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Monthly Archives: December 2010

Senator Cardin’s CIPA Reform Bill

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Tuesday, December 21, 2010 at 5:14 PM

[Update: Readers should also check out John Radsan's just-published paper on CIPA reform, in Cardozo Law Review, here.  Further update: the server hosting that paper is down until the afternoon of Dec. 29th, FYI]. Senator Cardin has introduced a bill to update and reform the Classified Information Procedures Act (“CIPA”), called the CIPA Reform and Improvement . . .
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Tuesday Morning Quarterback on Wikileaks

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Tuesday, December 21, 2010 at 4:42 PM

Gregg Easterbrook of TMQ making a point similar to one I have been harping on (thanks to Paul Stephan for pointing me to it): Leaks Don’t Come Out of the Sky: Is the WikiLeaks disclosure of Pentagon and State Department internal documents dangerous because it reduces U.S. military and diplomatic effectiveness?  Or good because it pulls . . .
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Rivkin and Casey on Gitmo Transfer Bans

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Tuesday, December 21, 2010 at 1:57 PM

David Rivkin Jr. and Lee A. Casey have this oped in today’s Wall Street Journal. As it is behind a paywall, I will maximize my fair use rights to bring its argument to the attention of Lawfare readers. The oped opens: Trying captured al Qaeda, Taliban, or allied terrorists in United States civilian courts is a . . .
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Abdah v. Obama (Al Latif) Appellant’s Brief Released

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Tuesday, December 21, 2010 at 10:55 AM

Today the D.C. Circuit released the public version of the appellant’s brief in another habeas merits appeal, Abdah v. Obama, No. 10-5319. In this case, the government appeals Judge Henry Kennedy’s July 2010 opinion granting a writ of habeas corpus to petitioner Adnan Farhan Abd Al Latif, a Yemeni national. (Al Latif was one of . . .
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Time for the Administration to Change its Gitmo Talk

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Monday, December 20, 2010 at 3:36 PM

For the past several months, the Obama administration has been in a weird limbo about Guantanamo. On the one hand, it has barely lifted a finger to effectuate its declared policy of closing the facility–afraid of the politics of the fight it would have on its hands were it to try. It has rope-a-doped spending . . .
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Upcoming Oral Arguments in Habeas Cases

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Monday, December 20, 2010 at 10:27 AM

A few of the habeas merits appeals before the D.C. Circuit were just scheduled for oral argument.  Here are the dates and panel assignments: Al Warafi v. Obama: Oral argument will be held February 7, 2010 before judges Ginsburg, Garland, and Williams.  Public briefs can be found here. Abdah v. Obama (Uthman): Oral argument will be February . . .
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Detention and Denial: The Case for Candor After Guantanamo

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Sunday, December 19, 2010 at 9:53 AM

I have received a number of inquiries from Lawfare readers about my my new book, Detention and Denial: The Case for Candor after Guantanamo. I am told there were sightings of it at Brookings this past week. Amazon has apparently not yet received its shipment, but the Kindle edition is now available. As soon as the . . .
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Final Response to David Cole

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Friday, December 17, 2010 at 8:10 PM

I disagree with the characterization in David’s latest post of Bush administration practices.  But I am not going to change his mind on that issue, so I will end this exchange on my side by noting points of agreement.  I agree, and have long argued, that the Obama administration is more restrained in legal argumentation . . .
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Move Over Wikileaks: Pakistani Lawyer Outs the CIA Chief of Station

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Friday, December 17, 2010 at 6:43 PM

[updated to remove/fix typos...] Mark Mazzetti and Salman Masood for the New York Times report an immensely disturbing development in Pakistan.  A Pakistani lawyer named Mirza Shahzad Akbar has filed a complaint with Pakistani authorities requesting legal action against the CIA’s Chief of Station (“CoS”) in Islamabad, on behalf of a man whose brother and son may . . .
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The Newest Iteration of the GTMO Transfer Ban: Absent Court Order, No Transfer to State Where There Has Been Any “Recidivism”

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Friday, December 17, 2010 at 6:18 PM

