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Posts by Steve Vladeck

Steve Vladeck is a professor of law and the associate dean for scholarship at American University Washington College of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks. Full bio »

Article III and the al Bahlul Remand: The New, New NIMJ Amicus Brief

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Monday, August 18, 2014 at 12:59 PM

On July 14, the en banc D.C. Circuit ruled in al Bahlul v. United States that “plain error” review applied to Bahlul’s ex post facto challenge to his military commission convictions for conspiracy, material support, and solicitation–and then upheld the first of those charges under such deferential review (while throwing out the latter two). One of the potentially unintended consequences of the Court . . .
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The FISA Court and Article III: A Surreply to Orin

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Tuesday, August 5, 2014 at 9:31 AM

As I suspected it would, the exchange between my friend Orin Kerr and me on the constitutionality of the appellate review provisions in the Senate version of the USA FREEDOM Act has morphed into a broader conversation about whether the FISA Court itself is consistent with Article III. Consider the three major points of Orin’s reply to . . .
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Article III, Appellate Review, and the Leahy Bill: A Response to Orin Kerr

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Thursday, July 31, 2014 at 10:54 AM

Orin’s post from yesterday afternoon wonders whether the Leahy bill’s provision for “certification” of decisions by the FISA Court to the FISA Court of Review (and from there to the Supreme Court) violates Article III’s case-or-controversy requirement. In effect, Orin’s charge is that, at the point of certification, the FISA Court is (or, at least, could . . .
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A Brief Reply to Jack and Peter on Al Bahlul

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Wednesday, July 16, 2014 at 1:51 PM

This morning, Marty Lederman and I have posted a detailed analysis of Monday’s en banc D.C. Circuit decision in al Bahlul—and what it portends for the future of military commissions, especially with respect to offenses not recognized as international war crimes. As Marty and I conclude, “Monday’s decision . . . underscores the serious constitutional . . .
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Global (Statutory) Habeas After Aamer

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Wednesday, June 25, 2014 at 4:00 PM

As my co-authors and I put the finishing touches on the 2014-15 Supplement to Aspen Publishers’ National Security Law and Counterterrorism Law casebooks, I had another thought about the potential consequences of the D.C. Circuit’s February 2014 decision in Aamer v. Obama—about which I’ve blogged a fair amount previously. Recall that, in Aamer, the D.C. Circuit held that the Supreme Court’s decision . . .
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The Obviously Unconstitutional Cotton Amendment

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Thursday, June 19, 2014 at 4:30 PM

Among the proposed amendments to the DOD appropriations bill currently under consideration in the House of Representatives is this doozy, courtesy of Arkansas Rep. Tom Cotton: None of the funds appropriated or otherwise made available by this Act may be used to transfer or release any individual detained at United States Naval Station, Guantanamo Bay, . . .
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Relitigating Guantánamo: A Modest Quibble with John’s Post on Abu Khattala

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Wednesday, June 18, 2014 at 2:43 PM

It’s refreshing to find voices of reason in Ben’s, Jack’s, and John’s posts on the Abu Khattala capture. Jack’s post, in particular, provides a lucid exposition of what any number of congressional Republicans should not have needed to have explained to them: That the absence of a connection to al Qaeda categorically resolves in the . . .
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Judge Posner v. Judge Rovner: On Daoud, FISA, and Franks

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Tuesday, June 17, 2014 at 7:56 AM

Paul already flagged yesterday’s Seventh Circuit decision in Daoud, in which the Court of Appeals reversed Judge Coleman’s headline-grabbing order—which had required the government to provide Daoud’s security-cleared defense counsel with access to all of the classified materials the government had submitted in support of its applications for FISA warrants in Daoud’s case. I have . . .
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Military Contractor Liability Returns to the Supreme Court

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Wednesday, June 11, 2014 at 7:00 AM

Whatever the merits of the increasing reliance upon private military contractors (PMCs) for tasks that have historically been the province of the U.S. military, one of the major issues such reliance has raised is the accountability mechanisms for those contractors, especially through civil and criminal litigation. I’ve written at length in the past about the . . .
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The USA FREEDOM Act and a FISA “Special Advocate”

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Tuesday, May 20, 2014 at 4:19 PM

