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Monthly Archives: June 2011

Senate NDAA Thought #2

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Saturday, June 25, 2011 at 6:53 PM

My second thought about the Senate NDAA detainee language concerns Section 1036, which establishes procedures for the status determinations of those held as enemy belligerents for “long-term detention” anywhere in the world. As I argued before, this provision is a bit of a puzzle. There’s a germ of a very good idea here, but the . . .
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Senate NDAA Thought #1

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Saturday, June 25, 2011 at 9:23 AM

The Senate’s NDAA language on detainee matters, about which I have previously written here and here, is now available. I have two additional thoughts on the Senate language–the first of which I will lay out in this post. It concerns Section 1032, the mandatory military detention provision I described–and bewailed–in my earlier post. I want . . .
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Court Military Commission Review, En Banc, Decides Hamdan

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Friday, June 24, 2011 at 8:42 PM

The en banc Court of the U.S. Court of Military Commission Review has ruled here in Hamdan (but not yet in al-Bahlul), affirming the conviction and sentence.  Bobby will have analysis later.

Do Commentators and Congress Treat All of the WPR as Law: The 60-Day Clock, Again

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Friday, June 24, 2011 at 4:56 PM

First, my thanks to Ben, Jack, and Bobby for permitting me to become an affiliated blogger on this terrific site. We are likely soon to get a test of how seriously Congress takes all of the War Powers Resolution (WPR). In particular, is Congress prepared to insist that the 60-day clock provision — thought to . . .
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Trevor Morrison on Libya, Process, and OLC

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Friday, June 24, 2011 at 4:33 PM

Columbia law professor Trevor Morrison has a new essay, posted at SSRN, entitled “Libya, ‘Hostilities,’ the Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation.” Among other things, the paper continues Morrison’s ongoing exchange with Bruce Ackerman (see here and here) regarding the functioning of OLC. I asked Trevor to condense the argument for . . .
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Appellant Brief Available for al Kandari v. Obama

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Friday, June 24, 2011 at 4:06 PM

The appellant’s brief in the case of Fayiz Mohammed Ahmed al-Kandari v. United States is now public. Al Kandari is a Kuwaiti Guantanamo detainee who is seeking to reverse the Judge Colleen Kollar Kotelly’s district court denial of his habeas corpus petition. The brief lists a single question for review: [W]hether the district court’s jurisdiction . . .
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Krauthammer on War Powers

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Friday, June 24, 2011 at 1:04 PM

Charles Krauthammer today argues for “a new constitutional understanding, mutually agreed to by both political branches, that translates the war-declaration power into a more modern equivalent.”  I usually like Krauthammer’s columns but I am not sure this one makes much sense. The new understanding that Krauthammer proposes has three parts. First, we should “formalize the recent . . .
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Could the AUMF be Construed to Encompass Internment of “Non-Military” Members of Organized Armed Groups, Consistent with IHL?

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Friday, June 24, 2011 at 12:18 PM

As Ben notes below, the Khairkhwa decision draws attention to the question whether the substantive scope of detention authority under the AUMF should be construed to extend to a person who is a member of an organized armed group such as the Taliban but who arguably had only non-military functions in the group.  Judge Urbina writes: The . . .
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Today’s Headlines and Commentary

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Friday, June 24, 2011 at 12:07 PM

The cell phone belonging to Osama Bin Laden’s courier, which was recovered in the raid last month, contains critical information about not only bin Laden’s own network, but also about a militant group, Harakat-ul-Mujahedeen, which is an asset of Pakistani intelligence. The New York Times has the story, as does Politico. A letter found among . . .
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The Khairkhwa Decision and Updated Habeas Numbers

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Friday, June 24, 2011 at 7:29 AM

Yesterday’s release of the Khairkhwa decision prompts a few thoughts–and an update to the habeas data. The lengthy (79-page) opinion is an interesting document that, I suspect, will not have a profound impact on many other habeas cases. This case involves a very high-level Taliban guy–who had served as the Taliban’s acting interior minister and . . .
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Memo to Reporters Covering the Mark Martins Appointment

