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Monthly Archives: November 2010

A Response to Nick Baumann

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Tuesday, November 30, 2010 at 7:40 PM

Over at Mother Jones, Nick Baumann accuses me of arguing against straw terrorists. Quoting a Lawfare post from a little while back in which I posited that the alternative to reserving the option of lethal force against Anwar Al Aulaqi is paralysis in the face of the threat he poses, Baumann writes, This is a straw . . .
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Wikileaks on Guantanamo Resettlement

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Tuesday, November 30, 2010 at 12:00 PM

Larkin and I were planning to post a detailed account of what the Wikileaks cables say about  Guantanamo resettlement efforts, but Charlie Savage and Andrew Lehren of the New York Times have beaten us to the punch with an excellent overview. I won’t repeat the facts here, but a few thoughts are in order. The effort . . .
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Detainee Recidivism in Afghanistan

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Tuesday, November 30, 2010 at 10:27 AM

I’m surprised this statistic does not get more attention.  The Pentagon’s annual report to Congress on “Progress Toward Security and Stability in Afghanistan” ( required by § 1230 of the National Defense Authorization Act for FY08), states: The current recidivism rate [for released detainees in Afghanistan] is 1.2 percent. CJIATF-435 assesses that reintegration programs are . . .
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Can Wikileaks Be Designated an FTO? No, But What About IEEPA?

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Monday, November 29, 2010 at 4:06 PM

Representative Peter King has urged the State Department to consider designating Wikileaks a “foreign terrorist organization,” which among other things would implicate 18 USC 2339B (the 1996 material support statute, criminalizing the provision of any form of support or resources to designated FTOs).   According to one report, King said: “By doing that we will be able to . . .
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Is Wikileaks a “Foreign Power” for FISA Purposes?

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Monday, November 29, 2010 at 3:48 PM

Another interesting hypothetical raised by the Wikileaks situation is whether Wikileaks counts as a “foreign power” for purposes of FISA.  50 USC 1801(a) defines “foreign power” as any of the following:

Would a Computer Network Operation to Disrupt Wikileaks Count as a “Covert Action” for Oversight Purposes?

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Monday, November 29, 2010 at 3:39 PM

The decision by Wikileaks to expose a massive collection of classified State Department cables, and the fact that Wikileaks seems today to be experiencing a DDOS attack, creates an occasion to think hypothetically about an array of legal issues that might arise should the U.S. government decide to take action to disrupt the Wikileaks operation. . . .
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More from John Bellinger

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Sunday, November 28, 2010 at 11:30 PM

Responding to my suggestion that Lawfare readers debate the parameters of a new AUMF–a discussion thread for which I have started over at our Facebook page–John Bellinger III writes in with the following: I’ve been a bit surprised by the reactions of a few readers of my recent op-ed urging an updating of the AUMF, who . . .
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The Latest Issue of Inspire

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Sunday, November 28, 2010 at 9:40 AM

The latest issue of Inspire, the glossy English-language in-house magazine of Al Qaeda in the Arabian Peninsula is available here, courtesy of a web site entitled Public Intelligence. The first issue is here; the second is here. I am not in any sense expert in this sort of material and will therefore leave discussion of . . .
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Updating the AUMF–A Discussion

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Sunday, November 28, 2010 at 9:18 AM

It is hardly a surprise that John Bellinger III is being attacked (here and here, for example) for his modest suggestion in the Washington Post the other day that Congress should update the AUMF. (Attacking the moderate and sensible Bellinger is a weird kind of cottage industry among lefty bloggers, but that’s an ugly story . . .
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Koh Letter to Wikileaks [Updated]

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Sunday, November 28, 2010 at 8:05 AM

Late Saturday night the State Department released a strongly worded letter from Legal Advisor Harold Koh to Wikileaks founder Julian Assange and his attorney concerning the apparently imminent publication of 250,000 secret State Department documents.  The letter says that the release will harm lives, military operations, and diplomatic cooperation.  It asks Assange to stop publication . . .
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Lawfare Comments and Discussions on Facebook

