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Category Archives: Unfiled

The Foreign Policy Essay: AQAP at a Crossroads

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Sunday, April 19, 2015 at 10:00 AM

The civil war in Yemen and Saudi-led intervention against the Houthi rebels there have undermined efforts to negotiate a political settlement and are making the country’s already-disastrous humanitarian situation even worse. The chaos, however, seems to have produced one clear winner: Al Qaeda in the Arabian Peninsula (AQAP), the Al Qaeda affiliate with the closest . . .
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Andrew McCarthy’s Distortion of the Corker Bill (and the Constitution)

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Saturday, April 18, 2015 at 5:40 PM

Andrew McCarthy, like the New York Times, doesn’t like Senator Corker’s Iran Review bill.  But in contrast to the NYT’s argument that the bill “inappropriately diminishe[s] the president’s power” (a view I criticized here), McCarthy today argues that the bill inappropriately enhances the president’s power.  This represents a pretty large reversal of constitutional positions for . . .
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Stephen Preston’s Important Acknowledgement that the 2001-AUMF-Forever-War is Not Ending Anytime Soon

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Friday, April 17, 2015 at 9:01 AM

Stephen Preston’s speech at last Friday’s ASIL Meeting was the latest of many efforts by the administration to explain (in Preston’s words) “the bases, under domestic and international law, for the United States’ use of military force abroad.”  It was a good and informative speech, and good that he gave it.  Especially noteworthy, I thought, . . .
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In Case You Needed Another Reason to Look Askance at WikiLeaks

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Thursday, April 16, 2015 at 10:27 PM

Here is one. The organization today posted online what it describes as “an analysis and search system for The Sony Archives: 30,287 documents from Sony Pictures Entertainment (SPE) and 173,132 emails, to and from more than 2,200 SPE email addresses.” That’s right. North Korea hacks Sony and steals lots of innocent people’s communications, and WikiLeaks . . .
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A Tidbit From an Old NSA Document (2000)

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Thursday, April 16, 2015 at 10:11 PM

Browsing through an old NSA document called Transition 2001, dated December 2000, I came across this tidbit on page 3. “In transforming the cryptologic system, the NSA/CSS must shift significant emphasis and resources from current products, services, and targets to the modern and anticipated information technology environment for both SIGINT and information assurance. The NSA/CSS . . .
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On Hacking A Passenger Airliner (GAO report)

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Thursday, April 16, 2015 at 12:29 PM

Several news stories today have highlighted a recently released GAO report which stated that “Modern aircraft are increasingly connected to the Internet. This interconnectedness can potentially provide unauthorized remote access to aircraft avionics systems.” True enough. The fundamental problem arises from the fact that the modern passenger aircraft have two networks, one for avionics and airplane . . .
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On the FISA Court and “Rubber Stamping”

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Monday, April 13, 2015 at 2:07 PM

In preparing for a lecture that I need to give that includes a discussion of the Foreign Intelligence Surveillance Act, I once again came across the (true) claim that the FISA court (FISC) denies only a miniscule fraction of the requests made of it by the Justice Department. For example, in 2013 the US government . . .
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Steve Preston’s Speech: On Associated Forces, Self-Defense, and AUMF Refinement

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Friday, April 10, 2015 at 6:30 PM

The speech DOD General Counsel Stephen Preston delivered today at ASIL was quite interesting on many scores, including the scope of the “associated forces” concept, the nature of America’s self-defense claim as to force in Syria, and as to AUMF reform. Associated Forces under the 2001 AUMF: Preston emphasized two things about the statutory concept . . .
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What Might Congress Do To Stop the Obama Administration From Disregarding Congressional Transfer Restrictions In the Course of Closing GTMO?