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Thursday, June 23, 2011 at 10:03 PM

For the benefit of reporters writing on the appointment of Brig. Gen. Mark Martins as chief prosecutor of the military commissions–and all others interested in the subject–here are links to the extraordinary series of posts Martins wrote on this blog last autumn. The concern the subject of lawfare and the rule of law operations in . . .
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Mark Martins to be Chief Prosecutor, Military Commissions

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Thursday, June 23, 2011 at 5:38 PM

The Defense Department announced today that Brigadier General Mark Martins, the commander of the Rule of Law Field Force-Afghanistan, will be the Chief Prosecutor in the Office of Military Commissions, beginning around October 1.  This presumably means that Martins will have the lead in prosecuting Khalid Sheik Mohammad and other 9/11 conspirators in U.S. military commissions.  I . . .
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White House Response Paper on AUMF Reauthorization

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Thursday, June 23, 2011 at 5:19 PM

Politico’s Josh Gerstein is reporting: A move by House Republicans to reauthorize the war on terror is unwise because it could foster perceptions that the U.S. is in an endless war with Al Qaeda, the Taliban and similar groups, the White House argues in a legislative position paper obtained by POLITICO. The aggressively-worded White House . . .
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Memorandum Opinion in Khairkhwa v. Obama

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Thursday, June 23, 2011 at 2:47 PM

The D.C. district court has issued an opinion in the habeas case of Khairulla Said Wali Khairkhwa, an Afghan national and former senior Taliban official. Judge Ricardo Urbina denied his petition for a writ of habeas corpus. The opinion begins: This matter comes before the court on the petition for a writ of habeas corpus . . .
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Today’s Headlines and Commentary

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Thursday, June 23, 2011 at 11:24 AM

A light news day today. William Saletan has a new Slate piece about the “new face of a faceless global war.” The Washington Post has coverage of the prison break in Yemen reported yesterday. Charlie Savage and Thom Shanker report that there have been 30 drone strikes and 60 warplane strikes by the United States . . .
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House and Senate NDAA Differences on Transfers

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Thursday, June 23, 2011 at 11:11 AM

I promised earlier this week to explore the differences between the House and Senate language in their respective versions of the National Defense Authorization Act concerning retrictions on transfers of detainees from Guantanamo Bay. I have now had a chance to examine the provisions side by side. The bottom line is that there are a few significant . . .
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Koh on Koh

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Thursday, June 23, 2011 at 6:26 AM

Last Friday I speculated on why Legal Advisor Harold Koh, a leading academic critic of presidential war unilateralism, supported President Obama’s constitutional arguments for the Libya intervention, as well as his restrictive interpretation of the War Powers Resolution.  At about the time I posted those thoughts, Koh was giving a speech at the American Constitution Society . . .
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House Fixes Anti-Libya Bill

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Thursday, June 23, 2011 at 3:38 AM

The Anti-Libya Bill the House of Representatives will consider is here.  The Bill would cut off all funds for the Libya intervention except for specified support operations.  Unlike the Resolution floated earlier (described here), this Bill avoids the Chadha problem and clearly prohibits the air attacks (drones and otherwise) that the Obama administration believes do . . .
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Duke Law Discussion of Theater Detention Operations

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Wednesday, June 22, 2011 at 9:00 PM

Some time back, I spoke at a panel at Duke Law School on detention policy alongside, among others, Michael Gottlieb, who had just completed a fourteen month tour as the top civilian official in Task Force 435 in Afghanistan. As I noted at the time, I found Gottlieb’s remarks especially valuable. Indeed, I have never . . .
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The Legally Useless House Resolution to Stop the Libya Intervention

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Wednesday, June 22, 2011 at 5:32 PM

I realize that the two Libya Resolutions being considered in the House are more for political than legal effect, but the Resolution that seeks to check the President’s Libya intervention is an especially unfortunate vehicle.  It provides in full: CONCURRENT RESOLUTION Directing the President, pursuant to section 5(c) of the War Powers Resolution, to remove . . .
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