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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 »

Ask Wells: #ComeyCrypto, Our Mysterious Publisher, and Cancelled Hearings

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Sunday, October 19, 2014 at 5:00 PM

I am stoked to post the first installment of Lawfare’s latest (and perhaps most peculiar) experimental feature: “Ask Wells.” The format, as Benjamin Wittes explained earlier, is straightforward.  Readers can write in and ask questions on most any topic—from national security law to the site’s content and editorial choices to whatever other things may be on . . .
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U.N. Special Rapporteur Report on Mass Digital Surveillance and Article 17 of the ICCPR

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Wednesday, October 15, 2014 at 10:30 AM

Here it is, via First Look. The latest from the U.N. Special Rapporteur for the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Ben Emmerson QC, concludes as follows (note the language in paragraph 59): 58. States’ obligations under article 17 of the International Covenant on Civil and Political Rights include the . . .
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Signing Statements, the Commander in Chief Power, and Guantanamo Closure

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Friday, October 10, 2014 at 4:00 PM

According to the Wall Street Journal,  the President’s people are “drafting options” to bring about Guantanamo’s closure, an objective that would require the White House to get around a statutory restriction on transferring GTMO detainees to the United States.  Or not: Vice’s Jason Leopold reports that NSC Spokeswoman Caitlin Hayden today said the Administration does not know what “‘new press . . .
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Dhiab Preliminary Injunction Hearing Read-Out, Part Three

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Thursday, October 9, 2014 at 1:38 PM

Today marks our last little dispatch about the preliminary injunction hearing in the case of Abu Wa’El (Jihad) Dhiab, Syrian national, cleared-for-release Guantanamo detainee, and—most relevantly for present purposes—intermittent hunger-striker. Yesterday’s open proceedings can be summarized straightforwardly: in essence, the government concluded its evidence against Dhiab’s motion for a preliminary injunction with respect to certain Guantanamo . . .
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Dhiab Preliminary Injunction Hearing Read-Out, Part Two

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Wednesday, October 8, 2014 at 1:11 PM

We continue with our coverage of a preliminary injunction hearing in the case of Guantanamo detainee and intermittent hunger-striker Abu Wa’El (Jihad) Dhiab. As before, we recount the prior day’s proceedings in summary fashion. In short, the day saw further cross-examination of one of the detainee’s experts, Dr. Stephen Xenakis; direct and cross-examination of another expert, . . .
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Dhiab Preliminary Injunction Hearing Read-Out: Part One

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Tuesday, October 7, 2014 at 10:38 AM

Below you’ll find a read-out on the first of a three-day, preliminary injunction hearing in the case of Guantanamo detainee and intermittent hunger-striker Abu Wa’El (Jihad) Dhiab. The Syrian national’s habeas case is likely familiar to readers by now. He has been cleared for release, and awaits a possible transfer to Uruguay after the latter’s upcoming . . .
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Lawfare’s Digest of Declassified Documents from CIA’s In-House Intelligence Journal

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Friday, October 3, 2014 at 3:15 PM

A few weeks back, in response to a FOIA request, the Central Intelligence Agency made public a trove of documents from Studies in Intelligence, the agency’s in-house intelligence publication. The FOIA-released materials have since been folded over into a larger compendium of declassified material—which Lawfare (in the persons of Taj Moore, Jodie Liu, Clara Spera, and Michael Knapp) has . . .
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NPR: AG Holder Will Step Down

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Thursday, September 25, 2014 at 11:26 AM

That’s the word from this piece by NPR’s Carrie Johnson.  It begins: Eric Holder Jr., the nation’s first black U.S. attorney general, is preparing to announce his resignation Thursday after a tumultuous tenure marked by civil rights advances, national security threats, reforms to the criminal justice system and 5 1/2 years of fights with Republicans . . .
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DCCA: USG Must Respond to Detainees’ Petition for En Banc Rehearing in Hatim

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Tuesday, September 23, 2014 at 11:00 AM

Now this is interesting. Last week, detainees Saeed Mohammed Saleh Hatim, Abdurrahman al-Shubati and Fadel Hentif together sought en banc rehearing in Hatim v. Obama, the so-called “counsel access” case. Yesterday, the D.C. Circuit ordered the United States to respond to the detainees’ arguments supporting rehearing—a summary of which can be found here—within 15 days. Stay tuned.

