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Category Archives: Executive Power

A Summary of Friday’s Decision in al-Aulaqi v. Panetta

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Monday, April 7, 2014 at 1:19 PM

As Ben mentioned on Friday, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia dismissed a Bivens suit brought by the families of Anwar al-Aulaqi, his son Abdulrahman, and Samir Khan—three U.S. citizens killed in U.S. drone strikes in 2011—seeking to hold various federal officials personally liable for their roles in . . .
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Uganda and the WPR Clock

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Monday, March 24, 2014 at 7:19 PM

Should the War Powers Resolution “clock” be running in Uganda? I think the answer is yes, contrary to what appears to be the administration’s position, but I also think that Congress has adequately expressed itself in favor of the issue, thus mooting the point. I’m prompted to write about this now because the administration has . . .
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CRS Report on Whether Congress Can Compel Disclosure of FISA Opinions

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Tuesday, March 4, 2014 at 2:45 PM

Over at Secrecy News, the estimable Steve Aftergood writes: Could Congress legally compel the executive branch to disclose classified opinions of the Foreign Intelligence Surveillance Court?  Maybe not, a new analysis from the Congressional Research Service concludes. The CRS report—entitled “Disclosure of FISA Court Opinions: Select Legal Issues”—has little to do with FISA Court opinions in . . .
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What is the Domestic Legal Basis for Planned Cyberattacks in Syria?

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Tuesday, February 25, 2014 at 8:12 AM

David Sanger reports that the Pentagon and the NSA planned a sophisticated cyberattack aimed at “the Syrian military and President Bashar al-Assad’s command structure” that “would essentially turn the lights out for Assad.” He also reports that President Obama declined to go forward with the attacks then or since because of uncertainty about the proper role of offensive . . .
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A Guide to the Coming Onslaught of Presidential Administration

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Sunday, January 26, 2014 at 6:26 AM

Scott Wilson has a long piece in the Washington Post about how “the White House is reorganizing itself to support a more executive-focused presidency” after concluding that it cannot get much done with Congress and should not let the President be defined by his lack of success in the first branch of government.  As a . . .
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Is the AUMF Next?

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Friday, January 17, 2014 at 7:34 AM

Hmmmm. Here’s a very interesting few paragraphs from the Wall Street Journal: The president’s speech, to be delivered at the Justice Department, caps a process that was similar to the one he undertook on other controversial, post-Sept. 11 issues, such as the use of armed drones and closing the detention center in Guantanamo Bay, Cuba. . . .
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Revealing the Deployment to Somalia: Drawing the Sting Before a Snowden Document Goes Public?

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Friday, January 10, 2014 at 6:48 PM

Did the government reveal the presence of US military advisors in Somalia in order to beat the Guardian or some other Snowden outlet to the punch? Earlier today, Jack posted about the likelihood that the metes and bounds of JSOC’s shadow conflict with al Qaeda (and perhaps others) will come into public light involuntarily at . . .
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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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President Obama Signs 2014 NDAA, Releases Statement on GTMO Provisions

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Thursday, December 26, 2013 at 5:18 PM

The president’s statement today upon signing the 2014 National Defense Authorization Act focuses almost exclusively on the provisions related to the detention facility at Guantanamo Bay. He acknowledges the more flexible transfer provisions, but concludes that they may violate separation of powers principles. Here’s the full text of the statement: Statement by the President on . . .
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An Updated WPR Report to Congress

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Saturday, December 14, 2013 at 12:48 AM

The White House today released a “Report Consistent with the War Powers Resolution,” concerning deployments of U.S. force equipped for combat. Nothing too exciting or novel here, on first glance at least.   Of course, it’s hard to know what to make of this report because, consistent with past practice, it is accompanied by a . . .
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Solicitor General Recommends Supreme Court Remand Samantar Case to Fourth Circuit

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Friday, December 13, 2013 at 3:58 AM

