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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 »

Senator Leahy Unveils New USA Freedom Act

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Tuesday, July 29, 2014 at 11:48 AM

Here is Senator Patrick Leahy’s (D-Vt.) proposal to restrict various forms of surveillance–which he is discussing, at this hour, on the Senate floor.  We hope to post some analysis of the bill shortly.

Huh? Rep. McKeon on the White House and the Iraq AUMF

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Monday, July 28, 2014 at 5:30 PM

A little postscript to my note about Friday’s vote in the House, regarding military operations in Iraq: this quite critical statement, which House Armed Services Committee Chairman Howard “Buck” McKeon released on Friday. Its gist is to scold the White House, in light of a letter Susan Rice had sent to House Speaker John Boehner in advance . . .
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Reading the AUMF Tea Leaves, 2002 Edition

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Monday, July 28, 2014 at 12:42 PM

Nowadays figuring out what sort of post-2001 AUMF authority the White House wants is a bit of a tea leaf-reading exercise. Potentially relevant to it are the events of last Friday concerning the 2002 AUMF, which Congress passed in advance of the Iraq war. Friday evening saw the House’s approval of H. Con. Res. 105, a concurrent . . .
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“Omar Khadr’s Lawyers in U.S. Threatened Over Release of Court Documents”

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Friday, July 25, 2014 at 4:59 PM

That is the headline to an article in the Winnipeg Free Press, which I came across today. The piece concerns recent proceedings in Omar Khadr’s (stayed) appeal before the Court of Military Commission Review.  It opens thus: TORONTO – A U.S. military commission court is threatening to strip the security clearance from Omar Khadr’s Pentagon-appointed lawyers as part . . .
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A Severance Order in the 9/11 Case

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Friday, July 25, 2014 at 9:59 AM

The Washington Post reports of a new ruling from the military judge yesterday—which I have yet to see, and which isn’t yet available on the military commissions’ website.  The gist: A military judge ruled Thursday that one of the five defendants being tried at Guantanamo Bay, Cuba, for their alleged roles in the Sept. 11, 2001, attacks be . . .
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ECHR: Poland’s Role in CIA Black Site Violated Detainees’ Human Rights

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Thursday, July 24, 2014 at 10:08 AM

The European Court of Human Rights (“ECHR”) today handed down a pair of judgments in long-running human rights cases brought against Poland by two U.S. terrorism detainees—Abu Zubaydah and Abd Al Rahim Hussayn Muhammad Al Nashiri.  As is well known, both had alleged violations of the Convention for the Protection of Human Rights and Fundamental Freedoms, . . .
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The Intercept on NCTC Guidance for Putting People on Terrorism Watchlists

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Wednesday, July 23, 2014 at 4:30 PM

Over at the Intercept, Jeremy Scahill and Ryan Devereaux have this piece on the NCTC’s guidelines for adding citizens and foreigners to terrorism watchlists. Their article opens: The Obama administration has quietly approved a substantial expansion of the terrorist watchlist system, authorizing a secret process that requires neither “concrete facts” nor “irrefutable evidence” to designate an . . .
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Opinion from D.C. Circuit in Ralls v. CFIUS

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Tuesday, July 15, 2014 at 1:34 PM

Here it is; you’ll find some background here and here. Today’s ruling from a panel of the D.C. Circuit opens as follows: KAREN LECRAFT HENDERSON, Circuit Judge: In March 2012, Appellant Ralls Corporation (Ralls) purchased four American limited liability companies (Project Companies) previously formed to develop windfarms in north-central Oregon. The transaction quickly came under scrutiny . . .
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A Rough Overview of Today’s Ruling in Al-Bahlul

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Monday, July 14, 2014 at 7:45 PM

This morning, the full D.C. Circuit resolved military commission defendant Ali Hamza Ahmad Suliman al-Bahlul’s’s long-running appeal, in split fashion: by rejecting al Bahlul’s challenge to his conspiracy conviction, but also by vacating his convictions for material support and solicitation. Now it seems additional arguments regarding the conspiracy count will be considered further, by the . . .
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En Banc D.C. Circuit Opinion in Al-Bahlul

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Monday, July 14, 2014 at 10:29 AM

I am thumbing through the long-awaited and seemingly split ruling, which opens as follows: Opinion for the court filed by Circuit Judge HENDERSON. Concurring opinion filed by Circuit Judge HENDERSON. Opinion concurring in the judgment in part and dissenting filed by Circuit Judge ROGERS. Opinion concurring in the judgment in part and dissenting in part . . .
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A New Judge In Al-Nashiri’s Military Commission

