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Category Archives: International Law: LOAC: Detention

Al-Warafi’s “End of War” Reply Brief

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Friday, May 22, 2015 at 2:00 PM

The Guantanamo detainee, as readers likely know, argued in a February motion that the end of the United States’ war in Afghanistan, as recognized by President Obama, requires his release from Guantanamo. On Wednesday, Al-Warafi filed his reply brief on that issue. It opens as follows: The Government’s argument for the continued detention of Al Warafi, . . .
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Judicial Review for POWs During Armed Conflict?

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Wednesday, May 6, 2015 at 6:58 PM

Interested in the ongoing debate over the relationship between LOAC and Human Rights Law in general, or the intersection of those bodies of law in relation to non-criminal detention in particular? You won’t want to miss this. In 2012, the UN Human Rights Council asked the UN Working Group on Arbitrary Detention to produce a . . .
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The United States’ Opposition to GTMO Detainee’s “End of War” Motion

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Monday, April 27, 2015 at 12:00 PM

The response was filed on Friday, in the habeas case of Al-Warafi v. Obama. Have a look:

Barking up the Wrong Tree: How Not to Save the British Armed Forces from Legal Defeat

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Tuesday, April 21, 2015 at 2:00 PM

Judicial imperialism is defeating the British armed forces. At least this is what the authors of a report recently published by the Policy Exchange—an influential British think tank—claim. Provocatively entitled Clearing the Fog of Law: Saving our Armed Forces from Defeat by Judicial Diktat, the report argues that the judicial extension of peacetime legal standards . . .
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What to Do About Ongwen?

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Wednesday, January 14, 2015 at 9:00 AM

The Washington Post has a fascinating article today about the legal issues arising from the surrender of one of the the notorious brutal leaders of the Lords Resistance Army, Dominic Ongwen.  Apparently he surrendered to Muslim rebels in the Central African Republic who, in turn, transferred custody of Ongwen to American forces on January 5.  . . .
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The SSCI Report and Its Critics: Torturing Efficacy

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Tuesday, December 16, 2014 at 9:59 AM

Polarization surrounding the SSCI Report (see here for Lawfare’s coverage) has been most pronounced on the efficacy of enhanced interrogation techniques (EITs). The Report and its supporters have proclaimed that EITs never produce useful information. Unfortunately, that pat assertion undermines the possibility of a consensus on future interrogation tactics, including a consensus that rules out . . .
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Findings, Conclusions and Areas of Dispute Between the SSCI Report, the Minority, and the CIA: Part Four

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Thursday, December 11, 2014 at 4:25 PM

In this post, we proceed with Lawfare’s ongoing, side-by-side comparison of the SSCI Study’s key findings, and responses to them by both the SSCI Minority as well as the CIA. By way of reminder, the SSCI’s Study made twenty findings and conclusions about the CIA’s detention and interrogation practices after 9/11—twelve of which the blog has summarized so . . .
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Findings, Conclusions and Areas of Dispute Between the SSCI Report, the Minority and the CIA: Part 2

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Tuesday, December 9, 2014 at 9:46 PM

Below, you will find the second installment in our ongoing effort to identify, in summary form, key areas of dispute as between the SSCI, the SSCI minority, and the CIA with regard the CIA’s detention and interrogation program. As you surely know by now, all three today released long-anticipated reports regarding the CIA’s post-9/11 detention and . . .
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Folk Law and Obama Administration Mythology: Four Stakes

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Sunday, October 26, 2014 at 8:00 PM

Marty Lederman and I have been engaged in a debate over the past few weeks, and last Monday he wrote a lengthy and thoughtful “Monday Reflection” over at Just Security concerning some of my arguments here at Lawfare and in my article, Folk International Law. I would like to use this post, my last in . . .
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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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The Debate About the Extraterritorial Scope of the Torture Convention’s Provisions on Cruelty is (Almost Certainly) Not About USG Interrogation Policy

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Friday, October 24, 2014 at 10:22 AM

A week ago Charlie Savage reported that the Obama administration “is considering reaffirming the Bush administration’s position that the [Convention Against Torture(CAT)] imposes no legal obligation on the United States to bar cruelty outside its borders.”  The provision of the Torture Convention in question is Article 16, which provides: “Each State Party shall undertake to . . .
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A Reply to Marty Lederman

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Friday, October 3, 2014 at 7:34 AM

Marty Lederman has a thoughtful response over at Just Security to my post from yesterday. I take his argument to be the following: First, that the Presidential Policy Guidance (PPG) does not purport to represent international law, but as policy it is actually better than international law; second, that any increase from the baseline of LOAC is a . . .
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Transatlantic Dialogue on Int’l Law and Armed Conflict: Lawrence Hill-Cawthorne Responds to Sarah Cleveland

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Tuesday, September 16, 2014 at 1:49 PM

The newest installment in the Transatlantic Dialogue series (see here) has gone live at EJIL:Talk!. It is from Lawrence Hill-Cawthorne (U. of Reading), and it responds to Sarah Cleveland’s earlier post on the Project on Harmonizing Standards for Armed Conflict. A taste:

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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