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Monthly Archives: December 2011

The NDAA: The Good, the Bad, and the Laws of War–Part II

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Saturday, December 31, 2011 at 4:48 PM

By Marty Lederman and Steve Vladeck* [Cross-posted at OpinioJuris] Section 1021 of the NDAA and the Laws of War In our companion post, we explained that section 1021 of the NDAA will not have the dramatic effects that many critics have predicted–in particular, that it will not affect the unresolved question of whether the 2001 Authorization . . .
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The NDAA: The Good, the Bad, and the Laws of War–Part I

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Saturday, December 31, 2011 at 4:43 PM

By Marty Lederman and Steve Vladeck* [Cross-posted at OpinioJuris] Editorial pages and blogs have been overrun in the past couple of weeks with analyses and speculation about the detainee provisions in the National Defense Authorization Act, which the President has just signed into law.  One of the major disputes concerns whether and howi the NDAA . . .
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President Obama Signs NDAA Into Law…

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Saturday, December 31, 2011 at 3:35 PM

According to the AP, President Obama signed H.R. 1540, the National Defense Authorization Act, into law this morning in Hawaii. Below the fold is the text of the signing statement accompanying the bill:

Ninth Circuit Upholds Telecom Immunity for Warrantless Wiretapping but Permits Suit Against Government

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Saturday, December 31, 2011 at 12:04 AM

As Raffaella mentioned earlier, the Ninth Circuit released three opinions on Thursday relating to class action litigation against the government and major telecommunications companies (AT&T, Verizon, etc.) for the warrantless wiretapping program conducted by the National Security Agency (NSA) under the Terrorist Surveillance Program (TSP) in the wake of September 11. The main opinions are: . . .
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Today’s Headlines and Commentary

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Friday, December 30, 2011 at 12:08 PM

A generally light news day. Charlie Savage has this terrific piece in the New York Times on the GOP presidential candidate’s views on executive power, based on their responses to a Times survey. The Times is collecting and posting each candidate’s responses to questions over executive power online.  The answers show that most of them see the . . .
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Do Military Commission Defendants Have a Sixth Amendment Right to Counsel?

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Thursday, December 29, 2011 at 6:39 PM

There’s been a fair amount of media and blog attention to the proposed new rules governing (and substantially widening) the government’s access to communications between military commission defendants and their counsel. The draft order (courtesy of the Miami Herald) is here; the AP story is here; the ABA’s letter of protest to Secretary Panetta is . . .
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Today’s Headlines and Commentary

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Thursday, December 29, 2011 at 12:08 PM

Headlines and Commentary took a short respite despite the plethora of goings-on this past week, so brace yourself for a lengthy news roundup today, as we go over some of the stuff you may have missed. Two French soldiers were shot and killed by a man wearing an Afghan army uniform, and shortly thereafter a roadside . . .
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America the Vulnerable: Inside the New Threat Matrix of Digital Espionage, Crime, and Warfare

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Wednesday, December 28, 2011 at 5:13 PM

Joel Brenner’s America the Vulnerable offers the best general-interest treatment I have yet read of this country’s cyber-vulnerabilities. It is elegantly argued, teeming with facts and illuminating anecdotes, sophisticated about technology, and all written with an insider’s understanding of the intelligence community. Brenner’s thesis, that the United States has made itself enormously vulnerable with its . . .
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Al Kandari Files Petition for Rehearing En Banc

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Wednesday, December 28, 2011 at 11:49 AM

Fayiz Mohammed Ahmed Al-Kandari has filed a petition for rehearing en banc with the D.C. Circuit Court in his case against the U.S. His singular question is whether the Federal Rules of Evidence apply to habeas corpus cases brought by Guantanamo detainees. The D.C. Circuit decided his case earlier this month, after cancelling oral arguments. . . .
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Greg Miller’s Overview of Drone Program Developments Under Obama

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Tuesday, December 27, 2011 at 11:06 PM

