This post draws on material from my current book project, the concluding chapter of which considers the legal architecture of counterterrorism in a “postwar” setting…and advances the argument that we already have largely crossed into that world.
In yesterday’s speech, … Read more »
Today we will appear before the House Judiciary Committee, and will argue that Congress should put to rest the question of military detention for domestic captures. More specifically, we will argue that Congress should state explicitly that such detention is … 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to whether–and to what extent–the September 2001 Authorization for Use of Military Force (AUMF) needs to be updated, repealed, and/or … Read more »
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 »
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 »
The meeting between Presidents Obama and Karzai today appears to have produced an agreement that will revive the process of shutting down U.S. detention operations in Afghanistan. As reported in the Wall Street Journal:
With Mr. Obama at his side,
As Ben noted the other day, the Obama administration issued a signing statement on the new NDAA arguing that its Guantánamo detainee-transfer restrictions are unconstitutional as a violation of the separation of powers. The language is similar to last year’s … Read more »
Told you so. President Obama has signed this year’s NDAA–along with a meek kind of signing (whining?) statement. Here is the statement’s discussion of the detention-related provisions–an account of which can be found in my previous post:
Several
So what exactly is in the NDAA conference report that is prompting the agitation for a presidential veto? Here is a quick and dirty summary of “Subtitle D—Counterterrorism”—along with an explanation of why President Obama ought to veto the bill … Read more »
Another noteworthy development in the conference version of the NDAA is section 1025. Think of this as a new direction in the congressionalization of detention operations in Afghanistan.
What do I mean by congressionalization? I admit I just made that … Read more »
Politico reports that Senate and House negotiators have reached an agreement on the NDAA, with votes in both houses expected later this week…and then, on to the White House. The full text is available here. As for the highlights, … Read more »
The Congressional Research Service published on December 4 a report entitled “Detention of U.S. Persons as Enemy Belligerents,” which the Federation of American Scientists has posted. Its summary reads:
The detainee provisions passed as part of the National
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 »
As readers know, last Thursday the Senate approved Senator Feinstein’s amendment to the NDAA, regarding the domestic detention of citizens and lawful permanent residents.
That wasn’t all. Now, after further debating and voting, the Senate’s updated bill also conditions the … 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 »
[Updated 3:08 p.m] Last night, the Senate approved Senator Dianne Feinstein’s amendment (No. 3018) to the pending NDAA bill, regarding the military detention of citizens and lawful permanent residents. The vote was 67-29.
As Lawfarers well know by now, the … Read more »
Here’s the Obama Administration’s statement of policy regarding the Senate’s version of the NDAA for FY2013. The document begins as follows:
The Administration appreciates the Senate Armed Services Committee’s continued support for our national defense and supports a large number
You want ‘em? We got ‘em.
Here are some more counterterrorism-relevant amendments to the Senate’s version of NDAA 2013—all offered by Senator Sessions: Nos. 3009 (conditioning the availability of certain funds for the Executive Office of the President on prior … Read more »
Apropos of the amendment proposed by Senator Feinstein and others, and tonight’s NDAA discussion in the Senate, here’s a quick review of S. 3254, the NDAA 2013 bill that the Senate Armed Services Committee unanimously approved earlier this year.… Read more »
Senator Dianne Feinstein—along with Senators Lee, Coons, Collins, Paul, Lautenberg, Gillibrand, and Kirk—have introduced this amendment to the current NDAA, now on the Senator floor.
As Ritika noted earlier today, the New York Times editorial page has renewed its call for the Obama administration to close the prison at Guantánamo Bay. (I’ll take it from Ben’s lack of snark that he judges the Times… Read more »
Senator Rand Paul’s rumored detention amendment got me reminiscing about S.2003, better known as the Due Process Guarantee Act (“DPGA”).
Remember this? It was Senator Feinstein’s proposal to clarify that force authorizations and like statutes would not be read so … Read more »
In his post on Senator Rand Paul’s proposal regarding citizens and the NDAA, Bobby highlights a recurring and important question: why is it so hard for ostensibly civil libertarian legislators explicitly to oppose the domestic detention of U.S. citizens? To … 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 »
The other day, in response to Raha Wala’s comments on Hedges, I promised to address the First Amendment question at the heart of Judge Forrest’s ruling—a promise that seems to have excited David Remes. Steve Vladeck, however, beat … 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 »
I received the following email just now–the first time in my life, and I suspect the last, that I ever been confused with a certain blogger over at Salon.com:
From: Lucas Vazquez
Subj: NDAA Lawsuit Q&A Invitation
Hello
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 »
Raff pointed earlier to a USA Today op-ed by Rep. Mac Thornberry (R-Texas), the Vice Chairman of the House Armed Services committee. His piece is styled as a response – an “opposing view,” in USA Today parlance – to an… Read more »
I have resisted linking to the latest updates to Bobby, Larkin, and my paper–The Emerging Law of Detention 2.0: The Guantanamo Habeas Cases as Lawmaking–because the redesign of the Brookings web site temporarily messed up a bunch of … Read more »
The Hill’s Defcon blog has the scoop: in votes today regarding the rules for detention under the FY2013 NDAA, the House rejected the Smith-Amash amendment in a 238-182 largely party-line vote (19 Democrats voted against it, and 19 Republicans … 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 »
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 »
I have largely refrained from commenting on the machinations over this year’s NDAA–in part because I’m still a little worn out from last year’s NDAA, and in part because the issue seems to me a bit of tempest in a … Read more »
The White House has issued a SAP (Statement of Administration Policy) threatening to veto HR 4310 (the NDAA FY ’13) on various grounds, including objections to the detainee provisions found in sections 1035-43 of the bill (summarized by me previously … 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 »
As Bobby noted previously, Rep. Adam Smith and others are proposing amendments to this year’s NDAA that would make certain changes to the detention-related provisions implemented by last year’s NDAA. Among other things, the Smith Amendment would effectively prohibit the … Read more »
A quick note updating readers on the progress of the draft NDAA FY’13: Chairman McKeon’s bill passed HASC last night in the wee hours. Next stop: the floor, where we are likely to see, among other things, debate over an … Read more »
HASC Chairman Buck McKeon today released a draft NDAA for FY ’13, which will head to the full committee for markup on the 9th. The text of the bill as it currently stands is posted here, McKeon’s announcement and … 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 »
Writing over at Forbes, Pepperdine law professor Gregory McNeal has this thoughtful piece about the President’s policy directive. It contains some interesting ruminations on the breadth of some of the waivers the directive contains. While McNeal is sympathetic to the … Read more »
Over at The Atlantic, Andrew Cohen offers this analysis of President Obama’s implementation procedures for Section 1022 of the NDAA. Cohen generously sites and quotes my post explaining the procedures, but he goes on to take issue with my … 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 »
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 »
