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Monthly Archives: June 2011

Additional Details on the CIA-Interrogation Investigations

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Thursday, June 30, 2011 at 5:13 PM

Carrie Johnson at NPR posts (who knew that NPR reporters were blogging?  This is really great stuff – add Carrie to your RSS feed) some important additional details.  First, she confirms that there is still an open thread in the tape-destruction component of Durham’s investigation: specifically, possible false statement charges involving one person.  Second, she . . .
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DOJ Announces Full Criminal Investigation Into Deaths of Two Detainees In Relation to CIA Interrogation

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Thursday, June 30, 2011 at 2:51 PM

A dramatic announcement just now from the Justice Department, concerning the outcome of the Durham Investigation into CIA interrogation practices.  It is unclear from the context whether that investigation continues with respect to the destruction of interrogation videotapes, though the statement below might be read to suggest that the matter has been closed without concluding . . .
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JSOC Drone Strike on al-Shabab in Somalia and the Underlying War Powers Issue

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Thursday, June 30, 2011 at 10:44 AM

The Washington Post reports this morning that JSOC recently carried out a drone strike in Somalia, targeting two al-Shabab leaders.  The piece emphasizes that the Administration has recently highlighted al-Shabab in public statements, warning that al-Shabab is growing increasingly focused on carrying out attacks outside Somalia, rather on the model of AQAP.  Indeed, the piece . . .
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Today’s Headlines and Commentary

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Thursday, June 30, 2011 at 9:49 AM

A slow news day in the department of Hard National Security Choices. The Washington Post is reporting that White House counterterrorism chief John O. Brennan, speaking at SAIS, unveiled President Obama’s national strategy for counterterrorism. He called it “neither…a wholesale overhaul, nor a wholesale retention, of previous policies.” The LA Times is also covering this . . .
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The Administration’s Strategic Errors–And Some Free Advice

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Thursday, June 30, 2011 at 9:26 AM

As things stand now, the National Defense Authorization Act could end up being a disaster for the Obama administration on detainee matters. Much of the fault for this lies with Congress, a bipartisan majority of which insists upon injecting reckless and irresponsible detainee-related policy ideas into what should be a careful effort to craft long-term . . .
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Marty Lederman’s analysis of Lugar amendment to Kerry-McCain resolution

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Wednesday, June 29, 2011 at 11:56 AM

Marty Lederman offers this analysis over at Balkinization of two critical amendments proposed by Senator Richard Lugar and adopted by the Senate Foreign Relations Committee yesterday. Lederman points out that the first of Lugar’s amendments would legally restrict the use of ground forces, which goes further than the language in the original Kerry-McCain resolution. The second of . . .
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What Would We Do With Detainees Captured Outside Afghanistan? Must-Read Testimony from McRaven and Allen on Counterterrorism Policy

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Wednesday, June 29, 2011 at 10:43 AM

[UPDATE: See here for a clarification; contrary to my original read below, it appears Admiral McRaven did not mean for the list of disposition options to refer to non-AUMF scenarios] While many eyes were on Senate Foreign Relations Committee’s WPR hearing yesterday,  the Senate Armed Services Committee hearing relating to the nominations of Admiral McRaven . . .
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Today’s Headlines and Commentary

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Wednesday, June 29, 2011 at 10:37 AM

In connection with Harold Koh’s testimony regarding American intervention in Libya yesterday–which Bobby discussed here and here–NPR’s Carrie Johnson reported on Koh’s path to his current views here. The New York Times‘ Jennifer Steinhauer, meanwhile, reports on the Senate Foreign Relation Committee’s successful vote authorizing American intervention in Libya (it passed 14-to-5), as well as on Koh’s testimony . . .
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Posner and Vermeule on OLC and Libya

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Tuesday, June 28, 2011 at 3:58 PM

Eric Posner and Adrian Vermeule have an essay in Slate that argues that it was appropriate for President Obama to ignore OLC’s advice related to the War Powers Resolution.  The thrust of their argument, which contrasts sharply with Trevor Morrison’s recent argument, is that “[t]here is no reason that the president — the sole officer . . .
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Koh’s Written Testimony on the WPR: Arguably Defeating the Section 8(c) Argument, but Struggling with the “Armed Conflict=Hostilities” Argument

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Tuesday, June 28, 2011 at 3:48 PM

