I'm happy to report that I've recently completed drafting an article that has been much on my mind for the past few years. Beyond the Battlefield, Beyond al Qaeda: The Destabilizing Legal Architecture of Counterterrorism (Michigan Law Review, forthcoming 2013) is now posted to SSRN. In it, I argue that (i) there is a widespread perception that the legal framework for detention and targeting has reached a point of relative stability thanks to a remarkable wave of interbranch and inter-party consensus since 2008; (ii) this facade depends almost en
Latest in Detention: Operations in Iraq
As both Wells and Ben noted previously, there are renewed signs of interest in the fate of military detention in Afghanistan, in the form of an NPR story by Quil Lawrence and an order that same day from Judge Bates relating to the Afghanistant habeas litigation. The NPR story is quite interesting, on dimensions pertinent to the attempt to establish habeas for detainees in Afghanistan--though the message it sends is mixed. On one hand, the story questions whether the transfer of the
Bobby joined Charlie Savage and Jack Healy in querying here whether the U.S. Government might consider asking the Iraqis to extradite Lebanese national Ali Musa Daqduq to the United States.
Yeesh. Yesterday I noted that Chairman McKeon's NDAA draft includes a "Daqduq rule" -- i.e., a provision requiring the Defense Department to notify Congress before transferring certain detainees held at the DFIP in Afghanistan out of U.S. custody. I called it that because the impetus for such intervention surely was the example provided by Ali Musa Daqduq, the Hezbollah commander whom U.S.
A little while back, I wrote an article describing the evolution of our capture and detention policies in Iraq from 2003 to 2010 (based on a review of a massive pile of after-action reports and interviews from throughout that period). The general thrust of that evolution, of course, was to move from a LOAC-driven military detention model to a law enforcement support model in which Iraqi judges played a critical role both in authorizing targeted captures (warrant-based targeting) and of course in adjudicating subsequent criminal prosecutions. I d
The D.C. Circuit heard oral argument yesterday in Doe v. Rumsfeld (11-5209), a Bivens case brought by a U.S. citizen working as a military contractor in Iraq who alleged detention and interrogation abuses by the U.S. government. The case is similar to Lebron v. Rumsfeld and Vance v. Rumsfeld, two recent Bivens cases brought by U.S.-citizen plaintiffs.
The Times has an important story from Alissa Rubin this morning describing the ongoing negotiations between the US and Afghanistan regarding the future of the US presence there. We have frequently heard that the two big issues clogging the negotiations involved Karzai's desire to end night raids and to have all detention operations immediately handed over. Today's story in the Times suggests that the US has offered to address the latter concern by turn
The ICRC recently published this report on its visits to detainees being held in U.S. facilities in Afghanistan, Guantanamo, Iraq, and South Carolina. The report opens:
Although terrorism is not new, States continue to be confronted with the question of how to respond adequately and effectively to the security challenges it poses while protecting the fundamental rights of suspects they have to detain.
At one point prior to 2009, [Update: In my haste this morning, I erred by referring to 100,000 detainees in Iraq at a single point in time, when instead I meant to refer to the volume of detainees we held there over time; the maximimum at any given point in time, I believe, was in the 20,000 range] the United States held more than 100,000 "security internees" in military custody in various facilities in Iraq. Three years later, the war in Iraq is over (at least from a formal U.S.
By Marty Lederman and Steve Vladeck*
[Cross-posted at OpinioJuris]
Section 1021 of the NDAA and the Laws of War
In our companion post, we explained that section 1021 of the NDAA will not have the dramatic effects that many critics have predicted–in particular, that it will not affect the unresolved question of whether the 2001 Authorization for Use of Military Force (AUMF) would authorize a future President to place a U.S ci