On Thursday, President Obama will be giving a major address on national security and counterterrorism, styled as a companion to the 2009 National Archives address. That 2009 speech adopted a pragmatic approach blending a renewed emphasis on criminal prosecution … Read more »
Ben quotes from this morning’s Washington Post editorial on AUMF reform, the last two sentences of which assert that “Countering the jihadists with intelligence and law enforcement tools manifestly failed before Sept. 11, 2001. Congress would be wise to … Read more »
For those who’d prefer the shorter version of Jen Daskal and my draft paper on life “After the AUMF,” we’ve got a short op-ed out in today’s New York Times with a far less alliterative title: “Don’t … Read more »
In advance of Thursday’s Senate Armed Services Committee hearing on the 2001 Authorization for the Use of Military Force (AUMF), Jen Daskal and I have expanded upon our exchanges with Bobby, Jack, Matt, and Ben in a new (draft) working … Read more »
It’s quickly becoming apparent that we and Jack appear to be talking past each other on the merits of the Chesney/Goldsmith/Waxman/Wittes (CGWW) proposal for a new framework statute for “extra-AUMF threats.” In Jack’s final response, for example, he frames … Read more »
We appreciate Jack’s quick and comprehensive clarification of his views—and of what the CGWW proposal we critiqued last night seeks to achieve. Like Jack, we want to start by emphasizing the many areas of agreement between us and CGWW … Read more »
Further to Ben’s post on Jennifer Daskal’s NYT Guantanamo op-ed today, over at Opinio Juris I comment on a different part of the op-ed. Ben refers in part to reasons Jen offers why a transfer of Guantanamo detainees to the … Read more »
So what exactly is in the NDAA conference report that is prompting the agitation for a presidential veto? Here is a quick and dirty summary of “Subtitle D—Counterterrorism”—along with an explanation of why President Obama ought to veto the bill … Read more »
Here’s the Obama Administration’s statement of policy regarding the Senate’s version of the NDAA for FY2013. The document begins as follows:
The Administration appreciates the Senate Armed Services Committee’s continued support for our national defense and supports a large number
As Ritika noted earlier today, the New York Times editorial page has renewed its call for the Obama administration to close the prison at Guantánamo Bay. (I’ll take it from Ben’s lack of snark that he judges the Times… Read more »
I was going to post this morning about my bewilderment at President Obama’s comments last night about “legal architecture” for the War on Terror, but as Jack noted, Josh Gerstein has already done so. And Josh has said … Read more »
I had to restrain myself this morning at the D.C. Circuit from interrupting proceedings with an emergency request for an on-the-spot ruling in Wittes v. FAA—a case which has admittedly does not exist—that the agency’s action with respect to … Read more »
I’m happy to report that I’ve recently completed drafting an article that has been much on my mind for the past few years. Beyond the Battlefield, Beyond al Qaeda: The Destabilizing Legal Architecture of Counterterrorism (Michigan Law Review, forthcoming 2013) … Read more »
Raff pointed earlier to a USA Today op-ed by Rep. Mac Thornberry (R-Texas), the Vice Chairman of the House Armed Services committee. His piece is styled as a response – an “opposing view,” in USA Today parlance – to an… Read more »
Ben is a far better wordsmith than I–”a little cowardly” communicates a lot more in a lot less than my post from Tuesday afternoon about why the House Armed Services Committee’s version of the FY2013 National Defense Authorization Act does … Read more »
The debate over the Smith-Amash amendment to the NDAA continues. Yesterday, we posted a letter written by former administration attorneys general criticizing that amendment, among others. Today, it’s twenty-seven retired admirals and generals writing in support of the Smith-Amash Amendment … Read more »
I have largely refrained from commenting on the machinations over this year’s NDAA–in part because I’m still a little worn out from last year’s NDAA, and in part because the issue seems to me a bit of tempest in a … Read more »
The White House has issued a SAP (Statement of Administration Policy) threatening to veto HR 4310 (the NDAA FY ’13) on various grounds, including objections to the detainee provisions found in sections 1035-43 of the bill (summarized by me previously … Read more »
HASC Chairman Buck McKeon today released a draft NDAA for FY ’13, which will head to the full committee for markup on the 9th. The text of the bill as it currently stands is posted here, McKeon’s announcement and … Read more »
In March 2011, the Obama administration issued an Executive Order (13567) that created a process of Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force.” The “review and hearing” process … Read more »
The US government is considering transferring a group of five Taliban detainees from GTMO to Qatar (to be held there by Qatari authorities) in furtherance of peace negotiations in relation to Afghanistan. Of course, as we all know, Congress has … Read more »
By Marty Lederman and Steve Vladeck*
[Cross-posted at OpinioJuris]
Section 1021 of the NDAA and the Laws of War
In our companion post, we explained that section 1021 of the NDAA will not have the dramatic effects that … Read more »
By Marty Lederman and Steve Vladeck*
[Cross-posted at OpinioJuris]
Editorial pages and blogs have been overrun in the past couple of weeks with analyses and speculation about the detainee provisions in the National Defense Authorization Act, which the President … Read more »
According to the AP, President Obama signed H.R. 1540, the National Defense Authorization Act, into law this morning in Hawaii. Below the fold is the text of the signing statement accompanying the bill:
A dispatch from the Lawfare North Pole: the White House seems to be using more aggressive language, in opposing Congress’s recent efforts to limit the executive branch’s authority over detainee affairs.
