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Category Archives: Constitutional Rights

A Summary of Friday’s Decision in al-Aulaqi v. Panetta

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Monday, April 7, 2014 at 1:19 PM

As Ben mentioned on Friday, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia dismissed a Bivens suit brought by the families of Anwar al-Aulaqi, his son Abdulrahman, and Samir Khan—three U.S. citizens killed in U.S. drone strikes in 2011—seeking to hold various federal officials personally liable for their roles in . . .
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Intelligence Squared US Debate: “The President Has Constitutional Power To Target And Kill U.S. Citizens Abroad”

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Thursday, March 13, 2014 at 9:50 PM

For the Motion: Alan Dershowitz, Professor of Law, Harvard Law School Michael Lewis, Professor of Law, Ohio Northern University School of Law Against the Motion: Noah Feldman, Professor of Law, Harvard Law School Hina Shamsi, Director of the ACLU National Security Project President Has Constitutional Power to Target Americans from Intelligence Squared U.S. Debates on FORA.tv The results are . . .
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A Dissenting Word on the Harold Koh Memoranda

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Monday, March 10, 2014 at 2:00 PM

I want to take issue with Peter Margulies’s laudatory remarks this weekend about the Harold Koh memos on extraterritorial application of the ICCPR and the CAT—you know, those memos that mysteriously showed up in the New York Times just as the United States was preparing to present its views on the ICCPR to the UN . . .
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Extraterritoriality and Human Rights: Time for a Change in the U.S. View?

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Saturday, March 8, 2014 at 8:11 AM

As Jack has frequently observed, legitimacy and effectiveness often go hand-in-hand.  The two comprehensive State Department memoranda by former Legal Adviser (and Yale Law School dean) Harold Koh released Friday on extraterritoriality under the ICCPR and Convention Against Torture make this point powerfully and persuasively (see commentary by Marko Milanovic here and Jennifer Daskal here).  . . .
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NYT on the United States’ Position on Human Rights Treaties

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Friday, March 7, 2014 at 9:45 AM

Well worth a read: Charlie Savage’s story, for the New York Times, regarding Obama Administration debate over whether the International Covenant on Civil and Political Rights, and the Convention Against Torture, impose legal obligations on the United States in places beyond its borders. The piece cites, among other things, two memos written by then-State Department Legal Adviser Harold . . .
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Statutory Authority, Military Installations and Protests: Today’s Supreme Court Ruling in United States v. Apel

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Wednesday, February 26, 2014 at 7:01 PM

Federal law criminalizes the reentry of a “military . . . installation” after having been ordered not to do so by “any officer or person in command.”  18 U.S.C. § 1382.  But does that criminal prohibition apply to areas specifically designated by the military as civilian “protest areas”? Today, in United States v. Apel, the Supreme Court . . .
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Klayman v. Obama: Government Moves for More Time, Appellees Oppose

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Saturday, February 22, 2014 at 4:00 PM

District court proceedings in Klayman v. Obama ended with a bang back in December, with D.C. District Court Judge Richard Leon ruling that bulk metadata collection under Section 215 of the Patriot Act is unconstitutional. And it looks like the expected drama at the appellate court level has already begun. The government has asked for more time on its . . .
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Judge Bates and a FISA “Special Advocate”

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Tuesday, February 4, 2014 at 9:24 AM

In the midst of the hubbub over the PRG and PCLOB reports and the President’s speech, one of January’s more interesting developments in the FISA reform conversation has largely gone unaddressed (albeit not unnoticed): the “Comments of the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act,” and Judge Bates’s cover letter transmitting those comments. . . .
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A Critique of the New America Foundation’s Recent NSA Report

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Thursday, January 23, 2014 at 10:47 AM

I am a big fan of Peter Bergen. His book, Manhunt, about the search for Osama Bin Laden is one of the most useful and informative and gripping reads on a counterterrorism matter I have come across in a long time. So it’s with a bit of a heavy heart that I say that his recent . . .
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Assessing the Review Group Recommendations: Part III

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Tuesday, December 31, 2013 at 5:54 PM

In Parts I and II of this series, I focused on the Review Group recommendations from Chapter III of the group’s report. Starting in this post, I turn to the recommendations of Chapter IV, which deal with collection under Section 702 and other authorities directed at non-US persons. This is, to my mind, one of the . . .
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Abdullah Files His Reply-Brief Before the D.C. Circuit

