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Posts by Wells Bennett

Wells C. Bennett is managing editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. His position is supported with a grant from the Markle Foundation. Before coming to Brookings, he was an Associate at Arnold & Porter LLP. Full bio »

PCLOB’s Rachel Brand on Section 215

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Wednesday, May 20, 2015 at 7:00 PM

The Privacy and Civil Liberties Oversight Board’s Rachel Brand penned an opinion piece in today’s Christian Science Monitor.  It opens: The heated debate in Congress about whether to reauthorize Section 215 of the Patriot Act has focused mainly on the National Security Agency’s bulk collection of telephone records ever since details of that program were leaked to the . . .
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House Passes USA Freedom Act

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Wednesday, May 13, 2015 at 7:16 PM

Likely you’ve heard about the 338-to-88 vote; here’s a report from the New York Times:  WASHINGTON — The House on Wednesday overwhelmingly approved legislation to end the federal government’s bulk collection of phone records, exerting enormous pressure on Senator Mitch McConnell of Kentucky, the majority leader, who insists that existing dragnet sweeps continue in defiance of . . .
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PCLOB Public Meeting on 12333 Counterterrorism Activities

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Wednesday, May 13, 2015 at 10:10 AM

The proceedings will get underway at 10:15 a.m., at the National Constitution Center in Philadelphia.  Witness testimony and other information can be found here; streaming video is below, too.

A Reader’s Two Questions About the 215 Opinion

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Friday, May 8, 2015 at 4:05 PM

A reader familiar with surveillance matters writes in with these two questions about yesterday’s opinion from the Second Circuit: 1) The opinion seems to turn on the Court’s belief that either not enough Members of Congress were aware or that the *right* Members of Congress (in its view) were not aware that Section 215 was . . .
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Canadian Court Releases Omar Khadr on Bail

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Thursday, May 7, 2015 at 3:30 PM

From the Washington Post (via the Associated Press):  TORONTO — A former inmate at Guantanamo Bay, Cuba, who was convicted of killing a U.S. soldier, was released on bail Thursday after a judge refused a last-ditch attempt by the Canadian government to keep him imprisoned. Court of Appeal Justice Myra Bielby rejected the government’s emergency request to . . .
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CTA11: Compelled Production of Historical Cell Site Data Does Not Violate 4th Amendment

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Tuesday, May 5, 2015 at 11:16 AM

That is the essence of the Eleventh Circuit’s en banc opinion in United States v. Davis.  It was issued today, and opens as follows: Appellant Quartavius Davis was convicted by a jury on several counts of Hobbs Act robbery, 18 U.S.C. § 1951(b)(1), (3), conspiracy, id. § 1951(a), and knowing possession of a firearm in furtherance of a . . .
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This Morning’s HASC NDAA Markup

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Wednesday, April 29, 2015 at 9:57 AM

A markup of the FY2016 defense bill—which includes, as per usual and among other things, provisions restricting transfers of Guantanamo detainees—will get underway at 10:00 a.m. at the House Armed Services Committee. Embedded video is below; a copy of the Chairman’s mark can be found here.  (Interested readers can find NDAA-related background here, too.)

The United States’ Opposition to GTMO Detainee’s “End of War” Motion

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Monday, April 27, 2015 at 12:00 PM

The response was filed on Friday, in the habeas case of Al-Warafi v. Obama. Have a look:

Nathan Wood: The Ferguson Consensus is Wrong: What Counterinsurgency in Iraq & Afghanistan Teaches Us About Police Militarization and Community Policing (Lawfare Research Paper Series)

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Thursday, April 9, 2015 at 9:00 AM

For interested readers: the latest installment of the Lawfare Research Paper Series.  In it, Harvard Law student Nathan Wood examines the phenomena of community policing, on the one hand, and police militarization, on the other—having in mind an emerging view that the former represents the necessary antidote to the latter. From the abstract: In the wake . . .
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The New (Old) Interim Convening Authority for Military Commissions

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Wednesday, March 18, 2015 at 4:33 PM

It seems Paul Oostburg Sanz, the Navy’s General Counsel, will serve for the time being as the Guantanamo military commissions’ Convening Authority—such temporary service being necessary in light of the resignation of retired Marine Major General Vaughn Ary.  (Readers will recall that the military judge presiding over the Al-Nashiri commission case recently disqualified Ary and some of . . .
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Brennan Center Report on “What Went Wrong with the FISA Court”

