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 »
Today, the U.S. Court of Appeals for the District of Columbia Circuit filed a per curiam order in the case of Bahlul v. United States, ordering the parties to file briefs addressing the implications of the court’s decision in … Read more »
[UPDATE: A reader points out that when discussing this subject back in 2011, the question had arisen as to whether this was indeed the best reading of 2339B(d) for the 1996-2004 period. I had responded that the issue was indeed … 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 »
It’s turned out to be a very big news day in national security litigation land… In addition to the extensive coverage of Aulaqi v. Panetta (to which I hope to add some thoughts of my own later tonight), I wanted … Read more »
Congratulations to Scott L. Silliman and William B. Pollard III, both of whom the Senate last night confirmed to be judges of the U.S. Court of Military Commission Review. Both men must formally be sworn in before commencing their … Read more »
Breaking: earlier today, the Senate Armed Services Committee approved its two pending nominees for judgeships on the Court of Military Commission Review – William Pollard, and Professor Scott L. Silliman (who taught me in law school). You’ll find some more … 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 »
Amidst all the discussion of whether and how to amend the House NDAA bill to address domestic captures, I am amazed that I did not notice the Rooney Amendment, which has been adopted. What does it do? Well, it … Read more »
House Armed Services Committee Ranking Member and Sen. Mark Udall have proposed a brief bill that would make two significant changes to the NDAA’s detention provisions. The bill, a fact sheet about which is available here, does two things: … Read more »
Lt. Col. Darrel J. Vandeveld became a kind of cause celebre a few years back when he quit as a prosecutor in the military commission system over ethical concerns about the process, gave a declaration on behalf of a commission … Read more »
While the experience is fresh, I thought I’d share some reflections on this morning’s Senate Judiciary Committee hearing on the Due Process Guarantee Act. [The SJC hearing page has copies of the witness statements (including my own), and … Read more »
Here is Part II of Peter Margulies’s reporting from AALS:
AALS Federal Courts Debate II: Military Commissions and Material Support
The lively federal courts panel at the American Association of Law Schools conference also sparked disagreement on trials in military
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 »
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 »
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 »
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 »
On his new blog, The Loyal Opposition, New York Times Editorial Page Editor Andrew Rosenthal has this post arguing that “One particularly compelling reason [not to use military commissions] is that tribunals do not seem to have the authority to … Read more »
May God bless their little souls. The poor dears really are trying. The New York Times editorial page has now corrected its correction.
This is getting meta, and this post will be incomprehensible to those have not read my … Read more »
The latest public development in the long-running fight over the detention provisions in the National Defense Authorization Act occurred last Friday when a group of 13 Senate Democrats (all the Democrats on SSCI and some but not all from Judiciary) … 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 »
I awoke this morning to a genuine marvel: An actual real-live correction to a New York Times editorial on a national security issue. It reads as follows:
This article has been revised to reflect the following correction:
Correction: October 22,
The Kelly Ayotte amendment I discussed yesterday was voted down late last night, reports the Associated Press:
WASHINGTON — The Senate voted early Friday to reject a Republican effort to prohibit the United States from prosecuting foreign terrorist suspects
Another unpleasant proposed spending restriction related to trying suspected terrorists–this time from Senator Kelly Ayotte. This is a proposed amendment to an appropriations bill for the Justice Department, among other agencies. It could receive a vote any day. It would … Read more »
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 »
Here is the prepared text, released by the White House, of John Brennan’s speech at the Harvard Law School-Brookings conference now under way in Cambridge. I will post video, including of the very interesting Q&A, as soon as I can:… Read more »
Professor Blum welcomes the audience back and invites Professor Dan Meltzer to introduce John Brennan. Meltzer provides a short biography for Brennan and notes that he has been a key actor in shaping the government’s response to 9/11. He explains … 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 »
In kicking off Lawfare’s 9/11 10th anniversary project devoted to laying bare our own non-trivial errors of analysis or understanding over the last decade, I have a number from which to choose. All, however, pale in comparison to my vacillations … Read more »
Today’s House Armed Services Hearing on “Ten Years After the 2001 AUMF: Current Status of Legal Authorities, Detention, and Prosecution in the War on Terror” included testimony from the following witnesses:
And, … Read more »
Earlier today, Raffaela noted a letter, sent by the Chairs of various House Committees to the President, regarding the latter’s approach to the Warsame case. Unsurprisingly, the letter critiqued the Administration on various grounds. Fair enough. But it’s worth … Read more »
A while back Ben posted about the pressing need for “radical transparency” in the military commissions process. It’s time to say it again: The Pentagon must make it much easier for outsiders to follow the details of military commission trials … Read more »
Bobby has already noted that the administration’s handling of the Warsame case would not have been possible had either the suspect set foot in Guantanamo Bay under current law or if pending congressional efforts to mandate military detention or military … Read more »
For the record, the Buchanan Amendment is a bad idea, and I hope that it dies in conference. In addition to being constitutionally vulnerable in at least some applications (Milligan anyone?), and hamhanded in its effort to deny discretion … Read more »
Unbeknownst to me, the NDAA as passed by the House of Representatives yesterday contains new–and very bad–provision mandating military commission trials for terrorist suspects. Added on the floor through an amendment by Rep. Vern Buchanan, which passed on a 246-to-173 … Read more »
I have now had the chance to go over a transcript of Thursday’s House Armed Services Committee hearing on detention policy, at which Pentagon General Counsel Jeh Johnson and Deputy Defense Secretary William J. Lynn III both testified. Video of … 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
In his speech yesterday, incoming House Armed Services chairman Buck McKeon promised that his committee would work in the coming Congress on a “legal framework” for detention. Here’s hoping he is more serious about it this coming year than … Read more »
In posting earlier this evening this speech by Republican Rep. Buck McKeon, the incoming chair of the House Armed Services Committee, I promised thoughts on its virtues and vices. The short version is that its vices include its laughably unfair … Read more »
Friday, May 17, 2013
The Department of Justice’s Inspector General released an interim report on the Department’s handling of “known or suspected” terrorists who have entered the government’s witness protection program. The report found, among other things, that information on some program participants had not been turned over to no-fly list authorities; and, that two such people could not be located—though one… Read more »
