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Monthly Archives: October 2011

Lawfare Traffic Report

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Wednesday, October 26, 2011 at 12:30 PM

For those who care about this site’s traffic data (people ask me about it sometimes): According to Google Analytics, yesterday was the highest-traffic day in the history of Lawfare–with nearly 10,400 people visiting the site. This beat out a previous record of just over 9,400, set on July 17. In addition, this month has shattered . . .
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Today’s Headlines and Commentary

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Wednesday, October 26, 2011 at 12:16 PM

Happy 10th birthday to the Patriot Act! Carrie Johnson at NPR celebrates the big day with a look at the the still-controversial legislation and an interview with Nicholas Merrill, who challenged a gag order issued in connection with a national security letter — and won the limited right to discuss the matter. Merrill himself has an op-ed in . . .
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Oral Argument Preview in Lebron v. Rumsfeld (Padilla’s Bivens Suit)

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Tuesday, October 25, 2011 at 10:37 PM

Tomorrow, the U.S. Court of Appeals for the Fourth Circuit will hear oral arguments in Lebron v. Rumsfeld, in which Jose Padilla and his mother, Estella Lebron, appeal a district court’s dismissal of a Bivens claim against former Secretary of Defense Donald Rumsfeld and other high-level government officials for alleged civil rights violations arising out of . . .
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Scott Horton on the “Pyrrhic” Victory Over Gaddafi [UPDATED]

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Tuesday, October 25, 2011 at 9:43 PM

Scott Horton has a thoughtful essay at Foreign Policy that argues the fall of Gaddafi should be seen “through the lens of the law” as a “Pyrrhic” victory.  From the domestic law perspective, Horton maintains that because of the administration’s contortions of the War Powers Resolution, the Libya campaign is “another vindication of executive war-making . . .
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UK Green Paper on Justice and Security

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Tuesday, October 25, 2011 at 3:54 PM

The British government released a green paper on justice and security a few days ago — entitled, appropriately enough, the “Justice and Security Green Paper.” The full text is available here.  For a briefer summary, here is the statement delivered by Lord Chancellor and Secretary of State for Justice Kenneth Clarke on October 19. For executive summary . . .
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An Apology: Alsabri

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Tuesday, October 25, 2011 at 2:26 PM

I’m afraid I owe Lawfare readers an apology. Because of a calendar foul-up, I missed yesterday’s D.C. Circuit argument in Alsabri v. Obama, a Guantanamo habeas case–nor did I write an oral argument preview. The briefs, however, are available here.

Today’s Headlines and Commentary

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Tuesday, October 25, 2011 at 12:19 PM

The AP and the AFP have the story of Abd al-Nashiri, the main suspect in the USS Cole bombing, whose trial Bobby discusses here. The AP reports that top Democratic leaders have written to Senate Majority Leader Harry Reid opposing provisions in the NDAA that require military custody of terrorist suspects and limit the government’s authority . . .
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McKeon Letter to Obama on Detainee Provisions of the NDAA

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Tuesday, October 25, 2011 at 12:12 PM

Here is the latest salvo in the debate relating to the NDAA provisions relating to detainees: Last week Chairman McKeon sent this 7-page letter to the White House responding to the administration’s earlier Statement of Administration Policy (“SAP”) criticizing the detention-related provisions in the pending bills.    

Historical Examples of Remand to Military Detention After Commission Prosecution

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Tuesday, October 25, 2011 at 10:23 AM

Yesterday I asked whether there are any historical examples in which (i) a military commission prosecution occurred during an armed conflict rather than afterwards, (ii) the defendant was acquitted, and (iii) the defendant was nonetheless remanded back to military custody to be detained under color of the law of war.  I’m happy to hear from . . .
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Meta-Correction

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Tuesday, October 25, 2011 at 9:24 AM

May God bless their little souls. The poor dears really are trying. The New York Times editorial page has now corrected its correction. This is getting meta, and this post will be incomprehensible to those have not read my earlier post and updates concerning the Times‘ Sunday editorial and its factual difficulties. But here goes. After first correcting one error (the . . .
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Al-Nashiri’s Motion on Potential Post-Acquittal Detention