I’m taking a break from de-ornamenting my Christmas tree (or, more accurately, spreading an astonishing number of dried-out pine needles around my living room) to draw attention to this very interesting piece from Greg Miller at the Washington Post (assissted by Julie Tate).  It’s a very handy overview of developments over the past three years in relation to drone . . .
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Signing Statement on the Budget Bill

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Sunday, December 25, 2011 at 9:04 AM

A dispatch from the Lawfare North Pole: the White House seems to be using more aggressive language, in opposing Congress’s recent efforts to limit the executive branch’s authority over detainee affairs. Two days ago, the Administration released a statement on the President’s views regarding H.R. 2055, the Consolidated Appropriations Act of 2012 – also known . . .
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Civil Suit By Ex-Gitmo Detainee Dismissed

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Saturday, December 24, 2011 at 5:58 PM

On Thursday, Judge Richard Leon of the U.S. District Court in D.C. issued a little-noticed decision granting dismissal in Al Janko v. Gates. The case is noteworthy, however, because Al Janko–unlike other former detainees who have filed civil suits–“is the first detainee who was released pursuant to a successful habeas petition to seek damages for acts . . .
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Making Avian Influenza As Contagious as Seasonal Flu

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Friday, December 23, 2011 at 5:56 PM

In September, a team of Dutch virologists announced that they had created a strain of the avian influenza (H5N1) that, at least in lab animals, was as contagious as the seasonal flu. (A team at the University of Wisconsin-Madison has obtained similar results.) Unlike the seasonal flu, however, H5N1 has a mortality rate of around . . .
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Cully Stimson on the Daqduq Situation

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Friday, December 23, 2011 at 11:23 AM

Cully Stimson of the Heritage Foundation, who served as deputy assistant secretary of defense for detainee affairs between 2006 and 2007, writes in with the following thoughtful essay about the Daqduq case: There is an old saying that only the toughest issues make it to the President’s desk.  And when those issues get to his . . .
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Covering NSL Issues in First-Year Constitutional Law

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Thursday, December 22, 2011 at 4:55 PM

With the next semester quickly approaching, I’m going through the annual struggle to decide just how much I want to cover current (national security) events in my first-year Constitutional Law course. This is always difficult for me for several reasons, including (1) how jam-packed my syllabus already tends to be (I’m charged with covering virtually . . .
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New York Times Files Suit Against DOJ in Pursuit of al-Aulaqi Memo

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Thursday, December 22, 2011 at 4:51 PM

The New York Times and columnists Charlie Savage and Scott Shane have filed suit under the Freedom of Information Act against the Department of Justice for access to the OLC memo authorizing the targeted killing of Anwar Al-Aulaqi. Read the filing here (which quotes our own John Bellinger and Jack Goldsmith, and also quotes from John O. . . .
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Stephen Voss Responds to Our FAQ

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Thursday, December 22, 2011 at 4:25 PM

Stephen Voss, a philosophy professor at Bogazici University in Istanbul, writes in with the following response to Bobby’s and my NDAA FAQ: The current NDAA contains, in section 1021, legislation that may drastically expand the government’s detention authority. The question is without doubt grave: I suspect that we may be viewing the end of the . . .
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David Glazier on Past and Future Prosecution Options for Daqduq

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Thursday, December 22, 2011 at 11:46 AM

David Glazier (Loyola Los Angeles) writes in with the following guest post in response to my earlier musings on the distribution of blame for the outcome in the Ali Musa Daqduq case: I think the analysis of who bears the blame for “the Daqduq mess” overlooks perhaps the most culpable parties – senior U.S. military . . .
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Joanne Mariner on the NDAA

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Thursday, December 22, 2011 at 8:21 AM

Joanne Mariner of Hunter College’s Human Rights Program, writing at Justicia.com, has this lengthy analysis of the NDAA from a human rights and civil liberties point of view. It is the first half of a two-part series.

Speaking of Parody Videos…

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Wednesday, December 21, 2011 at 10:38 PM

…this one from The Onion is not quite up to their usual standards, but it has a few smiles in it. Al Qaeda Attacks Internet With Photo Of Adorable Piglet