On Wednesday, the Solicitor General filed an amicus brief urging the Supreme Court to grant, vacate, and remand (“GVR”) the Samantar case to the Fourth Circuit after that Circuit’s surprising decision last year holding that foreign government officials are not entitled to foreign official immunity for acts alleged to violate jus cogens norms.  I have previously explained . . .
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Foreign Official Immunity & Executive Branch Law-Making

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Thursday, December 12, 2013 at 10:47 PM

Earlier this week the Solicitor General filed its brief in Samantar v. Yousuf, as it was invited to do by the Supreme Court back in June.  The Court has already issued an opinion in this case in 2010, holding that the Foreign Sovereign Immunities Act does not apply to individual officials of foreign governments, and . . .
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Madison’s Vacillations—And Ours: Seeing a Founder, an Opposition Leader, a Muddle-Through Executive, and a Wartime President in Ourselves

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Thursday, November 28, 2013 at 7:24 AM

Americans vacillate over national security and government power. We want an effective intelligence community, but we do not want too much surveillance or collection. We want to rein in the NSA, but we also wax outraged when the intelligence community does not connect the dots. We want to capture and interrogate the enemy, but we . . .
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How Does the President’s Policy on Lethal Force Apply in Yemen Today?

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Wednesday, November 20, 2013 at 6:00 AM

Long War Journal reports an airstrike on three AQAP fighters in Hadramout, Yemen, earlier today.  By LWJ’s count, this would be strike number 23 for the year (suggesting 2013 might fall short of 2012′s high of 42 strikes, but still far north of 2011′s 10 strikes).  I mention this in part because the numbers are . . .
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Bond v. United States: Response from Edwin Williamson

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Monday, November 11, 2013 at 9:47 PM

My friend and predecessor Edwin Williamson (who served as The Legal Adviser in the George H.W. Bush Administration) has written in with comments about my post on the Bond case.  Although I do not agree with Edwin’s characterization of my brief (that Congress is free to pass any legislation that purports to execute a valid treaty — . . .
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Bond v United States: The Supreme Court Should Not Let Bad Facts Make Bad Law

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Friday, November 8, 2013 at 9:27 AM

As Raff noted earlier this week, the Supreme Court heard oral argument on Tuesday in the strange case of Bond v United States, in which a Pennsylvania woman, Carol Anne Bond, was convicted under a federal criminal statute enacted in 1998 to implement the Chemical Weapons Convention after using highly toxic chemicals to poison her husband’s . . .
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Syria, Threats of Force, and Constitutional War Powers

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Thursday, November 7, 2013 at 10:00 AM

As I’ve discussed previously, I am finishing a forthcoming paper on constitutional war powers and “The Power to Threaten War.”  In the meantime, the Yale Law Journal Online has published my essay, drawing on arguments from that paper and applying them to the Syria crisis: “Syria, Threats of Force, and Constitutional War Powers.”  The abstract . . .
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The More You Attempt Capture Operations, the Less Feasible They Become

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Friday, November 1, 2013 at 5:16 PM

A coda to Bobby’s post below asking about the legal views underlying US operations in Somalia over the past three weeks.  Three weeks ago, SEALs attempted a capture operation against a target on the coast of Somalia.  The SEAL team withdrew without capturing its target, on account of risks to noncombatants, it was reported.  Three . . .
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Back to Lethal Force in Somalia: What If Anything Does the Drone Strike on Ibrahim Ali Signify?

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Thursday, October 31, 2013 at 5:38 PM

When U.S. Navy SEALs attempted the capture of an al Shabab figure in Somalia earlier this month, contemporaneous with the successful capture of an al Qaeda target in Libya, it generated a considerable amount of coverage and discussion, including speculation about what this might signify regarding the administration’s position on the use of lethal force . . .
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Skepticism about Supposed White House and Intelligence Committee Ignorance About NSA Collection Against Allied Leaders [UPDATED]

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Tuesday, October 29, 2013 at 12:01 PM

Count me as very skeptical about the suggestions in recent days that neither the White House nor the congressional intelligence committees knew about NSA collections against leaders in allied countries. I have a hard time believing that the President in his many hundreds of intelligence briefings – scores of which surely involved intelligence about allied . . .
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