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Hoover Daily Report items by Benjamin Wittes

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January 16, 2014 | Advancing a Free Society

The Briefing: Intelligence Reform: Life Imitates Fiction

November 13, 2013 | New Republic

Jack Goldsmith: Journalists Are Too Thin-Skinned

And other national-security debates in these three podcasts
June 11, 2013 | Advancing a Free Society

The Briefing: The Guantanamo Misfire

May 2, 2013 | Defining Ideas (Hoover Institution)

Terrorism and The Obama Doctrine

March 28, 2013 | Hoover Institution

Speaking the Law

February 25, 2013 | Defining Ideas (Hoover Institution)

Is the "War on Terror" Lawful?

May 4, 2012 | Washington Post

Will military commissions survive KSM?

[The arraignment is] likely to serve as a make-or-break test for the military commissions system...
April 19, 2012 | Washington Post

Regulating domestic drones on a deadline

In February, President Obama signed into law a reauthorization of the Federal Aviation Administration (FAA) that requires the agency — on a fairly rapid schedule — to write rules opening U.S. airspace to unmanned aerial vehicles...
January 12, 2012 | Washington Post

How the next 10 years of Guantanamo should look

This week marks the 10th anniversary of the opening of the U.S. detention facility at Guantanamo Bay, Cuba, and the hand-wringing is in high gear...
November 19, 2010 | Washington Post

Ghailani verdict makes stronger case for military detentions

The Obama administration's critics are missing the point on Ahmed Ghailani...
October 28, 2010 | Washington Post

The right way to try KSM

Here's a simple proposal to break the impasse over how to proceed against Khalid Sheik Mohammed and his colleagues: Press charges in both military commissions and in federal court. Call it the John Allen Muhammad model...
May 14, 2010 | Washington Post

President Obama needs more legal tactics against terrorists

It is a pincer action against the presidency -- a bipartisan, cross-ideological effort to make it as difficult as possible to handle domestic national security emergencies...

March 24, 2010 | New Republic

Presumed Innocent?

The attacks on the Justice Department lawyers who had represented Guantanamo detainees angered me for several distinct reasons. . . .

March 19, 2010 | Washington Post

KSM's dispensable trial

The Obama administration and its critics are locked in a standoff over whether to try Khalid Sheikh Mohammed and the other alleged Sept. 11 conspirators in a military commission or in federal court. . . .

February 5, 2010 | Washington Post

The courts' shifting rules on Guantanamo detainees

One judge rules that a detainee's statements to his military review tribunal are tainted by past coercion -- and orders him released. . . .

December 22, 2009 | Washington Post

No place to write detention policy

Since U.S. forces started taking alleged terrorists to Guantanamo Bay, Cuba, the task of crafting American detention policy has migrated decisively from the executive branch to federal judges. . . .

September 29, 2009 | Washington Post

Obama's Dick Cheney Moment

President Obama's decision not to go to Congress for help in establishing reasonable standards for the continued detention of Guantanamo detainees is a failure of leadership in the project of putting American law on a sound basis for a long-term confrontation with terrorism.

June 29, 2009 | Washington Post

Will Obama Follow Bush Or FDR?

May 3, 2009 | Washington Post

The Best Judges Obama Can't Pick

What do Merrick Garland, David Tatel and Jose Cabranes have in common?...

December 8, 2008 | Slate

Nuts and Deadbolts

President-elect Barack Obama has made clear that he will close the Guantanamo Bay detention center...

July 5, 2008 | Daily News (NY)

How do we bring Osama Bin Laden to justice? America is clueless

News flash: Osama Bin Laden and his deputy Ayman al-Zawahiri are captured in Pakistani tribal areas and turned over to American custody...

June 13, 2008 | Washington Post

Congress's Guantanamo Burden

The key words in Justice Anthony M. Kennedy's Guantanamo opinion do not involve the history of habeas corpus, the territorial status of Guantanamo Bay or the accountability of the executive branch to the rule of law...

May 20, 2008 | New Republic

State Of The Unions

"Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as president," the Obama campaign stated oh-so-carefully in response to this week's California Supreme Court decision striking down the state's ban on gay marriage...

