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Posts by Benjamin Wittes

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books and a member of the Hoover Institution's Task Force on National Security and Law. For speaking information and for a larger collection of his work, see his Full bio »

Lawfare Podcast, Episode #89: Bone-Crushing Zombie Action

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Saturday, August 30, 2014 at 10:24 AM

Here at Lawfare, we try to spot critical legal issues impacting national security before they’re really upon us . . . and eating our brains. Too often, American policymakers have not taken emerging threats seriously, only to find themselves on the wrong side of finger-pointing national commissions after tragedy strikes. Underreaction to threats prospectively often . . .
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The Case for a Broader ISIS AUMF

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Thursday, August 28, 2014 at 3:33 PM

Like all red-blooded national security law nerds, I have been following Jack’s excellent posts over the past week on the politics and the advisability of a potential ISIS AUMF—the last of which post, which ran yesterday, offered strategies for narrowing a potential authorization to make it more politically doable. Jack writes: “One way to make an IS . . .
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U.S. News Gets it Wrong on Guantanamo and Foley’s Killer

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Tuesday, August 26, 2014 at 11:27 AM

If terrorist capture comes, can a debate over Guantanamo vs. federal court be far behind? Apparently not. This time, the debate is coming even before the terrorist’s capture—or even his positive identification. And U.S. News and World Report, at least, is getting the answer wrong. The magazine reports that “Legal experts say it’s possible the jihadist who beheaded American . . .
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Note to Law Students: Buy Your Textbooks on Lawfare

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Monday, August 25, 2014 at 12:06 PM

It’s that time of year where law students buy textbooks. If you’re buying textbooks, please consider doing so using the Amazon search box on Lawfare. Every time you buy things using that box, Lawfare gets financial support from Amazon. When you buy big-ticket items like expensive text books, the money actually adds up. It’s a great way . . .
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Of Ice Buckets and Dollars: A Challenge

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Monday, August 25, 2014 at 12:02 PM

I return from Iceland to find that untold numbers of apparently-sane people are pouring ice water over their heads to raise money for a disease of which many of them had only the dimmest prior awareness. And I think to myself: Why is nobody pouring water over his head to raise money for Lawfare? We, after all, need to raise . . .
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Abdul Razak Ali Replies to His Own Cert Petition

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Saturday, August 23, 2014 at 4:00 PM

Here’s a novelty: Guantanamo detainee Abdul Razak Ali—whose case we have written about a fair bit—has filed a reply brief in response to his own cert petition. Here’s how it opens: Petitioner Abdul Razak Ali respectfully submits this reply brief in further support of his petition for certiorari with respect to the Decision and Order of the . . .
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Administration Response to GAO Report on Bergdahl

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Saturday, August 23, 2014 at 12:00 PM

Here’s the government’s response to the GAO report, to which Wells linked yesterday, concluding that the Bergdahl trade violated the law. A statement from Pentagon Press Secretary Rear Admiral John Kirby reads: As Secretary Hagel has testified before Congress, the recovery of SGT Bergdahl was conducted lawfully. This decision was made after consultation with the Department . . .
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The New York Times Equivocates on Ransoms

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Friday, August 22, 2014 at 3:38 PM

“There is no simple answer on whether to submit to terrorist extortion,” editorializes the New York Times today. Actually, there is a right answer—and it’s a relatively simple one. As the editorial acknowledges in the next sentence, “The United States and Britain refuse to pay ransoms, and there is evidence that hostage takers target victims . . .
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Snowden Interview with James Bamford

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Thursday, August 21, 2014 at 2:37 PM

Here’s a lengthy interview with Edward Snowden by James Bamford in Wired. There’s very little new in it—though some new details are in there about programs and activities that shocked Snowden while he was at NSA—and the themes are familiar too.

