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Tag Archives: Marty Lederman

The Administration’s New (and Unconvincing) Reading of the Notice Requirement for GTMO transfers

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Tuesday, June 3, 2014 at 11:04 AM

The Obama Administration has backed away from its suggestions over the weekend that it failed to comply with the notice requirement in Section 1035 of the 2014 NDAA on constitutional grounds.  It is now claiming, as Marty Lederman notes, that it complied with the statute because it determined “that the notification requirement should be construed not to . . .
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Thoughts on the Bergdahl-for-Taliban Trade

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Monday, June 2, 2014 at 4:30 PM

What do you give up to get back one of your own? Talk about a hard national security choice. The decision to trade five senior Taliban detainees at Guantanamo for Private First Class Bowe Bergdahl has it all. I don’t envy the people who had to make this decision. The United States is not Israel—a fierce . . .
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The President Pretty Clearly Disregarded a Congressional Statute in Swapping GTMO Detainees for Bergdahl

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Monday, June 2, 2014 at 1:03 PM

Marty Lederman tries mightily to interpret Bergdahl’s release as consistent* not inconsistent with the wishes of Congress, but I don’t think he succeeds. Section 1035 of the 2014 NDAA authorizes the Defense Secretary to “transfer or release any individual detained at Guantanamo” if he makes certain certain determinations, and it further requires without exception that the . . .
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ODNI Clarifies New Pre-Publication Review Policy

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Sunday, May 11, 2014 at 4:01 PM

On Friday I said that on a quick read, the Obama administration’s new pre-publication review policy seemed “overbroad to the point of practically unenforceable.”   Friday afternoon, as Marty Lederman noted, the Office of the Director of National Intelligence distributed a memorandum that sought to clarify that the new policy was being interpreted more broadly than . . .
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Lederman on Secrecy, Nonacknowledgement, and Yemen

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Wednesday, February 26, 2014 at 6:15 AM

Marty Lederman has a long post picking apart the errors in last week’s AP story on last December’s drone strike in Yemen.  Along the way he carefully parses the covert action statute, and has interesting things to say about the relationship between secrecy and non-acknowledgment, and how those concepts apply to CIA and DOD.  A . . .
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A Partial Defense of the Front-Page Rule

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Wednesday, January 22, 2014 at 8:33 AM

Late last month Marty Lederman flagged the President’s Review Group on Intelligence and Communications Technologies’ endorsement of the Front-Page Rule: That informal precept, long employed by the leaders of US administrations, is that we should not engage in any secret, covert, or clandestine activity if we could not persuade the American people of the necessity . . .
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Cole and Lederman, and Morell, on Review Group Report

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Monday, December 23, 2013 at 4:39 PM

Marty Lederman has a good summary of the highlights of the President’s Review Group on Intelligence and Communications Technologies at Just Security.  And he and David Cole have a lengthy post on what they say is a neglected issue in coverage of the Report: The issue of the proper use by the government of meta-data, as opposed . . .
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The First Circuit and the First Amendment

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Friday, November 15, 2013 at 6:42 AM

This week’s much-anticipated decision by the First Circuit in Mehanna v. United States, which Matt Danzer summarizes here, offers more guidance on the First Amendment and terrorism than Ben and the always-thoughtful Marty Lederman have suggested.  As Ben and Marty note, the court affirmed Mehanna’s conviction for material support of terrorism based on evidence that . . .
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Lenity and the FISA Reform Endgame

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Friday, November 8, 2013 at 9:56 AM

I was on the same panel as Orin at Monday’s day-long hearing before the Privacy & Civil Liberties Oversight Board, and think there’s a lot to commend his proposal for a statutory rule of lenity as a tool to regulate national security surveillance–to scale back the government’s ability to push for expansive interpretations of the . . .
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The Solicitor General Responds to an EPIC Mandamus Effort

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Wednesday, October 23, 2013 at 12:00 PM

Having gained no purchase in federal district courts in countering NSA’s telephony metadata program, privacy activists are attempting a different strategy: taking the fight directly to the United States Supreme Court. Back in July, the Electronic Privacy Information Center (EPIC) filed a mandamus-or-certiorari petition with the high court, seeking review of the controversial April 2013 order by . . .
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Constitution Day Event at Georgetown on Surveillance Law

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Monday, September 23, 2013 at 8:02 PM

I was honored to moderate a panel at Georgetown Law on Constitution Day, entitled “A Constitutional Conversation: The Foreign Intelligence Surveillance Act in a Digital Era.” The panel, composed of Georgetown Law Professors Carrie Cordero, Laura Donohue, and Marty Lederman, focused on the FISA surveillance programs leaked by Edward Snowden and described in recently-declassified FISA materials, . . .
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More on the UN Charter, Syria, and “Illegal but Legitimate”

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Thursday, September 5, 2013 at 2:29 PM

Earlier today I said that President Obama’s dismissal of a Security Council authorization as a prerequisite for intervention in Syria “marks the death knell for the long-held USG view that humanitarian intervention without Security Council approval violates the U.N. Charter.”  Marty Lederman responded that the President’s position is, to the contrary, that “because the UNSC . . .
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Marty Lederman on the President’s Syria Press Conference, and a Brief Response

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Thursday, September 5, 2013 at 8:59 AM

Marty Lederman writes in with a response to my last post: A quick, response to Jack’s reading of the President’s remarks in Stockholm yesterday: One should be very cautious, of course, about reading too much into an executive’s particular phrasing at a press conference–it is rarely the sort of thing that has received careful, interagency . . .
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Worth Reading On Syria

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Monday, September 2, 2013 at 6:12 AM

A few items that are in my opinion worth a read: Opinio Juris is having an insta-symposium on Syria.  I recommend in particular Marty Lederman’s two posts on the relevance of the U.N. Charter to the coming authorization debate in Congress.  (Largely overlooked in the President’s speech on Saturday was his back-of-the hand dismissal of . . .
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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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Why a “Drone Court” Won’t Work–But (Nominal) Damages Might…

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Sunday, February 10, 2013 at 5:12 PM

There’s been a fair amount of buzz over the past few days centered around the idea of a statutory “drone court”–a tribunal modeled after the Foreign Intelligence Surveillance Court (FISC) that would (presumably) provide at least some modicum of due process before the government engages in targeted killing operations, but that, like the FISC, would . . .
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Military Detention of Non-Citizens and the Not-So-Negative Implications of the New Feinstein Amendment

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Friday, December 7, 2012 at 8:18 AM

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 lawful permanent residents (LPRs) apprehended within the United States, the effect of which would guarantee that such . . .
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Hedges and the Feinstein Amendment

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Thursday, September 13, 2012 at 10:58 AM

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 person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in . . .
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Marty Lederman Reacts to NYT Story on Obama Unilateralism

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Monday, April 23, 2012 at 2:25 PM

Marty Lederman has a post defending the Obama administration in connection with this NYT story, but I think he overreacts. Marty claims that the story by Charlie Savage contributes to the “common but flawed ‘convergence’ narrative” that “President Obama has substantially abandoned the views he held before taking office and, chastened by the realities of the office, has . . .
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Peter Margulies Reports on AALS III

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Thursday, January 12, 2012 at 5:58 PM

Peter Margulies’s reporting on AALS panels continues with this dispatch: Libya and Presidential Power Presidential war powers were debated at the AALS conference that spurred my recent posts on detention and military commissions.  The Libyan intervention elicited disagreement peeking out from surface consensus among Georgetown’s Marty Lederman (OLC 2009-10), Duke’s Curt Bradley, and Columbia’s Trevor Morrison . . .
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