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Category Archives: Executive Power

How a U.N. Security Council Resolution Transforms a Non-Binding Agreement with Iran Into a Binding Obligation Under International Law (Without Any New Senatorial or Congressional Vote)

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Thursday, March 12, 2015 at 8:37 AM

It is now clear that any deal with Iran will by its terms be a non-binding agreement.  That means the United States will have no international law obligation to comply with the agreement, considered in isolation, and that only diplomatic and political considerations – which might not be trivial – will stand in the way . . .
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Senate Foreign Relations Hearing on ISIS AUMF

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Wednesday, March 11, 2015 at 3:44 PM

Earlier this morning, the Senate Foreign Relations Committee heard testimony from Secretary of State John Kerry, Secretary of Defense Ashton Carter, and Chairman of the Joint Chiefs of Staff General Martin Dempsey on the president’s proposed Authorization for the Use of Force (AUMF) against ISIS. You can watch the full hearing here.

Non-Legal Agreements: Easier to Make, Easier to Break

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Wednesday, March 11, 2015 at 9:05 AM

If, as Marty and I just argued, the deal with Iran is a non-binding agreement under international law, then, as we stated, “there is little doubt about the President’s constitutional authority to make the deal on his own.”  I think Senator Cotton agrees.  I take that to be the import of his statement this morning . . .
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The Case for the President’s Unilateral Authority to Conclude the Impending Iran Deal is Easy Because it Will (Likely) be a Nonbinding Agreement Under International Law

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Wednesday, March 11, 2015 at 8:38 AM

[Cross-posted at Just Security.] In Marty’s post yesterday about the letter that 47 Senators sent to “the Leaders of the Islamic Republic of Iran,” he briefly addressed the question of “whether the President has the constitutional authority to complete the agreement in question without further congressional involvement.”  The answer to that legal question depends, he wrote, “largely on what . . .
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The Iran Letter and the Logan Act

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Tuesday, March 10, 2015 at 10:32 AM

  Please like our Facebook page and follow Lawfare on Twitter: Follow @lawfareblog The second-day story about the letter by 47 Republican Senators to the government of Iran that Jack’s discussed here and here has shifted to whether these Senators have violated the Logan Act–as Peter Spiro suggested in this post over at Opinio Juris. Before folks . . .
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More on the Senate’s Role in the Impending Iran Deal

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Tuesday, March 10, 2015 at 6:58 AM

Iran’s Foreign Minister Javad Zarif has responded here to the letter from the 47 Republican Senators, on which I commented yesterday.  Just as the Senators’ letter purported to school Iran on U.S. constitutional law of foreign relations, Zarif says that the Senators “not only do not understand international law, but are not fully cognizant of the . . .
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The Error in the Senators’ Letter to the Leaders of Iran

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Monday, March 9, 2015 at 5:55 AM

  Please like our Facebook page and follow Lawfare on Twitter: Follow @lawfareblog Josh Rogin reports that a “group of 47 Republican senators has written an open letter to Iran’s leaders warning them that any nuclear deal they sign with President Barack Obama’s administration won’t last after Obama leaves office.”  Here is the letter.  Its premise is . . .
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Consensus on the Way Forward for an ISIL AUMF

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Friday, February 27, 2015 at 11:30 AM

Even casual readers of this blog are likely aware of the longstanding (and thoroughly joined) debate between Ben and me with respect to how Congress ought to update / revisit the 2001 Authorization for the Use of Military Force. That’s why I was pleasantly surprised by both Ben’s prepared testimony before yesterday’s House Armed Services Committee . . .
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HASC Testimony: Towards a Better AUMF

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Thursday, February 26, 2015 at 10:00 AM

Prepared Testimony of Robert Chesney Charles I. Francis Professor in Law Associate Dean for Academic Affairs Director, Strauss Center for International Security & Law The University of Texas at Austin Before the House Armed Services Committee  February 26, 2015 “Outside Perspectives on the President’s Proposed Authorization for the Use of Military Force Against the Islamic . . .
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HASC Testimony: An Alternative to the Administration’s AUMF Draft

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Thursday, February 26, 2015 at 10:00 AM

Prepared Statement of Benjamin Wittes Senior Fellow at the Brookings Institution before the House Committee on Armed Services “Outside Perspectives on the President’s Proposed Authorization for the Use of Military Force Against the Islamic State of Iraq and the Levant” February 26, 2015 Thank you Chairman Thornberry, Ranking Member Smith, and members of the committee . . .
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Live: Benjamin Wittes and Bobby Chesney Testify Before HASC on AUMF

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Thursday, February 26, 2015 at 9:50 AM

