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 »
As Andrew Rosenthal noted in yesterday’s New York Times, things seem to be heating up in Congress with respect to whether–and to what extent–the September 2001 Authorization for Use of Military Force (AUMF) needs to be updated, repealed, and/or … Read more »
While we appreciate Ben’s answer to our question (and share his view that we’re reaching the point of the conversation where everything has been said and everyone has said it), we still fail to understand how the Libya example illuminates … Read more »
Ben writes that it is the “political reality” that “any president is going to feel obliged to maintain counterterrorism on offense,” i.e., counterterrorism through military means, “and Congress—whining, carping, complaining all the way both that the president is being … 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 »
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 »
The more I reflect on last week’s drone contretemps–and what effect the efforts of Senator Paul and his followers has had / may still have on U.S. policy–the more I have a profound and distressing sense of déjà vu. After … Read more »
Several years ago, in a prescient op-ed in the Washington Post, our colleague John Bellinger argued that the September 2001 AUMF was an increasingly poor fit for the evolving threats facing the United States. It is a theme to which … Read more »
Told you so. President Obama has signed this year’s NDAA–along with a meek kind of signing (whining?) statement. Here is the statement’s discussion of the detention-related provisions–an account of which can be found in my previous post:
Several
Senators John McCain, Lindsey Graham, and Kelly Ayotte—who jointly filed an amicus brief in the Hedges appeal—are asking for argument time in the coming Second Circuit oral argument. They argue:
Senate Amici played a leadership role in the drafting
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 »
Another noteworthy development in the conference version of the NDAA is section 1025. Think of this as a new direction in the congressionalization of detention operations in Afghanistan.
What do I mean by congressionalization? I admit I just made that … Read more »
Politico reports that Senate and House negotiators have reached an agreement on the NDAA, with votes in both houses expected later this week…and then, on to the White House. The full text is available here. As for the highlights, … Read more »
The Congressional Research Service published on December 4 a report entitled “Detention of U.S. Persons as Enemy Belligerents,” which the Federation of American Scientists has posted. Its summary reads:
The detainee provisions passed as part of the National
Below the fold, I’m pasting in a reply by Jon Hafetz from Seton Hall to last Friday’s post by Marty Lederman and me on the new Feinstein Amendment and the military detention of non-citizens apprehended within the United States–which was … Read more »
As Wells and Steve noted last week, the Senate approved the “Feinstein Amendment” to the FY2013 National Defense Authorization Act (NDAA). The Amendment, if enacted, would impose a clear statement rule for the detention of U.S. citizens and … Read more »
Wells is exactly right–and Senators Levin and Graham are exactly wrong–about the implications of last night’s Senate vote approving Senator Feinstein’s amendment to the FY2013 National Defense Authorization Act. Wells linked to the amendment, but here is the relevant … Read more »
Speaking of responses to my comments on the New York Times debate, Andrea Prasow of Human Rights Watch—who participated in the discussion—sends in the following:
Ben seems to find it boring that Human Rights Watch still maintains, as
Ben notes what appears to be a draft proposal from Senator Rand Paul to amend the NDAA so as to address situations involving American citizens captured inside the United States. While the context suggests that the drafters’ aim might be … Read more »
A source sent me a copy of this email, apparently from Senator Rand Paul’s office last week to Republican Senate legislative directors about a coming amendment by the senator to restrict military detention of U.S. citizens under last year’s NDAA:… Read more »
While I am sure we differ in emphasis and details, I agree with the thrust of Trevor’s latest post. As I argued in my last two books, the early Bush administration approach to presidential power was, in reality and … Read more »
I appreciate Jack’s follow-up post on the larger picture of the Obama administration’s counterterrorism policies and their points of continuity with the Bush administration (though only the late Bush, as he properly underscores). Jack and I agree on much more … Read more »
When I wrote on Friday about the “basic counterterrorism policies that Obama continued, with tweaks, from the late Bush administration,” I meant to refer only to policies that “Obama continued” from the Bush era, and not to make a claim … Read more »
I agree with much of what Jack says in his recent post about the counterterrorism issues likely to face President Obama in his second term. But there’s one aspect of how Jack frames the discussion that I disagree with somewhat. … Read more »
David Remes, who represents several Yemeni detainees at Guantanamo Bay, writes in response to my comments this morning on Eric Lewis’s New York Times column:
Ben chides Eric Lewis for setting goals Ben thinks “ain’t gonna happen.” Ben says
The government has filed its its opening brief in the Second Circuit Hedges appeal. The introduction reads:
This suit is brought by a handful of journalists and activists who, based on their stated activities, are in no danger whatsoever of
A few months ago, Jack posed an interesting question: Whatever happened to the Periodic Review Board (PRB) system for Guantanamo detainees that the president created in his executive order?
