Latest in International Law: LOAC: Detention

Detention: Law of

Eight Thoughts on the Broad Reading of Article II Inherent in Bobby’s Conjecture

Bobby’s post from Friday argued that “the current shadow war approach to counterterrorism doesn’t really require an armed-conflict predicate–or an AUMF, for that matter.”  Bobby’s point is that most if not all of the USG’s current uses of force outside Afghanistan could in theory continue even if the armed conflict against al Qaeda ended.  This is because, as Bobby says, the administration’s “imminent threat” constraint outside hot battlefields – which has allowed quite a lot of lethal force to be used in many nations – “is at le

Detention: Operations in Afghanistan

Does the Armed-Conflict Model Matter in Practice Anymore?

This post draws on material from my current book project, the concluding chapter of which considers the legal architecture of counterterrorism in a "postwar" setting...and advances the argument that we already have largely crossed into that world. 

In yesterday's speech, President Obama repeatedly referred to the possibility that the armed conflict with al Qaeda may end, and indeed that it must and should end lest we find ourselves in a perpetual state of war.  It is the same perspective prev

International Law: LOAC

Harold Koh Identifies Another Big Difference Between the Bush and Obama Administrations

From Harold Koh’s speech to the Oxford Union the other day: the first "obvious" difference between the Bush and Obama administrations is that "the Obama Administration has not treated the post-9/11 conflict as a Global War on Terror to which no law applies, in which the United States is authorized to use force anywhere, against anyone.

International Law: LOAC: Detention

Look Who Has Discovered Inherent Presidential Powers


From Harold Koh's speech to the Oxford Union: Congressional transfer restrictions with respect to Guantanamo detainees "must be construed in light of the President’s authority as commander-in chief to regulate the movement of law-of-war detainees, as diplomat-in-chief  to arrange diplomatic transfers, and as prosecutor-in-chief to determine who should be prosecuted and where."

International Law: LOAC: Detention

After the AUMF, II: Daskal and Vladeck Reply

We appreciate Jack’s quick and comprehensive clarification of his views—and of what the CGWW proposal we critiqued last night seeks to achieve. Like Jack, we want to start by emphasizing the many areas of agreement between us and CGWW in order to help illuminate the key points of disagreement.

Detention: Law of

After the AUMF: A Response to Chesney, Goldsmith, Waxman, and Wittes

In the very first days after the horrific attacks of September 11, 2001, the Bush Administration asked Congress for broad statutory authorization to use military force to “deter and pre-empt any future acts of terrorism or aggression against the United States”—that is to say, for statutory authorization of what that Administration called a “Global War on Terrorism.” But even then, when our uncertainty, fear, and pain were felt most acutely, Congress pushed back: It refused to give the Administration such an open-ended authority to use military force against all possible future terrorist threat

Detention: Law of

Warafi Oral Argument Summary

I had to restrain myself this morning at the D.C. Circuit from interrupting proceedings with an emergency request for an on-the-spot ruling in Wittes v. FAA---a case which has admittedly does not exist---that the agency’s action with respect to the Lawfare Drone Smackdown is arbitrary and capricious. Restrain myself I did, for the issue of the day was not my travails with aviation regulators but the travails of Mr.


More on "Substantial Support", "Material Support," LOAC, and the First Amendment

I'd like to expand on Ben's post below in relation to Hedges and the First Amendment, focusing on the "material support"/"substantial support" issue.  (I'm having to write quickly, so please excuse any typos in what follows.)

Specifically, I'd like to expand on the point that the NDAA's "substantial support" language should be understood to be no more sweeping than (or even narrower than) the "material support" concept embodied in

Subscribe to Lawfare