Latest in International Law: LOAC: Detention

Detention: Law of: Legislative Development

What Hedges Could Have Said...

Based on the voluminous media and blog coverage of last week's decision in Hedges v. Obama, in which Judge Forrest permanently enjoined at least part of the detention provision of the FY2012 NDAA [section 1021(b)(2)], one of two things is true: Either Judge Forrest was exactly right, or she was utterly, if not egregiously, wrong (or both).

Now that the appeal is bound for the Second Circuit

Detention: Law of: D.C. Circuit Development

Beyond the Battlefield, Beyond al Qaeda: The Destabilizing Legal Architecture of Counterterrorism

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

Detention: Law of: Legislative Development

Retired Admirals and Generals Endorse Smith-Amash Amendment

The debate over the Smith-Amash amendment to the NDAA continues. Yesterday, we posted a letter written by former administration attorneys general criticizing that amendment, among others. Today, it's twenty-seven retired admirals and generals writing in support of the Smith-Amash Amendment to the 2013 NDAA in a letter organized by Human Rights First.

The letter says:

Dear Representative:

Detention & Guantanamo

Letter from former U.S. Security Officials On those 2013 NDAA Amendments

Over at DefCon Hill, Jeremy Herb shares a letter written by former Attorneys General Edwin Meese III and Michael Mukasey and former Secretary of Homeland Security Michael Chertoff to House Armed Services Committee Buck McKeon criticizing the various amendments that members of Congress plan to introduce tweaking the detention provisio

International Law

Afghanistan Quietly Embraces Non-Criminal Detention

For more than a decade, the United States has asserted authority to detain without criminal charge in Afghanistan under color of the law of armed conflct (LOAC).  Because for the bulk of this period that conflict has been non-international in character--i.e., a non-international armed conflict (NIAC)--some observers have criticized the US position.  That is, some have argued that LOAC provides no detention authority in a NIAC setting (in contrast to an international armed conflict, in which LOAC expressly contemplates detention for the duration of hostilities for POWs as well as internment for

International Law

Ohlin on the Displacement of IHRL by IHL (and Response from Rona, and Reply from Ohlin)

Interesting comments on the interplay of IHL and IHRL here from Jens David Ohlin (Cornell), whose new blog Lieber Code is well worth reading on a regular basis.  [Update: Gabor Rona responds to Jens here] [2nd update: Jens replies to Gabor's response here.]


Reviews: Thomas Nachbar on Executive Order 13567

Thomas B. Nachbar is a most remarkable law professor.  A few years ago, after having achieved wide recognition as a senior University of Virginia scholar known for his work in technology and regulation, he joined the US Army Reserve as a judge advocate. Captain Nachbar works on detention and counterinsurgency law issues:

He is a judge advocate in the U.S.

International Law: LOAC

The NDAA: The Good, the Bad, and the Laws of War--Part II

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

Detention: Law of: Legislative Development

The NDAA: The Good, the Bad, and the Laws of War--Part I

By Marty Lederman and Steve Vladeck*

[Cross-posted at OpinioJuris]

Editorial pages and blogs have been overrun in the past couple of weeks with analyses and speculation about the detainee provisions in the National Defense Authorization Act, which the President has just signed into law.  One of the major disputes concerns whether and howi the NDAA might alter the status quo.  In this post, we’ll try to synthesize the competing views offered by

Interrogation: Interrogation Abuses: Civil Liability

Immunity vs. Preemption in the Fourth Circuit Torture Cases--And Why That Distinction Matters

We've previously covered the Fourth Circuit's pair of decisions in September dismissing tort suits against various contractors arising out of claims of torture at various detention facilities in Iraq--including Abu Ghraib.  In the cases, Al Shimari v. CACI Int'l, Inc. and Al-Quraishi v.

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