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Posts by Yishai Schwartz

Yishai Schwartz is an associate editor at Lawfare. Before the late unpleasantness at the New Republic, he was a reporter-researcher at that magazine. He previously was a fellow with the Tikvah Fund and an intern at Lawfare, which welcomed him back after his New Republic stint under a little-noticed refugee program. Follow him @yishaischwartz

Defining Anticipated Military Advantage: the Importance of Certainty

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Friday, May 22, 2015 at 10:32 AM

When scholars analyze Israeli military actions against Palestinian militant groups, the discussion inevitably turns to the principle of proportionality. Advocates and analysts sift through lists of the names of the dead, review drone footage from before missile strikes, and endlessly debate whether anticipated military advantage justified foreseeable civilian costs. Less discussed, however, is a more . . .
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The NDAA, and the Latest in Passing the Buck on GTMO-Closure

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Monday, May 18, 2015 at 10:02 AM

On Thursday, the Senate Armed Services Committee passed its markup of the annual defense authorization bill by a vote of 22-4. Shortly after the vote, committee chairman Senator John McCain told reporters that “very importantly, this legislation contains a bipartisan compromise on the issue of the detention facility at Guantanamo Bay.” Some news outlets apparently read . . .
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The Lawfare Podcast, Episode #123: Andrew March on the Islamic Law of War

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Saturday, May 16, 2015 at 1:55 PM

For months, the world has been transfixed by the apparent brutality of the Islamic State’s practices in war. The beheading of journalists, the burning of prisoners and the enslavement of religious minorities all seem like a return to a barbaric past. Certainly, these practices seem far removed from any notion of conduct constrained by law. Islam, however, has . . .
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The Middle East Ticker

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Friday, May 15, 2015 at 11:45 AM

New Israeli justice minister expected to clash with High Court: After an election that seemed to end extremely satisfyingly for Benjamin Netanyahu, the Prime Minister was only able to cobble together a bare majority coalition minutes before the deadline. In the process, he has been forced to hand significant cabinet posts and political power to . . .
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Hersh’s Account of the Bin Laden Raid is Journalistic Malpractice

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Monday, May 11, 2015 at 10:10 PM

When a journalist writes a tell-all story about a classified operation, and he suspects the story will catalyze anti-American anger, provide fuel for terrorist groups, and cause severe friction with foreign governments, the act of publication is morally fraught. When the story is based on obscenely thin sourcing and careens into conspiracy theories, the decision . . .
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“Reasonable Search” or “Reasonable Expectation of Privacy:” A Brief Reply to Orin Kerr on the 2nd Circuit’s Decision

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Sunday, May 10, 2015 at 12:30 PM

Thursday’s 2nd Circuit decision striking down 215 ends with a brief, and unresolved, rumination on the impact explicit congressional authorization might have on a 4th Amendment analysis—if and when such an analysis were actually to take place: [W]hether Congress has considered and authorized a program such as this one is not irrelevant to its constitutionality. The . . .
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How (and How Not) to Investigate an Armed Conflict: Reflections on Three Recently Released Gaza Reports

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Wednesday, May 6, 2015 at 2:28 PM

In the last two weeks, three new reports have claimed to offer insight into this past summer’s bloody Gaza conflict. Each has been followed by a stream of articles and commentary as pundits rushed to reinforce their own narratives and preconceptions about how the war in Gaza was fought. The continued interest demonstrates (yet again) . . .
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The Middle East Ticker

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Thursday, April 30, 2015 at 10:32 PM

UN inquiry finds Israeli munitions killed civilians sheltering in UNRWA schools, also finds Hamas used (separate) UNRWA schools to store missiles and fire at Israelis. A special investigative panel designated by UN Secretary General Ban Ki Moon and led by Dutch general Patrick Cammaert submitted its full report to the parties this week. The 207 . . .
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DNI General Counsel Robert Litt: “The New York Times Disgraced Itself”

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Monday, April 27, 2015 at 9:57 PM

Over the weekend, the New York Times published an article on congressional support for the C.I.A.’s drone program. In describing the program’s leadership, the Times saw fit to reveal the identity of three people it claims are covert C.I.A. operatives. The publication of these names did not sit well, apparently, with Robert Litt, General Counsel for the Office of the Director of National Intelligence. . . .
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The Middle East Ticker

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Wednesday, April 22, 2015 at 4:16 PM

