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Tag Archives: Office of Legal Counsel (OLC)

Another Clue on Anwar Al-Aulaqi

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Wednesday, August 20, 2014 at 2:23 PM

A few weeks ago, I wrote a pair of posts analyzing where the notion of imminence comes from in the government’s thinking about targeted killing—and in David Barron’s OLC memo on the Al-Aulaqi strike. In one, I wrote: I am speculating, and I could well be wrong. But I think the source of law for imminence in . . .
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The Legal Stakes in an Article II Humanitarian Intervention in Iraq

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Friday, August 8, 2014 at 3:37 PM

Yesterday I maintained that the Iraq strikes were not legally problematic to the extent that they were justified as self-defense of U.S. persons, but said that “[i]f the Iraq strikes are conceptualized as pure humanitarian intervention, they would go further than even the Kosovo and Libya precedents, for they would lack both congressional authorization or any . . .
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More Machinations in Second Circuit Targeted Killing FOIA Litigation

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Thursday, July 24, 2014 at 2:02 PM

The release last month of the Al-Aulaqi Office of Legal Counsel memo, it turns out, was not the end of the Second Circuit litigation regarding the New York Times and ACLU’s FOIA requests for information on the government’s targeted killing programs. A petition for rehearing en banc is still pending. And yesterday, the Justice Department, the Pentagon, and . . .
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Whence Imminence in that Drone Memo? A Puzzle and a Theory

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Tuesday, June 24, 2014 at 11:19 AM

On May 27, a unanimous Supreme Court—to little notice from just about anyone—handed down a case called Plumhoff v. Rickard, which dealt with a police shooting and a claim of excessive force during a high-speed car chase. Donald Rickard had led police in Arkansas on a highway chase, at the end of which officers shot him and . . .
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The Al-Aulaqi OLC Memo: A Quick and Dirty Summary

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Monday, June 23, 2014 at 4:07 PM

I have this feeling that a lot of people are going to mischaracterize the just-released OLC memo on the Anwar Al-Aulaqi strike. Just a guess. So before expressing any opinions on the subject or arguing with anyone about it, I thought I would start things out with a straight summary of the memo, which I am writing . . .
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Krass on Numerous National Security Law Issues

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Tuesday, December 17, 2013 at 8:06 PM

Caroline Krass had her confirmation hearings today before SSCI to become General Counsel of CIA.  Krass is, in my opinion, wildly qualified for the job, and I hope her confirmation process goes smoothly despite unrelated SSCI-CIA disagreements over the release of SSCI’s critical report on the Bush-era interrogation program.  Of special interest to foreign relations . . .
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Interesting Letter from CA2 Panel in FOIA Case

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Monday, September 30, 2013 at 6:02 PM

Just one thing to add to Matt’s preview of tomorrow’s big FOIA argument in the Second Circuit.  A few weeks ago the Second Circuit sent the parties this intriguing letter: Dear Counsel: The panel in the captioned case directs that the Government make available to each member of the panel, for prompt in camera inspection under appropriate security precautions, (1) the . . .
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The Obama Administration’s National Security Legal Team

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Wednesday, September 4, 2013 at 10:14 AM

Ben observed last week that in the midst of the most significant war powers debate of this Presidency, many of the top national security legal positions in the Administration remain unfilled.  So who is minding the store?  Fortunately, some very highly qualified and experienced lawyers, all of whom are currently working around the clock. At . . .
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The Senate Draft AUMF for Syria is Narrower Than the Administration’s Draft, But Still Broad In Some Respects

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Wednesday, September 4, 2013 at 5:03 AM

The draft Senate Syria AUMF contains a narrower authorization for the use of presidential force than the one the administration proposed.  But it is in some respects still broad, and it actually enhances the president’s claims of independent constitutional authority to intervene in Syria. Before parsing the draft, a few background points to keep in . . .
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The Potential Relevance of OLC’s Kosovo-War Powers Resolution Opinion to the Syria Debate

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Monday, September 2, 2013 at 9:33 AM

As Congress moves to debate authorization for the use of force in Syria, and especially since there is some question about whether DOD has adequate funding for a strike in Syria, Congress may want to ponder the votes it took in the not-unrelated context of Kosovo fourteen years ago.  (The original purposes of the Kosovo . . .
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How Administration Lawyers Are Probably Thinking About the Constitutionality of the Syria Intervention (And A Note on the Domestic Political Dangers of Intervention)

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Saturday, August 24, 2013 at 11:59 AM

President Obama famously said in 2008 that the President lacks “power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”  That sentiment as presidential candidate did not stop him as President from intervening in Libya.  But the Libya intervention at least . . .
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Blockading Cuba???

