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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 »

Consensus on the Way Forward for an ISIL AUMF

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Friday, February 27, 2015 at 11:30 AM

Even casual readers of this blog are likely aware of the longstanding (and thoroughly joined) debate between Ben and me with respect to how Congress ought to update / revisit the 2001 Authorization for the Use of Military Force. That’s why I was pleasantly surprised by both Ben’s prepared testimony before yesterday’s House Armed Services Committee . . .
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Six Questions Congress Should Ask the Administration about its ISIL AUMF

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Friday, February 20, 2015 at 11:00 AM

[Cross-posted at Just Security] With congressional hearings on the Obama Administration’s proposed Authorization for the Use of Military Force (AUMF) for the Islamic State on the horizon, we propose six questions that Members of Congress should ask Administration witnesses: 1. What, exactly, is our strategic military objective? As numerous commentators have pointed out, the Administration’s . . .
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Argument Recap: The Critical Difference in How al-Nashiri Loses

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Tuesday, February 10, 2015 at 2:03 PM

If one thing was clear from Tuesday morning’s 61-minute argument before the D.C. Circuit in In re al-Nashiri, in which a Guantánamo military commission defendant seeks to challenge on constitutional grounds the composition of the intermediate Court of Military Commission Review (CMCR) assigned to hear the government’s interlocutory appeal in his case (which I previewed here), it was that . . .
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The Meaningful Legal Differences Between Stateside and Guantánamo Detention

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Thursday, February 5, 2015 at 3:30 PM

Gabor’s post from this morning, which is styled as a response to Ben’s thoughtful analysis of what it will take to close Guantánamo (while ignoring some of the other responses), concludes that the only meaningful way to “close” Guantánamo is for President Obama “to either release all detainees or try them in our time-tested federal courts,” at least largely . . .
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al-Nashiri Argument Preview: The CMCR’s Appointments Clause Problem

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Tuesday, February 3, 2015 at 8:17 AM

Next Tuesday, a three-judge panel of the D.C. Circuit (Henderson, Rogers, & Pillard, JJ.) is set to hear oral argument in In re al-Nashiri, the latest in a long-line of pre-trial disputes arising out of the Guantánamo military commission proceedings against Abd Al-Rahim Hussein Muhammed al-Nashiri, who is accused of involvement in two terrorist attacks . . .
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Two Basic Problems With Abstention in Nashiri

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Tuesday, December 30, 2014 at 5:44 PM

Wells already flagged yesterday’s D.D.C. decision by Judge Roberts, refusing to enjoin Abd Al Rahim Hussayn Muhammad Al Nashiri’s impending trial by military commission, and abstaining from reaching the merits of his habeas petition until and unless he’s convicted and is unsuccessful in the direct post-conviction appeal provided by the Military Commissions Act. Interested (or, at least, hyper-attentive) readers may . . .
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The Perils of Torture Agnosticism (Or, How Not to Read the SSCI Report)

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Friday, December 19, 2014 at 8:26 AM

It’s now been 10 days since the release of the Executive Summary of the Senate Select Committee on Intelligence’s (SSCI) study of the CIA detainee program—almost certainly to be known to posterity as the “torture report.” One of the emerging themes of much of the commentary the report has precipitated is what might best be . . .
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The D.C. Circuit’s Mandamus Jurisdiction and the Legitimacy of the Military Commissions

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Sunday, December 7, 2014 at 11:10 AM

It now appears that the next military commissions case in which the D.C. Circuit will hear oral argument is that of Abd al-Rahim al-Nashiri (“Nashiri”), with oral argument scheduled before an as-yet unnamed three-judge panel on Tuesday, February 10, 2015. And although the underlying “merits” issue in Nashiri is hyper-narrow (whether two of the three judges set to hear . . .
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Seeking Consensus on AUMFs

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Saturday, November 15, 2014 at 9:00 AM

[Cross-posted at Just Security] The three of us have coauthored an Op-Ed in Sunday’s Washington Post on the topic of congressional authorization for the use of force against ISIL and the 2001 AUMF.  We outline the broad underlying agreement we personally share and that we believe is shared by two proposals published earlier this week at Lawfare and Just Security.

Ben’s Sweeping Endorsement of the Just Security AUMF Principles

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Tuesday, November 11, 2014 at 12:32 PM

In his post this morning, Ben identifies what he calls “flaws” with three of the six principles for a use-of-force authorization for ISIL that were introduced yesterday by a group of legal experts (that includes me). Although Ben has done us the courtesy of critiquing the Principles, it appears he didn’t actually read them all . . .
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Evidence of Absence: A Brief Reply to Peter Margulies on the al Bahlul Argument

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Thursday, October 23, 2014 at 9:55 AM

In light of both our prior exchange and my Just Security post from yesterday, I only have two new points to make in response to Peter Margulies’ post on yesterday’s D.C. Circuit oral argument in al Bahlul v. United States, which raises the question whether military commissions may constitutionally try offenses that are not recognized as international war crimes. As I . . .
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Confusing the Issues in al Bahlul

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Wednesday, October 1, 2014 at 10:11 PM

For the two people still following the exchange between me and Peter Margulies over the bottom-side briefing in the al Bahlul D.C. Circuit military commission appeal, I wanted to offer a very quick (and hopefully final) word in response to Peter’s surreply from this afternoon, in an effort to crystallize the true points of departure between . . .
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Why Article III Matters: A Reply to Peter Margulies on al Bahlul

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Tuesday, September 30, 2014 at 10:23 PM

I must confess that I don’t fully understand Peter Margulies’ response to my post from earlier today. My post argued that the bottom-side briefing in the D.C. Circuit in al Bahlul offers a relatively weak (and, in my view, already debunked) explanation for why Congess can allow allow military commissions to try enemy belligerents for wholly domestic offenses without . . .
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Article III and the Bottom-Side Briefing in al Bahlul

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Tuesday, September 30, 2014 at 12:02 PM

Jane already flagged the merits brief filed by the U.S. government on September 17 in al Bahlul v. United States, the major challenge to the power of the Guantánamo military commissions to try non-international war crimes that was remanded by the en banc D.C. Circuit to the original three-judge panel back in July (and in which oral argument is . . .
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ISIL as al Qaeda: Three Reactions

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Thursday, September 11, 2014 at 1:52 AM

Like Bobby, Wells, and Ben, I, too, was surprised to discover that the Obama Administration’s legal theory (for the moment) appears to be that the Islamic State of Iraq and the Levant (ISIL) can be targeted under the 2001 AUMF despite its very public split from al Qaeda. That said, I think all three of my friends miss the animating premise of the . . .
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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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