Skip to content

Email Steve

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 »

Seeking Consensus on AUMFs

By , and
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

By
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 . . .
Read more »

Evidence of Absence: A Brief Reply to Peter Margulies on the al Bahlul Argument

By
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 . . .
Read more »

Confusing the Issues in al Bahlul

By
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 . . .
Read more »

Why Article III Matters: A Reply to Peter Margulies on al Bahlul

By
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 . . .
Read more »

Article III and the Bottom-Side Briefing in al Bahlul

By
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 . . .
Read more »

ISIL as al Qaeda: Three Reactions

By
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 . . .
Read more »

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

By
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 . . .
Read more »

The FISA Court and Article III: A Surreply to Orin

By
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 . . .
Read more »

Article III, Appellate Review, and the Leahy Bill: A Response to Orin Kerr

By
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 . . .
Read more »

A Brief Reply to Jack and Peter on Al Bahlul

By
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 . . .
Read more »

Global (Statutory) Habeas After Aamer

By
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 . . .
Read more »

The Obviously Unconstitutional Cotton Amendment

By
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, . . .
Read more »

Relitigating Guantánamo: A Modest Quibble with John’s Post on Abu Khattala

By
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 . . .
Read more »

Judge Posner v. Judge Rovner: On Daoud, FISA, and Franks

By
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 . . .
Read more »

Military Contractor Liability Returns to the Supreme Court

By
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 . . .
Read more »

The USA FREEDOM Act and a FISA “Special Advocate”

By
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 . . .
Read more »

Confusing Jurisdiction, Abstention, and Substance: A Reply to Peter Margulies

By
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 . . .
Read more »

How Not to Amend the AUMF, Duncan Hunter Edition

By
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. . . .
Read more »

Toward a Coherent Theory of the “Military Exception” to Article III

By
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 . . .
Read more »