Two days ago, the Administration released a statement on … Read more »
As Lawfare readers know only too well, I don’t engage with He Who Must Not Be Named on this Blog. I do, however, engage with Seema Saifee, who represents four Guantanamo Uighurs (three of whom are no longer detained … Read more »
In our final installment of NDAA transcripts, we bring you the Senate’s debate on December 15th on the conference report’s detention provisions.
Here are some highlights:
Senators Carl Levin and John McCain tout the strengths of the detention provisions starting … Read more »
David Cole, writing in the New York Review of Books blog, has this essay on the President’s decision not to veto the NDAA. Key passage:
the law as amended continues to contain extraordinarily dangerous principles. It creates a presumption in
You can read the detention-specific portions of the December 14th House debate on the conference report here.
Here are some highlights:
Congressman Alcee Hastings (D-FL) presented a strident opposition to the provisions. His comments begin right on page 1:… Read more »
Well that was fast… With the ink barely dry on the Senate’s passage of the NDAA, Senator Feinstein yesterday introduced on behalf of herself and 13 Senate colleagues (including Republican Senators Lee, Kirk, and Paul) the “Due Process Guarantee … Read more »
Here is a letter from Congressman Adam Smith (D-WA), the ranking member of the House Armed Services Committee, defending and clarifying the detention provisions in the NDAA and advocating for its passage.
Dear Colleague:
One of the most important issues
For reasons I plan to elaborate upon in this and subsequent posts, I’m not at all convinced that the conference version of the NDAA is substantially better than the House or Senate version (or that either is better than nothing)… … Read more »
In a prior post surveying the impact of the Senate version of the NDAA bill (currently in conference negotiations), I emphasized that the Feinstein Amendment made clear that the NDAA did not alter, one way or the other, the government’s … Read more »
The following is a continuation of our side-by-side comparison of the House and Senate versions of the NDAA:
The House version of the bill (Section 1039, p. 586) contains a specific prohibition … Read more »
As the House of Representatives and the Senate head to conference on the NDAA, I thought it might be useful to analyze the similarities and differences between the counterterrorism provisions of the two versions of the bill. People sometimes talk … Read more »
The saga of whether Ali Hamza Ahmad Suliman Al Bahlul’s counsel rightly represents him before the D.C. Circuit in his military commissions appeal continues. The government, you’ll recall from prior coverage, has challenged whether the Al Bahlul had really authorized … Read more »
The Senate passed the NDAA (S. 1867) last night on a 93-7 vote. The seven senators who voted against final passage are:
You can read the edited transcript from the Senate’s debate yesterday on the detention provisions here. Previous coverage is available here and here. This includes debate on the Sessions amendment starting on page 4, the Feinstein amendments starting … Read more »
As so many of you have found our earlier post of the Senate debate over the NDAA useful, we wanted to offer legislative materials related to the Senate’s deliberations. I will continue to update this post with new materials, as … Read more »
FBI Director Robert S. Mueller III has written a letter to SASC Chairman Levin voicing the FBI’s concerns over §1032 of the current version of the NDAA.
The FBI’s concerns are twofold (quoting the letter):
First, by establishing a presumption
Having now returned from my undisclosed location, here’s a transcript of the Senate floor debate on the NDAA.
The Senate debated the bill on Thursday and Friday. This transcript, helpfully includes only those portions of the debate that … Read more »
Daphne Eviatar of Human Rights First writes in with the following comments on Latif and the detention provisions of the NDAA:
There’s already been great commentary on the Latif case here from Ben, Sabin Willett and others. On Sunday
Here is the latest salvo in the debate relating to the NDAA provisions relating to detainees: Last week Chairman McKeon sent this 7-page letter to the White House responding to the administration’s earlier Statement of Administration Policy (“SAP”) criticizing the … Read more »
Over at the Volokh Conspiracy, Kenneth Anderson writes of my post yesterday, “What should most concern the Times are the couple of emails I’ve received from several eminent professors, smart and intellectually scrupulous folks whose opinion I value a … Read more »
Jeh Johnson, the General Counsel of the Department of Defense, is currently speaking about detention legislation at the Heritage Foundation. The livestream is available here.
Cully Stimson (Heritage) has posted a very handy review of the pros and cons of the pending NDAA FY12 bills, highlighting both the useful and problematic aspects of that legislation. And as a reminder, DOD’s General Counsel, Jeh Johnson, will … Read more »
Next Tuesday, October 18, at The Heritage Foundation:
[T]he House and Senate have proposed additional detainee-related legislation in the National Defense Authorization Act (NDAA) of 2012. Both have provisions affirming the September 18, 2001 Authorization for Use of Military
Josh Gerstein reports that Senator Reid has announced that he will not allow the NDAA for FY’12 to come to the floor for a vote until concerns over section 1031, 1032, and 1033 are addressed. As you may recall (we … Read more »
The arraignment order by Military Judge James L. Pohl in the case USA v. al-Nashiri is now available here, and here is the substance of it:
1. As the Chief Judge of the Military Commissions Trial Judiciary, I have
Thursday, May 23, 2013
Leading the news: President Obama speaks today at the National Defense University on counterterrorism policy. Many are previewing the speech, including John. According to the New York Times’s Charlie Savage and Peter Baker, Obama will announce more stringent targeting criteria for non-battlefield strikes. This approach will govern the use of force against both citizens and non-citizens.
Here are the Washington … Read more »
