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Category Archives: Executive Power

One or Two Other Statutes the President Likely Disregarded in The Bergdahl Deal [UPDATED]

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Monday, June 2, 2014 at 7:45 PM

Earlier today I explained why the President almost certainly disregarded Section 1035 of the 2014 NDAA when he swapped the GTMO detainees for Bergdahl.  The President probably disregarded another statute as well, Section 8111 of the Fiscal Year 2014 Consolidated Appropriations Act, which provides: None of the funds appropriated or otherwise made available in this Act may . . .
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The President Pretty Clearly Disregarded a Congressional Statute in Swapping GTMO Detainees for Bergdahl

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Monday, June 2, 2014 at 1:03 PM

Marty Lederman tries mightily to interpret Bergdahl’s release as consistent* not inconsistent with the wishes of Congress, but I don’t think he succeeds. Section 1035 of the 2014 NDAA authorizes the Defense Secretary to “transfer or release any individual detained at Guantanamo” if he makes certain certain determinations, and it further requires without exception that the . . .
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Chief Justice Roberts: De-Chevronizing U.S. Foreign Relations Law

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Friday, May 16, 2014 at 8:35 AM

Eric Posner and Cass Sunstein argue in an article from 2007 that U.S. foreign relations law should be “Chevronized,” meaning that courts should defer to the executive branch in interpreting ambiguous treaties and statutes when international comity concerns are implicated. Curt Bradley had already argued in a 2000 article that Chevron deference should apply in . . .
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Chief Justice Roberts – [Not yet] The Most important Author of Foreign Relations Opinions in the History of the Supreme Court?

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Monday, May 12, 2014 at 10:47 AM

It seems likely that Chief Justice Roberts will author the much-anticipated opinion in Bond v. United States. This comes as no surprise. The Chief Justice has assigned much opinion-writing in close and/or important foreign relations cases to himself, perhaps consistent with how Chief Justices generally use their assignment power.   In foreign relations cases, this trend . . .
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On the Connections Between the AUMF and Section 702

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Tuesday, April 8, 2014 at 1:30 PM

I was asked to give testimony today before a House Foreign Affairs subcommittee on two topics that may seem largely unconnected: the vitality and adequacy of the AUMF for the conflict the United States is currently fighting and the NSA surveillance programs that have, of late, dominated news headlines. Rather than simply posting my testimony, I . . .
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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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