Earlier today, former State Department Legal Adviser Harold Koh gave a talk at the Oxford Union, entitled “How to End the Forever War?” His remarks begin as follows:
Thank you, Mr. President and Members of the Union, for inviting me
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 »
In the very first days after the horrific attacks of September 11, 2001, the Bush Administration asked Congress for broad statutory authorization to use military force to “deter and pre-empt any future acts of terrorism or aggression against the United … 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’d like to expand on Ben’s post below in relation to Hedges and the First Amendment, focusing on the “material support”/”substantial support” issue. (I’m having to write quickly, so please excuse any typos in what follows.)
Specifically, I’d like to … Read more »
Based on the voluminous media and blog coverage of last week’s decision in Hedges v. Obama, in which Judge Forrest permanently enjoined at least part of the detention provision of the FY2012 NDAA [section 1021(b)(2)], one of two things … 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 »
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 »
Over at DefCon Hill, Jeremy Herb shares a letter written by former Attorneys General Edwin Meese III and Michael Mukasey and former Secretary of Homeland Security Michael Chertoff to House Armed Services Committee Buck McKeon criticizing the various amendments that … Read more »
For more than a decade, the United States has asserted authority to detain without criminal charge in Afghanistan under color of the law of armed conflct (LOAC). Because for the bulk of this period that conflict has been non-international in … Read more »
Interesting comments on the interplay of IHL and IHRL here from Jens David Ohlin (Cornell), whose new blog Lieber Code is well worth reading on a regular basis. [Update: Gabor Rona responds to Jens here] [2nd update: Jens replies … Read more »
Thomas B. Nachbar is a most remarkable law professor. A few years ago, after having achieved wide recognition as a senior University of Virginia scholar known for his work in technology and regulation, he joined the US Army Reserve as … 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 »
We’ve previously covered the Fourth Circuit’s pair of decisions in September dismissing tort suits against various contractors arising out of claims of torture at various detention facilities in Iraq–including Abu Ghraib. In the cases, Al Shimari v. CACI Int’l, Inc.… Read more »
Canadian forces may be largely on their way out of Afghanistan, but for a Kabul-based contingent focused on training Afghans, but the prospect that they might nonetheless in the position of capturing a prisoner raises the question of what they … Read more »
As noted previously, I testified in late July before House Armed Services regarding detention policy, with a focus on the Warsame situation. I’ve seen received a handful of QFRs from committee members, and thought readers might be interested in seeing … Read more »
[UPDATE: Please note the updated, italicized text below. Also check out Marko Milanovic's take on al-Jedda and al-Skeini, here.]
Hilal Abdul-Razzaq Ali Al-Jedda is a dual citizen of Iraq and Great Britain. He left the UK in 2004 to … Read more »
The European Court of Human Rights (“ECHR”) yesterday released two judgments regarding the British military’s alleged violation, in Iraq, of international human rights law.
In the first case, Al-Skeini and Others v. the United Kingdom, the Court concluded that … Read more »
What was the legal theory supporting the two-month period of military detention for Ahmed Warsame, preceding his arrival in the United States? White House Spokesman Jay Carney had the following to say this morning during Q&A with Jake Tapper of … Read more »
Jonathan Hafetz’s new book on post-September 11 habeas corpus strikes an oddly dissonant chord. The keynote in Habeas Corpus After 9/11: Confronting America’s New Global Detention System is celebratory as to the writ’s role—the now-predictable exultation on the part of … Read more »
I am perplexed by this category and grade:
Grade: Incomplete
Due Process in Afghanistan. Following recommendations from Human Rights First, the Obama administration in 2009 made important improvements to the Detainee Review Boards, which determine whether detainees captured in Afghanistan
So here are the first two elements of the Human Rights First report card, how I would recast them, and the grades I would assign. HRF’s initial element reads:
Grade: A-Standing Firm Against Use of Torture and Detainee
Human Rights First has published a report card, entitled “Assessing the Obama Administration’s Record of Compliance with the Rule of Law and Human Rights in National Security Policy.” In reading it over, I find myself disagreeing with so … Read more »
Bobby is quite right to link yesterday’s New York Times editorial to the one about which I complained back in October. But Bobby is a more generous soul than I am, and I am disinclined to give the Times’ editorial … Read more »
A few days ago, I expressed doubt as to the veracity of the President’s comments that “Guantanamo is probably the number one recruitment tool that is used by these jihadist organizations.” I did so tentatively because I am no expert … Read more »
The Washington Post published a typically thoughtful editorial today on the idea of an executive order to establish a review process for Guantanamo detainees who lose their habeas cases. Like me, the Post has mixed feelings. On the one hand,… Read more »
A few thoughts on President Obama’s remarks Wednesday on Guantanamo, the full text of which I posted earlier.
