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.
On Thursday, President Obama will be giving a major address on national security and counterterrorism, styled as a companion to the 2009 National Archives address. That 2009 speech adopted a pragmatic approach blending a renewed emphasis on criminal prosecution … Read more »
This Thursday, the Senate Armed Services Committee is holding a hearing which will cover, among other things, the question whether to alter the 2001 Authorization for Use of Military Force. This is a question that we, Ben, and Jack addressed … Read more »
Big news out of the House Armed Services Committee: Representative Mac Thornberry (a graduate of the University of Texas School of Law, I proudly note) is going to introduce a bill enhancing oversight of kill/capture operations that may be conducted … Read more »
While we are on the subject of Mark Mazzetti’s The Way of the Knife, and for that matter while we are speaking of Mali, check out this Washington Post report on U.S. boots being on the ground in … Read more »
What is happening in Mali to people who are captured rather than killed by French, Chadian, or Malian forces? I asked this in February, but so far as I know the question remains unanswered in the public record.
Part of … Read more »
This Washington Post article by Dana Priest is an excellent primer for those looking for an introduction to the particulars of US intelligence support to Mexico’s counter-cartel activities, as well as the looming issue of whether Mexico’s new president, Enrique … Read more »
One of the hallmarks of a person steeped in national security law is their facility with the statutory designations in various parts of Title 50, especially the National Security Act of 1947 and the CIA Act of 1949. Well, buckle … Read more »
The Miranda issue is over. As Wells noted earlier, Tsarnaev made his initial appearance before a magistrate judge, at the hospital, and at that time the judge informed Tsarnaev of his right to remain silent and right to counsel … Read more »
There will be no shortage of charges in the indictment that will issue against Tsarnaev shortly. Many if not most will be ordinary violent-crime charges rather than terrorism-specific ones–though they’ll be no less potent for that. But what about charges … Read more »
Unless there is good reason to believe that the Tsarnaev brothers were acting as agents of al Qaeda or some other AUMF-covered group, talk of putting Dzhokar Tsarnaev into military custody as an enemy combatant makes no legal sense, for … Read more »
The Attorney General’s statement is posted here.
For those who wish to understand the organizational boundaries of the AUMF these days, Lashkar-e-Taiba provides an interesting and important test case. Grist for the mill is found in this piece in Long War Journal, which discusses a recent raid … Read more »
Every year I try to draw particular attention to this terrific event, and for good reason: it is a wonderful occasion to take a deep dive into an array of topics that will interest any member of the listserv, in … Read more »
Jens David Ohlin (Cornell) has an interesting post up at LieberCode in which he discusses a range of LOAC issues raised by CIA involvement in drone strikes. Jens raises the question whether CIA personnel involved in drone strikes can qualify … Read more »
Now this is a strange and interesting case. You may have seen an interesting post recently at Foreign Policy describing a US citizen (and former soldier in the US Army) named Eric Harroun, who appeared to have gone off to … Read more »
Philip Carter and Deborah Pearlstein have posted a thoughtful essay at Foreign Policy that emphasizes the utility of civilian criminal prosecution as a counterterrorism option. I very much agree with their positive take on DOJ’s track record, and I agree … Read more »
The Ahmed Warsame case (Warsame is the al Shabaab member captured by US forces while attempting to return to Somalia after a period of training with AQAP in Yemen, who was then held for two months in military detention at … Read more »
Ben has already noted that the United States and Afghahnistan struck a deal to resume the process of handing over the remnants of U.S. detention operations in Afghanistan–a process that hit a rough patch recently when it began to appear … Read more »
Ibrahim Suleiman Adnan Adam Harun (aka Spin Ghul) is in custody in Brooklyn, facing an array of federal court charges stemming from alleged al Qaeda activities in Afghanistan, Pakistan, and Nigeria between 2001 and 2003 (including joining and training with … Read more »
The following guest post is the latest in a series comprising a debate as to whether LOAC requires an attempt to capture rather than a first-resort to lethal force in some circumstances. The debate involves Professor Ryan Goodman, on one … Read more »
The following guest post is the latest in a series comprising a debate as to whether LOAC requires an attempt to capture rather than a first-resort to lethal force in some circumstances. The debate involves Professor Ryan Goodman, on one … Read more »
I’ve posted many times on the gradual but inexorable process through which the United States is closing out its detention operations in Afghanistan, including this recent update. It has been a bumpy road, and after President Karzai recently suggested that … Read more »
I have been curating a running debate about whether LOAC requires an attempt to capture rather than a first-resort to lethal force in some circumstances, sparked by a paper from Professor Ryan Goodman and including responses and more from Professors … Read more »
Further to my last post on the capture and prosecution of Sulaiman Abu Ghaith, I now want to share a few thoughts on the prosecution side of things.
The indictment has been unsealed, and is now available here. It … Read more »
As Ritika notes below, the United States has captured a senior al Qaeda figure (Sulaiman Abu Ghaith, who was the son-in-law of Osama bin Laden), and will be bringing him to the United States for prosecution in civilian court. One … Read more »
The following guest post is the latest in a series comprising a debate as to whether LOAC requires an attempt to capture rather than a first-resort to lethal force in some circumstances. The debate up to this point involved Professor … Read more »
The following guest post is the latest in a series comprising a debate as to whether LOAC requires an attempt to capture rather than a first-resort to lethal force in some circumstances. The debate involves Professor Ryan Goodman, on one … Read more »
The following guest post is the latest in a series comprising a debate as to whether LOAC requires an attempt to capture rather than a first-resort to lethal force in some circumstances. The debate involves Professor Ryan Goodman, on one … Read more »
The following is a guest post from Ryan Goodman, continuing a conversation begun yesterday in this post from Geoff Corn, Laurie Blank, Chris Jenks, and Eric Jensen.
