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Category Archives: International Law: LOAC: Detention

The Convention Against Torture: Extraterritorial Application and Application to Military Operations

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Sunday, October 26, 2014 at 10:37 AM

Belatedly, I want to join the discussion about the extraterritorial application of the Convention Against Torture (CAT), about which Jack commented on Friday, drawing on an article by Charlie Savage earlier in the week. The New York Times opined on the issue on Tuesday in one of its typically misleading, “don’t-confuse-me-with-the-facts” editorials that suggested that the . . .
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More on the Afghan Drawdown’s Destabilizing Impact on Detention Law

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Monday, April 28, 2014 at 7:59 AM

Excellent recent posts by Ben and Marty draw attention to the impact that the drawdown in Afghanistan likely will have on GTMO habeas litigation. I agree; we will certainly see a fresh wave of litigation.  And as part of that wave, we will see the argument that the law of armed conflict no longer applies . . .
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Abdullah Files His Reply-Brief Before the D.C. Circuit

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Monday, December 30, 2013 at 12:17 PM

As Raffaela previously noted, the case of Abdullah v. Obama is an exercise in “heel dragging and losing arguments.” A brief refresher on the case: the legal saga started when Guantanamo detainee Hani Saleh Rashid Abdullah filed a habeas petition. The petition went unanswered. Accordingly, Abdullah switched tactics and instead moved for a preliminary injunction against his . . .
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More on UN Detention Procedures for Military Operations

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Monday, November 25, 2013 at 1:28 PM

About a month ago, I asked what had happened to the UN’s effort to develop a set of standard operating procedures to govern detentions that arise during the course of UN operations.  It appears that such a document exists in draft but is not public and has never been finalized. Against that background, I noted . . .
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How Does the UN Define “Direct Participation in Hostilities”?

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Monday, October 21, 2013 at 5:00 PM

One theme of Ben Emmerson’s interim report on remotely piloted aircraft and targeted killings is that governments must be more transparent with regard to any civilian deaths they cause.  It’s easy to find lots of other calls for greater transparency on related issues.  For instance, many have urged the United States to be more transparent . . .
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When I’m 64: The Geneva Conventions and the Obama Administration

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Sunday, August 11, 2013 at 11:13 PM

August 12 is the 64th anniversary of the signing of the Geneva Conventions.  As a candidate, Senator Obama was highly critical of the Bush Administration’s non-application of the Geneva Conventions to detained members of al-Qaida and the Taliban.   His Administration came into office pledging to “abide” by the Geneva Conventions, and President Obama himself received . . .
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Postwar: An Essay on Whether the Armed-Conflict Model Still Matters

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Tuesday, August 6, 2013 at 7:53 PM

“Does it really matter, from a legal perspective, whether the U.S. government continues to maintain that it is in an armed conflict with al Qaeda?  When it comes to the use of lethal force and military detention, not nearly so much as both supporters and critics of the status quo commonly assume.” Those are the . . .
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Eight Thoughts on the Broad Reading of Article II Inherent in Bobby’s Conjecture

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Tuesday, May 28, 2013 at 8:08 AM

Bobby’s post from Friday argued that “the current shadow war approach to counterterrorism doesn’t really require an armed-conflict predicate–or an AUMF, for that matter.”  Bobby’s point is that most if not all of the USG’s current uses of force outside Afghanistan could in theory continue even if the armed conflict against al Qaeda ended.  This . . .
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Does the Armed-Conflict Model Matter in Practice Anymore?

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Friday, May 24, 2013 at 7:06 PM

This post draws on material from my current book project, the concluding chapter of which considers the legal architecture of counterterrorism in a “postwar” setting…and advances the argument that we already have largely crossed into that world.  In yesterday’s speech, President Obama repeatedly referred to the possibility that the armed conflict with al Qaeda may . . .
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Harold Koh Identifies Another Big Difference Between the Bush and Obama Administrations

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Thursday, May 9, 2013 at 10:00 AM

From Harold Koh’s speech to the Oxford Union the other day: the first “obvious” difference between the Bush and Obama administrations is that “the Obama Administration has not treated the post-9/11 conflict as a Global War on Terror to which no law applies, in which the United States is authorized to use force anywhere, against anyone. Instead, it . . .
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Look Who Has Discovered Inherent Presidential Powers

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Wednesday, May 8, 2013 at 2:11 PM

Hmmmm. From Harold Koh’s speech to the Oxford Union: Congressional transfer restrictions with respect to Guantanamo detainees “must be construed in light of the President’s authority as commander-in chief to regulate the movement of law-of-war detainees, as diplomat-in-chief  to arrange diplomatic transfers, and as prosecutor-in-chief to determine who should be prosecuted and where.”

Harold Koh’s Speech at the Oxford Union

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Tuesday, May 7, 2013 at 9:09 PM

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 here to speak. I am honored to return to this University, where I first came 38 . . .
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After the AUMF, II: Daskal and Vladeck Reply

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Monday, March 18, 2013 at 7:16 PM

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 in order to help illuminate the key points of disagreement. (We’ve also had the benefit of . . .
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After the AUMF: A Response to Chesney, Goldsmith, Waxman, and Wittes

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Sunday, March 17, 2013 at 10:31 PM

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 States”—that is to say, for statutory authorization of what that Administration called a “Global War . . .
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Warafi Oral Argument Summary

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Friday, September 21, 2012 at 2:50 PM

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 the Lawfare Drone Smackdown is arbitrary and capricious. Restrain myself I did, for the issue of . . .
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More on “Substantial Support”, “Material Support,” LOAC, and the First Amendment

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Wednesday, September 19, 2012 at 11:41 PM

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 expand on the point that the NDAA’s “substantial support” language should be understood to be no more . . .
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What Hedges Could Have Said…

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Tuesday, September 18, 2012 at 1:38 PM

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 is true: Either Judge Forrest was exactly right, or she was utterly, if not egregiously, wrong (or both). Now . . .
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Beyond the Battlefield, Beyond al Qaeda: The Destabilizing Legal Architecture of Counterterrorism

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Wednesday, August 29, 2012 at 11:42 PM

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) is now posted to SSRN.  In it, I argue that (i) there is a widespread . . .
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Retired Admirals and Generals Endorse Smith-Amash Amendment

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Wednesday, May 16, 2012 at 1:00 PM

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 to the 2013 NDAA in a letter organized by Human Rights First. The letter says: . . .
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Letter from former U.S. Security Officials On those 2013 NDAA Amendments

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Tuesday, May 15, 2012 at 4:29 PM

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 members of Congress plan to introduce tweaking the detention provisions of the 2013 NDAA. They . . .
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