Latest in Extraterritoriality


The Bond Case, Statutory Interpretation, and the Executive Branch

The Supreme Court had the opportunity in Bond v. United States to tackle constitutional questions about the scope of the Treaty Power and the Necessary & Proper Clause, but the six-justice majority declined that invitation. So, in the end, Bond is a statutory interpretation case.

Targeted Killing: Litigation

Judge Collyer Throws Out Al-Aulaqi Bivens Suit

Judge Rosemary Collyer of the U.S. District Court for the District of Columbia has thrown out the Bivens suit by the families of Anwar Al-Aulaqi and his son, and Samir Khan, all of whom were U.S. citizens killed in drone drikes in Yemen. Here's the 41-page opinion. It opens:

Because Anwar Al-Aulaqi was a terrorist leader of al-Qa’ida in the Arabian Peninsula, the United States intentionally targeted and killed him with a drone strike in Yemen on September 30, 2011.

International Law

A Further Response to Ryan Goodman on an Alleged Extraterritorial Right to Privacy

Continuing our dialogue about whether the ICCPR places limits on electronic surveillance by a state outside of its own territory, Ryan Goodman has posted a lengthy response to my response to his post about my PCLOB testimony last month.  His arguments deserve a longer response (and I hope some other Lawfare contributors may also respond), but I will have to limit myself to two points:

First, R

Non-International Armed Conflict

A Dissenting Word on the Harold Koh Memoranda

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 panel that oversees the treaty.

My concern is not substantive.

Relationship between LOAC and IHRL

Extraterritoriality and Human Rights: Time for a Change in the U.S. View?

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 mak


NYT on the United States' Position on Human Rights Treaties

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 Koh; the 2010 and 2013 documents can be found


Assessing the Review Group Recommendations: Part III

In Parts I and II of this series, I focused on the Review Group recommendations from Chapter III of the group's report. Starting in this post, I turn to the recommendations of Chapter IV, which deal with collection under Section 702 and other authorities directed at non-US persons. This is, to my mind, one of the weakest sections of the report.

Civil Liberties and Constitutional Rights

Abdullah Files His Reply-Brief Before the D.C. Circuit

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 indefinite detention. This request also went unanswered.

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