Harold Koh’s written testimony in connection with today’s SFRC hearing on the WPR and Libya is now available. [Update: Testimony from Lou Fisher is here.  Testimony from Peter Spiro is here.]  It is much the same as the oral presentation this morning, of course, including the emphasis on four conditions of constraint that undergird the analysis . . .
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An Overview of Harold Koh’s Testimony on the WPR at Today’s SFRC Hearing

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Tuesday, June 28, 2011 at 11:48 AM

For the benefit of those who could not watch the SFRC hearing this morning on Libya and the WPR, here are highlights from the oral testimony from State Department Legal Advisor Harold Koh (the written testimony is not yet publicly available, but we will post it shortly). Koh’s opening statement: The word “hostilities,” which is . . .
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Today’s Headlines and Commentary

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Tuesday, June 28, 2011 at 10:33 AM

Bobby covered this DOJ press release announcing that Justin Cannon, the Blackwater contractor who was convicted in March of involuntary manslaughter for the 2009 shooting and killing of an Afghan man in Kabul, received a 30 month sentence. The Miami Herald covers the story here. Politico reports that the Supreme Court declined an appeal by . . .
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Peter Margulies on Koh on the WPR (at the Naval War College Last Week)

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Tuesday, June 28, 2011 at 10:17 AM

The following is a guest post from Peter Margulies (Roger Williams Law), reporting highlights from the Naval War College’s International Law Conference 2011 (“Non-International Armed Conflict in the 21st Century”).  Note in particular the exchange relating to whether U.S. Command of NATO implicates the WPR via section 8(c), and whether the language of section 8(b) . . .
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Thirty-Month Sentence for a Blackwater Contractor Who Shot and Killed an Afghan Man in Kabul in 2009

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Monday, June 27, 2011 at 11:45 PM

File this under the heading of the ever-popular topic of whether there is any legal accountability for contractors on the battlefield… A thirty-month sentence today for Justin Cannon, a Blackwater contractor who was convicted in March of involuntary manslaughter in relation to the shooting of an Afghan national in Kabul in 2009.  From the DOJ . . .
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Must-See TV War Powers Edition: Koh Testifying Before SFRC Tuesday Morning at 10 Eastern

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Monday, June 27, 2011 at 5:12 PM

Well, this is going to be interesting, and probably more than a little tense.  State Department Legal Advisor Harold Koh will testify tomorrow morning, at 10 eastern (in theory), before the Senate Foreign Relations Committee.  Watch it here.  And be sure to prepare by reading Josh Rogin’s handy account of the status of the Kerry/McCain . . .
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Understanding the CMCR’s Hamdan Opinion and the Uncertain Future of Material Support Charges in Commission Proceedings

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Monday, June 27, 2011 at 3:38 PM

The en banc decision of the Court of Military Commission Review (“CMCR”) in United States v. Hamdan concludes that it was constitutional for Congress to make material support for terrorism an offense triable by military commission.  This won’t be the last word on the question; the next stop is the D.C. Circuit, and perhaps after . . .
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Today’s Headlines and Commentary

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Monday, June 27, 2011 at 10:37 AM

In the Washington Post over the weekend, Peter Finn and Del Quentin Wilber survey the evolving legal landscape that is being created in Guantanamo detainee cases, complete with a quotation from Ben. The Eurasia Review has this Andy Worthington op-ed on the subject. He argues that the judges deciding Guantanamo cases will keep the detention . . .
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David Remes on NDAA Transfer Provisions

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Monday, June 27, 2011 at 7:00 AM

Habeas lawyer David Remes writes in with the following comments on the transfer provisions of both the House and Senate NDAA language: From my standpoint as a Guantánamo habeas lawyer, the detainee transfer provisions of H.R. 2219 (§ 8124) and S. 1253 (§§ 1032, 1033) are irredeemably flawed, and for the vast majority of detainees, redundant.  The . . .
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Trevor Morrison on Senate NDAA Language

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Monday, June 27, 2011 at 6:53 AM

Columbia law professor Trevor Morrison sent the following email over the weekend concerning one of my posts on the Senate NDAA language. In essence, Trevor suggests that I am over-reading the provision, and he homes in on the effective date language to argue that the language, if passed, might not actually encumber FBI operations in . . .
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Another Busy Week for DOJ on the Terrorism Prosecution Front: Seattle, Cleveland, Germany, Columbia

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Monday, June 27, 2011 at 1:18 AM

Last week was a busy one for federal prosecutors in terrorism-related cases (though not atypically so).  There were at least four major developments worth highlighting, most of them largely under the national media’s radar.  The details, culled from DOJ press releases, appear below: The first case involves charges in an alleged plot to attack a military . . .
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