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Monthly Archives: February 2011

Thoughts on Al Warafi

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Monday, February 28, 2011 at 11:30 PM

Ever since the D.C. Circuit last week handed down its per curiam opinionlet in Al Warafi, I have been puzzling over this brief, unpublished order. I have begun to think it may be more important that I initially understood—and, specifically, that it may constitute a significant development in the D.C. Circuit’s consideration of the relationship . . .
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The Patriotism of the American Media

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Monday, February 28, 2011 at 7:11 AM

In its story last week about the ties between the CIA and Raymond Davis, the American recently arrested in Pakistan, the New York Times offered this explanation for why it sat on the story: The New York Times had agreed to temporarily withhold information about Mr. Davis’s ties to the agency at the request of the Obama administration, which argued that . . .
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Do US Detention Practices Engender Support for the Taliban? Daphne Eviatar and I Debate….

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Friday, February 25, 2011 at 11:20 PM

Daphne Eviatar and I have an interesting exchange underway, one that I think nicely illustrates some of the key points of legal disagreement that underly the detention debate (such as whether the ICCPR applies abroad, or whether the laws of war have anything to say about detention authority in a non-international armed conflict).  We’re no . . .
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Event Monday: Breaking the Judicial Nominations and Confirmations Logjam

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Friday, February 25, 2011 at 10:06 AM

The following information isn’t national-security-related, but still may be of interest to many readers: Brookings will host an event Monday, “Breaking the Judicial Nominations and Confirmations Logjam.” For those interested in this topic, the event will consist of two panels about the consequences of vacancies in the federal judiciary and some proposals for reform. Event . . .
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Psy-ops Against Congress – Count Me as Skeptical

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Friday, February 25, 2011 at 8:41 AM

Michael Hastings – the journalist who brought down General Stanley McChrystal – has a new piece in Rolling Stone alleging that General William Caldwell, who is in charge of training Afghan security forces, “illegally ordered a team of soldiers specializing in ‘psychological operations’ to manipulate visiting American senators into providing more troops and funding for . . .
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Signing Books at Politics and Prose

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Friday, February 25, 2011 at 7:18 AM

On Saturday, March 5 at 1:00 pm, I will be speaking about Detention and Denial at Politics and Prose in Washington D.C. The event announcement is available here. Readings at Politics and Prose have a special resonance for me. I do a fair bit of my writing at the store’s cafe, so most of my . . .
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The Economist on Embracing Guantanamo

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Friday, February 25, 2011 at 7:04 AM

The Economist has run a thoughtful and interesting column on my idea that President Obama should embrace Guantanamo. The column contains a few factual errors. It attributes this argument to my book, Detention and Denial, whereas it in reality postdates the book. It was, rather, my reaction to the recent congressional restrictions on transfers from . . .
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Marc Thiessen Responds

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Friday, February 25, 2011 at 6:45 AM

The other day, in response to this column by Marc Thiessen suggesting that Obama should bring more high-value detainees to Guantanamo, I wondered whether Thiessen really understood the gravity of what he was suggesting. Lawfare readers will be relieved to learn that he does.  

John Dehn Responds to Raha Wala Regarding Military Commissions

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Thursday, February 24, 2011 at 9:44 PM

A little while back I posted comments from Raha Wala (Human Rights First) concerning military commissions.  Those comments have spurred the following response from John Dehn (West Point), which appears below: I read Raha Wala’s comments about military commissions last week with a bit of concern.  I am no apologist for military commissions and steadfastly refuse to express any . . .
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The Arrest of a Would-Be Bomber in Texas and the Limited Anticipatory Scope of Criminal Law in Lone Wolf Cases

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Thursday, February 24, 2011 at 11:45 AM

* United States v. Aldawsari (N.D. Tex. Feb. 24, 2011) Authorities have arrested a Saudi national near Lubbock, Texas, charging him with plotting to carry about bombings with IEDs.   The complaint underlying the arrest is here.  This could be an important case from a legal perspective, in the sense that it may turn on the anticipatory scope of . . .
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Does the ICCPR Apply to Detention Ops in Afghanistan? Eviatar Replies and I Respond

