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Posts by Robert Chesney

Bobby Chesney is the Charles I. Francis Professor in Law at the University of Texas School of Law, as well as a non-resident Senior Fellow of the Brookings Institution. His scholarship encompasses a wide range of issues relating to national security and the law, including detention, targeting, prosecution, covert action, and the state secrets privilege; most of it is posted here.

Too Soon to Assess the President’s Invocation of the 2001 AUMF as to ISIS?

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Wednesday, September 17, 2014 at 4:17 PM

Over the past week there has been much talk about the President’s invocation of the 2001 AUMF in connection with ISIS. Many (including me) expressed considerable surprise, and doubt, about the merits of that argument. Which raises the question: will anything come of objections? One view is that this ship has sailed. Writing today at . . .
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Transatlantic Dialogue on Int’l Law and Armed Conflict: Geoff Corn on Battlefield Regulation and Crime

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Tuesday, September 16, 2014 at 3:30 PM

Continuing our coverage of the Transatlantic Dialogue on International Law and Armed Conflict, Lawfare is pleased to publish the discussion paper for the conference that Geoff Corn (South Texas) produced on the topic of how criminal responsibility relates to battlefield regulation. Squaring the Circle: The Intersection of Battlefield Regulation and Criminal Responsibility During our conference, . . .
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Transatlantic Dialogue on Int’l Law and Armed Conflict: Lawrence Hill-Cawthorne Responds to Sarah Cleveland

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Tuesday, September 16, 2014 at 1:49 PM

The newest installment in the Transatlantic Dialogue series (see here) has gone live at EJIL:Talk!. It is from Lawrence Hill-Cawthorne (U. of Reading), and it responds to Sarah Cleveland’s earlier post on the Project on Harmonizing Standards for Armed Conflict. A taste:

The 2001 AUMF: From Associated Forces to (Disassociated) Successor Forces

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Wednesday, September 10, 2014 at 11:46 PM

Like my colleagues Ben and Wells, I’m astonished to learn this evening that the Obama administration, having previously justified 140+ airstrikes against IS in Iraq on Article II grounds alone (at least insofar as the stream of WPR reports indicated), has discovered that IS all along was covered by an AUMF…and not the 2002 AUMF . . .
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The Proliferation Security Initiative: Interdiction on the High Seas to Prevent Proliferation

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Wednesday, September 10, 2014 at 3:35 PM

Interested in the legal and policy architecture relating to the high seas interdiction of ships possibly bearing WMD material? Me too! The Proliferation Security Initiative, was a somewhat hot topic about a decade ago, but has not gotten much attention lately. But I learned today that DOD has a nifty new website on the program, . . .
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CIA, Drone Strikes, and Public Authority: Responding to Kevin Heller

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Tuesday, September 9, 2014 at 11:36 PM

Kevin Heller and I have been debating whether the CIA drone strike targeting Anwar al-Aulaqi violated 18 USC 1119, which makes it a felony to kill American citizens overseas (to be clear, our exchange has not extended to Due Process Clause questions or to international law questions such as whether that attack related to a . . .
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A White House Trial Balloon Trying Out the 2002 Iraq AUMF?

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Tuesday, September 9, 2014 at 10:59 PM

According to this story in the Post, an unidentified administration official–maybe the President, maybe not–has raised the possibility that the plans for a ramped-up campaign against IS will not need fresh congressional authorization because…wait for it…the 2002 Iraq AUMF remains on the books: The president “thinks he has the legal authority he needs” to increase . . .
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Transatlantic Dialogue on Int’l Law and Armed Conflict: Sarah Cleveland on Harmonizing Standards

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Monday, September 8, 2014 at 11:31 PM

The newest installment in the Transatlantic Dialogue series (see here) has gone live at EJIL:Talk!. It is from Sarah Cleveland, and it explains the Project on Harmonizing Standards for Armed Conflict. A taste: One of the consequences of the non-international armed conflicts (NIACs) of recent years has been widespread recognition that the current international humanitarian . . .
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More on Iraq’s Implications for the Continuing Relevance of the 2001 AUMF

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Monday, September 8, 2014 at 3:55 PM

Yesterday I posed the question whether the 2001 AUMF has any continuing significance, legally-speaking, for counterterrorism activities (especially drone strikes) in Pakistan, Yemen, etc., given that the President is “confident that [he] has the authorization that [he] need[s]” to do what has been done in Iraq and also to support the expanded role that he . . .
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If We Don’t Need an AUMF for Iraq, Why Would Repeal of the 2001 AUMF Matter?

