This is interesting. Today in one of the more recent Guantanamo merits appeals, that of Toffiq Nasser Awad Al Bihani, the government and petitioner jointly filed for summary affirmance of the district court’s ruling. The ruling they seek to affirm … Read more »
Bobby is quite right to link yesterday’s New York Times editorial to the one about which I complained back in October. But Bobby is a more generous soul than I am, and I am disinclined to give the Times’ editorial … Read more »
The combination of Jack’s post and sleeping on the subject has mostly set my mind at ease on the difference between an executive order and a statute for purposes of the Guantanamo review system currently on the table–but not entirely.… Read more »
Ben has already commented on David Cole’s TNR essay (subscription needed) about how the Obama approach to counterterrorism differs from the Bush approach. But since David uses my own TNR essay on the subject as a foil for some of … Read more »
Last week (and our apologies for the belated update), the D.C. Circuit released the public version of the appellant’s brief in another habeas merits appeal, Al Harbi v. Obama. In this case, the government appeals Judge Henry Kennedy’s May … Read more »
Today, the D.C. Circuit released the public version of the appellant’s brief in Al Madhwani v. Obama. In this case, Musa’ab Omar Al-Madhwani appeals Judge Thomas Hogan’s December 2009 bench ruling and January 2010 opinion affirming his detention, as … Read more »
Opinion here. More to come after we’ve had a chance to digest the full opinion.
UPDATE: Below are selected excerpts from the opinion (footnotes omitted).
Excerpt from introduction:
This is a unique and extraordinary case. Both the threshold and
I met Adam Klein, then a first year law student, sometime back, when his professor, Matthew Waxman, sent him my way. Matt had suggested that Adam work with me for his 1L summer and told me he was exceptional–which turned … Read more »
Two weeks ago, I posted a question for Atlantic blogger Jeffrey Goldberg in light of some remarks he made to Nick Baumann of Mother Jones objecting to the targeting of Anwar Al Aulaqi. Goldberg had expressed admiration for the pure … Read more »
Michael Leiter, the Director of the National Counterterrorism Center, gave an important speech today at CSIS that touched on many topics, including an overview of the foreign and homeland terrorist threat, what the government is doing about it, and how … Read more »
Over at Mother Jones, Nick Baumann offers a thoughtful response to my post yesterday, which in turn responded to his earlier post on Al Aulaqi. I don’t mean to respond further, since I think the exchange as it … Read more »
Over at Mother Jones, Nick Baumann accuses me of arguing against straw terrorists. Quoting a Lawfare post from a little while back in which I posited that the alternative to reserving the option of lethal force against Anwar Al Aulaqi … Read more »
Larkin and I were planning to post a detailed account of what the Wikileaks cables say about Guantanamo resettlement efforts, but Charlie Savage and Andrew Lehren of the New York Times have beaten us to the punch with an excellent … Read more »
Responding to my suggestion that Lawfare readers debate the parameters of a new AUMF–a discussion thread for which I have started over at our Facebook page–John Bellinger III writes in with the following:
I’ve been a bit surprised by the
It is hardly a surprise that John Bellinger III is being attacked (here and here, for example) for his modest suggestion in the Washington Post the other day that Congress should update the AUMF. (Attacking the moderate and … Read more »
John Bellinger argues in today’s Washington Post for new framework legislation relating to counterterrorism – that is, for a new statute to supersede the AUMF. John concludes:
Nearly 10 years after the Sept. 11 attacks, the Obama administration, congressional Republicans
I received the following note from Andy Worthington in response to my earlier post about his article. I appreciate very much his clarifications, which read in relevant part:
My intention was not to describe you and Jack and Robert
It will come as a surprise to nobody who has followed the many exchanges between us Lawfare folks and Steve Vladeck that Steve has written a thoughtful objection to Jack and my oped and series of posts arguing against bringing … Read more »
Kandahar City, Wednesday, November 17, 2010 — Counterinsurgency (COIN) theory—for that is what my last post describes—is only that: theory. The current reality in Afghanistan is that the rule of law remains mostly just a worthy goal. To evaluate whether … Read more »
A story on NPR’s All Things Considered tonight (“Al-Qaida, Affiliates Showing Greater Coordination“) conveys a claim by U.S. government officials to the effect that “core/original” al Qaeda (“AQ”) since spring 2010 has increased the degree to which it … Read more »
They say you can’t tell where an appeals panel is headed based on the oral argument. Sometimes you can. I will go out on a limb on the one I attended today: I will eat my computer if the D.C. … Read more »
(by Larkin Reynolds and Benjamin Wittes)
Tomorrow, D.C. Circuit Judges Karen LeCraft Henderson, A. Raymond Randolph, and Stephen Williams will hear oral argument in Hatim v. Obama, a habeas merits appeal of some potential importance.
