There’s been a flurry of Lawfare posts on today’s hearing, before the Senate Armed Services Committee, on the 2001 Authorization for the Use of Military Force. The video of the hearing can be viewed here, and we’ve got links … Read more »
I participated in an extraordinary hearing before the Armed Services Committee today on the scope of the AUMF. Lawfare readers interested in the scope of the AUMF will want to watch the hearing video carefully (or read the transcript, when … Read more »
Ben quotes from this morning’s Washington Post editorial on AUMF reform, the last two sentences of which assert that “Countering the jihadists with intelligence and law enforcement tools manifestly failed before Sept. 11, 2001. Congress would be wise to … Read more »
The Washington Post this morning has this editorial on AUMF reauthorization. It opens:
THE OBAMA administration’s political and legal authority to wage war against al-Qaeda has steadily eroded. Both liberal and conservative members of Congress have challenged the administration’s lack
For those who’d prefer the shorter version of Jen Daskal and my draft paper on life “After the AUMF,” we’ve got a short op-ed out in today’s New York Times with a far less alliterative title: “Don’t … Read more »
In advance of Thursday’s Senate Armed Services Committee hearing on the 2001 Authorization for the Use of Military Force (AUMF), Jen Daskal and I have expanded upon our exchanges with Bobby, Jack, Matt, and Ben in a new (draft) working … Read more »
As Andrew Rosenthal noted in yesterday’s New York Times, things seem to be heating up in Congress with respect to whether–and to what extent–the September 2001 Authorization for Use of Military Force (AUMF) needs to be updated, repealed, and/or … Read more »
Philip Carter and Deborah Pearlstein have posted a thoughtful essay at Foreign Policy that emphasizes the utility of civilian criminal prosecution as a counterterrorism option. I very much agree with their positive take on DOJ’s track record, and I agree … Read more »
The WSJ has a story (behind paywall, I think) about the CIA “expanding its role in the campaign against the Syrian regime by feeding intelligence to select rebel fighters to use against government forces.” The point of the CIA aid … Read more »
While we appreciate Ben’s answer to our question (and share his view that we’re reaching the point of the conversation where everything has been said and everyone has said it), we still fail to understand how the Libya example illuminates … Read more »
Ben writes that it is the “political reality” that “any president is going to feel obliged to maintain counterterrorism on offense,” i.e., counterterrorism through military means, “and Congress—whining, carping, complaining all the way both that the president is being … Read more »
It’s quickly becoming apparent that we and Jack appear to be talking past each other on the merits of the Chesney/Goldsmith/Waxman/Wittes (CGWW) proposal for a new framework statute for “extra-AUMF threats.” In Jack’s final response, for example, he frames … Read more »
We appreciate Jack’s quick and comprehensive clarification of his views—and of what the CGWW proposal we critiqued last night seeks to achieve. Like Jack, we want to start by emphasizing the many areas of agreement between us and CGWW … Read more »
In the very first days after the horrific attacks of September 11, 2001, the Bush Administration asked Congress for broad statutory authorization to use military force to “deter and pre-empt any future acts of terrorism or aggression against the United … Read more »
The more I reflect on last week’s drone contretemps–and what effect the efforts of Senator Paul and his followers has had / may still have on U.S. policy–the more I have a profound and distressing sense of déjà vu. After … Read more »
Several years ago, in a prescient op-ed in the Washington Post, our colleague John Bellinger argued that the September 2001 AUMF was an increasingly poor fit for the evolving threats facing the United States. It is a theme to which … Read more »
What is the United States actually doing so far, and what else reportedly is on the table?
1. So far we have agreed to provide airlift support to the French, on their dime. That is, France is going to pay … Read more »
Below the fold, I’m pasting in a reply by Jon Hafetz from Seton Hall to last Friday’s post by Marty Lederman and me on the new Feinstein Amendment and the military detention of non-citizens apprehended within the United States–which was … Read more »
As Wells and Steve noted last week, the Senate approved the “Feinstein Amendment” to the FY2013 National Defense Authorization Act (NDAA). The Amendment, if enacted, would impose a clear statement rule for the detention of U.S. citizens and … Read more »
Wells is exactly right–and Senators Levin and Graham are exactly wrong–about the implications of last night’s Senate vote approving Senator Feinstein’s amendment to the FY2013 National Defense Authorization Act. Wells linked to the amendment, but here is the relevant … Read more »
Ben notes what appears to be a draft proposal from Senator Rand Paul to amend the NDAA so as to address situations involving American citizens captured inside the United States. While the context suggests that the drafters’ aim might be … Read more »
I’d like to expand on Ben’s post below in relation to Hedges and the First Amendment, focusing on the “material support”/”substantial support” issue. (I’m having to write quickly, so please excuse any typos in what follows.)