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Saturday, November 27, 2010 at 9:38 AM

Here at Lawfare, we don’t take comments. Being very old-fashioned, we started this blog to express our opinions to a group of readers, not to create a bulletin board for those readers. We have gotten any number of complaints about this admittedly antediluvian policy. Some of them come in a direct form, something like: “I . . .
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A Dispatch from Dulles

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Friday, November 26, 2010 at 5:38 PM

I traveled by air yesterday to be with my family for Thanksgiving. And to tell the truth I was kind of looking forward to the flight almost as much as I was the turkey and mashed potatoes. I’ve been dying to find out firsthand what all the backscatter opt-out fuss was about, and I departed . . .
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Medill Discussion on Targeted Killing and the Law

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Friday, November 26, 2010 at 2:12 PM

Back on November 17, the Medill National Security Journalism Initiative held an excellent forum on legal issues surrounding targeted killing. The panel consisted of me and Gary Solis, author of the recent book, The Law of Armed Conflict: International Humanitarian Law in War. It was moderated by Tara McKelvey, a fellow at Medill, and took . . .
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John Bellinger on the Need for New Framework Legislation for Counterterrorism

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Friday, November 26, 2010 at 10:50 AM

John Bellinger argues in today’s Washington Post for new framework legislation relating to counterterrorism – that is, for a new statute to supersede the AUMF.  John concludes: Nearly 10 years after the Sept. 11 attacks, the Obama administration, congressional Republicans and Democrats, and civil liberties groups all have an interest in updating this aging legislation. . . .
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The Gap Between the Public’s and the Government’s View of the Terrorism Threat

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Thursday, November 25, 2010 at 3:26 PM

Marc Thiessen has taken a lot of heat for this argument in the course of defending TSA screening procedures: Can any of us imagine the debate we’ve had in recent weeks unfolding in the days immediately following Sept. 11, 2001?  Can any of us imagine the debate we’ve had in recent weeks unfolding in the days . . .
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Thanksgiving Wishes

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Thursday, November 25, 2010 at 11:28 AM

I’m going to take a break from blogging for the next twenty-four hours, but before I go dark, I want to wish Lawfare readers all over the world a wonderful holiday. In particular, in light of Brig. General Mark Martins’ amazing posts this week (here and here and here and here and here, for those who missed them), I . . .
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Lawfare: So Are We Waging It?

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Thursday, November 25, 2010 at 12:01 AM

Parwan, Friday, November 19, 2010 — The week’s posts up until now—written on a Blackberry while we moved or found small spaces of time between engagements—position me finally to move from the definitional and philosophical matters I pondered yesterday in Khost to Jack’s September question: Do I consider counterinsurgency (COIN) in Afghanistan to be “lawfare.” . . .
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Save the Date: 4th Annual National Security Law Junior Faculty Workshop/IHL Training – Charlottesville Edition

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Wednesday, November 24, 2010 at 1:26 PM

For the past three years, Geoff Corn and I have had the great pleasure of putting on a unique workshop event loosely directed toward a combination of JAGs and junior civilian scholars working on national security law issues.  The basic idea is a two day event involving both the workshopping of draft articles and presentations and discussions . . .
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Andy Worthington Responds

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Wednesday, November 24, 2010 at 12:40 PM

I received the following note from Andy Worthington in response to my earlier post about his article. I appreciate very much his clarifications, which read in relevant part: My intention was not to describe you and Jack and Robert as “fueled by blind vengeance and a thorough disdain for the law”–and I apologize if that . . .
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On the Admissibility of FISA-Derived Evidence in Criminal Prosecutions

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Wednesday, November 24, 2010 at 10:10 AM

United States v. Kashmiri, a recent decision by a district judge in Illinois, provides a nice illustration of the process by which defendants in criminal cases may object to the admission of evidence derived from Foreign Intelligence Surveillance Act (FISA) warrants, and the significant obstacles such objections face.  Unfortunately I do not have a pdf of the . . .
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