The case is a
(By Robert Chesney and Benjamin Wittes)
This morning the D.C. Circuit vacated and remanded a decision by former U.S. District Judge James Robertson, granting habeas relief to Mohammedou Salahi. The opinion, written by Judge Tatel and joined by Chief Judge … Read more »
When last we left the question of targeted killings, Kevin Jon Heller and I were arguing over how to read Tom Malinowski’s statement on behalf of Human Rights Watch on the subject. Considering the question a matter of original understanding, … Read more »
In my post below regarding the AUMF and the possible AQ/AQAP distinction, my main point was to suggest that there is a strong argument for treating AQAP as part-and-parcel of al Qaeda itself, in arguable contrast to other, less directly-connected … Read more »
Al Qaeda in the Arabian Peninsula (“AQAP”) has been much in the news this year thanks to the attempted Christmas Day Bombing last December, the ACLU/CCR lawsuit challenging the government’s alleged plans to use lethal force against U.S. citizen Anwar … Read more »
In Limited War and the Constitution: Iraq and the Crisis of Presidential Legality (forthcoming Michigan Law Review), Bruce Ackerman and Oona Hathaway argue that the October 2002 AUMF for Iraq was subject to certain purpose-oriented conditions, that these conditions ceased … Read more »
Kevin Jon Heller makes several challenging points in response to my earlier thoughts on Tom Malinowski’s statement on targeted killings. Before you tune this out as a navel-gazing blogosphere back-and-forth, consider that the point in dispute is actually important. … Read more »
Judge Richard Leon has issued an opinion denying a writ of habeas corpus to an Afghan national named Obaydullah in the latest Guantanamo habeas case. The brief opinion follows Judge Leon’s usual practice of issuing a separate unclassified opinion that … Read more »
Kevin Heller claims that the D.C. Circuit in its al-Bihani panel opinion has reached the conclusion, with which he agrees, that “there [is] no justification for the government’s attempt . . . to import the concept of co-belligerency into non-international … Read more »
Ben’s most recent post on the al-Aulaki suit has precipitated an interesting discussion at Opinio Juris involving, among others, John Dehn, Kevin Heller, and Mary Ellen O’Connell (Mary Ellen’s thoughts appear in Kevin’s post and in his comment … Read more »
Here is a speech by former State Department Legal Advisor John Bellinger, given a few days ago at the International Bar Association’s Rule of Law Symposium in Vancouver, Canada. John compares the Obama approach to counterterrorism with the Bush approach, … Read more »
Judge Reggie Walton’s redacted opinion affirming the detention of Guantanamo detainee Toffiq Nasser Awad Al-Bihani has been declassified. I will have comments once I’ve read and digested it. The conclusion reads:
As counsel for the petitioner candidly acknowledged at the
Largely overlooked in Judge Kaplan’s Ghailani Order is his statement that Ghailani’s “status as an ‘enemy combatant’ probably would permit his detention as something akin to prisoner of war until hostilities between the United States and Al Qaeda and the … Read more »
After reading the Khan opinion, I find that I don’t have a great deal to say about it. It does not significantly alter the discussion of any of the issues Bobby and I have been writing about–save that it … Read more »
I was amused, in reading Judge Bates’ Khan opinion just now, to run across the judge’s account of the scope of the government’s detention authority–amused because the New York Times this morning editorialized that holding people in prolonged military detention … Read more »
One of the questions I have been fascinated by over the past year, but unable to shed much light on, is how the court rulings in the Guantanamo habeas cases play out in the field. We tend to think of … Read more »