Another Clue on Anwar Al-Aulaqi

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Wednesday, August 20, 2014 at 2:23 PM

A few weeks ago, I wrote a pair of posts analyzing where the notion of imminence comes from in the government’s thinking about targeted killing—and in David Barron’s OLC memo on the Al-Aulaqi strike. In one, I wrote: I am speculating, and I could well be wrong. But I think the source of law for imminence in . . .
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Countries Without Conflicts: Notes from Iceland

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Wednesday, August 13, 2014 at 7:40 PM

It’s hard to imagine a place in the world where one would feel less threatened by geopolitics than Iceland. It’s an island. It’s pretty far from anywhere else. And it has very few people (the entire country has a population of only 330,000). It has not had any kind of real international conflict since the . . .
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DHS Secretary Jeh Johnson Speaking at the ABA Convention

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Saturday, August 9, 2014 at 5:00 PM

At this hour, DHS Secretary Jeh Johnson is speaking at the ABA Convention. Here’s the text of his speech: REMARKS BY SECRETARY OF HOMELAND SECURITY JEH JOHNSON AT THE AMERICAN BAR ASSOCIATION ANNUAL CONVENTION – AS PREPARED FOR DELIVERY Release Date: Aug. 9, 2014 Boston Hynes Convention Center (As prepared for delivery) Introduction Thank you, Elizabeth, . . .
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Another Bad Day for Another Guantanamo Detainee in the Courts

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Thursday, August 7, 2014 at 3:42 PM

This time, it’s Mohammed Al-Adahi (remember him?). The opinion is by Judge Gladys Kessler. It reads in relevant part: Petitioner remains conditionally cleared for release since the action of the [Guantanamo] Task Force. Petitioner alleges that his health has declined so substantially that the possibility of “any significant physical activity—much less any involvement in the hostilities—is virtually impossible ….[T]herefore, no . . .
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My Twitter Exchange with Glenn Greenwald this Morning

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Thursday, August 7, 2014 at 8:39 AM

The thing kind of speaks for itself: [View the story "My Twitter Exchange with Glenn Greenwald " on Storify]

Snowden Residency in Moscow Extended

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Thursday, August 7, 2014 at 7:45 AM

So reports the New York Times: MOSCOW — Edward J. Snowden, the American intelligence contractor who published a raft of secret documents and then fled to Russia, has been granted a three-year residence permit, his lawyer announced Thursday. Anatoly G. Kucherena, the lawyer, told a news conference that Mr. Snowden was not given asylum in Russia, . . .
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Judge John Bates for the AO on Leahy Surveillance Bill

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Wednesday, August 6, 2014 at 8:47 PM

Over at the Wall Street Journal, Siobhan Gorman is reporting on a new letter from the Administrative Office of the U.S. Courts on Sen. Leahy’s FISA reform legislation. Signed by U.S. District Judge John Bates, the AO’s director and former presiding judge of the FISA Court, the letter pulls few punches on the the public advocate provisions . . .
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A Nugget of Real News in General Martins’s Statement

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Monday, August 4, 2014 at 7:36 AM

Last night, Wells posted a statement by Military Commissions Chief Prosecutor Mark Martins about the weeklong Nashiri hearing getting under way today at Guantanamo. The statement contains the following sentence: “I also assess at the present time that there are no additional prosecutions against Guantanamo detainees that would be made possible by the existence in the military . . .
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The Lawfare Podcast, Episode #86: War in Gaza

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Saturday, August 2, 2014 at 1:55 PM

One of the great things about working at the Brookings Institution—and there are many of them—is access to a remarkable range of people knowledgable about whatever happens to be going on in the world. One of the fun things about running this podcast is that I can put such people around a table, record our conversations, . . .
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DecodeDC on the AUMF

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Friday, August 1, 2014 at 9:34 PM

The podcast DecodeDC has a new episode out on the question of the future of the AUMF. It’s largely a pair of interviews with Jennifer Daskal and me. A good introduction to the subject, in my opinion.

On the CIA Inspector General’s Findings

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Friday, August 1, 2014 at 7:12 AM

I have largely refrained, until now, from wading into the dispute between the Senate Intelligence Committee and the CIA over the mutual hacking allegations, on the theory that the facts were all contested and I couldn’t make heads or tails of what had really happened. That changed yesterday with the release of a summary of . . .
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