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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 »

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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The Demise of Damages in Counterterrorism Cases

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Thursday, October 17, 2013 at 9:24 AM

Via the New Republic‘s Security States blog, I have a new essay up on last week’s Ninth Circuit decision in Hamad, and how it’s part of the larger pattern of judicial hostility to damages suits in counterterrorism cases–not on the merits, but on an ever-increasing range of non-substantive grounds. As I argue, we need to appreciate . . .
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Handicapping al Bahlul

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Sunday, September 29, 2013 at 10:54 PM

Raff already outlined the issues the en banc D.C. Circuit (minus Judge Srinivasan) will confront in tomorrow’s oral argument in al Bahlul v. United States, and I have very little of substance to add to Jen Daskal’s thorough analysis over at Just Security, or Marty Lederman’s addendum thereto. Instead, I thought I’d take a slightly different tack, . . .
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Lawfare and Just Security

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Monday, September 23, 2013 at 11:55 AM

Given today’s launch of Just Security (of which I’m one of the co-editors-in-chief), I thought it worth saying a word or two about me and Lawfare, lest anyone get the wrong idea about the new project, or about my decision to join the Jets (or Sharks, depending on one’s perspective). To my mind, both the . . .
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The D.C. Circuit and the Guantánamo Detainees’ Right of Access to Counsel

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Monday, September 23, 2013 at 3:31 AM

In describing Hatim v. Obama (the D.C. Circuit Guantánamo appeal in which the government filed its opening brief on Friday) as the “counsel access” case, Raff has hit the nail on the head. Although the appeal involves the district court’s power to enjoin new security procedures adopted by the government at Guantánamo (the same genital search procedures that . . .
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Ben, Me, and the Very Gray Area Between “Clearly Legal” and Lawlessness

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Tuesday, September 10, 2013 at 9:23 AM

[Updated (11:34 a.m.): Ben rightly points out to me that his reply does not use the phrases "clearly legal" or "settled," and so my use of quotation marks around those terms may convey the wrong impression. Just to clarify, Ben never uses those terms as such; rather, they're my reading and my characterization of his . . .
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“Yes, yes!–In the face!”: A Reply to Ben

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Monday, September 9, 2013 at 5:07 PM

I have no doubt that Ben meant to provoke–and, at least in my case, he did (enough, at least, to make a Coming to America reference in the title of this post). Ben’s full post in defense of the NSA (and his not-so-thinly-veiled criticism of its critics) is worth reading–especially for those who agree with . . .
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Carrie Cordero Misses the Point (Again) on FISA Reform

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Thursday, August 22, 2013 at 9:01 PM

In her post from earlier today responding to yesterday’s government disclosures, Carrie writes that “I hope it is clear that the critics of surveillance activities only see transparency as the first step in a longer fight. The strategy is a one-two punch. The first punch is transparency. The second is to scale back or eliminate . . .
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Legitimacy, Legality, and Ben’s “Muddled Middle Ground” on FISA

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Tuesday, August 13, 2013 at 4:04 PM

I must confess to being somewhat vexed by Ben’s reply this morning to the exchange between Carrie Cordero and me on FISA reform–not for what Ben says, but for why he thinks that leaves him in a  ”very muddled middle ground” between us. Ben’s agreement with Carrie appears to be that (1) overlawyering is bad; . . .
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Defriending FISA: A Response to Carrie Cordero

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Monday, August 12, 2013 at 2:21 PM

The central theme of Carrie’s post critiquing proposals for FISA reform appears to be that there are already too many lawyers and too much oversight of how the NSA conducts “foreign intelligence surveillance,” and so any proposals to increase these accountability mechanisms by appointing some kind of “special advocate” are necessarily myopic insofar as they (1) . . .
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My Last Word on the New Bahlul Amicus

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Tuesday, July 30, 2013 at 3:07 PM

Thanks to his “sur-reply”, I finally understand the premise of Peter Margulies’s argument—and his amicus brief—in al Bahlul with regard to why the en banc D.C. Circuit can affirm Bahlul’s conspiracy conviction even though conspiracy is not a war crime under international law: Because Bahlul was actually tried for murder, even though no one in . . .
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Three Questions for Peter Margulies on the New Bahlul Amicus Brief

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Monday, July 29, 2013 at 12:15 PM

There’s a lot to say about Peter Margulies’ reply to my and Kevin Heller’s criticisms of the “former government officials’” amicus brief in al Bahlul–the military commission appeal currently pending before the en banc D.C. Circuit, where the central question is whether the commission lawfully had jurisdiction to try and convict Bahlul of “conspiracy.” To put . . .
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The Two Fundamental Flaws in the New Bahlul Amicus Brief

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Friday, July 26, 2013 at 10:44 AM

Raff already flagged yesterday’s filing of an amicus brief in support of the government in the Al Bahlul military commission appeal before the en banc D.C. Circuit by “former government officials, former military lawyers, and scholars of national security law,” a group that includes Ben, Ken, and two of my casebook co-authors–among others. At the . . .
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