In a 233-page blockbuster decision, Uri Avnery v. Israeli Knesset, an expanded 9-justice panel of the Israeli Supreme Court issued a split ruling on a controversial 2011 law restricting political boycotts aimed at the State of Israel. In recent years, frustrated opponents of Israel and Israeli policy have increasingly turned to economic and cultural boycotts. . . .
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Why the Administration is Perfectly Pleased with the Iran Nuclear Agreement Review Act

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Tuesday, April 14, 2015 at 8:33 PM

Today, just hours before Senator Corker’s slightly amended “Iran Nuclear Agreement Review Act” sailed through committee on a unanimous vote, the Obama administration began walking back its longstanding opposition. White House spokesman Josh Earnest even told reporters “it’s now in the form of a compromise that the president is willing to sign.” There are two . . .
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Polite Sabotage: The Attempt to Gut the Iran Oversight Bill by Amendment

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Monday, April 13, 2015 at 2:34 PM

This morning’s New York Times has an excellent article outlining the debate over Senator Corker’s Iran deal oversight bill—likely heading for mark-up tomorrow. But most interesting to me was the brief section on how White House-aligned Democrats are targeting the bill: Democrats on the committee, in close consultation with the White House, have focused on . . .
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Terror Money, Mid-game Rule Changes, and Presidential Power

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Thursday, April 9, 2015 at 4:00 PM

As the details of a nuclear deal are hammered out, a case that directly implicates the American-Iranian relationship is clamoring for cert. On Monday, the Supreme Court asked for the view of the Solicitor General in Bank Markazi v. Peterson, an appeal based on a 2013 mega-judgment allowing plaintiffs to collect billions of Iranian Central . . .
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Two New FISA Court Judges Designated

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Tuesday, April 7, 2015 at 11:08 AM

From the FISC’s website: “The Chief Justice has designated Judge James P. Jones of the United States District Court for the Western District of Virginia and Judge Thomas B. Russell of the United States District Court for the Western District of Kentucky to seven year terms on the U.S. Foreign Intelligence Surveillance Court. Their terms . . .
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What Does the Word “Implement” Mean in the Iran Framework Agreement?

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Monday, April 6, 2015 at 2:37 PM

Since last week’s announcement of a “framework agreement” on the Iranian nuclear program, I’ve been bothered by a handful of troublesome ambiguities. Near the top of that list was what precisely had been agreed to regarding an Iranian commitment to the Additional Protocol (which authorizes intrusive IAEA inspections of suspected non-disclosed nuclear sites) and to . . .
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The Middle East Ticker

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Monday, April 6, 2015 at 2:33 PM

Twitter and YouTube have been blocked in Turkey. The move comes after the sites failed to comply with an order issued last week by the Istanbul First Criminal Courts of Peace to take down footage of an Istanbul prosecutor being held at gunpoint. The footage had been circulating on social media while a hostage crisis was still . . .
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After Bibi’s Reelection: Why a Pivot to the UNSC is Still a Mistake (Part 1: Settlements)

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Thursday, March 26, 2015 at 2:45 PM

As the White House continues to direct a cascade of criticism at Israeli Prime Minister Benjamin Netanyahu, some commenters are beginning to ask whether the ongoing verbal offensive serves any strategic purpose. More are already theorizing about what precisely the President and his staff mean when they announce they are “reassessing” or “reevaluating” their policies . . .
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The Middle East Ticker

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Wednesday, March 25, 2015 at 3:30 PM

With support of 67 parliamentarians, Netanyahu set to begin forming a government: Benjamin Netanyahu’s big election victory just got more official, with the leadership of parties representing a majority of the Knesset formally recommending that Israel’s President Ruby Rivlin task Netanyahu with the formation of a government. Most analysts believe Netanyahu will form a narrow . . .
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Netanyahu’s Latest “Reversal” on Palestinian Statehood

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Thursday, March 19, 2015 at 6:26 PM

Earlier today, Israeli Prime Minister Benjamin Netanyahu sat down with MSNBC’s Andrea Mitchell, and explained that he hadn’t changed his policy on the creation of a Palestinian state. “I don’t want a one-state solution. I want a sustainable, peaceful two-state solution,” he insisted. For the second time in three days, the American media went into . . .
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Two Further Notes on the NPT and Iranian Legal Arguments

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Wednesday, March 18, 2015 at 8:59 AM

As Iran and the P5+1 edge ever closer to an agreement, the public is beginning to get a peek at the general contours of the potential deal. Many of the details—careful pencil calculations about numbers of centrifuges, degrees of uranium enrichment and breakout time—require so much specialized knowledge that it is difficult for non-experts to . . .
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