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Friday, April 10, 2015 at 1:00 PM

Last week I explained how the Obama administration might extend it constitutional arguments for disregarding statutory detainee transfer restrictions in the Bergdahl context to the restrictions on transferring GTMO detainees to the United States.  (Earlier today I elaborated on these arguments.) Some people questioned this passage in my post last week: As far as I . . .
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More on the Legal Basis for the Administration’s Disregard of Congressional Restrictions on Detainee Transfers in the Bergdahl Context, and on the Implications for Closing GTMO

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Friday, April 10, 2015 at 7:13 AM

Last summer I wrote of the administration’s constitutional arguments for disregarding congressional transfer restrictions in swapping the Taliban 5 for Bowe Bergdahl: To say that the President disregarded a federal statute because he interpreted it in the emergency context before him to impinge upon Article II is not at all to say that the President . . .
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Terror Money, Mid-game Rule Changes, and Presidential Power

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Thursday, April 9, 2015 at 4:00 PM

As the details of a nuclear deal are hammered out, a case that directly implicates the American-Iranian relationship is clamoring for cert. On Monday, the Supreme Court asked for the view of the Solicitor General in Bank Markazi v. Peterson, an appeal based on a 2013 mega-judgment allowing plaintiffs to collect billions of Iranian Central . . .
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Nathan Wood: The Ferguson Consensus is Wrong: What Counterinsurgency in Iraq & Afghanistan Teaches Us About Police Militarization and Community Policing (Lawfare Research Paper Series)

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Thursday, April 9, 2015 at 9:00 AM

For interested readers: the latest installment of the Lawfare Research Paper Series.  In it, Harvard Law student Nathan Wood examines the phenomena of community policing, on the one hand, and police militarization, on the other—having in mind an emerging view that the former represents the necessary antidote to the latter. From the abstract: In the wake . . .
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In Case You Missed It Yesterday

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Wednesday, April 8, 2015 at 8:27 PM

This happened. You can do that thing you want to do by clicking on this link.

Key Documents on the Iran Deal

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Friday, April 3, 2015 at 2:36 PM

For those who want the key primary source materials on yesterday’s Iran nuclear deal, here they are. The US Government issued a fact sheet on the parameters of the Joint Comprehensive Plan of Action (JCPOA) yesterday, detailing the specific limits on Iran’s nuclear program the deal imposes. Iran will not lose control over all of . . .
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The Brennan Center Report on the FISA Court and Proposals for FISA Reform

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Thursday, April 2, 2015 at 4:30 PM

As Wells noted when it first came out last month, the Brennan Center has a new report: What Went Wrong With the FISA Court. Despite the title, the report is really a condensed history of the Foreign Intelligence Surveillance Court (FISC or the Court), with the Brennan Center’s judgements about what has gone wrong with . . .
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On Palestine’s Decision to “Hold Off” on Referring the Situation in Palestine to the ICC

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Thursday, April 2, 2015 at 2:30 PM

Yesterday there was a small ceremony at the International Criminal Court to mark Palestine becoming the 123rd State Party to the Rome Statute.  For all the attention this event received, what might ultimately be more interesting is what did not happen yesterday. Despite earlier indications that it would, Palestine did not file an article 14 . . .
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The Zero Dark Thirtieth Birthday Cake

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Tuesday, March 31, 2015 at 5:14 PM

From the baker of hard national security choices, who once brought you the “drone strike cake“—called “notorious” by Rolling Stone magazine—it’s the Zero Dark Thirtieth Birthday Cake:

Judicialization of Warfare in the U.K.

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Tuesday, March 31, 2015 at 2:00 PM

A British think tank called Policy Exchange has released a very interesting report on judicialization of British warfare. Entitled “Clearing the Fog of Law: Saving Our Armed Forces from Defeat by Judicial Diktat,” the 50-page report by Richard Elkins, Jonathan Morgan, and Tom Tugendhat opens: “The judiciary is pioneering a revolution in military affairs. Empowered by . . .
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The Tenth Year Anniversary of UNSCR 1593, which Referred the Situation in Darfur to the International Criminal Court

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Tuesday, March 31, 2015 at 12:48 AM

Ten years ago today, on March 31, 2005, the U.N. Security Council adopted resolution 1593, which referred the situation in Darfur, Sudan, to the Prosecutor of the International Criminal Court for investigation. Although not a party to the Rome Statute, the United States abstained on the resolution, marking the beginning of a shift by the . . .
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Who’s Afraid of the Iran Nuclear Agreement Review Act of 2015?

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Wednesday, March 25, 2015 at 11:47 AM

Last Friday The Hill reported that Senator Corker believes he “will have a veto-proof majority” to enact the “Iran Nuclear Agreement Review Act of 2015” (INARA).  Below is my analysis of the Bill.  Bottom line: The Bill is simply designed to permit Congress to look closely at the Iran deal before President Obama exercises any . . .
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