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Monthly Archives: December 2010

Where Is the Long-Delayed Ruling from the Court of Military Commission Review as to Viability of Material Support Charges?

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Friday, December 31, 2010 at 1:22 PM

One of the most important questions clouding the debate over the utility of military commissions has to do with the viability of material support charges in that forum.  To be blunt, we need to know the final answer to this question, and we need to know it yesterday. The good news is that the issue . . .
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Happy New Year

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Friday, December 31, 2010 at 12:10 PM

Just a quick post to give warm wishes for an excellent new year to Lawfare readers everywhere. In particular, here is wishing safety and success to our readers and their colleagues deployed in Iraq and Afghanistan. May 2011 be the year that proves all of our fears overblown and proves this blog superfluous and alarmist.

Detention and Denial–From the Introduction

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Thursday, December 30, 2010 at 8:24 AM

“The greatest trick the Devil ever pulled was convincing the world that he didn’t exist,” says the low-grade con man to the arrogant customs agent in the 1995 movie The Usual Suspects, speaking of the great criminal mastermind Keyser Söze. The supposedly crack customs agent Kujan listens with patronizing incredulity to stories of the untrackable, invincible Söze, convinced that he knows . . .
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Detention and Denial Now Available

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Thursday, December 30, 2010 at 7:45 AM

I am reliably informed (having checked the site) that Detention and Denial: The Case for Candor After Guantanamo is now available from Amazon.com–which presumably means it is available at other book stores as well. I will post a few excerpts over the next few days–the first one later today–to tantalize you. The book makes the ideal . . .
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More on Yesterday’s Times Editorial

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Wednesday, December 29, 2010 at 9:43 AM

Bobby is quite right to link yesterday’s New York Times editorial to the one about which I complained back in October. But Bobby is a more generous soul than I am, and I am disinclined to give the Times’ editorial writers credit for curing the problem–even to the limited extent Bobby is (He asks: “Does this . . .
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The NY Times Editorial Page and Its Potentially Misleading Account of the Detention Status Quo

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Tuesday, December 28, 2010 at 5:28 PM

In an editorial that ran on Monday, the Times took up the laudable task of defending the administration’s plans to substantially enhance the procedural safeguards associated with the annual review board process for GTMO detainees.  All to the good if you ask me.  Inexplicably, however, the editorial seeks to bolster the case for the proposed . . .
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Ads for Very Worthy Causes

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Tuesday, December 28, 2010 at 9:28 AM

(By Benjamin Wittes, Jack Goldsmith, and Robert Chesney) Lawfare readers will have noticed, by now, that we have installed a small quantity of advertising on the site. The purpose of these ads is to generate a revenue stream as the blog grows in readership to donate to charities whose work is thematically related to the subject . . .
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Dan Byman on Guantanamo as Recruitment Tool

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Tuesday, December 28, 2010 at 8:59 AM

A few days ago, I expressed doubt as to the veracity of the President’s comments that “Guantanamo is probably the number one recruitment tool that is used by these jihadist organizations.” I did so tentatively because I am no expert in Al Qaeda recruiting, but given the prevalence of this point in the administration’s Guantanamo . . .
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Government Brief in Post-Transfer Relief Appeal

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Monday, December 27, 2010 at 4:00 PM

A few weeks ago we posted the petitioners’ joint opening brief in a consolidated appeal before the D.C. Circuit that tests whether federal courts retain habeas jurisdiction even after a detainee leaves U.S. custody, and, accordingly, whether a court can grant relief to detainees who have been transferred from Guantanamo. Last week the government filed . . .
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Is Guantanamo Just a Legacy Problem?

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Monday, December 27, 2010 at 12:22 AM

The Washington Post published a typically thoughtful editorial today on the idea of an executive order to establish a review process for Guantanamo detainees who lose their habeas cases. Like me, the Post has mixed feelings. On the one hand, The proposal is laudable for introducing a measure of fairness into the process, but it . . .
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Thoughts on Obama’s Gitmo Remarks

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Friday, December 24, 2010 at 9:39 AM

A few thoughts on President Obama’s remarks Wednesday on Guantanamo, the full text of which I posted earlier. “Obviously, we haven’t gotten it closed.  And let me just step back and explain that the reason for wanting to close Guantanamo was because my number one priority is keeping the American people safe.  One of the . . .
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The President’s Comments on Gitmo

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Thursday, December 23, 2010 at 12:18 AM

At his news conference Wednesday, President Obama made the following remarks about Guantanamo and the forthcoming executive order: Q    Guantanamo, sir.  I understand a draft of an executive order is being prepared for you, and I don’t expect you to comment then on that — THE PRESIDENT:  Right. Q    It hasn’t gotten to you yet. . . .
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The Espionage Statutes Modification Act of 2010

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Wednesday, December 22, 2010 at 5:27 PM

Having already introduced a bill this week to modify CIPA, Senator Cardin has now introduced a bill to modify espionage-related statutes.  The Espionage Statutes Modification Act (“ESMA”) bill–S.4051–is here.  A brief summary from the floor statement introducing the bill follows:

On Executive Orders and Centrist Anxieties

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Wednesday, December 22, 2010 at 8:27 AM

The combination of Jack’s post and sleeping on the subject has mostly set my mind at ease on the difference between an executive order and a statute for purposes of the Guantanamo review system currently on the table–but not entirely. A few considerations: First, let us assume that the review system in this executive order . . .
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New Nominee for Office of Legal Counsel

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Wednesday, December 22, 2010 at 8:18 AM

During my 2003 confirmation hearings to be the head of DOJ’s Office of Legal Counsel, one Senator showed up to ask me one or two perfunctory questions.  This was a time when relatively few people knew what OLC did or why its work was important.  How times have changed.  Since I left OLC in the . . .
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Thoughts on the Obama Detention Executive Order

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Wednesday, December 22, 2010 at 3:59 AM

I think the proposed EO for periodic review of detainees is a sensible move.  Ben says the EO belongs in a statute “because in the long run, a detention system based on an aging AUMF and an executive order is not going to fare as well in court as one based on a clear, explicit, . . .
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And the Centrist Anxieties

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Tuesday, December 21, 2010 at 11:32 PM

I promised earlier that I would describe my exceedingly mixed feelings about the stories today that President Obama is preparing to issue an executive order outlining a Guantanamo review process. As Bobby’s post a few minutes ago pointing out the predictable anxieties about the move on both left and right omitted discussion of any centrist anxieties . . .
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The Anticipated Executive Order on Detention Review and the Inevitable Criticism from Both the Left and the Right

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Tuesday, December 21, 2010 at 10:54 PM

Ben beat me to the punch in noting the stories by Dafna Linzer (ProPublica) and Peter Finn and Anne Kornblut (Washington Post) to the effect that the White House will soon announce an executive order creating a new annual review system for military detainees held at GTMO.  I’ll comment further once the order is a . . .
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Using Google Ngram to Track Use of the Word “Terrorism” Between 1800 and 2008

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Tuesday, December 21, 2010 at 10:15 PM

If you haven’t wasted a few minutes playing with Google Ngram, you’ve got to give it a ride.  The basic idea, as I understand it, is that Google has put together a vast database of every word in every book (from 1800 and 2008) that they’ve digitized, and you can just put in a particular word . . .
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News Flash: Executive Order on Detention

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Tuesday, December 21, 2010 at 7:57 PM

The Washington Post and Propublica are both reporting that the Obama administration is readying an executive order laying out a process for long-term detention for Guantanamo detainees. I will post some thoughts on my exceptionally mixed feelings about this development, which is not altogether new, later this evening.