April 28, 2008 | New Republic

Unusual Nonsense

The Supreme Court last week gave the country an object lesson in the absurdity of the Eighth Amendment--at least, as it is currently understood by the justices...

March 21, 2008 | New Republic

There Will Be Guns

One thing seemed clear from Tuesday's Supreme Court oral arguments in District of Columbia v. Heller: The justices are poised to recognize that the Second Amendment confers on individual Americans the right to own guns...

February 14, 2008 | New Republic

Trial by Fire

At long last, one way or another we're about to learn a great deal about military commissions...

January 31, 2008 | New Republic

Mukasey's Mojo

Attorney General Michael Mukasey frustrated Democrats yesterday when he refused, again, to tell the Senate Judiciary Committee whether water-boarding counts as torture or is otherwise prohibited by law...

January 25, 2008 | New Republic

Gun Shy

Shortly after taking office, the Bush administration dropped a love bomb on gun rights enthusiasts nationwide...

January 7, 2008 | New Republic

The Death Clock

These are heady days for anti-death penalty activists...

December 7, 2007 | New Republic

Detention Retention

Seth Waxman, arguing on behalf of 37 detainees at Guantanamo Bay, Cuba, told the Supreme Court Wednesday that each of these men "maintains, as this Court explained [in an earlier case] that he is quote 'innocent of all wrongdoing...'"

November 29, 2007 | New Republic

A Little Less Conversation

Sen. Ted Kennedy has drawn a line in the sand...

November 12, 2007 | New Republic

Attack of the Lawyers!

"The first thing we do, let's kill all the lawyers," shouts one of the leaders of a revolt of the rabble in Shakespeare...

October 29, 2007 | New Republic

The Mukasey Ultimatum

At his recent Judiciary Committee confirmation hearing, would-be attorney general Michael Mukasey sounded at times positively Alberto Gonzales-like...

October 15, 2007 | New Republic

FISA Follies

For all the fire-breathing rhetoric we can expect to hear about modernization of the Foreign Intelligence Surveillance Act in the coming months, last week's introduction by House Democrats of their bill on the subject makes one thing abundantly clear: The Democrats and the Bush administration aren't very far apart...

October 1, 2007 | New Republic

Why I'm Not Looking Forward to the New Supreme Court Term

It's the first Monday in October, the day the Supreme Court begins its term, and I'm supposed to be salivating...

September 18, 2007 | New Republic

The Seven-Year Itch

There is one big problem with President Bush's nomination of retired Federal. District Judge Michael Mukasey to be Attorney General of the United States: It comes seven years too late...

September 11, 2007 | New Republic

Hijacked

By now you've probably read something about Jack Goldsmith's new book on his brief service as head of the Justice Department's Office of Legal Counsel...

August 6, 2007 | New Republic

Confidence Man

One of the problems with having a dissembling attorney general is that it becomes difficult for his administration to move agenda items that rely to any degree on his credibility--even when they might have merit...

Blogs

April 3, 2014 | Lawfare

Mining Big Data for Public Opinion on NSA

I'm sitting here at Bobby's NSA conference at the University of Texas. I just listened to former OLC head Steve Bradbury discuss metadata with Jennifer Daskal, and now I'm listening to Tim Edgar and Jennifer Grannick debate content collection. So I have Bi
April 1, 2014 | Lawfare

Geoffrey Stone on How Review Group Service Changed His View of NSA

Very interesting post over at Huffington Post from Geoffrey Stone about his Review Group service, his changed view of NSA, and trust of the spy agency. Quite moving, actually. Writes Stone: From the outset, I approached my responsibilities as a member of
March 31, 2014 | Lawfare

More Convergence on Metadata

On Thursday, I posted this item noting a possible convergence of civil liberties interests and NSA's operational needs in the President's metadata proposal. The basic idea was that the president's proposed system to end bulk metadata collection actually ha
March 21, 2014 | Lawfare

Snowden v. Ledgett at TED

Edward Snowden gave a TED talk at TED2014: After it, TED folks offered NSA a chance to respond---and Rick Ledgett, deputy director of the agency, showed up by video conference to answer questions:
March 18, 2014 | Lawfare