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Wednesday, March 18, 2015 at 3:15 PM

The civil liberties group’s report was released today. It was authored by Elizabeth Goitein and Faiza Patel (who has contributed pieces to Lawfare), and has a foreword by retired U.S. District Judge James Robertson—a former member of the Foreign Intelligence Surveillance Court. Here are the report’s key recommendations: Congress should end programmatic surveillance and require the . . .
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3/3 Session #3: To Reconsider

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Tuesday, March 3, 2015 at 2:43 PM

Lunch hour concludes at Guantanamo and at Fort Meade. Thus we come to AE248H, the prosecution’s motion to reconsider Judge Spath’s prior ruling, that granted a defense motion and excluded certain evidence of Al-Nashiri’s “wanton disregard for human life,” so far as concerns the charge of terrorism against the accused. In short, the government desires . . .
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3/3 Session #2: Housekeeping

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Tuesday, March 3, 2015 at 11:10 AM

We return from recess. What will the way forward be?  The military judge mentions pending motions AE319F and G, and AE333, and AE337.  In his view, Judge Spath may be able to rule on some of these without in-court argument, between now and the case’s next session in April. His meaning is clear: “There’s only . . .
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3/3 Session #1: Suppression, and SSCI Matters

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Tuesday, March 3, 2015 at 10:39 AM

Air Force Col. Vance Spath, the military judge, resumes proceedings.  The question is what those proceedings will comprise, the docket having been winnowed greatly, both by yesterday’s unlawful influence ruling and by some still unresolved questions about classified material.  Could there be unclassified argument with respect to AE319F and AE333?  (It seems the issue of . . .
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Al-Nashiri Motions Hearing: March 3 Session

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Tuesday, March 3, 2015 at 9:00 AM

Litigation resumes in one of Guantanamo’s two capital military commission cases today at 0900; likewise the CCTV broadcast of the pre-trial session, which we’ll follow from our little perch here at Fort Meade, and post about throughout the day. You’ll find updates on the prosecution of Abd al-Rahim al-Nashiri in the “Events Coverage” section, and . . .
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3/2 Session #3: Odds and Ends

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Monday, March 2, 2015 at 3:37 PM

Motion AE319J is next. In it, the defense asks to postpone the government’s bid to admit hearsay, pending the Court of Military Commission Review’s (“CMCR”) resolution of an interlocutory appeal concerning charges against Al-Nashiri pertaining to the Limburg.  (As readers likely know, Judge Spath dismissed charges touching Al-Nashiri’s role in the attack on that vessel; . . .
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3/2 Session #2: How to Do Hearsay

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Monday, March 2, 2015 at 2:12 PM

The lunch hour comes to a close and we go back in the record in United States v. Al-Nashiri.   What’s the way forward?  We wonder, given Judge Vance Spath’s prior ruling on unlawful influence, which excised any and all evidentiary hearings from the week’s agenda, and shortened an April hearing to boot. Some discussion . . .
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3/2 Session #1: Unlawful Influence

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Monday, March 2, 2015 at 11:36 AM

The military judge, Air Force Col. Vance Spath, ascends the bench.  Our proceedings return to order. And they begin with a bang: That is, with the court partially granting defense motion AE332, regarding unlawful influence owing to actions of the Defense Department and the commissions’ Convening Authority, retired Marine Maj. Gen. Vaughn Ary.  A written ruling, . . .
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Al-Nashiri Motions Hearing: March 2 Session

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Monday, March 2, 2015 at 10:28 AM

We today resume with Lawfare’s  almost-live coverage of pretrial proceedings in the military commission case of United States v. Al-Nashiri. Our two-week hearing’s second week is set to commence today sometime after 10:30; around that time, we expect a ruling from the military judge, on a key defense filing regarding alleged unlawful influence. We’ll view the Guantanamo proceedings remotely . . .
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DoD Withdraws Order Requiring MiliComms Judges to Live at GTMO

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Friday, February 27, 2015 at 12:25 PM

That’s the word from the Miami Herald’s Carol Rosenberg.  I reckon this will mean the 9/11 case will be swiftly unpaused.  From Rosenberg’s piece: In an abrupt retreat Friday, the Pentagon withdrew an order to war court judges to take up residence at this remote base, the Miami Herald has learned. The order has stirred controversy since . . .
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