At 10 am, Lawfare’s Benjamin Wittes and Bobby Chesney, along with General Jack Keane, will provide testimony before the House Armed Services Committee today regarding the Obama administration’s proposed Authorization for the Use of Military Force against ISIL.  Ben’s and Bobby’s prepared statements will follow in subsequent posts. You can watch the proceedings here on . . .
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Presidential Power and Enjoining the Obama Immigration Plan

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Wednesday, February 18, 2015 at 11:00 AM

Monday’s district court decision enjoining President Obama’s immigration plan, Deferred Action for Parents of Americans (DAPA), was a strong rebuke of presidential overreaching, although it was framed as a decision on the Administrative Procedure Act (APA). (Full disclosure: I was co-counsel on an amicus brief by the Cato Institute; see here for Cato’s take on . . .
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Argument Recap: The Critical Difference in How al-Nashiri Loses

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Tuesday, February 10, 2015 at 2:03 PM

If one thing was clear from Tuesday morning’s 61-minute argument before the D.C. Circuit in In re al-Nashiri, in which a Guantánamo military commission defendant seeks to challenge on constitutional grounds the composition of the intermediate Court of Military Commission Review (CMCR) assigned to hear the government’s interlocutory appeal in his case (which I previewed here), it was that . . .
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al-Nashiri Argument Preview: The CMCR’s Appointments Clause Problem

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Tuesday, February 3, 2015 at 8:17 AM

Next Tuesday, a three-judge panel of the D.C. Circuit (Henderson, Rogers, & Pillard, JJ.) is set to hear oral argument in In re al-Nashiri, the latest in a long-line of pre-trial disputes arising out of the Guantánamo military commission proceedings against Abd Al-Rahim Hussein Muhammed al-Nashiri, who is accused of involvement in two terrorist attacks . . .
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A Response to Bruce Schneier and a Cautious Defense of Energy in the Executive

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Friday, January 16, 2015 at 3:30 PM

Bruce Schneier has responded to my earlier exchange with Edward Snowden with a challenging question: Putting aside what the Constitution currently does or does permit, wouldn’t it be better if all surveillance decisions were subject to judicial review? Shouldn’t we prefer philosophically an executive bound to formal review mechanisms in all coercive activities—even, say, in overseas surveillance . . .
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What Americans Really Think About ISIS

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Friday, January 9, 2015 at 6:16 PM

This week, Brookings unveiled a new poll by Nonresident Senior Fellow Shibley Telhami that dives below the”approve/disapprove” numbers to offer a more sophisticated picture of how the American public views the campaign against the Islamic State and the broader conflict in Syria and Iraq. Among the findings, one of the most striking is the reasoning respondents select . . .
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Two Basic Problems With Abstention in Nashiri

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Tuesday, December 30, 2014 at 5:44 PM

Wells already flagged yesterday’s D.D.C. decision by Judge Roberts, refusing to enjoin Abd Al Rahim Hussayn Muhammad Al Nashiri’s impending trial by military commission, and abstaining from reaching the merits of his habeas petition until and unless he’s convicted and is unsuccessful in the direct post-conviction appeal provided by the Military Commissions Act. Interested (or, at least, hyper-attentive) readers may . . .
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The D.C. Circuit’s Mandamus Jurisdiction and the Legitimacy of the Military Commissions

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Sunday, December 7, 2014 at 11:10 AM

It now appears that the next military commissions case in which the D.C. Circuit will hear oral argument is that of Abd al-Rahim al-Nashiri (“Nashiri”), with oral argument scheduled before an as-yet unnamed three-judge panel on Tuesday, February 10, 2015. And although the underlying “merits” issue in Nashiri is hyper-narrow (whether two of the three judges set to hear . . .
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A “Buffer Zone” Inside Syria, and Its Complications

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Friday, December 5, 2014 at 6:34 PM

The United States and Turkey seem to be having increasingly detailed discussions about establishing a no-fly zone (or “buffer zone”) inside the northern Syrian border adjacent to Turkey. The press reports that Turkey is conditioning the U.S. use of Turkey’s Incirlik air base for armed flights on the U.S. willingness to establish such a zone. The . . .
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What Does the Swiss Coat of Arms Have to do with the Immigration Imbroglio?

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Wednesday, November 26, 2014 at 2:36 PM

If you peruse the darker corners of the U.S. criminal code—as I used to do in my youthful efforts to educate myself in law without going to law school—you’ll eventually stumble across 18 U.S.C. § 708, which bizarrely makes it a federal crime to “willfully use[] . . . for any trade or commercial purpose, the coat of . . .
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