Back in May, I noted that the House version of the NDAA contained a very interesting section addressing “military activities” in cyberspace. Section 962 of that bill would have “affirmed” that DOD may conduct military activities in cyberspace (including clandestine operations at least when acting in support of military activity under the 9/18/01 AUMF and the target is ou
Latest in War Powers Resolution: Libya
Scott Horton has a thoughtful essay at Foreign Policy that argues the fall of Gaddafi should be seen “through the lens of the law” as a “Pyrrhic” victory. From the domestic law perspective, Horton maintains that because of the administration’s contortions of the War Powers Resolution, the Libya campaign is “another vindication of executive war-making powers, and a demonstration of Congress's institutional lack of gravitas when dealing with minor foreign conflict.” From the internat
Judge Reggie Walton today dismissed on standing grounds the lawsuit challenging the legality of the military operation in Libya (via Josh Gerstein). The decision was not remotely surprising, and indeed was required by clear precedent.
Eric Schmitt and Thom Shanker of the NYT report that the Obama administration considered using offensive cyber-weapons in the war in Libya, but in the end did not use them. Schmitt and Shanker give several reasons why the USG declined to use the weapons, some of which make more sense to me than others.
A cyberattack would have implicated the War Powers Resolution. The story suggests that the government considered using cyber weapons to disable Libyan air-defense missil
Charlie Savage has a story about a dispute between DOD General Counsel Jeh Johnson and State Legal Advisor Harold Koh over the scope of the president’s legal authority to target members of al Qaeda-affiliated terrorist groups in Yemen (AQAP) and Somalia (Shabbab). Savage’s story only sketches the contending arguments. Johnson appears to take the view that if the group falls under the AUMF (the domestic basis of authority), the President is legally authorized to target all its members in a cou
Yesterday the Justice Department filed a memorandum (h/t Charlie Savage) in support of its motion to dismiss the lawsuit by ten members of Congress against President Obama over the Libya operation. The main argument, and the probable winner, is that the congressional plaintiffs lack standing to sue under Raines v. Byrd, 521 U.S.
Paul Starobin, whose New York Times piece this weekend was the subject of these earlier thoughts, writes in with the following response:
I agree with Benjamin Wittes that there is an important, even a vital, distinction between being a lawyer in academia and being a lawyer in government with a client interest.
Paul Starobin has a piece in the New York Times pondering the flip-flop of Harold Koh on war powers:
During the Bush administration, he was legendary for his piercing criticisms of “executive muscle flexing” in the White House’s pursuit of the so-called war on terror.
Even more, he was described by those who knew him as the inspiration for a generation of human rights activists and lawyers passionately committed to a vision of a post-imperial America as
In the aftermath of Harold Koh's testimony before the Senate Foreign Relations Committee a few weeks ago, Senator Lugar sent a set of QFRs (Questions for the Record) that raised a number of interesting questions about the current position of the administration on WPR and war power issues. Harold has now responded, and his answers are posted here. Two points stand out.
First, Harold explicitly states that the administration endorses the view, expressed in a 1980 OLC opinion, that "Congress may, as a general constit
This afternoon, NPR and France 24 reported on two significant events regarding Libya. First, Gadhafi may be ready to leave the country, and his representatives have sought negotiations regarding the mechanics of a potential departure.
Readers who have followed recent congressional activity related to Libya and the War Powers