Nine years after it was enacted in response to the September 11 attacks, the Authorization to Use Military Force (AUMF) remains the primary basis for detaining and targeting terrorists who threaten the United States. The AUMF, however, authorizes force only … Read more »
Adam Serwer of the American Prospect has a typically thoughtful post on the government’s Al Aulaqi brief, notable for his taking the government’s arguments seriously even in dismissing them. His rather nuanced bottom line is the following:
I think it’s
Here’s an interesting addition to our discussion of Lindsey Graham’s Guantanamo habeas legislation. Walter Kuhn, Minority Chief Counsel on the Senate Judiciary Committee’s Subcommittee on Crime & Drugs, has written a forthcoming law review article entitled, “The Terrorist Detention Review … Read more »
The USG’s brief in Al-Aulaqi, the targeted killing case, reveals a great deal about the Obama administration’s thinking about its legal authorities.
1. Perhaps most noteworthy is the brief’s reliance on the president’s exclusive Commander-in-Chief authorities. The thrust of … Read more »
One person we have not heard from in our extensive discussion on this blog of Sen. Lindsey Graham’s habeas legislation, S. 3707, is Sen. Lindsey Graham. Graham has been uncharacteristically reticent on the subject of his legislation, since introducing … Read more »
Kevin Heller objects to an argument that he incorrectly attributes to Ben and me in the wake of our recent dialogue with Steve Vladeck. Kevin writes:
Unfortunately, if all you read was Wittes and Chesney’s post, you would think it’s
In response to this post Ben and I put up earlier regarding the Graham bill’s detention provision, Steve Vladeck has written a reply and given me permission to post it below. My comments follow after:
[A jointly-written post by Bobby Chesney and Benjamin Wittes]
Does the substantive scope of detention authority conferred by the Graham bill (S. 3037) “dramatically expand existing law,” as Steve Vladeck alleges here? No, it does not. It adds nothing … Read more »
A few days ago I argued that the Obama administration’s eschewal of the Bush administration Article II argument in its detention litigation was not as big a deal as it seemed. Now I want to explain why I think the … Read more »
I posted earlier a summary by Larkin Reynolds of the coming argument in Salahi v. Obama–which the D.C. Circuit is hearing on Friday. I also posted the briefs. I think this case is a big deal, one that … Read more »
It is now well known that the Obama administration has embraced almost all of the Bush administration’s counterterrorism policies without substantial modification. One such policy is military detention without trial. The Obama administration has argued, however, that its legal rationale … Read more »
In his two responses (here and here) to Steve Vladeck’s earlier post on S. 3707, Bobby has said, better than I could, much of what what I believe. What remains are a few isolated points of disagreement … Read more »
Earlier today I posted some thoughts in response to Steve Vladeck’s commentary on the Graham bill, focused on the question of which groups ought to fall within the scope of the government’s authority to use military force. Steve had expressed … Read more »
Friday, May 24, 2013
Coverage of President Obama’s speech yesterday is plentiful: Here are Peter Baker of the New York Times, Karen DeYoung and Greg Miller of the Washington Post, and Mark Mazzetti of the Times with an analysis of the key points of the speech. Scott Wilson of the Post also provides a rundown of the speech, and cites Ben. The Associated Press reports on lifting the transfer ban on Yemeni detainees, and Colleen McCain Nelson, Adam Entous, and Julia E. Barnes… Read more »
