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 »
I meant to post on this last week and clean forgot until I heard a bit of it on CSPAN radio yesterday. The Heritage Foundation held this event on detainee policy featuring all four people who have held the job … Read more »
Earlier today, former State Department Legal Adviser Harold Koh gave a talk at the Oxford Union, entitled “How to End the Forever War?” His remarks begin as follows:
Thank you, Mr. President and Members of the Union, for inviting me
Ben has already noted that the United States and Afghahnistan struck a deal to resume the process of handing over the remnants of U.S. detention operations in Afghanistan–a process that hit a rough patch recently when it began to appear … Read more »
I’ve posted many times on the gradual but inexorable process through which the United States is closing out its detention operations in Afghanistan, including this recent update. It has been a bumpy road, and after President Karzai recently suggested that … 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 »
Over the weekend, the United Nations Assistance Mission in Afghanistan (“UNAMA”) released its report on the treatment of conflict-related detainees in Afghan prisons. Needless to say, it’s not terribly uplifting. From the executive summary (internal footnotes have been excised):
Further
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,
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 »
Looks like the D.C. Circuit is going to get another crack at Bagram jurisdiction. Maqaleh II, decided by the district court in mid-October, is headed up. Good luck with that!
A few weeks ago, I noted a post by Chris Jenks arguing that negotiations for a US-Afghanistan security agreement might come to grief over the issue of criminal jurisdiction over U.S. servicemembers (much as happened previously vis-a-vis Iraq). On that … Read more »
A few years ago I wrote a paper about the cycle of detention law and policy over time in Iraq, and among other conclusions I observed that the sustainability of overseas, US-administered detention facilities established in the context of a … Read more »
Chief Judge Lamberth has granted the government’s motion to dismiss a first amended habeas petition filed by a Pakistani citizen held at Bagram, following the Circuit’s decision in al Maqaleh (and the subsequent decision on remand in that case by … Read more »
The British Supreme Court—in its Michaelmas Term—has handed down the case of Secretary of State for Foreign and Commonwealth Affairs v. Rahmatullah. You might remember the Rahmatullah case, which we covered here and here and here. It concerns … Read more »
Thanks to an unexpected pair of days off, I’ve finally had the chance to review Judge Bates’s October 19 rulings in Al-Maqaleh v. Gates ["Al-Maqaleh II"] and Hamidullah v. Obama. As readers know, these are the habeas … Read more »
I have now read through Al Maqaleh v. Gates and Hamidullah v. Obama, which are both brief reads. I don’t have a great deal to say about them, except that they well represent the end of the line for … Read more »
Speaking of reports I haven’t yet read, the Open Society Foundations has just released a report entitled “Remaking Bagram: The Creation of an Afghan Internment Regime and the Divide Over U.S. Detention Power.” Here’s the press release… Read more »
The New York Times has this piece about continuing U.S. government efforts to transfer detention operations in Afghanistan to Afghan government control. The piece does a good job of outlining the many obstacles — political, operational, legal, diplomatic, technical, and … 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 »
Here’s your off-the-cuff read-out of this morning’s hearing before U.S. District Judge John Bates in Al-Maqaleh v. Gates and Hamidullah v. Obama, better known as the “can we get a little GTMO-style habeas review over U.S. detentions at Bagram” cases… Read more »
As Ben noted last month, Judge Bates recently has shown some interest in possibly moving the Boumediene-at-Bagram case, Al Maqaleh v. Rumsfeld, along toward a resolution. After several very quiet months seemingly mulling over the pleadings before him, … Read more »
There has been speculation about the effect of the Obama administration’s pinched detention policy – i.e. no new detainees brought to GTMO, and no new detainees to Parwan (Afghanistan) from outside Afghanistan – on its other counterterrorism policies. I have … Read more »
As both Wells and Ben noted previously, there are renewed signs of interest in the fate of military detention in Afghanistan, in the form of an NPR story by Quil Lawrence and an order that same day from Judge Bates … 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 »
Writing at Foreign Policy, Chris Rogers of Open Society Foundations criticizes Afghanistan’s plans for a non-criminal detention system (something occurring as part of the process of the U.S. turnover of the DFIP to Afghan control). The critique sounds in both … 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 »
For more than a decade, the United States has asserted authority to detain without criminal charge in Afghanistan under color of the law of armed conflct (LOAC). Because for the bulk of this period that conflict has been non-international in … Read more »
In this episode of the Lawfare Podcast, Bobby Chesney sits down with Brigadier General Rich Gross, the Legal Advisor to the Chairman of the Joint Chiefs of Staff, for a detailed discussion of the nature of his office, its role … Read more »
Transfer of the Detention Facility in Parwan (DFIP) from American to Afghan control has begun. The first step? Appointment of Maj. Gen. Faroq Barekzai to command the facility.