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Sunday, September 7, 2014 at 6:59 PM

This coming Wednesday evening, President Obama will address the country on the topic of Iraq and the Islamic State, describing his strategy and making the case to the public to support an approach that not only will involve a continuation of the ongoing pattern of airstrikes (see here for a description of the latest set . . .
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More on CIA Drone Strikes, Covert Action, TMA, and the Fifth Function

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Sunday, September 7, 2014 at 6:16 PM

Yesterday Kevin Heller and I exchanged views on the possible sources of domestic authorization for the CIA to conduct drone strikes. His two initial posts are here and here; my response is here; and the first part of Kevin’s reply (focused on whether the drone strike program counts as covert action given the traditional military . . .
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CIA Drone Strikes and the Public-Authority Justification

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Saturday, September 6, 2014 at 4:01 PM

In a pair of posts (here and here), Kevin Heller at Opinio Juris explores a very interesting question: What exactly is the domestic legal foundation for the CIA’s use of lethal force given that the 2001 AUMF refers explicitly to US armed forces only? As he points out, the question matters especially in connection with . . .
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Transatlantic Dialogue on Int’l Law and Armed Conflict: Ken Watkin on the IHL/IHRL Interface

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Friday, September 5, 2014 at 6:59 PM

The next installment in the series of posts derived from this summer’s Transatlantic Dialogue on International Law and Armed Conflict is now live at the ICRC’s Intercross blog. It is from Ken Watkin, and it concerns the overlap of IHL and IHRL. A taste: It is possible to address the perennial debate about the relationship . . .
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Transatlantic Dialogue on International Law and Armed Conflict: When Does LOAC Cease to Apply?

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Wednesday, September 3, 2014 at 11:17 PM

As Dapo Akande of Oxford and Tracey Begley of the ICRC explain here and here, the next few weeks will see a series of short pieces posted here at Lawfare, at EJIL:Talk! (the blog of the European Journal of International Law), and at Intercross (the blog of the ICRC) giving readers a flavor of the . . .
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A New Drone Strike in Somalia: Is the 2001 AUMF Needed?

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Tuesday, September 2, 2014 at 2:49 PM

To the best of my knowledge, the U.S. government has not asserted that al Shabaab as a whole is an associated force of al Qaeda engaged in hostilities against the United States subject to the 2001 AUMF. Nonetheless, the public record reveals that we do use lethal force, from time to time, in Somalia against . . .
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An AUMF for ISIL At Last? Questions Raised by the Post’s Account of the White House Debate

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Saturday, August 23, 2014 at 12:41 AM

The Washington Post reports tonight that the White House is actively considering whether to go to Congress to seek an explicit authorization to use force against ISIL. [UPDATE: see also the corresponding NY Times story, which focuses on the underlying policy debate rather than the law; it helps make clear that the legal debate reported . . .
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Article II and Iraq: Justifications for the Mosul Dam Operation in the WPR Notification

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Sunday, August 17, 2014 at 10:43 PM

In a very positive development, Iraqi and Pesh Merga forces are in the midst of what appears thusfar to be a successful joint operation to take back the Mosul Dam from ISIS fighters. But it’s not just the Iraqis and Kurds; the U.S. military has conducted 14 airstrikes in support of the operation. This prompted . . .
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A New White House Signal on AUMF Reform?

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Sunday, July 27, 2014 at 1:51 PM

Josh Gerstein of Politico reports that “[a] top White House official suggested Saturday that Congress pass new legislation to support President Barack Obama’s authority to act against an array of terrorist groups not clearly linked to the September 11 attacks.”  Gerstein quotes White House counterterrorism czar Lisa Monaco as stating this weekend at the Aspen Security Forum: “The 2001 AUMF has provided us . . .
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Transatlantic Dialogue on IHL and IHRL

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Tuesday, July 15, 2014 at 4:58 PM

Hot on the heels of the transatlantic dialogue event in Germany on surveillance law and policy, about which Russ has a fascinating post here, I’m happy to report that there is a similar event taking place at Oxford this week concerning the interplay of IHL and IHRL.  The event (now in its second year) is . . .
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Exporting the Preemptive Prosecution Model: AG Holder on Countering the Syrian Foreign Fighter Threat

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Tuesday, July 8, 2014 at 7:49 PM

Attorney General Holder gave an important speech in Oslo today, highlighting the threat posed by “foreign fighters” in Syria who may one day return to Europe or the United States.  He advocated a four-pronged approach that he urged all concerned countries to involve, including (i) adoption of the sort of criminal laws that have enabled . . .
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