In March 2011, the Obama administration issued an Executive Order
There were basically none. No discussion of Guantanamo, of habeas, of the NDAA, of interrogation, of military commissions, of targeted killing—and only the most cursory mention of drone strikes. This is quite a change from four years ago, when themes … Read more »
The Second Circuit Court of Appeals has has just stayed Judge Katherine Forrest’s decision in Hedges:
For the following reasons, we conclude that the public interest weighs in favor of granting the government’s motion for a stay. First, in
Per Ben‘s and Bobby‘s responses to my post from earlier this week, I think one point needs to be made crystal clear: If Ben and Bobby are correct, then the phrase “substantial support” in the March 13 brief… 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 »
The other day, in response to Raha Wala’s comments on Hedges, I promised to address the First Amendment question at the heart of Judge Forrest’s ruling—a promise that seems to have excited David Remes. Steve Vladeck, however, beat … 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 »
David Remes—who, in addition to representing several Guantanamo detainees, is a member of the plaintiffs’ legal team in Hedges v. Obama—sent in this note yesterday:
The debate on this blog about Judge Forrest’s decision has focused almost entirely on
Raha Wala of Human Rights First writes in with the following response to my comments on Hedges. My thoughts follow his critique and very-cautious defense of Judge Forrest:
Ben’s post on Judge Forrest’s opinion in Hedges I think provided
I don’t have a lot to add to Ben’s analysis of Judge Forrest’s decision yesterday in Hedges v. Obama, permanently enjoining section 1021(b)(2) of the FY2012 NDAA (Just to refresh our memories, that section authorizes the detention of “A … Read more »
I have now read through Judge Forrest’s opinion in Hedges—all 112 pages of it. I have done so only briskly, and I have surely missed things in my haste. But here are some initial thoughts.
The opinion is shockingly … Read more »
I haven’t read it yet, but here it is.
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 »
From Courthouse New Service:
Invoking the mass detention of Japanese-Americans during World War II, a federal judge on Tuesday appeared ready to uphold her injunction against the law that lets the U.S. military detain indefinitely anyone it suspects of
I am on vacation, and blogging only minimally, so I missed this week’s hearing before Judge Katherine Forrest on the plaintiff’s request for a permanent injunction in Hedges. Seeing as how the argument took place in New York, I … Read more »
The plaintiffs have filed their reply in support of their request for a permanent injunction in the case of Hedges v. Obama. (Recall that plaintiffs prevailed on their motion for a preliminary injunction with respect to Section 1021 of … Read more »
The government has filed its brief in opposition to the plantiffs’ motion for a permanent injunction–and seeking dismissal of the case. The brief opens as follows:
Defendants Barack Obama,Leon Panetta, and the Department of Defense (collectively, the “government”) respectfully
As Ben noted last month, Judge Bates recently has shown some interest in possibly moving the Boumediene-at-Bagram case, Al Maqaleh v. Rumsfeld, along toward a resolution. After several very quiet months seemingly mulling over the pleadings before him, … Read more »
Get your memo in support here. Government response due on July 23, I hear.
The original opinion striking down Section 1021 of the NDAA is available here.
And no, I will not be participating in this panel discussion of … Read more »
I received the following email just now–the first time in my life, and I suspect the last, that I ever been confused with a certain blogger over at Salon.com:
From: Lucas Vazquez
Subj: NDAA Lawsuit Q&A Invitation
Hello
Steve and Ben are having an interesting exchange about an important question: whether the DC Circuit’s caselaw in GTMO habeas proceedings has produced a set of substantive and procedural rules at variance with the positions established by the Supreme Court … Read more »
Monday, May 20, 2013
As Jack posted yesterday—and as everyone is buzzing about—President Obama will give a major counterterrorism speech on Thursday at the National Defense University. The Wall Street Journal, CNN, and Politico all report on the talk, and subjects that the President will likely address.
Speaking of Jack, he noted another of today’s big stories: the Washington Post’s piece on the FBI’s search, a few years… Read more »