Specifically, I’d like to … Read more »
Based on the voluminous media and blog coverage of last week’s decision in Hedges v. Obama, in which Judge Forrest permanently enjoined at least part of the detention provision of the FY2012 NDAA [section 1021(b)(2)], one of two things … Read more »
I don’t have a lot to add to Ben’s analysis of Judge Forrest’s decision yesterday in Hedges v. Obama, permanently enjoining section 1021(b)(2) of the FY2012 NDAA (Just to refresh our memories, that section authorizes the detention of “A … Read more »
I’m happy to report that I’ve recently completed drafting an article that has been much on my mind for the past few years. Beyond the Battlefield, Beyond al Qaeda: The Destabilizing Legal Architecture of Counterterrorism (Michigan Law Review, forthcoming 2013) … Read more »
Steve and Ben are having an interesting exchange about an important question: whether the DC Circuit’s caselaw in GTMO habeas proceedings has produced a set of substantive and procedural rules at variance with the positions established by the Supreme Court … Read more »
By now you’ve gotten the lowdown – from Steve, Bobby, Ben or from some or all of them – about yesterday’s puzzling decision in Hedges v. Obama. I won’t reiterate their points, other than to say that … Read more »
A few reflections on Hedges v. Obama, enjoining at least some aspects of section 1021 of the NDAA:
A Self-Inflicted Wound? Let me begin by saying that I agree with Steve: it does seem from the opinion that … Read more »
I’ve now had more of a chance to read through Judge Forrest’s decision Wednesday in Hedges v. Obama, which (seems to) enter a preliminary injunction against some or all of section 1021 of the FY2012 National Defense Authorization Act. … Read more »
Ben is a far better wordsmith than I–”a little cowardly” communicates a lot more in a lot less than my post from Tuesday afternoon about why the House Armed Services Committee’s version of the FY2013 National Defense Authorization Act does … Read more »
The debate over the Smith-Amash amendment to the NDAA continues. Yesterday, we posted a letter written by former administration attorneys general criticizing that amendment, among others. Today, it’s twenty-seven retired admirals and generals writing in support of the Smith-Amash Amendment … Read more »
Over at DefCon Hill, Jeremy Herb shares a letter written by former Attorneys General Edwin Meese III and Michael Mukasey and former Secretary of Homeland Security Michael Chertoff to House Armed Services Committee Buck McKeon criticizing the various amendments that … Read more »
I have thus far stayed fairly mum on the FY2013 National Defense Authorization Act, if for no other reason than the 150 exams (now 80) that I have to grade. That said, there’s an alarming meme emerging from the House … Read more »
Rumor has it that sometime this week (perhaps as early as tomorrow), Congressmen Scott Rigell (R-VA) and Jeff Landry (R-LA) will introduce a bill titled the “Right to Habeas Corpus Act.” In short, the bill would “firmly state that … Read more »
While the experience is fresh, I thought I’d share some reflections on this morning’s Senate Judiciary Committee hearing on the Due Process Guarantee Act. [The SJC hearing page has copies of the witness statements (including my own), and … Read more »
Brian Jenkins of RAND sharply criticizes the NDAA’s detention provisions in this short piece at Foreign Affairs. I am sympathetic to some of Brian’s arguments insofar as they defend the desirability of focusing on civilian criminal prosecution for cases … Read more »
Opinion here. Commentary later, hopefully.
By Marty Lederman and Steve Vladeck*
[Cross-posted at OpinioJuris]
Section 1021 of the NDAA and the Laws of War
In our companion post, we explained that section 1021 of the NDAA will not have the dramatic effects that … Read more »
By Marty Lederman and Steve Vladeck*
[Cross-posted at OpinioJuris]
Editorial pages and blogs have been overrun in the past couple of weeks with analyses and speculation about the detainee provisions in the National Defense Authorization Act, which the President … Read more »
According to the AP, President Obama signed H.R. 1540, the National Defense Authorization Act, into law this morning in Hawaii. Below the fold is the text of the signing statement accompanying the bill:
In our final installment of NDAA transcripts, we bring you the Senate’s debate on December 15th on the conference report’s detention provisions.
Here are some highlights:
Senators Carl Levin and John McCain tout the strengths of the detention provisions starting … Read more »
Well that was fast… With the ink barely dry on the Senate’s passage of the NDAA, Senator Feinstein yesterday introduced on behalf of herself and 13 Senate colleagues (including Republican Senators Lee, Kirk, and Paul) the “Due Process Guarantee … Read more »
The White House has issued the following statement announcing that–and why–it will not veto the NDAA:
Statement from the Press Secretary on the NDAA Bill
We have been clear that “any bill that challenges or constrains the President’s critical authorities … Read more »
Here is a letter from Congressman Adam Smith (D-WA), the ranking member of the House Armed Services Committee, defending and clarifying the detention provisions in the NDAA and advocating for its passage.
Dear Colleague:
One of the most important issues
For reasons I plan to elaborate upon in this and subsequent posts, I’m not at all convinced that the conference version of the NDAA is substantially better than the House or Senate version (or that either is better than nothing)… … Read more »
I am still digesting the new NDAA language, and I’m not yet ready to say how come out on it. It is, without question, significantly better than either the House or Senate bills. Yet some of its provisions remain deeply … Read more »
The conference report for the NDAA is now available. Subtitle D, entitled “Counterterrorism,” begins on page 653 and runs through page 685. The conferees’ explanation of their choices begins on page 158 of a separate document.
I will blog as … Read more »
In a prior post surveying the impact of the Senate version of the NDAA bill (currently in conference negotiations), I emphasized that the Feinstein Amendment made clear that the NDAA did not alter, one way or the other, the government’s … Read more »
As the House of Representatives and the Senate head to conference on the NDAA, I thought it might be useful to analyze the similarities and differences between the counterterrorism provisions of the two versions of the bill. People sometimes talk … Read more »
As Raff explains below, there was one amendment to S. 1867′s detainee section that made it through: Senator Feinstein’s amendment stating that the bill should not be read as favoring or disfavoring an interpretation of the AUMF (or section … Read more »
Monday, May 20, 2013
As Jack posted yesterday—and as everyone is buzzing about—President Obama will give a major counterterrorism speech on Thursday at the National Defense University. The Wall Street Journal, CNN, and Politico all report on the talk, and subjects that the President will likely address.
Speaking of Jack, he noted another of today’s big stories: the Washington Post’s piece on the FBI’s search, a few years… Read more »