Al-Nashiri: USG Appeals Dismissal of French Oil Tanker Charges

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Friday, September 19, 2014 at 2:48 PM

The United States today appealed an adverse ruling in the capital military commission case against Abd al-Rahim al-Nashiri. The Guantanamo detainee stands accused, among other things, of orchestrating the 2000 attack on the U.S.S. Cole—and in playing a role in another attack against the M/V Limburg, a French oil tanker. Only legally controversial counts regarding the latter are it issue for . . .
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Monday’s Hearing in al-Hadi

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Wednesday, September 17, 2014 at 9:19 AM

This week’s hearing in the military commission case of United States v. Abd al Hadi al-Iraqi turned out to be a quick one.  Monday afternoon was evidently sufficient time for court and counsel to debate the government’s motion for an order to protect national security information; the proceedings were recessed thereafter. You can read all about it over in . . .
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Al-Hadi Case: September 15 Session

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Monday, September 15, 2014 at 12:45 PM

 A note to readers: business back at Brookings will keep your correspondent away from Fort Meade, and from observing, almost live and via CCTV broadcast,  a two-day pre-trial hearing in the military commission case of United States v. Abd al Hadi al-Iraqi.  The session commences today at 1 p.m., and could continue through tomorrow.   Nearly-live . . .
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Chief Prosecutor Statement on This Week’s Hearing in Al-Hadi

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Monday, September 15, 2014 at 12:00 PM

On the docket today and tomorrow at Guantanamo: argument on the government’s motion to protect national security information in United States v. Abd al Hadi al-Iraqi. The Chief Prosecutor issued a statement in advance of the pre-trial hearing, which commences this afternoon at 1 p.m.  The statement opens: Good evening. Since we last met, there . . .
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In Re Directives Documents Released

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Thursday, September 11, 2014 at 8:48 PM

As we noted earlier today, documents bearing on the In Re Directives litigation have now been declassified. The voluminous materials—including briefs and an apparently less redacted version of the Foreign Intelligence Surveillance Court of Review’s 2008 opinion—indeed can now be found at the DNI’s Tumblr site, and below. We’ll likely have more to say on this; stay . . .
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FISCR: Stay Tuned for Declassified Version of 2008 Directives Opinion

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Thursday, September 11, 2014 at 2:57 PM

The Foreign Intelligence Court of Review (“FISCR”) issued this order today. It concerns the FISC’s 2008 opinion in In Re Directives, an appeal brought by Yahoo! and regarding directives for warrantless electronic surveillance of some of the company’s customers.  In a heavily classified ruling, the appeals court had affirmed a Foreign Intelligence Surveillance Court (“FISC”) order requiring . . .
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The 2001 AUMF Covers 2014 Counterterrorism Operations Against ISIS?

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Wednesday, September 10, 2014 at 10:05 PM

What Ben said. I certainly can see why the executive branch would want to adopt a reading as aggressive as this one: it nips some War Powers Resolution questions in the bud, and helps to make it more likely that, going forward, talk of any additional congressional authorization can be held in best practices terms rather than legal ones. . . .
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“The Legal Basis for Striking ISIS”

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Wednesday, September 10, 2014 at 8:24 AM

That’s the title of an hour-long panel discussion which will be held at noon on September 25, and hosted  by the Heritage Foundation’s Cully Stimson.  He’ll be joined by Dechert’s Steve Bradbury, and our own Bobby Chesney and Steve Vladeck.  More details can be found here; the event’s description is below. As the Obama Administration . . .
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CA2 Affirms SDNY Denial of FOIA Suit for Al-Qahtani Photos

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Tuesday, September 2, 2014 at 11:41 AM

That seems to be the sum and substance of the Second Circuit’s ruling today.  The 3-judge panel’s decision opens: Appellant Center for Constitutional Rights seeks disclosure by the government, pursuant to the Freedom of Information Act (“FOIA”), of certain videos and photographs of a high profile Guantanamo Bay detainee, Mohammed al‐Qahtani, who is believed to be the so‐called “20th hijacker” . . .
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Fence-Sitting and War Powers Reforms

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Friday, August 22, 2014 at 11:30 AM

Mention of politics, war powers, and legislative authorization to use further force in Iraq, reminds me: whatever happened with the War Powers Consultation Act of 2014 (“WPCA”), put forth by Senators Kaine, McCain, and King? Not much, it seems. After introduction in January, the bill was referred to the Senate Foreign Relations Committee, where it has seen no . . .
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GAO: Defense Department Violated Law In Bergdahl-GTMO Detainee Swap

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Thursday, August 21, 2014 at 4:05 PM

So concludes this report from the Government Accountability Office, which apparently was written in response to a request by various Senators.  The document opens: This responds to your June 13, 2014, request for our opinion on whether the Department of Defense (DOD) incurred obligations in violation of section 8111 of the Department of Defense Appropriations Act, 2014 . . .
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