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Monday, December 30, 2013 at 12:17 PM

As Raffaela previously noted, the case of Abdullah v. Obama is an exercise in “heel dragging and losing arguments.” A brief refresher on the case: the legal saga started when Guantanamo detainee Hani Saleh Rashid Abdullah filed a habeas petition. The petition went unanswered. Accordingly, Abdullah switched tactics and instead moved for a preliminary injunction against his . . .
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Jeff Kahn on Terrorism Watchlists and the Ibrahim Trial

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Saturday, December 28, 2013 at 3:00 PM

The following guest post is from Professor Jeffrey Kahn of SMU Law.  Jeff is the author of Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists, a terrific book recently published by University of Michigan Press. The FBI’s Terrorist Screening Center (TSC) is responsible for compiling the U.S. Government’s Terrorist Screening Database, a sensitive . . .
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Cert Petition Filed in Al Warafi v. Obama

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Friday, December 27, 2013 at 4:00 PM

Shortly before Christmas, counsel for Guantanamo detainee Mukhtar Yahia Naji Al Warafi filed a petition for a writ of certiorari in his habeas petition, having been denied earlier this year an en banc rehearing in the D.C. Circuit. (We’ve covered this case at length—read our coverage here.) Al Warafi had argued that his role was as a . . .
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Too Much and Too Little

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Thursday, December 26, 2013 at 10:39 AM

With the release of the Report and Recommendations of the President’s Review Group on Intelligence and Communications Technologies reporters and commentators have scrambled to make sense of the 308 pages of relatively arcane and often vague language.  In doing so many have missed the forest for the trees and equally often, confused those recommendations that . . .
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The Very Awkward President Review Group Report

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Wednesday, December 18, 2013 at 4:36 PM

In the coming days, I am certain we will see a lot of substantive commentary on the just-released report by the President’s Review Group on Intelligence and Communications Technologies: Liberty and Security in a Changing World. But let me start out with a crass political observation: This is a really awkward document for the Obama administration. . . .
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Three Unrelated Tidbits on the NSA and Klayman v. Obama

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Wednesday, December 18, 2013 at 12:46 PM

Obviously, there’s a lot to say about Monday’s decision by Judge Leon granting a preliminary injunction against the NSA’s telephone metadata program and then staying that decision pending appeal. Much of it’s already been said here, so I just wanted to flag three quick points of potential interest not already covered via Lawfare: Over at Just Security, . . .
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Don’t Miss the Footnotes: Judge Leon’s Opinion in Klayman (Section 215 Collection)

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Tuesday, December 17, 2013 at 1:22 AM

Analyses of District Court Judge Richard Leon’s opinion requiring the government to cease telephone metadata collection under Section 215 of the USA Patriot Act against two plaintiffs are proliferating: here are Orin, Paul and Ben, already. The two plaintiffs in Klayman v. Obama are Larry Klayman of Freedom Watch and Michael Strange, whose son was a cryptologist with . . .
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District Court Opinion Enjoins Bulk Metadata Collection Program

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Monday, December 16, 2013 at 2:04 PM

This today from Judge Richard Leon of the U.S. District Court for the District of Columbia. Judge Leon appears to have stayed his opinion pending review. I haven’t read it yet. But it concludes: In the months ahead, other Article III courts, no doubt, will wrestle to find the proper balance consistent with our constitutional system. But . . .
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Call for Papers: Stanford Journal of International Law

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Monday, December 9, 2013 at 7:00 PM

Jose Aleman, Editor-in-Chief of the Stanford Journal of International Law, writes in with this seemingly quite Lawfare-relevant announcement: As the 10th anniversary of the 9/11 Commission Report approaches, the recurring dispute over the boundaries of the post-9/11 national security state is once again in full swing.  Governing Intelligence will move beyond the surveillance debate to start an interdisciplinary dialogue about the . . .
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Overview of Restrictions on Counsel in the Tsarnaev and 9/11 Cases

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Monday, December 2, 2013 at 3:00 PM

From the defense’s standpoint, which are more onerous: restrictions on lawyers in civilian terrorism cases or restrictions used in military commissions? Accused Boston Marathon bomber Dzhokhar Tsarnaev is currently challenging Special Administrative Measures (SAMs) imposed on him and his attorneys; Judge George O’Toole of the United States District Court for the District of Massachusetts heard argument on . . .
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