What the Critics of the “Lesser Evil” Rule (Still) Get Wrong: A Rejoinder … Read more »
Several years ago, in a prescient op-ed in the Washington Post, our colleague John Bellinger argued that the September 2001 AUMF was an increasingly poor fit for the evolving threats facing the United States. It is a theme to which … Read more »
The following is a guest-post from Geoff Corn, Laurie Blank, Christopher Jenks, and Eric Talbot Jensen, responding to Ryan Goodman’s recent Slate article (building on his new European Journal of International Law article, which Jack noted here) in … Read more »
I have posted previously about a criminal investigation in Poland targeting the former head of Poland’s intelligence service, based on his alleged cooperation in establishing a CIA black site on Polish territory. It appears now that charges will be dropped… Read more »
There is an increasing amount of talk about judicial review for at least some decisions to place specific persons on targeting lists for the use of lethal force outside of a combat zone (drones are not the only platforms that … Read more »
I asked the other day what was becoming of the persons who presumably were being captured by French, Malian, or other forces fighting the Islamist extremists in Mali. Turns out there are a couple of answers. This report provides the … Read more »
Daniel Klaidman, author of the indispensible Kill or Capture (providing an inside glimpse into the evolution of the Obama administration’s approach to counterterrorism in its first few years), today posted this profile of John Brennan in advance of his upcoming … Read more »
The French military intervention in Mali continues:
Islamist rebels have ceded control of most of Mali’s major cities but have likely taken refuge in the country’s rugged mountains and caves. As a result, French airstrikes continued over the weekend … Read more »
Back in 2011, I posted on the civilian criminal prosecution of a pair of former Iraqi residents Mohanad Shareef Hamadi and Waad Ramadan Alwan. Both men were charged with having been involved in the insurgency while in Iraq and with … Read more »
As is now familiar to everyone, rather difficult questions arise when we discuss the scope of the AUMF, the current scope of “al Qaeda,” the meaning of “associated forces,” and the circumstances under which the president may have inherent authority … Read more »
I’m not sure what to make of this:
As I’ve just explained, a UN Special Rapporteur has launched an investigation into the legality of US and Israeli drone strike practices. The Special Rapporteur’s statement describing the investigation lists the … Read more »
[Update - I've clarified some points below, at the bottom, in response to reader feedback]
Ben Emmerson QC is a British human rights law specialist who currently serves as the UN Human Rights Council’s “Special Rapporteur on Counter-Terrorism and Human … Read more »
The Post ran an important story on Saturday, building on its earlier reporting concerning the development of a “disposition matrix” and other tools for the management of the counterterrorism enterprise. The new piece is by Greg Miller, Ellen Nakashima, and … Read more »
What is the United States actually doing so far, and what else reportedly is on the table?
1. So far we have agreed to provide airlift support to the French, on their dime. That is, France is going to pay … Read more »
We refrained last week from expressing much opinion on the decisions by both Military Commissions Chief Prosecutor Mark Martins and by the Justice Department in the Al Bahlul case concerning how to handle stand-alone inchoate conspiracy charges after Hamdan II… Read more »
The meeting between Presidents Obama and Karzai today appears to have produced an agreement that will revive the process of shutting down U.S. detention operations in Afghanistan. As reported in the Wall Street Journal:
With Mr. Obama at his side,
In response to Charlie Savage’s piece today concerning an interagency debate over whether to continue to argue for the viability of conspiracy and material support charges in the military commission system (originally posted-on by me here), Andrew Rosenthal (editor … Read more »
According to Charlie Savage in today’s New York Times, this is a question in hot interagency dispute this week. The basic concern of course is that (i) the D.C. Circuit’s ruling in Hamdan II amply foreshadows that the Circuit … Read more »
Back in October, I wrote about the claim in this Washington Post story that John Brennan supports shifting the CIA’s operations involving the use of lethal force over to the military. Now that he is about to be nominated as … Read more »
It’s that time of year…time for my annual round-up of national security-related offerings at the annual meeting of the Association of American Law Schools, which occurs in New Orleans this coming weekend. The offerings are a bit thinner in number … Read more »
As Raffaela posted earlier, the government has won a substantial victory in the FOIA litigation in which the Times and the ACLU sought disclosure of information about CIA drone strikes, including the legal justification underlying the use of lethal … Read more »
Another noteworthy development in the conference version of the NDAA is section 1025. Think of this as a new direction in the congressionalization of detention operations in Afghanistan.
What do I mean by congressionalization? I admit I just made that … Read more »
Tuesday, May 21, 2013
William P. Barr (former Attorney General), Jamie S. Gorelick (former Deputy AG), and Kenneth L. Wainstein (former Assistant AG for National Security) have this Times op-ed on the AP subpoena controversy. They write:
While neither we nor the critics know the circumstances behind the prosecutors’ decision to issue this subpoena, we do know from the government’s public disclosures that the prosecutors were right to investigate this leak
