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.
Latest in Extraterritoriality
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:
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:
Intelligence Squared US Debate: "The President Has Constitutional Power To Target And Kill U.S. Citizens Abroad"
For the Motion:
Alan Dershowitz, Professor of Law, Harvard Law School
Michael Lewis, Professor of Law, Ohio Northern University School of Law
Against the Motion:
Noah Feldman, Professor of Law, Harvard Law School
Hina Shamsi, Director of the ACLU National Security Project
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.
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
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.
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.
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.
The following guest post is from Professor Jeffrey Kahn of SMU Law. Jeff is the author of Mrs. Shipley's Ghost: The Right to Travel and Terrorist Watchlists, a terrific book recently published by University of Michigan Press.