The problems that Rick recently identified with how both the DOJ White Paper and its critics treat the concept of "imminence" --- specifically, that they are borrowing a concept generated in a domestic law context that depends on a set of institutions and structures that don’t exist in the international sphere, without acknowledging the problems with doing so --- parallels an issue in the White Paper's discussion of due process. I think the issue has gone largely overlooked on the due process side. I want to lay it out here.
Trevor Morrison is the Isidor and Seville Sulzbacher Professor of Law and the Faculty Co-Chair of the Hertog Program on Law and National Security at Columbia Law School. He teaches and writes about constitutional law, federal courts, and national security law. A former law clerk to Justice Ruth Bader Ginsburg of the United States Supreme Court, he served in the Justice Department's Office of the Solicitor General and Office of Legal Counsel before entering academia. More recently, for 2009 he served in the White House Counsel's Office as Associate Counsel to the President.
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I'm pleased to report that a group of former Obama Administration lawyers (including yours truly) has just submitted to the Senate Select Committee on Intelligence a letter expressing our strong support for John Brennan's nomination to be Director of the CIA.
I appreciate Jack's follow-up post on the larger picture of the Obama administration's counterterrorism policies and their points of continuity with the Bush administration (though only the late Bush, as he properly underscores). Jack and I agree on much more than we disagree on, including that evaluations of the Obama policies in this area depend in large part on people's baseline expectations.
I agree with much of what Jack says in his recent post about the counterterrorism issues likely to face President Obama in his second term. But there's one aspect of how Jack frames the discussion that I disagree with somewhat. Because a number of other commentators seem to use the same basic framing, I thought I’d register a different view.
Steve, Ben, Jack, and Bobby have already posted some excellent thoughts on the DC Circuit's decision in Hamdan II. I agree with many of them.
As Bobby noted previously, Rep. Adam Smith and others are proposing amendments to this year's NDAA that would make certain changes to the detention-related provisions implemented by last year's NDAA. Among other things, the Smith Amendment would effectively prohibit the military detention of anyone arrested or captured within the United States.