The shape of the pending GTMO transfer ban has morphed yet again.  Again Adam Serwer has the update.  The long and short of it is that the pending National Defense Authorization Act for Fiscal Year 2011 (NDAA FY11) apparently now provides that, barring a court order, the administration will be barred from transferring a GTMO detainee anywhere if . . .
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More Response from David Cole

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Friday, December 17, 2010 at 5:56 PM

David Cole offers the following in response to Jack’s and my latest posts on continuity and change in counterterrorism policy between the Bush and Obama administrations: I’ve now had the chance to read Jack’s response and Ben’s further post in response to my TNR article.  Both insist that Obama has continued Bush’s counterterrorism policies, and . . .
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How Ideas Get Inverted

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Friday, December 17, 2010 at 5:39 PM

Here’s a little cautionary tale about life in the information anarchy in which we all exist today. It is, I suspect, a metaphor for something, though I’m not sure what. I pass it on as it may amuse some readers as much as it amused me. The other day, I posted this set of musings . . .
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David Cole Responds

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Friday, December 17, 2010 at 3:04 PM

David Cole sent in the following response to my post of the other day on his earlier New Republic article: My piece took issue with the claim so often made by all sides of the debate that Obama has continued Bush’s policies. Interestingly, you focus only on the left’s critique, and where that comes from, but . . .
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Continuity and Change: Towards A Synthesis

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Friday, December 17, 2010 at 9:53 AM

I’m a little bit grouchy that the argument I made in this speech I keep linking to isn’t more a part of the debate over continuity and change between the Bush and Obama administrations than it is. It’s not just vanity (though I am certainly vain); it’s that I think the argument that Jack and . . .
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David Cole on Obama v. Bush

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Friday, December 17, 2010 at 1:00 AM

Ben has already commented on David Cole’s TNR essay (subscription needed) about how the Obama approach to counterterrorism differs from the Bush approach.  But since David uses my own TNR essay on the subject as a foil for some of his arguments, I should respond as well.  I think David is engaged in revisionist history, . . .
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Espionage Act: Hearing at the House, Witness Testimony

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Thursday, December 16, 2010 at 6:00 PM

Today the full Judiciary Committee of the House of Representatives held a hearing on the Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks.  Below are links to the prepared witness statements. Abbe D. Lowell Partner, McDermott Will & Emery LLP Washington, DC Kenneth L. Wainstein Partner O’Melveny & Myers LLP Geoffrey R. Stone . . .
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Transfers from GTMO to the United States: Not Banned Outright After All?

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Thursday, December 16, 2010 at 3:44 PM

Adam Serwer has a goodcatch on this one.  As we’ve noted before, the pending omnibus spending package contains a wholesale prohibition on transfers of detainees from GTMO to United States territory.  Or at least it did.  Adam notes that the transfer ban remains in the bill, yet there is now additional language (added by an . . .
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Al Harbi (Mingazov) Appellant’s Brief Released

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Thursday, December 16, 2010 at 11:49 AM

Last week (and our apologies for the belated update), the D.C. Circuit released the public version of the appellant’s brief in another habeas merits appeal, Al Harbi v. Obama. In this case, the government appeals Judge Henry Kennedy’s  May 2010 order granting a writ of habeas corpus to petitioner Ravil Mingazov, a Russian national.  In . . .
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The Implications of Charging Assange for Conspiracy to Leak [Updated]

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Wednesday, December 15, 2010 at 11:52 PM

Charlie Savage reports in the New York Times that DOJ is considering charging Julian Assange as a conspirator to Bradley Manning’s undoubtedly illegal leak of classified information: Justice Department officials are trying to find out whether Mr. Assange encouraged or even helped the analyst, Pfc. Bradley Manning, to extract classified military and State Department files . . .
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Public Appellant Brief Available in Al Madhwani

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Wednesday, December 15, 2010 at 4:52 PM

Today, the D.C. Circuit released the public version of the appellant’s brief in Al Madhwani v. Obama. In this case, Musa’ab Omar Al-Madhwani appeals Judge Thomas Hogan’s December 2009 bench ruling and January 2010 opinion affirming his detention, as well as an order denying certain discovery requests and an order denying his motion for reconsideration. His lawyers . . .
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