A Modest Proposal for NSA

I had an idea the other day---a way for NSA to serve the national interest, do good for humanity, and improve its public image all at once. Drum roll, please! NSA should get into the business of publishing trade secrets stolen from companies in countries t
March 17, 2014 | Lawfare

From the Department of Dubious Civil Liberties Accomplishments

Amidst the flap between the CIA and the SSCI last week, you may have missed the news about the back-and-forth between NSA and the FISA court over whether the agency may, must, or mustn't retain telephony metadata past the five year deadline for its destruc
March 6, 2014 | Lawfare

New Guantanamo Recidivism Report from the DNI

The DNI yesterday released it's latest Guantanamo reengagement report, which show a 29 percent rate of confirmed or suspected reengagement. That's essentially unchanged from the last such report in September. Here are the numbers:
March 4, 2014 | Lawfare

International Court of Justice Bans Australian Spying on East Timor and its Lawyers

Speaking of Australian spying on its regional neighbors and its lawyers, which we were the other day, the International Court of Justice has handed down a decision in a dispute between Australia and East Timor. Here's the Brisbane Times on the decision, wh
February 5, 2014 | Lawfare

The Problem at the Heart of the NSA Disputes: Legal Density

An old friend of mine, a mathematician at an elite college, told me some time back that---while still a student---he or she had done some work for NSA and been greatly relieved by the strict assurance given in the personnel orientation that the agency does
January 31, 2014 | Lawfare

Where Is Eric Holder?

President Obama has sometimes faced criticism---including on Lawfare---for not defending NSA more energetically. These criticisms generally predated the president's landmark speech on NSA, which---among other things---did defend the agency and the propriet
January 26, 2014 | Lawfare

Lt. Col. Matthew Atkins on “The Personal Nature of War in High Definition”

I met Matthew Atkins, a Lieutenant Colonel in the Air Force, recently at the Hoover Institution, where he is currently a military fellow. Lt. Col. Atkins has worked in targeting and intelligence a fair bit. And following some conversations at Hoover, he se
January 21, 2014 | Lawfare

Americans Oppose NSA Programs—And Want Snowden Prosecuted

That's the mixed message of this new poll from the Pew Center for the People and the Press, which also suggests---among other things---that President Obama's speech is not resonating all that much with the public. In an interesting twist, Republicans disap
January 5, 2014 | Lawfare

Assessing the Review Group Recommendations: Part IV

Closing out our discussion of the Review Group recommendations in Chapter IV, let's consider the latter two recommendations of the chapter: Recommendations #14 and #15. Recommendation #14 is, to me anyway, one of the real mysteries of the entire report.
January 3, 2014 | Lawfare

Assessing the Review Group Recommendations: Part V

Chapter V of the Review Group report turns to what we might call the problem of Angela Merkel. It's not about what the legal authorities to spy should look like. It's about what policy structures should govern "Determining What Intelligence Should Be Colle
December 31, 2013 | Lawfare

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 d
December 20, 2013 | Lawfare

Lawfare Podcast Episode #56: Inside NSA, Part V–An Interview with Fran Fleisch, the Agency’s Acting Deputy Director

It’s the final episode of “Inside NSA: We Brought in a Recording Device So You Don’t Have To”—our special series of podcast interviews we've been running this week with senior NSA officials. In the fifth and last installment, I speak with Fran Fleisch,
December 19, 2013 | Lawfare

Lawfare Podcast Episode #55: Inside NSA, Part IV–We Speak with Anne Neuberger, the Woman on Front Lines of NSA’s Relations with Industry

It’s Day 4 of “Inside NSA: We Brought in a Recording Device So You Don’t Have To”—the special series of podcast interviews we've been running this week with senior NSA officials. In our penultimate episode, we speak with Anne Neuberger, who has the unen
December 18, 2013 | Lawfare

Lawfare Podcast Episode #54: Inside NSA, Part III—Wherein We Talk to Lonny Anderson, Chief of NSA’s Technology Directorate

