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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.

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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Khatalla Transitions from Military to Civilian Custody

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Saturday, June 28, 2014 at 12:00 PM

[Update:  A colleague writes in to say that Khatalla may have been in "civilian" custody, formally speaking, all along.  That may be; I recall a statement after the capture to the effect that the raid was conducted in some fashion under color of FBI authority, albeit with substantial SOF involvement under that umbrella.  This approach, . . .
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The US Intervention in Iraq Involves More than the 300: Armed Drones Above, Armed Contractors Below?

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Friday, June 27, 2014 at 9:43 PM

I’m surprised this hasn’t generated more attention: First, an article in the New York Times yesterday mentioned, right at the very end, the possibility that in addition to the 300 special operators headed back to Iraq there might also be more than a 1000 armed contractors accompanying them to pull security detail: Two Iraqi advisers . . .
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Guest Post from Jeff Kahn on Latif v. Holder (Striking Down the No-Fly List)

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Wednesday, June 25, 2014 at 2:13 PM

Professor Jeff Kahn (SMU Law, also visiting at W&L Law) writes in with the following guest post on yesterday’s no-fly list decision.  Be sure to check out Jeff’s terrific book on the right to travel and terror watchlists (here). Judge Anna Brown in the U.S. District Court for the District of Oregon issued an important . . .
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No Airstrikes in Iraq for the Moment…But Perhaps a Combat-Support Mission for SOF?

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Wednesday, June 18, 2014 at 12:37 AM

An important story tonight in the Wall Street Journal, outlining the first fruits of the Obama administration’s review of its options vis-a-vis Iraq and ISIS: The White House and Pentagon now hold a more skeptical view of the possible effectiveness of speedy airstrikes and instead are considering deploying U.S. special operations forces to provide intelligence . . .
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Air Strikes and ISIS: A Quick Review of the Article II, 2001 AUMF, and 2002 AUMF Arguments

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Friday, June 13, 2014 at 5:50 PM

Today President Obama ruled out sending ground forces back into Iraq, but he pointedly did not rule out the direct use of U.S. air power in kinetic operations against ISIS. The President explained that he has directed his “national security team to prepare a range of other options that could help support Iraqi security forces.” . . .
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Mike Lewis on the Lack of an IHL Transparency Requirement for Drone Strikes

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Monday, June 2, 2014 at 3:05 PM

Professor Mike Lewis (Ohio Northern University’s Pettit College of Law) writes in with the following guest post: There Is No Transparency Requirement for Drone Operations Critics of drones have frequently characterized them as being illegal weapons, or at least weapons that were being used in an illegal manner. Much of the initial opposition was driven . . .
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Why Drone Strikes in Pakistan Have Stopped (and Will It Last?)

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Thursday, May 29, 2014 at 11:22 AM

Did you know that we have not carried out drone strikes in Pakistan since 2013?  A story from Ken Dilanian (now at AP) today does a nice job of laying out the many reasons why: 1. Fewer targets  (“Many of the senior al-Qaida figures in Pakistan have been killed”; “Hardcore al-Qaida militants from Pakistan have . . .
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Is the Administration Planning to Engage Congress on the AUMF in Late 2014?

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Wednesday, May 28, 2014 at 5:49 PM

One of the nice things about major presidential speeches is that they often are occasions during which reporters separately get to grill unnamed “senior administration officials” for clarification.  So it was today, as seen in this transcript that the White House released today involving a background session with reporters following the President’s West Point address . . .
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The Uncertain Future of Military Detention Authority as “Combat Operations” in Afghanistan End

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Tuesday, May 27, 2014 at 4:23 PM

Scooping his own speech tomorrow at West Point, President Obama today announced his decision on future US force levels in Afghanistan.  Assuming that the winner of the Afghan presidential election will indeed sign the new Bilateral Security Agreement (which both leading candidates have pledged to do), the US will: – reduce its presence to 9800 . . .
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Is JSOC About to Become More Transparent on Drone Strikes?

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Friday, May 23, 2014 at 4:57 PM

One frequently sees the claim that CIA drone operations should be handed over to the military because the military is more transparent. I have frequently disparaged that argument, not because the CIA is in fact transparent but rather because direct action undertaken by JSOC isn’t transparent either. But might that change soon? According to a . . .
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Article II in the Spotlight at Wednesday’s AUMF Hearing before SFRC

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Thursday, May 22, 2014 at 9:10 AM

Wednesday’s AUMF hearing underscored a point that I develop at some length in my paper Postwar: repeal of the AUMF would not require, as a legal matter, that the government forgo the use of lethal force in the counterterrorism setting nearly so much as many assume. Why not? Because this administration, like many before it, . . .
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Questions that Should Be Asked at Today’s Senate AUMF Hearing

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Wednesday, May 21, 2014 at 9:10 AM

The Senate Foreign Relations Committee has a hearing this morning concerning the future of the AUMF, featuring DOD General Counsel Stephen Preston, State Department Principle Deputy Legal Adviser Mary Macleod, Harold Koh, and Michael Mukasey.  As it happens I’m in DC with some free time this morning, so I’ll do my best to be there . . .
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DOJ’s Summary of the Charges in the Chinese Economic Cyberespionage Case

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Monday, May 19, 2014 at 10:55 AM

A remarkable development out of a grand jury in the Western District of Pennsylvania: five named members of the Chinese military have been indicted for economic cyberespionage.  Details from the DOJ press release follow: WASHINGTON—A grand jury in the Western District of Pennsylvania (WDPA) indicted five Chinese military hackers for computer hacking, economic espionage and . . .
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Drone Strikes and the CIA vs JSOC Quality-Control Comparison

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Monday, May 12, 2014 at 10:15 AM

For those who are still wondering why the Obama administration has not followed through on the idea of shifting all responsibility for drone strikes from CIA to JSOC, this story from Ken Dilanian of the L.A. Times provides some useful context. Building on an account about a CIA-JSOC disagreement regarding the sufficiency of the intelligence . . .
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Yemen Conflict Update: Expanded US Military Role on the Way?

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Thursday, May 8, 2014 at 9:54 AM

An interesting tidbit today regarding US involvement in Yemen, from Politico’s first-rate briefer Morning Defense: MORE MILITARY SUPPORT COULD BE COMING: Shy of putting boots on the ground, the U.S. government is receptive to additional military cooperation with the Yemeni government if requested, a DoD official told Morning D. Currently, the U.S. military and the . . .
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