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Category Archives: Executive Power

Signing Statements, the Commander in Chief Power, and Guantanamo Closure

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Friday, October 10, 2014 at 4:00 PM

According to the Wall Street Journal,  the President’s people are “drafting options” to bring about Guantanamo’s closure, an objective that would require the White House to get around a statutory restriction on transferring GTMO detainees to the United States.  Or not: Vice’s Jason Leopold reports that NSC Spokeswoman Caitlin Hayden today said the Administration does not know what “‘new press . . .
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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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House Amendment to Arm Syrian Rebels

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Tuesday, September 16, 2014 at 12:18 PM

The House Rules Committee has released an amendment to the Continuing Resolution (CR) that would authorize the Department of Defense to begin arming and training moderate Syrian rebels as identified by the Obama Administration; however, the measure provides no new funding for the initiative. The Hill has more on the proposal, which you can read . . .
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ISIL as al Qaeda: Three Reactions

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Thursday, September 11, 2014 at 1:52 AM

Like Bobby, Wells, and Ben, I, too, was surprised to discover that the Obama Administration’s legal theory (for the moment) appears to be that the Islamic State of Iraq and the Levant (ISIL) can be targeted under the 2001 AUMF despite its very public split from al Qaeda. That said, I think all three of my friends miss the animating premise of the . . .
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A White House Trial Balloon Trying Out the 2002 Iraq AUMF?

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Tuesday, September 9, 2014 at 10:59 PM

According to this story in the Post, an unidentified administration official–maybe the President, maybe not–has raised the possibility that the plans for a ramped-up campaign against IS will not need fresh congressional authorization because…wait for it…the 2002 Iraq AUMF remains on the books: The president “thinks he has the legal authority he needs” to increase . . .
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Four of The Would-be ISIS AUMFs

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Tuesday, September 9, 2014 at 6:32 PM

While Congressional leadership may be hesitant to take up a vote authorizing the president to use military force in Iraq and/or Syria against ISIS in the coming weeks, we’ve seen several different authorizations put into play—with different requirements, and by different members of Congress. Below, I note four of the would-be ISIS AUMFs that are kicking around . . .
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More on Iraq’s Implications for the Continuing Relevance of the 2001 AUMF

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Monday, September 8, 2014 at 3:55 PM

Yesterday I posed the question whether the 2001 AUMF has any continuing significance, legally-speaking, for counterterrorism activities (especially drone strikes) in Pakistan, Yemen, etc., given that the President is “confident that [he] has the authorization that [he] need[s]” to do what has been done in Iraq and also to support the expanded role that he . . .
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More on CIA Drone Strikes, Covert Action, TMA, and the Fifth Function

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Sunday, September 7, 2014 at 6:16 PM

Yesterday Kevin Heller and I exchanged views on the possible sources of domestic authorization for the CIA to conduct drone strikes. His two initial posts are here and here; my response is here; and the first part of Kevin’s reply (focused on whether the drone strike program counts as covert action given the traditional military . . .
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A New Drone Strike in Somalia: Is the 2001 AUMF Needed?

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Tuesday, September 2, 2014 at 2:49 PM

To the best of my knowledge, the U.S. government has not asserted that al Shabaab as a whole is an associated force of al Qaeda engaged in hostilities against the United States subject to the 2001 AUMF. Nonetheless, the public record reveals that we do use lethal force, from time to time, in Somalia against . . .
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Behind the NYT Climate Accord Story

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Wednesday, August 27, 2014 at 10:50 AM

I am no expert at all on climate change.  With that large caveat, I think the Coral Davenport’s New York Times story about President Obama’s international climate accord ambitions overstates the domestic significance of what the President is up to—probably to the delight of the White House.  A clue to the problem is found in the Times headline . . .
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U.S. Airstrikes Against ISIS in Syria? Possible International Legal Theories

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Saturday, August 23, 2014 at 3:04 PM

In the wake of Thursday’s statements by Joint Chiefs Chairman Martin Dempsey and Friday’s comments by Deputy National Security Adviser Ben Rhodes, it sounds like the U.S. Government is at least considering whether to conduct air strikes against ISIS in Syria. A decision to do so clearly is not a done deal. As the Times . . .
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An AUMF for ISIL At Last? Questions Raised by the Post’s Account of the White House Debate

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Saturday, August 23, 2014 at 12:41 AM

The Washington Post reports tonight that the White House is actively considering whether to go to Congress to seek an explicit authorization to use force against ISIL. [UPDATE: see also the corresponding NY Times story, which focuses on the underlying policy debate rather than the law; it helps make clear that the legal debate reported . . .
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Why the President Should Seek Congressional Authorization for the Use of Force Against The Islamic State [UPDATE on War Powers Resolution]

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Friday, August 22, 2014 at 9:10 AM

A few days ago I discussed why President Obama is shying away from seeking congressional authorization to use force against The Islamic State (IS, or ISIS, or ISIL).  But as the aims and scope of U.S. military involvement against IS expand on a daily basis, the case for the President getting Congress formally on board . . .
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The Politics of War Powers in Iraq

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Wednesday, August 20, 2014 at 7:39 AM

The WSJ reports that the initial success of American airstrikes in Iraq is spurring a push for broader military engagement against the Islamic State (IS, or ISIS, or ISIL) in Iraq.  Our deepening military involvement in Iraq accentuates the dysfunctional politics of war powers that Julie Hirschfeld Davis writes about in the NYT.  President Obama . . .
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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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Article II and Iraq: Justifications for the Mosul Dam Operation in the WPR Notification

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Sunday, August 17, 2014 at 10:43 PM

In a very positive development, Iraqi and Pesh Merga forces are in the midst of what appears thusfar to be a successful joint operation to take back the Mosul Dam from ISIS fighters. But it’s not just the Iraqis and Kurds; the U.S. military has conducted 14 airstrikes in support of the operation. This prompted . . .
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National Security Network Proposes Plan to Repeal AUMF

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Wednesday, August 13, 2014 at 6:34 PM

The National Security Network has released a new report entitled “Ending the Endless War: An Incremental Approach to Repealing the 2001 AUMF.” The report suggests a series of measures to cap and eventually roll back the authorization, which it outlines in three major steps: Limits in time by inserting a sunset clause to put the law . . .
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The Case for Seeking Congressional Authorization for Iraq Strikes Just Grew Stronger

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Saturday, August 9, 2014 at 12:28 PM

In his WPR notification yesterday, President Obama stated that military operations in Iraq “will be limited in their scope and duration.”   But today, according to the NYT, President Obama “sought to prepare Americans for an extended presence in the skies over Iraq, telling reporters on Saturday that the airstrikes he ordered this week could go on . . .
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