It’s Day 3 of “Inside NSA: We Brought in a Recording Device So You Don’t Have To”—our special series of podcast interviews with senior NSA officials. In today’s episode, we talk with Lonny Anderson, the agency’s director of information technology and he
December 17, 2013 | Lawfare

Lawfare Podcast Episode #53: Inside NSA, Part II–Wherein We Interview the Agency’s Chief of Compliance, John DeLong

It's Day 2 of “Inside NSA: We Brought in a Recording Device So You Don’t Have To”—a special series of podcast interviews with senior NSA officials that we conducted last week. In today's episode, we sit down with John DeLong, the agency's director of co
December 16, 2013 | Lawfare

Lawfare Podcast Episode #52: Inside NSA, Part I—An Interview With General Counsel Rajesh De

Welcome to "Inside NSA: We Brought in a Recording Device So You Don't Have To"---a special series of podcast interviews of senior NSA officials that we conducted last week. As we described on Saturday, this series grew out of a dialog Bobby organized un
December 10, 2013 | Lawfare

This Year’s NDAA: A Big Win for the Administration on Guantanamo

I have only had a chance to look briefly at the Guantanamo-related provisions of the House-Senate compromise NDAA, but the text looks to me like a big win for the Obama administration---and for common sense. The administration will cast this as a step f
December 4, 2013 | Lawfare

Judge Edwards’s Odd Concurrence in Ali

Both Raffaela and Steve have already noted the D.C. Circuit's opinion yesterday in Abdul Razak Ali v. Obama, the latest Guantanamo habeas case. Both also took note of Senior Judge Harry Edwards's brief opinion concurring in the judgment affirming the distr
December 3, 2013 | Princeton Weekly Bulletin

Eugene Robinson Gets it Wrong on Drones

Over at the Washington Post, columnist Eugene Robinson has a piece decrying the morality of drone strikes---a piece that expresses with an admirable economy of words nearly every conceptual error one can make on the subject. Let's dissect. The proble
November 19, 2013 | Lawfare

Whose Fault is it if China and Iran Restrict Free Speech? NSA’s—Of Course

That, at least, seems to be what Ken Roth---executive director of Human Rights Watch---is arguing in this essay on the New York Review of Books web site. Entitled "The NSA's Global Threat to Free Speech," the piece is devoted to decrying not merely the imp
November 13, 2013 | Lawfare

David Cole on My “Failure of Imagination”

Over at Just Security, David Cole tweaks me for a "failure of imagination" for my piece yesterday wondering what he and Kenneth Roth mean by a worldwide right of privacy: Cole writes that "[Wittes] argues that since he can’t conceive of a warrant being req
November 11, 2013 | Lawfare

Lawfare Podcast Episode #48: Jack Speaks at Hoover to and On the National Security Press

On October 25, the Hoover Institution held a day-long media colloquium out at Stanford University for a group of journalists. The sessions were focused on national security legal issues and the work of Hoover’s Jean Perkins Task Force on National Security
November 3, 2013 | Lawfare

Lawfare Podcast Episode #46: Speaking on “Speaking the Law”

On October 25, the Hoover Institution held a terrific day-long media colloquium out at Stanford University for a first-rate group of journalists focused on national security legal issues and the work of Hoover's Jean Perkins Task Force on National Security
October 16, 2013 | Lawfare

The Debt Ceiling as a National Security Issue

If a body other than the Congress of the United States were actively contemplating a step that would, by the accounts of virtually all economists, tank the U.S. economy, cause interest rates to shoot up, and trigger a financial crisis, we would talk about
August 13, 2013 | Lawfare

Agreeing—Sort Of—with Both Carrie and Steve on FISA

I find myself sympathetic to both Carrie and Steve on FISA oversight. At the risk of staking out a very muddled middle ground, I want to try to bridge the dispute a bit. Steve is impatient with Carrie's concern that the FISA process is overlawyered, but
August 8, 2013 | Lawfare

More on that Non-Jaw-Dropping, Non-U-Turn by Bill Lietzau

Yesterday, I posted posted this little piece objecting to a Daily Mail story's account of its interview with Deputy Assistant Secretary of Defense William Lietzau, in which it describes a "jaw-dropping U-turn" by Lietzau on Guantanamo and detention policy.
August 7, 2013 | Lawfare

