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Posts by John Bellinger

John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter LLP in Washington, DC. He is also Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009, as Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the White House from 2001–2005, and as Counsel for National Security Matters in the Criminal Division of the Department of Justice from 1997–2001. Full bio »

At Last, a Legal Adviser Nominee!

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Thursday, September 18, 2014 at 11:01 PM

This afternoon, President Obama finally nominated a new State Department Legal Adviser — Brian Egan, who currently serves as Deputy Counsel to the President and NSC Legal Adviser.  Here is Brian’s bio: Brian James Egan is Legal Adviser to the National Security Council and Deputy Assistant to the President and Deputy Counsel to the President at . . .
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The Administration Should Explain Its International Legal Basis to Attack ISIL in Syria

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Saturday, September 13, 2014 at 4:25 PM

Over the last several days, Administration officials have tried valiantly to explain the Administration’s surprising 11th hour discovery that the 2001 AUMF and indeed the 2002 AUMF provide a domestic law basis for the U.S. use of force in Iraq and Syria. The abrupt volte-face in the Administration’s domestic legal position has been the subject of . . .
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Judge Scheindlin Dismisses Remaining ATS Claims Against Ford and IBM in Long-running Apartheid Litigation

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Saturday, August 30, 2014 at 1:44 PM

As Lawfare readers may have seen from press reports, on Thursday, SDNY Judge Shira Scheindlin dismissed the Alien Tort Statute suit against Ford Motor Company and IBM in connection with their business activities in Apartheid-era South Africa, thus ending the granddaddy of all ATS litigation and what may have been the largest, longest-running, and most . . .
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Second Circuit Affirms Official Acts Immunity for Pakistani ISI Chiefs; Rejects Jus Cogens Exception

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Friday, August 29, 2014 at 2:28 PM

In a summary order yesterday, a panel of the Second Circuit affirmed the dismissal by EDNY Judge Dora Irizarry of an Alien Tort Statute suit against two former directors of the Pakistani Inter-Services Intelligence Directorate alleged to have been complicit in the 2008 Mumbai bombing, based on a Suggestion of Immunity provided by the Executive . . .
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DC District Court Fails to Recognize Official Acts Immunity for Former Indian Prime Minister

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Sunday, August 24, 2014 at 1:36 PM

On August 19, Judge Boasberg of the DC District Court ruled that former Indian Prime Minister Manmohan Singh enjoys immunity from suit for alleged human rights abuses of Sikhs in India while he was Prime Minister from 2004 to 2014, based on a Suggestion of Immunity submitted by the Executive branch. But the court held . . .
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Squaring a New AUMF for ISIL with the President’s NDU Speech…

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Saturday, August 23, 2014 at 1:57 PM

As Bobby has noted, Karen DeYoung of the Washington Post is reporting that the Administration is now considering more seriously whether to ask Congress for authorization to use military force against the Islamic State.  Jack has argued persuasively why it would make sense for the President to seek a congressional mandate. And it is worth noting . . .
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So Where Do War Powers Reports Come From?

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Tuesday, August 19, 2014 at 11:26 PM

Over the last nine weeks, President Obama has sent five war powers notices to Congress in what may be the most concentrated period of Presidential war powers reporting in history.  These notices include four notices regarding Iraq (on June 16 and June 30, and August 8 and 17) and one notice regarding Libya (on July 27). So, . . .
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The “Economist” On Lawfare Against the British Military

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Monday, August 18, 2014 at 2:23 PM

Last week’s Economist had an excellent article about lawfare against Britain’s Ministry of Defence relating to actions of the British military in Iraq and Afghanistan entitled “Lawyers to right of them, lawyers to left of them: The army increasingly feels under legal siege.”  The entire article is worth a read (especially by U.S. JAGs), but here are . . .
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The Administration Needs a Confirmed Legal Adviser

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Monday, July 28, 2014 at 10:25 AM

Six months ago today, I wondered aloud on this blog when President Obama might nominate a new Legal Adviser.   At that point, the position had been vacant for over a year since Harold Koh stepped down in January 2013.  The Administration has now been without a Legal Adviser and the Legal Adviser’s office has been . . .
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Two New ATS Decisions: Fourth and Eleventh Circuits Split on Whether Claims Against CACI and Chiquita “Touch and Concern” the Territory of the United States

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Sunday, July 27, 2014 at 8:53 PM

While Lawfare readers have been focused on other parts of the world, federal appellate courts have recently issued two significant, and potentially conflicting (in result, if not reasoning), decisions interpreting the extraterritorial reach of the Alien Tort Statute in light of the Supreme Court’s Kiobel decision.   In June, a Fourth Circuit panel reversed the dismissal . . .
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Report of the Stimson Center Task Force on Drone Policy

