of the president. Needless to say, this the exact same playbook MAGA and their fellow-travellers are running on birthright citizenship, and I will bet you a Pepe’s clam pie that Ol’ Jed himself will be part of that parade too.