A “Jaw-Dropping U-Turn” Story that Isn’t

I saw this breathless story in the Daily Mail by reporter David Rose a few hours after seeing William Lietzau, the deputy assistant secretary of defense for detainee matters, at a social event: The Pentagon official in charge of Guantanamo Bay has admitte
August 6, 2013 | Lawfare

New York Times Edit: “No One Has Questioned the N.S.A.’s Role in Collecting Intelligence Overseas”

The New York Times editorial page is annoyed, though not surprised, that some politicians are trying to exploit the [embassy closure] episode by arguing that it proves the value of the National Security Agency’s domestic intelligence sweeps. On Sunday, Se
October 16, 2012 | Lawfare

Another (Early) Thought on Hamdan

September 21, 2012 | Lawfare

Warafi Oral Argument Summary

September 20, 2012 | Lawfare

Smacked Down By The FAA!

September 19, 2012 | Lawfare

Is The NDAA Vague Or Overbroad?

September 17, 2012 | Lawfare

The FAA and the Lawfare Drone Smackdown

September 12, 2012 | Lawfare

Thoughts On Adnan Latif

September 6, 2012 | Lawfare

New Allegations Of CIA Waterboarding

September 2, 2012 | Lawfare

Lawfare Drone Smackdown: Revised Rules

August 16, 2012 | Lawfare

Review of the Parrot AR 2.0 Drone

June 21, 2012 | Lawfare

A Brief Comment on the Government’s Glomar Response

Like Jack, I am a little surprised by the government’s brief—filed late last night—in the ACLU/New York Times FOIA case on targeted killings...
June 18, 2012 | Lawfare

The Real D.C. Circuit Habeas Record

The government’s win-loss record before the appeals court cannot reasonably be described as perfect without grossly manipulating numbers. But the Times figures raise two interesting questions...
June 15, 2012 | Lawfare

The New York Times on the Cert Denials

The Times here, in its zeal to indict the D.C. Circuit, may be doing the opposite...
June 12, 2012 | Lawfare

Thoughts on the Cert Denials

Being in a time zone very far from home, I am late to the discussion of the cert denials in the Guantanamo cases. I have only one thought to offer beyond what Steve said earlier—with which I almost entirely agree...
June 10, 2012 | Lawfare

Klaidman Post #1: Where that March 13 Brief Came From

My posts, rather, will focus on isolated items [from Dan Klaidman’s new book that] I found particularly worth sharing. The first is Klaidman’s account of origins of the now-famous March 13, 2009 brief...
June 6, 2012 | Lawfare

Emerging Law of Detention—A Further Update

I have resisted linking to the latest updates to Bobby, Larkin, and my paper—The Emerging Law of Detention 2.0: The Guantanamo Habeas Cases as Lawmaking—because the redesign of the Brookings web site temporarily messed up a bunch of the links and some of the formatting...
May 17, 2012 | Lawfare

Empty Wheel on Domestic Drones

Over at the Empty Wheel blog, The Estimable Ms. Wheel critiques my critique of Friedersdorf and Krauthammer on domestic drones from earlier today—and she has a point which warrants a somewhat-mortified clarification from me...
May 16, 2012 | Lawfare

Some Thoughts on the New NDAA and the Smith-Amash Amendment

I have largely refrained from commenting on the machinations over this year’s NDAA...But with debate on the bill set to begin tonight, I thought I should set out my thoughts both on the bill’s current language and on the proposed Smith-Amash amendment...
May 10, 2012 | Lawfare

Comments on the New Seton Hall Report

The report’s thesis, in a nutshell, seems to boil down to two propositions: that the D.C. Circuit’s Al Adahi decision matters and that its impact has been bad...
May 3, 2012 | Lawfare

No Thoughts on Alsabri—Which is a Thought of Its Own

That the Guantanamo habeas cases are becoming so predictable as to warrant no analysis or comment is itself worthy of comment. It’s a remarkable change...
April 29, 2012 | Lawfare