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Tuesday, July 30, 2013 at 3:43 PM

Earlier today, Jack posted a brief note on a list of old OLC opinions that have just been compiled and released.  One item just leaped out at me from the list — this entry: Authority of the President to Blockade Cuba (January 25, 1961) Note both the subject and the date.  First the subject:  The . . .
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Release of Old OLC Opinions, 1937-1977

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Tuesday, July 30, 2013 at 12:26 PM

Via Steve Aftergood at Secrecy News, I see that OLC has published a large cache of old opinions from 1933-1977.  The opinions are all included in one volume.  Highlights for Lawfare readers include: The President’s Power in the Field of Foreign Relations (November 8, 1937) Authority of the President to Blockade Cuba (January 25, 1961) Authority Under International . . .
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Blaming (or Crediting) the Lawyers for Our Syria Policy

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Monday, July 15, 2013 at 10:38 AM

This morning both the WSJ (behind paywall) and NYT have stories on how law and lawyers have influenced the changing USG posture on intervening in Syria.  The gist of the WSJ story is that administration lawyers, apparently relying on the ICJ Nicaragua Case, pushed back against policy makers who called for “more assertive U.S. action . . .
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Today’s Senate Judiciary Subcommittee Hearing on the Targeted Killing Program

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Tuesday, April 23, 2013 at 3:08 PM

As Greg McNeal noted, the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights is holding a hearing this afternoon on the targeted killing program entitled “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing.” Members of the Senate Judiciary Committee were recently all allowed access to the Office of Legal . . .
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Amicus Support for Samantar Cert Petition

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Monday, April 15, 2013 at 8:02 PM

What do the Governments of Saudi Arabia and Sri Lanka and former Attorneys General William Barr, Ed Meese, and Dick Thornburgh have in common? Answer:   They all believe that the Supreme Court should grant the petition for certiorari of former Somali Defense Minister Mohamed Ali Samantar, after the Fourth Circuit held that foreign government officials . . .
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Speaking the Law: The Obama Administration’s Addresses on National Security Law

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Thursday, March 28, 2013 at 7:08 AM

We are excited to announce the launch of a project at which we have been hard at work for some time. It’s a book—being published chapter by chapter—by the Hoover Institution Task Force on National Security and Law, explicating and evaluating the Obama Administration’s speeches on national security legal issues. Entitled Speaking the Law The . . .
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More New York Times Editorial Errors

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Sunday, March 10, 2013 at 2:03 PM

The New York Times editorial page has still not corrected its error of the other day, when it promoted John Brennan to National Security Adviser. But that hasn’t stopped our friends over there from making some new doozies in this morning’s offering, entitled “Repeal the Military Force Law.” As per my usual practice, I’m going to . . .
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NYT on Al-Aulaqi Operation and Underlying Legal Analysis

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Saturday, March 9, 2013 at 4:26 PM

[UPDATED 4:53] Scott Shane, Mark Mazzetti, and Charlie Savage of The New York Times have this lengthy article on the hunt for Anwar Al-Aulaqi.  Their piece describes, among other things, the legal analyses that approved of Al-Aulaqi’s killing. Interestingly, the article says that OLC’s legal workup was influenced by “a legal blog that focused on a statute that . . .
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Henry V and the Law of Armed Conflict

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Sunday, March 3, 2013 at 7:11 PM

I went to see a wonderful performance of Henry V this afternoon at the Folger Shakespeare Library—and I came away thinking about the law of armed conflict. I have wondered about early literary invocations of the laws of war before with reference to this play, but perhaps because I haven’t seen Henry V since we founded Lawfare, it hasn’t been . . .
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