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Tag Archives: Harold Koh

U.S. Delegation Asserts Article 16 of Convention Against Torture Applies Outside U.S. Territority in Certain Circumstances, but Law of Armed Conflict “Takes Precedence” In Situations of Armed Conflict

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Wednesday, November 12, 2014 at 2:10 PM

As previewed by Charlie Savage in the New York Times this morning, the U.S. delegation appeared before the Committee Against Torture in Geneva today and announced a modest but important change in the U.S. Government position regarding extraterritorial application of Article 16 of the Convention Against Torture (which prohibits cruel, inhuman, and degrading treatment in . . .
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Why Three of the Six Just Security AUMF Principles are Flawed

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Tuesday, November 11, 2014 at 9:25 AM

By coincidence, the same day that Jack, Bobby, Matt and I released our draft AUMF text, a group associated with Just Security released a document entitled “Principles to Guide Congressional Authorization of the Continued Use of Force Against ISIL.” There’s a lot of common ground between this set of principles and our text, but in my view . . .
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The Significance of Harold Koh’s Legal Defense of the Administration’s Interpretation of the 2001 AUMF

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Wednesday, October 1, 2014 at 7:02 AM

Harold’s Koh’s grudging defense of the domestic legal basis for President’s Obama’s use of force against the Islamic State in Iraq and Syria is important.  It adds little new to other defenses of the President’s position – a legal position, I have argued in past posts, is politically stupid and constitutionally imprudent but nonetheless legally . . .
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The Administration Needs a Confirmed Legal Adviser

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Monday, July 28, 2014 at 10:25 AM

Six months ago today, I wondered aloud on this blog when President Obama might nominate a new Legal Adviser.   At that point, the position had been vacant for over a year since Harold Koh stepped down in January 2013.  The Administration has now been without a Legal Adviser and the Legal Adviser’s office has been . . .
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Agreeing with Harold Koh on the Need For and Contours of a New AUMF

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Friday, May 23, 2014 at 11:28 AM

I find myself mostly agreeing with the essentials of Harold Koh’s testimony and post on “ending” the Forever War, especially his proposal for a new and narrowed AUMF.  I hope this doesn’t cause my old teacher to change his mind. By ending the Forever War, Koh appears to mean (a) declaring war against al Qaeda (and, possibly, . . .
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Reactions to Foreign Relations Committee Hearing on the AUMF

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Wednesday, May 21, 2014 at 9:12 PM

There is much to say about today’s hearing on the AUMF, and I am sure my colleagues will weigh in with much more.  But I have two quick reactions for now. First, I suggest reading two recent Eli Lake articles together.  The first is about internal Executive branch debates about how to characterize the continuing threat from al . . .
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Second Circuit Affirms Dismissal of ATS/TVPA Suit Against Former President Zedillo

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Thursday, March 13, 2014 at 9:02 PM

I am late in reporting that last month the Second Circuit affirmed the dismissal of the ATS and TVPA suit against former President Zedillo of Mexico, based on the Suggestion of Immunity signed by my successor Harold Koh and submitted by the Executive branch to the district court.  The Second Circuit also declined to allow plaintiffs . . .
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A Reply to Wittes on the United States and Extraterritoriality

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Monday, March 10, 2014 at 4:34 PM

I’m usually a big fan of Ben’s cogent observations on Washington’s folkways.  Unfortunately, I can’t be as enthusiastic about Ben’s reply to my earlier post on Harold Koh’s memos regarding extraterritoriality of human rights treaties.  Ben overstates the duration of the United States’ position against extraterritoriality.  He also includes some pokes at Koh’s service as . . .
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A Dissenting Word on the Harold Koh Memoranda

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Monday, March 10, 2014 at 2:00 PM

I want to take issue with Peter Margulies’s laudatory remarks this weekend about the Harold Koh memos on extraterritorial application of the ICCPR and the CAT—you know, those memos that mysteriously showed up in the New York Times just as the United States was preparing to present its views on the ICCPR to the UN . . .
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Extraterritoriality and Human Rights: Time for a Change in the U.S. View?

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Saturday, March 8, 2014 at 8:11 AM

As Jack has frequently observed, legitimacy and effectiveness often go hand-in-hand.  The two comprehensive State Department memoranda by former Legal Adviser (and Yale Law School dean) Harold Koh released Friday on extraterritoriality under the ICCPR and Convention Against Torture make this point powerfully and persuasively (see commentary by Marko Milanovic here and Jennifer Daskal here).  . . .
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NYT on the United States’ Position on Human Rights Treaties

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Friday, March 7, 2014 at 9:45 AM

Well worth a read: Charlie Savage’s story, for the New York Times, regarding Obama Administration debate over whether the International Covenant on Civil and Political Rights, and the Convention Against Torture, impose legal obligations on the United States in places beyond its borders. The piece cites, among other things, two memos written by then-State Department Legal Adviser Harold . . .
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When Will President Obama Nominate a New Legal Adviser?

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Tuesday, January 28, 2014 at 8:20 AM

Speaking of agency general counsels (as I did in my post yesterday morning about the appointment of Jim Baker as FBI General Counsel), many foreign governments are wondering when President Obama will nominate a new State Department Legal Adviser.   The position has been vacant for more than a year, since Harold Koh left in January 2013.  For an . . .
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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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The War Powers Resolution and Using Force in Syria

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Thursday, August 29, 2013 at 4:10 PM

As long as we are covering the waterfront when it comes to the legal questions raised by the prospect of using force in Syria, we should say something about the role of the War Powers Resolution.  After all, a group of 97 GOP House members, joined by 18 Democrats, yesterday sent a letter to President . . .
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Some Answers for Steve on Harold Koh

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Thursday, May 9, 2013 at 1:12 PM

Steve has responded to my post on Harold Koh’s sudden discovery of inviolable commander in chief powers. He asks me two questions, which I address below: Would you take seriously anyone who denied the existence of any and all indefeasible presidential power (and who would, therefore, think that Congress did have the power to enact the Command of . . .
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Harold Koh on What Would Al Gore Do?

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Thursday, May 9, 2013 at 12:00 PM

From Harold Koh’s speech to the Oxford Union the other day: Suppose we are back at Sept 18, 2001, and Congress has just passed the AUMF against Al Qaeda. Suppose the President –let’s assume it for the sake of argument that it was the winner of the popular vote, Al Gore–gives a speech where he says: . . .
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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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Two Presidential Power Questions for Ben

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Thursday, May 9, 2013 at 8:01 AM

Ben is shocked (shocked!) by Harold Koh’s invocation of indefeasible presidential powers in his Oxford Union speech.  But insofar as Ben is implicitly accusing the former Legal Adviser to the State Department of hypocrisy merely for having the temerity to suggest that such powers exist, I wonder how he’d respond to the following two questions: . . .
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Harold Koh Identifies a Big Difference Between the Bush and Obama Administrations

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Wednesday, May 8, 2013 at 5:55 PM

From Harold Koh’s speech to the Oxford Union yesterday: A third critical difference between this Administration and its predecessor is the Obama Administration’s determination not to address Al Qaeda and the Taliban solely through the tools of war. . . . [O]ur longer term objective must be what Secretary Clinton called a “smart power” approach. . . .
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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.”