Thoughts on Latif #6—The Decision (Partially) Unmasked

The less-redacted version of the [D.C. Circuit’s Latif decision] that came out Friday partially pulls off the mask and thus allows a revisiting of the case...
April 26, 2012 | Lawfare

Two New CRS Reports Related to the NDAA

Two new Congressional Research Service reports came out earlier this month concerning the NDAA, thanks to Steve Aftergood of Secrecy News...
April 24, 2012 | Lawfare

Obaydullah Oral Argument Summary

Chief Judge David Sentelle opens the hearing by announcing that it can’t be held in open session so he’s closing the court...
April 19, 2012 | Lawfare

Drones, Privacy, and the FAA

UCLA Professor John Villasenor and I have this oped coming out in tomorrow’s Washington Post responding to calls for the Federal Aviation Administration to take action to protect privacy in the context in the context of regulating the domestic use of drones...
April 18, 2012 | Lawfare

Thoughts on Stephen Preston’s Harvard Speech

How should we understand CIA General Counsel Stephen Preston’s speech at Harvard Law School the other day...
April 13, 2012 | Lawfare

Mark Martins Comments on Nashiri Motions Hearing

After yesterdays motions hearing, Chief Prosecutor Mark Martins issued the following comments...
April 11, 2012 | Lawfare

Nashiri Motions Hearing #2: Conflicted Counsel Non-Resolution

Military Judge Col. James L. Pohl opens the hearing at around 9:10 am announcing that Brig. General Mark Martins, the chief prosecutor for military commissions, has joined the prosecution table...
April 8, 2012 | Lawfare

The New York Times Editorial Page's Bizarre Legitimacy Dance

The Times seems to be suggesting—probably accidentally—that a trial’s legitimacy may not depend on its constitutionality...
April 2, 2012 | Lawfare

An Answer to Raha Wala’s Question

The executive branch insists on using military commissions because Congress won’t let it use Article III courts...
March 29, 2012 | Lawfare

Executive Power, Civil Liberties, and the War of 1812

Despite the dire threat the nation faced, the War of 1812 didn’t see serious infringements on civil liberties...
March 19, 2012 | Lawfare

Andy Worthington on Guantanamo Recidivism

British journalist Andy Worthington offers this critique of the recent DNI report on Guantanamo recidivism–and of the press coverage of the report...
March 15, 2012 | Lawfare

NYU Debate on Targeted Killing

A few months ago, New York University hosted a public debate on targeted killings among three of its prominent faculty members...
March 6, 2012 | Lawfare

The Washington Post on Holder’s Speech

While I don’t disagree with the Post that more detail on the legal theory would be nice, I think this step is worth appreciating on its own terms at least for a day or two...
March 4, 2012 | Lawfare

A Response to Human Rights Watch and Human Rights First

The purpose of a criminal proceeding against Majid Khan is not to tee up issues that Human Rights First wishes to see litigated. It is to test the government’s evidence according to fair rules and, if it satisfies stringent standards of quality, administer punishment against the defendant...
February 28, 2012 | Lawfare

Initial Comments on the Implementing Procedures for NDAA Section 1022

Raffaela earlier posted the President’s implementation procedures for Section 1022 of the NDAA–that is, the not-so-mandatory military detention provision. I have only had a chance to read it over quickly, but here’s a quick and dirty summary...
February 17, 2012 | Lawfare

A Bewildered Reply to Mary Dudziak

I confess myself baffled by this argument, but to the extent I understand it, it warrants a brief response...
February 13, 2012 | Lawfare

An Addendum on Harold Koh

Koh has an attorney-client relationship with the government that he did not have as an academic...But in Koh’s case, there is an important additional factor...
February 10, 2012 | Lawfare

HASC Reengagement Report–A Few Thoughts

It is a remarkably uninteresting document, whose major “findings” could not possibly have required a year-long investigation to state...
January 30, 2012 | Lawfare

Announcing the Lawfare Podcast

It is a great pleasure to announce the first episode of the Lawfare Podcast...
January 22, 2012 | Lawfare