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Thursday, June 26, 2014 at 3:27 PM

The Stimson Center released today the report of its Task Force on US Drone Policy.  The ten-member task force, of which I was a member, was chaired by General John Abizaid and Rosa Brooks.   The report makes eight recommendations for overhauling US drone strategy; improving oversight, accountability, transparency and clarifying the international legal framework applicable . . .
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I Agree: Abu Khattala Belongs in Federal Court

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Wednesday, June 18, 2014 at 10:25 AM

I want to pile on briefly to Jack’s and Ben’s support for prosecuting Ahmed Abu Khattala in federal court for violation of U.S. criminal laws. I have pointed out for many years that civil liberties groups have been disingenuous in suggesting that every individual detained or turned over to the U.S. military in Afghanistan in . . .
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The Bergdahl Swap: Who Kicked Off the “Political Football” Game?

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Friday, June 6, 2014 at 10:23 AM

President Obama complained yesterday that Sergeant Bergdahl is “not a political football.”   That should be true, but unfortunately President Obama is responsible for kicking off the football game by announcing the Taliban-Bergdahl swap in a Rose Garden appearance, rather than leaving the announcement to Secretary Hagel and Chairman Dempsey.  The White House should not be . . .
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Released Taliban Detainees: Not So “Innocent” After All?

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Sunday, June 1, 2014 at 8:28 AM

Today’s Washington Post contains an interesting article about the backgrounds of the five released Taliban detainees entitled “Freed prisoners were battle-hardened Taliban commanders.” According to the Post, “One of the freed men was the head of the Taliban’s army. Another arranged for al-Qaeda trainers to visit Afghanistan. Another has been implicated by the United Nations . . .
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Samantar Again Seeks Supreme Court Review

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Sunday, May 11, 2014 at 12:10 PM

For the third time in five years, the Samantar case is back before the Supreme Court. On May 5, former Somali Defense Minister Mohamed Ali Samantar again petitioned for certiorari, after the Fourth Circuit dismissed his appeal of Judge Brinkema’s final judgment in the long-running ATS and TVPA suit against him for human rights violations committed . . .
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U.N. Security Council Referral of Syria to the International Criminal Court?

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Thursday, May 8, 2014 at 2:45 PM

The New York Times reports that France has drafted a U.N. Security Council resolution referring the “situation” in Syria to the International Criminal Court that has been tailored “specifically to address American sensitivities” about the ICC. The Bush and Obama Administrations negotiated similar compromises when they agreed to Security Council referrals of human rights violations . . .
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Kiobel Anniversary Surprise: Judge Scheindlin Rules Corporations May Be Held Liable Under ATS, Despite Second Circuit Precedents

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Saturday, April 19, 2014 at 2:39 PM

In a surprising decision issued on the first anniversary of the Supreme Court’s decision in Kiobel, Judge Scheindlin held, in the long-running Apartheid litigation, that corporations may be sued under the Alien Tort Statute.  Her decision directly conflicts not only with the Second Circuit’s original 2010 decision in Kiobel (holding that corporations are not subject . . .
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The Aboutalebi Visa Denial: U.S. Law and Historical Precedents

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Sunday, April 13, 2014 at 4:11 PM

President Obama’s decision to deny a visa to Iran’s would-be Ambassador to the United Nations, Hamid Aboutalebi, is based on U.S. law dating back to 1947 and has numerous historical precedents.  Although the U.N. and other countries have occasionally criticized the U.S. for refusing to grant visas to individuals to come to the U.N., it . . .
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A Further Response to Ryan Goodman on an Alleged Extraterritorial Right to Privacy

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Wednesday, April 2, 2014 at 10:22 AM

Continuing our dialogue about whether the ICCPR places limits on electronic surveillance by a state outside of its own territory, Ryan Goodman has posted a lengthy response to my response to his post about my PCLOB testimony last month.  His arguments deserve a longer response (and I hope some other Lawfare contributors may also respond), . . .
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A Reply to Ryan Goodman on the Application of the ICCPR to NSA Surveillance

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Sunday, March 30, 2014 at 3:05 PM

In a post at Just Security on Thursday, my friend Ryan Goodman takes issue with my testimony before the Privacy and Civil Liberties Board, in which I said that even if the U.S. Government agreed that the ICCPR applies outside the territory of the United States, the ICCPR would still not apply to NSA surveillance . . .
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