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Category Archives: Extraterritoriality

Confusing the Issues in al Bahlul

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Wednesday, October 1, 2014 at 10:11 PM

For the two people still following the exchange between me and Peter Margulies over the bottom-side briefing in the al Bahlul D.C. Circuit military commission appeal, I wanted to offer a very quick (and hopefully final) word in response to Peter’s surreply from this afternoon, in an effort to crystallize the true points of departure between . . .
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Why Article III Matters: A Reply to Peter Margulies on al Bahlul

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Tuesday, September 30, 2014 at 10:23 PM

I must confess that I don’t fully understand Peter Margulies’ response to my post from earlier today. My post argued that the bottom-side briefing in the D.C. Circuit in al Bahlul offers a relatively weak (and, in my view, already debunked) explanation for why Congess can allow allow military commissions to try enemy belligerents for wholly domestic offenses without . . .
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Article III and the Bottom-Side Briefing in al Bahlul

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Tuesday, September 30, 2014 at 12:02 PM

Jane already flagged the merits brief filed by the U.S. government on September 17 in al Bahlul v. United States, the major challenge to the power of the Guantánamo military commissions to try non-international war crimes that was remanded by the en banc D.C. Circuit to the original three-judge panel back in July (and in which oral argument is . . .
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Article III and the al Bahlul Remand: The New, New NIMJ Amicus Brief

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Monday, August 18, 2014 at 12:59 PM

On July 14, the en banc D.C. Circuit ruled in al Bahlul v. United States that “plain error” review applied to Bahlul’s ex post facto challenge to his military commission convictions for conspiracy, material support, and solicitation–and then upheld the first of those charges under such deferential review (while throwing out the latter two). One of the potentially unintended consequences of the Court . . .
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Pre-Abu Khattala: Yunis, That 1987 Shipboard Terrorist Interrogation Case

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Tuesday, July 1, 2014 at 10:00 AM

Ahmed Abu Khattala is not the first person to be whisked onto a ship in the Middle East by U.S. forces, interrogated aboard, and then dropped in a U.S. court. There are some recent famous cases, of course, but there are also some older ones—one of which, in particular, may have precedential value for the . . .
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The Bond Case, Statutory Interpretation, and the Executive Branch

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Sunday, June 8, 2014 at 2:58 PM

The Supreme Court had the opportunity in Bond v. United States to tackle constitutional questions about the scope of the Treaty Power and the Necessary & Proper Clause, but the six-justice majority declined that invitation. So, in the end, Bond is a statutory interpretation case. Although lacking the drama of a major constitutional ruling, statutory . . .
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Judge Collyer Throws Out Al-Aulaqi Bivens Suit

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Friday, April 4, 2014 at 6:05 PM

Judge Rosemary Collyer of the U.S. District Court for the District of Columbia has thrown out the Bivens suit by the families of Anwar Al-Aulaqi and his son, and Samir Khan, all of whom were U.S. citizens killed in drone drikes in Yemen. Here’s the 41-page opinion. It opens: Because Anwar Al-Aulaqi was a terrorist leader of . . .
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A Further Response to Ryan Goodman on an Alleged Extraterritorial Right to Privacy

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Wednesday, April 2, 2014 at 10:22 AM

Continuing our dialogue about whether the ICCPR places limits on electronic surveillance by a state outside of its own territory, Ryan Goodman has posted a lengthy response to my response to his post about my PCLOB testimony last month.  His arguments deserve a longer response (and I hope some other Lawfare contributors may also respond), . . .
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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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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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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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The “NSA Affair” Goes Criminal in Germany

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Monday, October 28, 2013 at 10:00 AM

The “NSA Affair” still commands German headlines. Over the weekend, the news was dominated by the fit-for-a-spy-novel revelations that the top floor of the U.S. Embassy on Pariser Platz (overlooking the Brandenburger Tor and the Reichstag) apparently housed equipment and officials that listened in on Chancellor Merkel’s calls. There is a great picture here. It . . .
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The D.C. Circuit and the Guantánamo Detainees’ Right of Access to Counsel

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Monday, September 23, 2013 at 3:31 AM

In describing Hatim v. Obama (the D.C. Circuit Guantánamo appeal in which the government filed its opening brief on Friday) as the “counsel access” case, Raff has hit the nail on the head. Although the appeal involves the district court’s power to enjoin new security procedures adopted by the government at Guantánamo (the same genital search procedures that . . .
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Defriending FISA: A Response to Carrie Cordero

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Monday, August 12, 2013 at 2:21 PM

The central theme of Carrie’s post critiquing proposals for FISA reform appears to be that there are already too many lawyers and too much oversight of how the NSA conducts “foreign intelligence surveillance,” and so any proposals to increase these accountability mechanisms by appointing some kind of “special advocate” are necessarily myopic insofar as they (1) . . .
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My Last Word on the New Bahlul Amicus

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Tuesday, July 30, 2013 at 3:07 PM

Thanks to his “sur-reply”, I finally understand the premise of Peter Margulies’s argument—and his amicus brief—in al Bahlul with regard to why the en banc D.C. Circuit can affirm Bahlul’s conspiracy conviction even though conspiracy is not a war crime under international law: Because Bahlul was actually tried for murder, even though no one in . . .
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