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Thursday, February 24, 2011 at 11:16 AM

Yesterday I drew attention to a piece by Daphne Eviatar (Human Rights First) concerning the DRB process for screening detainees in Afghanistan, emphasizing the following passage: Under international law, a detainee in the Afghan armed conflict has the right to challenge the grounds for his detention to an impartial body with authority to enter final . . .
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Eviatar on the DRB process in Afghanistan

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Wednesday, February 23, 2011 at 12:11 PM

In a short piece published at Politico on Monday, Daphne Eviatar (Human Rights First) made a rather bold claim concerning the Detention Review Board process in Afghanistan: Under international law, a detainee in the Afghan armed conflict has the right to challenge the grounds for his detention to an impartial body with authority to enter final decisions on . . .
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Eric Posner: The Threat of Lawfare is Overhyped

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Wednesday, February 23, 2011 at 12:06 PM

In a very interesting essay in the new National Interest, Eric Posner contends that the supposed threat of “lawfare” is much over-hyped.   His concluding paragraph captures the broad outline of his argument: Putting aside the constraints of politics and technology, all that is left of lawfare is the trivial threat of foreign and international law. Internationalists of . . .
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David Remes on the Scalise Amendment

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Wednesday, February 23, 2011 at 11:59 AM

Habeas lawyer David Remes writes with the following comments in response to my post yesterday objecting to the Scalise Amendment: You’re right that Congress shouldn’t bar Ambassador Dan Fried and his staff from resettling or repatriating Guantanamo detainees. I do, however, take issue with one of your points. The point is widely held – even . . .
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New CRS Reports of Note

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Wednesday, February 23, 2011 at 10:13 AM

Thanks to Steven Aftergood of Secrecy News for linking to these new CRS reports: “Amendments to the Foreign Intelligence Surveillance Act Set to Expire February 28, 2011,” February 10, 2011 (note that last week Congress passed a three-month extension of the Amendments). “Intelligence Identities Protection Act,” January 28, 2011. “Closing the Guantanamo Detention Center: Legal Issues,” . . .
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House GOP to Supreme Court: Bring Gitmo Detainees Here

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Wednesday, February 23, 2011 at 7:33 AM

Yesterday, I drew attention to the mindless House amendment designed to zero out funding for State Department efforts to resettle Guantanamo detainees. I have  a proposed name for this amendment: The Let’s Taunt the Supreme Court of the United States into Granting Cert in a Gitmo Case Act (or the Taunt Act for short). Consider . . .
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That’s Not Constructive

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Tuesday, February 22, 2011 at 2:27 PM

House Republicans have seen the enemy, and it is Daniel Fried–the State Department special envoy who has been trotting around the globe for the last two years trying to persuade other countries to help the United States resettled Guantanamo detainees. An amendment to H.R. 1 adopted by the House the other day on a 249 – 179 vote reads . . .
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No Appeal in Al-Aulaqi

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Tuesday, February 22, 2011 at 1:55 PM

The deadline for a notice of appeal of Judge Bates’ ruling in Al Aulaqi came and went a few weeks back with no filing from the ACLU and the Center for Constitutional Rights. In response to my queries, the groups today released the following statement: After consultation with our client, the decision has been made . . .
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D.C. Circuit’s Al Warafi Decision

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Tuesday, February 22, 2011 at 11:50 AM

In just over two weeks following oral argument, the D.C. Circuit today issued its opinion in Al Warafi v. Obama. The panel affirmed Judge Lamberth’s decision in part, but also remanded in part. Al Warafi is the habeas merits case that raised, for the first time, questions about the scope of the government’s detention authority . . .
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Does Marc Thiessen Know What He’s Suggesting?

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Monday, February 21, 2011 at 11:24 PM

In a column today in the Washington Post, Marc Thiessen suggests that it’s time for Obama to revitalize Guantanamo: In fact, Obama administration is quietly beginning to ramp up operations at Guantanamo. While White House officials continue to assert that the president is committed to closing the facility, their actions speak otherwise. President Obama barely . . .
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