Skip to content

Category Archives: Executive Power

Revealing the Deployment to Somalia: Drawing the Sting Before a Snowden Document Goes Public?

By
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 . . .
Read more »

Jeff Kahn on Terrorism Watchlists and the Ibrahim Trial

By
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 . . .
Read more »

President Obama Signs 2014 NDAA, Releases Statement on GTMO Provisions

By
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 . . .
Read more »

An Updated WPR Report to Congress

By
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 . . .
Read more »

Solicitor General Recommends Supreme Court Remand Samantar Case to Fourth Circuit

By
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 . . .
Read more »

Foreign Official Immunity & Executive Branch Law-Making

By
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 . . .
Read more »

Madison’s Vacillations—And Ours: Seeing a Founder, an Opposition Leader, a Muddle-Through Executive, and a Wartime President in Ourselves

By and
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 . . .
Read more »

How Does the President’s Policy on Lethal Force Apply in Yemen Today?

By
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 . . .
Read more »

Bond v. United States: Response from Edwin Williamson

By
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 — . . .
Read more »

Bond v United States: The Supreme Court Should Not Let Bad Facts Make Bad Law

By
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 . . .
Read more »

Syria, Threats of Force, and Constitutional War Powers

By
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 . . .
Read more »

The More You Attempt Capture Operations, the Less Feasible They Become

By
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 . . .
Read more »

Back to Lethal Force in Somalia: What If Anything Does the Drone Strike on Ibrahim Ali Signify?

By
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 . . .
Read more »

Skepticism about Supposed White House and Intelligence Committee Ignorance About NSA Collection Against Allied Leaders [UPDATED]

By
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 . . .
Read more »

Gabor Rona of Human Rights First Responds…

By
Sunday, October 27, 2013 at 4:08 PM

…to my revised meta-study of drone strike casualties. Ritika Singh’s updated meta-study of drone strike casualties reaches exactly the right conclusion: the more we hear from non-government sources, the more we understand the inadequacy of the US government’s disclosures and indeed, the duplicity in its claims that drone strikes are “surgical.” (Not that surgery is always so surgical). But I wish Ritika . . .
Read more »

Human Rights Watch Responds

By
Saturday, October 26, 2013 at 9:25 AM

Not to be outdone by Amnesty International, which responded earlier to my post on reports by Amenesty and Human Rights Watch, Letta Taylor of Human Rights Watch writes in with the following response as well: In his posting “Thoughts on the Human Rights Watch and Amnesty International Reports,” Benjamin Wittes notes that the both organizations “raise . . .
Read more »

Speaking the Law: Chapter 3

By and
Thursday, October 24, 2013 at 7:58 AM

The Hoover Institution has released Chapter 3 of our serialized book: Speaking the Law: The Obama Administration’s Addresses on National Security Law. The Introduction and Chapter 1 came out in March. Chapter 2 came out in May. Chapter 3 offers a detailed account of President Obama’s May 23 speech at the National Defense University. It attempts to describe . . .
Read more »

Thoughts on the Human Rights Watch and Amnesty International Reports

By
Wednesday, October 23, 2013 at 8:50 AM

I have now read both of the two major human rights reports released yesterday on civilian casualties in drone strikes—one by Amnesty International on strikes in Pakistan and the other by Human Rights Watch on strikes in Yemen. I have a few thoughts on them. First, it is impossible for a modestly-moral person to read . . .
Read more »

Thoughts About the Obama Administration’s Counterterrorism Paradigm in Light of the Al-Liby and Ikrima Operations

By
Sunday, October 13, 2013 at 11:17 AM

Mary DeRosa and Marty Lederman, both of whom were senior national security lawyers in the Obama administration, have a helpful if somewhat hopeful post at Just Security on the significance of the recent al-Liby and Ikrima capture operations.  The post is long, but I would summarize it as follows (this is my summary, not theirs): . . .
Read more »

Readings: Ashley Deeks, “The Observer Effect”

By
Sunday, October 13, 2013 at 12:04 AM

UVA’s (and Lawfare’s own) Ashley Deeks has posted a new article to SSRN, “The Observer Effect: National Security Litigation, Policy Changes, and Judicial Deference,” forthcoming (November 2013) in Fordham Law Review. Abstract: The national security deference debate has reached a stalemate.  Those favoring extensive deference to executive branch national security decisions celebrate the limited role . . .
Read more »