To the best of my knowledge, the memorandum of understanding governing this … Read more »
A little while back, I wrote an article describing the evolution of our capture and detention policies in Iraq from 2003 to 2010 (based on a review of a massive pile of after-action reports and interviews from throughout that period). … Read more »
Note this passage in the coverage by the Times:
The United States will retain custody of non-Afghan prisoners, about 50 mostly Al Qaeda militants from Pakistan, Arab countries and Central Asia, the American officials said. An American military official declined
Does the announcement of a deal between Afghanistan and the United States regarding transfer of the DFIP (Detention Facility in Parwan) to Afghan control (see Ben’s post below) herald a new Afghan position on the acceptability of non-criminal … Read more »
The New York Times is reporting:
The United States has agreed to hand over detainees to Afghan government control on a far more accelerated schedule than planned, a senior American official said on Friday.
Gen. John R. Allen, the
The Times has an important story from Alissa Rubin this morning describing the ongoing negotiations between the US and Afghanistan regarding the future of the US presence there. We have frequently heard that the two big issues clogging the negotiations … Read more »
Clive Walker, a professor of law at the University of Leeds, responds to the following comment in my Rahmatullah post: “It’s funny how courts discover deference when they realize that they have no power anyway. . . . British … Read more »
…is entitled “Ben Wittes’ Appalling Take on Rahmatullah.”
I wonder what he really thinks, though.
It is always an awkward spectacle when a court has to climb down, having issued an opinion that it has no real power to effectuate. That’s what has now happened in the British Court of Appeals in the case of … Read more »
Cori Crider of the British human rights group Reprieve stopped by my office yesterday to talk about her client, Yunus Rahmatullah–about whom Bobby has written and who is suddenly the subject of a very delicate bit of U.S.-British diplomacy. Rahmatullah, … Read more »
As Ben pointed out yesterday, the Washington Post report about the possibility that non-Afghan detainees held at Parwan will be repatriated to their home countries is significant news. Apart from its import for U.S. detention policy generally, the development, if … Read more »
This story in today’s Washington Post won’t get the attention it would garner if it dealt with Guantanamo, but put it in the category of Very Important if True. According to Post reporters Peter Finn and Julie Tate,
The Obama
The ICRC recently published this report on its visits to detainees being held in U.S. facilities in Afghanistan, Guantanamo, Iraq, and South Carolina. The report opens:
Although terrorism is not new, States continue to be confronted with the question of
And oddly, the notional issue seems to be abuses at the side of the facility already controlled by Afghan, not international, forces.
At one point prior to 2009, [Update: In my haste this morning, I erred by referring to 100,000 detainees in Iraq at a single point in time, when instead I meant to refer to the volume of detainees we … Read more »
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 »
An interesting Afghanistan habeas decision today, from the UK: Yunus Ramhmatullah v. Secretary of State for Foreign and Commonwealth Affairs et ano. (Court of Appeals (Civil Division)).
In an opinion by the Master of the Rolls (i.e., David Neuberger, Baron … Read more »
Canadian forces may be largely on their way out of Afghanistan, but for a Kabul-based contingent focused on training Afghans, but the prospect that they might nonetheless in the position of capturing a prisoner raises the question of what they … Read more »
When we last looked in on Al Maqaleh v. Gates, the case seeking to extend the right to federal habeas review for non-Afghan detainees held in the U.S.-controlled detention facility in Afghanistan, the petitioners and the government were briefing … Read more »
The United Nations Assistance Mission in Afghanistan has released its report on the treatment of detainees in the custody of the Afghan government.
Here is the executive summary:
From October 2010 to August 2011, the United Nations Assistance Mission in
CNN is reporting that Haji Mali Khan, the senior commander of the Afghan Haqqani insurgent group, was captured in a joint Afghan-NATO operation on Tuesday (the announcement of his capture was delayed until today because of difficulties confirming his identity). … 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 »