For those who haven’t been following super-closely, the Manager’s Amendment to H.R. 3361—the USA FREEDOM Act—is now slated to be considered by the full House of Representatives in the coming days. And although there’s a lot to be said about the various substantive surveillance reforms reflected in the current iteration of the bill, one of . . .
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Confusing Jurisdiction, Abstention, and Substance: A Reply to Peter Margulies

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Tuesday, May 6, 2014 at 3:00 PM

It’s clear from his post this morning that my friend Peter Margulies believes that Al-Nashiri’s new habeas challenge to his trial by military commission, which rests on the claim that the United States was not involved in an armed conflict with al Qaeda at the time of his alleged crimes, is without merit. Unfortunately, Peter’s . . .
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How Not to Amend the AUMF, Duncan Hunter Edition

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Thursday, May 1, 2014 at 4:33 PM

Ashley beat me to the punch in flagging today’s news about Rep. Duncan Hunter’s plan to introduce legislation that would amend the September 2001 Authorization for the Use of Military Force (AUMF) to authorize the Obama Administration to go after those terrorists (and terrorist groups) responsible for the September 11, 2012 attacks against the U.S. . . .
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Toward a Coherent Theory of the “Military Exception” to Article III

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Wednesday, April 2, 2014 at 3:45 PM

My very first Lawfare post, back in December 2011, focused on the messy constitutional question raised by United States v. Ali—a case then pending before the Court of Appeals for the Armed Forces that raised the constitutionality of subjecting civilian military contractors to military, rather than civilian, trials. Although they raise different questions, I was . . .
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Habeas and the Military Commissions After Aamer

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Friday, March 21, 2014 at 9:36 AM

I’ve already written at some length about the D.C. Circuit’s decision last month in Aamer v. Obama, in which a divided panel held that the Guantánamo detainees may challenge the conditions of their confinement through habeas petitions, notwithstanding the language of the jurisdiction-stripping provisions of the Military Commissions Act of 2006. As Judge Tatel explained, . . .
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Military Commissions, Conspiracy, and al-Iraqi

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Tuesday, February 18, 2014 at 7:20 AM

Over the weekend, I blogged over at Just Security about the al-Iraqi case pending before the military commissions at Guantánamo—and, in particular, Saturday’s New York Times story reporting that the government has amended the charge sheet against al-Iraqi to add a charge of conspiracy. As readers likely know, the en banc D.C. Circuit will soon . . .
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Judge Bates and a FISA “Special Advocate”

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Tuesday, February 4, 2014 at 9:24 AM

In the midst of the hubbub over the PRG and PCLOB reports and the President’s speech, one of January’s more interesting developments in the FISA reform conversation has largely gone unaddressed (albeit not unnoticed): the “Comments of the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act,” and Judge Bates’s cover letter transmitting those comments. . . .
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Three Unrelated Tidbits on the NSA and Klayman v. Obama

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Wednesday, December 18, 2013 at 12:46 PM

Obviously, there’s a lot to say about Monday’s decision by Judge Leon granting a preliminary injunction against the NSA’s telephone metadata program and then staying that decision pending appeal. Much of it’s already been said here, so I just wanted to flag three quick points of potential interest not already covered via Lawfare: Over at Just Security, . . .
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Judge Edwards and “Functionally Useless” Habeas

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Tuesday, December 3, 2013 at 11:39 AM

This morning’s D.C. Circuit decision in Ali v. Obama is not exactly a shocker, given the court’s ever-solidifying body of jurisprudence on the scope of the government’s power to detain non-citizen terrorism suspects at Guantánamo. In short, Judge Kavanaugh’s opinion for a (mostly) unanimous panel affirms the district court’s denial of habeas relief to Abdul Razak . . .
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Lenity and the FISA Reform Endgame

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Friday, November 8, 2013 at 9:56 AM

I was on the same panel as Orin at Monday’s day-long hearing before the Privacy & Civil Liberties Oversight Board, and think there’s a lot to commend his proposal for a statutory rule of lenity as a tool to regulate national security surveillance–to scale back the government’s ability to push for expansive interpretations of the . . .
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Two FISA Data Questions for Joel Brenner

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Friday, October 18, 2013 at 7:35 AM

Although Joel’s post from last night cites the wrong letter from Judge Walton to Senators Leahy and Grassley, this week’s letter, which definitely does not bury the lede, does provide significant data on the interactions between the FISA Court and the government. Specifically, Judge Walton explains that, over the three months ending on September 1, “we have observed . . .
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