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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 »

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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ATS/TVPA Suit Against Cisco Systems Dismissed on Political Question and Act of State Grounds

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Thursday, March 13, 2014 at 9:25 PM

Another belated post: last week, a district court in Maryland dismissed a ATS and TVPA lawsuit filed in 2011 by members of the Chinese Falun Gong a group of Chinese dissidents against Cisco Systems, the California-based Internet technology provider, and its CEO, John Chambers, for allegedly aiding and abetting the arbitrary detention and torture of . . .
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Second Circuit Affirms Dismissal of ATS/TVPA Suit Against Former President Zedillo

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Thursday, March 13, 2014 at 9:02 PM

I am late in reporting that last month the Second Circuit affirmed the dismissal of the ATS and TVPA suit against former President Zedillo of Mexico, based on the Suggestion of Immunity signed by my successor Harold Koh and submitted by the Executive branch to the district court.  The Second Circuit also declined to allow plaintiffs . . .
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When Will President Obama Nominate a New Legal Adviser?

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Tuesday, January 28, 2014 at 8:20 AM

Speaking of agency general counsels (as I did in my post yesterday morning about the appointment of Jim Baker as FBI General Counsel), many foreign governments are wondering when President Obama will nominate a new State Department Legal Adviser.   The position has been vacant for more than a year, since Harold Koh left in January 2013.  For an . . .
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Time To Terminate the Iran-US Claims Tribunal

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Monday, January 27, 2014 at 1:56 PM

I have an op-ed in today’s Wall Street Journal entitled “This Other Deal With Iran Is Obsolete” in which I argue that the current discussions between the US and Iran to reach a permanent agreement regarding Iran’s nuclear program provide a good opportunity to review the Algiers Accords, which were signed 33 years ago this month, . . .
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Jim Baker Appointed as FBI General Counsel

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Monday, January 27, 2014 at 7:00 AM

FBI Director Jim Comey has appointed Jim Baker as FBI General Counsel.  This is an outstanding appointment.  The announcement is here. Jim Baker is one of the most experienced and conscientious intelligence professionals in the United States, with particular expertise in FISA, terrorism, cyber-security, and the intersection of criminal law and intelligence operations.  A career . . .
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Congressional Control of Intelligence Programs (sometimes)

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Sunday, January 26, 2014 at 7:03 PM

In the last ten days, an interesting controversy has bubbled up over congressional control of the drone program.  The quarrel, which has been both internal to the Senate and between the Congress and the Executive, raises some important issues regarding Congress’s ability to control controversial but classified programs (such as the current drone program and . . .
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Private Sector Pay “Parity” for Federal Judges (and Agency General Counsels)?

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Friday, January 24, 2014 at 8:00 AM

The Washington Post reported last week that the salaries for the federal judiciary increased on January 1 after federal judges won a class action lawsuit last year challenging Congress’s refusal to give them cost-of-living increases.  Federal judges had not received any pay increases for five years.  As a result of the lawsuit (not congressional action), . . .
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The Fifth Anniversary of President Obama’s Guantanamo Closure Order

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Wednesday, January 22, 2014 at 12:15 AM

Today is the fifth anniversary of President Obama’s executive order directing the closure of Guantanamo within one year. I welcomed the President’s order at the time, but I commented on NPR and elsewhere that he would have a difficult time deciding what to do with the detainees, how to prosecute those who had committed crimes, and . . .
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The President’s Speech — A Striking Omission

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Sunday, January 19, 2014 at 12:52 PM

Yesterday’s New York Times editorial about the President’s speech faults the President for failing to give credit to Edward Snowden: One of his biggest lapses was his refusal to acknowledge that his entire speech, and all of the important changes that he now advocates, would never have happened without the disclosures by Mr. Snowden, who . . .
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Supreme Court Denies Samantar Cert Petition (but this may not be the end of the story)

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Monday, January 13, 2014 at 7:34 PM

The Supreme Court today denied cert in the Samantar case, rejecting the Government’s recommendation to grant, vacate, and remand to the Fourth Circuit and instead allowing the Fourth Circuit’s decision to stand.  I have previously explained why I think the Fourth Circuit’s conclusion “under international and domestic law” that foreign government officials are not entitled to . . .
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The Khobragade Kerfuffle: An Assessment

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Sunday, January 12, 2014 at 2:42 PM

The last few days have seen a flurry of diplomatic and law enforcement activity in both the United States and India that may bring the month-long Khobragade controversy to an end.  In this post, I try to unpack some of the applicable international law and U.S. policies involved.  In a nutshell, although the U.S. Government . . .
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Executive Branch Urges Second Circuit to Affirm Dismissal of ATS/TVPA Suit Against Former Mexican President Zedillo

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Thursday, January 9, 2014 at 4:12 PM

On Monday, the Departments of Justice and State filed an amicus brief in the Second Circuit urging affirmance of a district court’s dismissal of an ATS/TVPA lawsuit filed against former Mexican President Ernesto Zedillo, based on a Suggestion of Immunity filed by the State Department.  The suit had been filed by families of Mexican civilians . . .
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DC Circuit to Hear Challenge to SEC Conflict Minerals Rule: Did the SEC Weigh the Costs and Benefits to the DRC?

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Friday, January 3, 2014 at 8:30 AM

Next Tuesday, the D.C. Circuit will hear oral argument in a challenge to the SEC’s controversial rule on conflict minerals, which requires companies that use certain minerals (tin, tantalum, tungsten, and gold) in their products to file annual disclosure forms with the SEC reporting whether the minerals originated in the Democratic Republic of the Congo . . .
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The Last Uighurs

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Tuesday, December 31, 2013 at 1:20 PM

The Obama Administration’s Guantanamo envoys Clifford Sloan and Paul Lewis (at State and DoD respectively) should be commended for their hard work to resettle the last of the 22 Uighurs from Guantanamo.   And Slovakia deserves special recognition for agreeing to take the remaining three, joining Albania, Bermuda, Palau, Switzerland, and El Salvador who have stood up to Chinese . . .
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The ATA Amendment and Congressional Earmarks for Plaintiffs’ Lawyers

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Friday, December 27, 2013 at 3:06 PM

When President Obama signed the NDAA of 2014 yesterday, the Act did not include the amendment to the Anti-Terrorism Act, about which I posted earlier this month that would have allowed suits by non-US nationals against persons for “aiding and abetting” acts of terrorism.   The amendment had been pushed by plaintiffs’ lawyers seeking to reverse . . .
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More Kiobel Fall-out: Foreign Defendants Dismissed from ATS Apartheid Case But Ford and IBM Remain (for now)

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Thursday, December 26, 2013 at 5:37 PM

The second day of Christmas has brought glad tidings for two defendants in the longest-running of all major ATS cases: earlier today, Judge Scheindlin dismissed the last two foreign corporate defendants — Daimler AG and Rheinmetall — from the Apartheid litigation, which has been pending in various forms against more than seventy corporations in the . . .
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