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Monday, October 24, 2011 at 4:11 PM

The defense in United States v. al-Nashiri (the next military commission proceeding set to come to trial) has moved for an order (see the second entry under al-Nashiri, # AEO11) obliging the government to declare whether it would continue to hold al-Nashiri in military custody in the event of an acquittal in his military commission . . .
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A Call for Debate on the Merits of the Mandatory Military Custody Provision of the NDAA

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Monday, October 24, 2011 at 3:41 PM

The latest public development in the long-running fight over the detention provisions in the National Defense Authorization Act occurred last Friday when a group of 13 Senate Democrats (all the Democrats on SSCI and some but not all from Judiciary) wrote this letter to Senator Reid urging him not to bring the Senate version of the NDAA FY’12 . . .
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Today’s Headlines and Commentary

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Monday, October 24, 2011 at 11:46 AM

Secretary of State Hilary Clinton staunchly defended the Iraq withdrawal on several Sunday talk shows; her remarks on ABC’s The Week are available here, beginning at minute 6:54.  However, President Obama’s announcement was met with harsh criticism from many quarters, reports William M. Welch of USA Today. An editorial in the Washington Post argues that: . . .
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The Coming Wave of War Crime Prosecutions in Libya

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Monday, October 24, 2011 at 10:58 AM

An interesting story in the Post this weekend draws attention to the fact that about 7,000 detainees currently are held without criminal charge in various locations throughout Libya, and with varying degrees of accountability to the transitional government authorities.  The story quite properly focuses on the conditions of their confinement, noting the allegations of torture . . .
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Unsporting to Shoot Fish in a Barrel?

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Monday, October 24, 2011 at 8:03 AM

Over at the Volokh Conspiracy, Kenneth Anderson writes of my post yesterday, “What should most concern the Times are the couple of emails I’ve received from several eminent professors, smart and intellectually scrupulous folks whose opinion I value a lot, deeply committed progressives, who have asked that I urge Wittes to greater restraint, because it’s . . .
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The New York Times Runs a Correction on an Editorial!

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Sunday, October 23, 2011 at 10:34 AM

I awoke this morning to a genuine marvel: An actual real-live correction to a New York Times editorial on a national security issue. It reads as follows: This article has been revised to reflect the following correction: Correction: October 22, 2011 An earlier version of this editorial misattributed the authors of the Senate measure. It . . .
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Today’s Headlines and Commentary

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Friday, October 21, 2011 at 4:02 PM

Ongoing developments in Libya continue to generate abundant news. Most notably, the United Nations has called for an inquiry into Qaddafi’s death, reports Nick Cumming Bruce of the New York Times. Also, questions regarding the leader’s burial have caused friction within the country, say Kareem Fahim and Rick Gladstone of the Times. Spencer Ackerman of . . .
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Josh Gerstein on the Ayotte Amendment

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Friday, October 21, 2011 at 2:25 PM

The invaluable Josh Gerstein of the Politico offers these important pieces of the legislative politics puzzle surrounding the Kelly Ayotte amendment, which I wrote about here and here: The vote, taken just after 1 a.m. Friday, broke largely along party lines with most Republicans backing Ayotte’s proposal and most Democrats opposing it. The outliers were Sens. Ben Nelson (D-Nebraska) . . .
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As We Leave Iraq, What About Daqduq?

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Friday, October 21, 2011 at 1:13 PM

As you probably have heard already, negotiations to extend the U.S. troop presence in Iraq beyond the end of this year have officially foundered, in the face of opposition from the Sadrists in general and disagreement over immunity from Iraqi criminal law in particular.  One suspects that a deal may yet be worked out in . . .
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Thoughts on Ken Anderson’s Post on the CIA Drone Program

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Friday, October 21, 2011 at 11:59 AM

Over at Opinio Juris, Lawfare Book Review Editor Ken Anderson raises a series of important questions about the CIA drone program.  In that post, Ken very kindly notes the relationship of these questions to my Title 10/Title 50 project, and asks me to weigh in.  My thoughts appear below, after short restatements of the 8 . . .
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