“Obviously, we haven’t gotten it closed. And let me just step back and explain that the reason for wanting to close … Read more »
Ben beat me to the punch in noting the stories by Dafna Linzer (ProPublica) and Peter Finn and Anne Kornblut (Washington Post) to the effect that the White House will soon announce an executive order creating a new annual review … Read more »
I disagree with the characterization in David’s latest post of Bush administration practices. But I am not going to change his mind on that issue, so I will end this exchange on my side by noting points of agreement. I … Read more »
The shape of the pending GTMO transfer ban has morphed yet again. Again Adam Serwer has the update. The long and short of it is that the pending National Defense Authorization Act for Fiscal Year 2011 (NDAA FY11) apparently … Read more »
Today, the D.C. Circuit released the public version of the appellant’s brief in Al Madhwani v. Obama. In this case, Musa’ab Omar Al-Madhwani appeals Judge Thomas Hogan’s December 2009 bench ruling and January 2010 opinion affirming his detention, as … Read more »
How do we define the scope of military detention authority at the individual level? That is to say, how do we define with precision the necessary and sufficient conditions that make a particular person subject to detention? The issue obviously … Read more »
Last week I raised the question whether Human Rights Watch has altered its position on the scope of application of international humanitarian law (“IHL”)—a topic with tremendous significance for both the detention and targeting debates. The issue arose because, in … Read more »
It was a big day for the war-on-terror cases at the Supreme Court yesterday–at least if you are into government briefs. The government filed two important ones. They are:
1) Its brief in opposition to Mohammed Al Adahi’s petition for … Read more »
I received the following note today from Guantanamo lawyer David Remes in response to my post from Friday on recidivism:
Ben raises important questions in his “Thinking about Recidivism” post, but to put the discussion in context, I must point
Yesterday, Lyle Denniston posted a recap of all eight currently pending detainee cert. petitions over at SCOTUSblog. Three of those eight cover what we might call transfer and release issues. Petitioners filed the last of those three yesterday, making it … Read more »
Rounding out the public merits briefs in Uthman v. Obama, yesterday the government’s public reply brief became available. Below we link to that brief, the other two public merits briefs, and Judge Henry Kennedy’s district court opinion. Oral argument … Read more »
[Update: Josh Gerstein at Politico reports that the White House has now expressed its opposition at least to section 1116, raising a question as to whether this will sail through easily after all.]
Jack notes below that the chances that … Read more »
Earlier this year Congress required the DNI to make publicly available unclassified summaries of information about the recidivism of released GTMO detainees as well as an assessment of such detainees’ likely future terrorist activity. The DNI issued a report on … Read more »
Today, Omar Khadr and fellow habeas petitioners filed a cert. petition in one of a number of non-merits Guantanamo matters. The petition challenges the D.C. Circuit’s September decision to vacate several 2008 orders issued by Judge Thomas Hogan in the … Read more »
This past week two detainees who lost their habeas merits appeals before the D.C. Circuit filed petitions for certiorari—Ghaleb Nassar Al Bihani and Adham Mohammed Ali Awad.
Broadly speaking, Al Bihani’s challenge involves several arguments about the substantive … Read more »
I’m surprised this statistic does not get more attention. The Pentagon’s annual report to Congress on “Progress Toward Security and Stability in Afghanistan” ( required by § 1230 of the National Defense Authorization Act for FY08), states:
The
Responding to my suggestion that Lawfare readers debate the parameters of a new AUMF–a discussion thread for which I have started over at our Facebook page–John Bellinger III writes in with the following:
I’ve been a bit surprised by the
I received the following note from Andy Worthington in response to my earlier post about his article. I appreciate very much his clarifications, which read in relevant part:
My intention was not to describe you and Jack and Robert
This is how the always-entertaining British journalist, Andy Worthington describes critics of federal court trials, including–it seems–Jack and Bobby and me, which is kind of funny considering that we are not really critics of federal court trials at all. Worthington … Read more »
Rounding out the public merits briefs in Al Warafi v. Obama, today the petitioner’s public reply brief became available. Below we link to the brief, the other two public merits briefs, and Chief Judge Lamberth’s district court opinion. Oral … Read more »
(Benjamin Wittes & Robert Chesney)
Debra Burlingame, a co-director of Keep America Safe and the sister of September 11 pilot Charles Burlingame III, sent the following in response to our post on Ghailani yesterday:
I find your Ghailani verdict analysis
I agree with Ben and Bobby that the disappointing Ghailani verdict does not imply that the prosecution should have been brought in a military commission. As they argue, most if not all of the challenges of Ghailani’s trial would have … Read more »
Responding to my earlier post on Buck McKeon’s detention bill, Adam Serwer says the following, on which I cannot improve:
I still maintain that there’s less difference between Republican and administration priorities than there appears to be, and
Tuesday, May 21, 2013
William P. Barr (former Attorney General), Jamie S. Gorelick (former Deputy AG), and Kenneth L. Wainstein (former Assistant AG for National Security) have this Times op-ed on the AP subpoena controversy. They write:
While neither we nor the critics know the circumstances behind the prosecutors’ decision to issue this subpoena, we do know from the government’s public disclosures that the prosecutors were right to investigate this leak