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Friday, July 11, 2014 at 9:04 AM

According to a detailing memorandum issued yesterday (and this piece in the Miami Herald) the new military judge for Al-Nashiri’s military commission will be Air Force Col. Vance Spath. The prior military judge in Al-Nashiri’s case, Army Col. James Pohl, opted to step aside and to assign Spath.  As explained in the memorandum, Pohl did so in . . .
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Civil Liberties Groups Write to White House, Express Concerns Over Intercept Story on NSA & FBI Surveillance

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Wednesday, July 9, 2014 at 2:31 PM

In response to today’s Intercept story on NSA and FBI surveillance of Muslim Americans, a large coalition of civil liberties and human rights groups have written to the White House—and, among other things, asked the Obama Administration for a “full and public accounting” of the surveillance described in the story.  Here is the letter (which I . . .
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DNI and DOJ on Today’s Intercept Story

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Wednesday, July 9, 2014 at 9:43 AM

The Office of the Director of National Intelligence and the Justice Department together said this today, apparently in response to an earlier Intercept story on FBI and NSA surveillance of Muslim Americans:  It is entirely false that U.S. intelligence agencies conduct electronic surveillance of political, religious or activist figures solely because they disagree with public policies or criticize . . .
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USG Opposes Khadr’s Bid to Lift Stay, Vacate Conviction Based on OLC Memo

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Monday, July 7, 2014 at 4:32 PM

Today, counsel for the United States asked the Court of Military Commission Review (“CMCR”) to bat away Omar Khadr’s recent effort to lift the stay of his appeal to that court, and to have his guilty plea overturned. The D.C. Circuit’s long awaited resolution of al-Bahlul stood to affect Khadr’s appeal; thus the CMCR had stayed the latter, pending further . . .
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Hobby Lobby at Guantanamo?

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Monday, July 7, 2014 at 9:39 AM

Have a look at this emergency motion for a temporary restraining order, filed Thursday by attorneys for Guantanamo detainee Imad Hassan. It opens: This motion seeks a temporary restraining order (TRO) prohibiting Respondents from depriving Petitioner of the right to participate in communal prayers during the Islamic holy month of Ramadan, which commenced this year on June 28. . . .
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Abu Khattala Subject to Pre-Trial Detention

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Wednesday, July 2, 2014 at 1:11 PM

Such was the exceedingly unshocking result of this morning’s exceedingly brief detention hearing in the criminal case against Ahmed Abu Khattala. In his remarks, prosecutor Michael DiLorenzo essentially summarized his side’s written filing. It had put forth various reasons why, under the Bail Reform Act, no conditions of release would ensure the public safety in advance of . . .
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Defense: OLC Memo Supports Invalidation of Omar Khadr’s Conviction

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Wednesday, July 2, 2014 at 10:20 AM

I am actually a tad surprised that Monday’s filing did not come a touch more quickly.  It seemingly deals quite a whack to Omar Khadr’s 2010 plea of guilty to violations of the Military Commissions Act—including conspiracy, material support, and “murder in violation of the laws of war.”  (The latter is roughly synonymous with participating in hostilities but . . .
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Pre-Release PCLOB Report on Section 702 of FISA

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Tuesday, July 1, 2014 at 9:29 PM

Here is a “pre-release” version of the report; the PCLOB will adopt a final version at its meeting tomorrow morning.  It therefore has offered the still-not-yet-official document to the press and public, now, “so as to preview the Board’s findings and recommendations.” The main report’s executive summary overviews the Board’s legal and policy analysis, as well as its policy recommendations.  The . . .
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Statement by Defense Counsel on Effort to Obtain CIA Black Site Evidence in 9/11 Case

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Monday, June 30, 2014 at 3:44 PM

Detailed defense counsel for Ammar al Baluchi, also known as Ali Abdul Aziz Ali, had the following to say today, about a key filing in the 9/11 case: Today, counsel for Ammar al Baluchi filed a motion to compel the government to produce evidence of CIA torture of Mr. al Baluchi, following a similar order in . . .
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Al-Bahlul to D.C. Circuit: OLC Memo Further Undermines USG Position on Appeal

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Friday, June 27, 2014 at 8:03 PM

That’s the gist of this Rule 28(j) letter, regarding pertinent post-argument authority.  It was filed today with the D.C. Circuit by lawyers for Ali Hamza Ahmad Suliman al Bahlul, whose case could be decided any day now by the full appeals court. Here’s the key part: The OLC Memo begins its analysis with the U.S. Code. It concludes . . .
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