Human Rights Watch’s Laura Pitter on Military Commissions–A Response

Pitter spent Tuesday and Wednesday of this past week, as did I, watching the Al-Nashiri military commission. But in reading her piece, I wondered whether she and I had watched the same arguments...
January 16, 2012 | Lawfare

Nashiri Motions Hearing Preview

The military commission for Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri convenes again tomorrow for a motions hearing at Guantanamo Bay...The following is a preview of the ten issues the court will be hearing...
January 12, 2012 | Lawfare

Peter Margulies Reports on AALS III

Peter Margulies’s reporting on AALS panels continues with this dispatch...
January 2, 2012 | Lawfare

In Praise of the Signing Statement

Last year, at this time, I wrote a hot-headed little post objecting the signing statement President Obama issued in connection with last year’s defense authorization act. This year’s signing statement seems to me a far more creditable effort...
December 13, 2011 | Lawfare

NDAA Conference Report–A Quick and Dirty Analysis

The conference report for the NDAA is now available...
December 10, 2011 | Lawfare

John Brennan on NDAA Veto Threat

President Obama’s chief counterterrorism adviser, John Brennan, has given an extended interview to NPR on the administration’s view of the NDAA’s detainee affairs provision and its threat to veto the legislation...
December 7, 2011 | Lawfare

House-Senate Side-by-Side of NDAA Provisions: Part I

As the House of Representatives and the Senate head to conference on the NDAA, I thought it might be useful to analyze the similarities and differences between the counterterrorism provisions of the two versions of the bill...
December 2, 2011 | Lawfare

What Did Obama Really Say During the Campaign?

Obama, in this area as in so many others, has to take responsibility for generating expectations among his supporters far beyond what any president could accomplish...
November 25, 2011 | Lawfare

Udall Amendment on NDAA

Senator Mark Udall of Colorado is pushing an amendment to the NDAA to strip the bill of its detainee-affairs provisions and require further study of the relevant issues from both the executive branch and relevant congressional committees...
November 18, 2011 | Lawfare

The Administration’s SAP

Finally, the administration has spoken clearly, directly, and with direct references to consequences–a veto–about the detainee provisions of the NDAA...
November 16, 2011 | Lawfare

Why the New Senate Detention Language Still Stinks

The bill still authorizes law of war detention. It still seeks to make military detention mandatory for certain categories of cases. And it still seeks to encumber transfers of Guantanamo detainees out of American custody...
November 12, 2011 | Lawfare

Thoughts on Latif #4–A Fuller Analysis

The more I study the D.C. Circuit decision in Latif, the more important I think it is, and the more regrettable I think it probably is...
November 11, 2011 | Lawfare

Thoughts on Latif #3

Here’s my question: Why has there been virtually no press coverage of the Latif decision...
November 9, 2011 | Lawfare

Latif: A Very Big Deal

I have only just begun reading the D.C. Circuit’s decision in Latif, but it already clear to me that it is a very big deal...
November 8, 2011 | Lawfare

Government Moves for Public Access in Nashiri

The documents themselves are not available yet, but the docket in Nashiri reflects that on Friday, the government moved “for Public Access to This Military Commission Via Transmission of Open Court Proceedings to Remote Locations for Victim and Media Viewing”...
November 3, 2011 | Lawfare

Catch-22 Alive and Well in the SDNY Too

There’s an itty-bitty problem with [New York Times Editorial Page Editor Andrew Rosenthal's] show-stopper of an argument against military trials...
October 29, 2011 | Lawfare

My Reponse to “Norwegian Shooter”

Mark Erickson, who blogs under the most-unfortunate handle Norwegian Shooter, recently published some correspondence with me concerning his claim that the reported OLC memo reflects Lord Acton-style corruption on the part of its authors...
October 23, 2011 | Lawfare

The New York Times Runs a Correction on an Editorial

[The editorial] deals with the detainee provisions of the Senate NDAA. And the Times is, while late to the party, no happier about the provisions than I am...
October 19, 2011 | Lawfare

Is the Administration Softening on AUMF Reaffirmation?

[Pentagon General Counsel Jeh Johnson] took a much more measured approach than has the administration at large towards the idea of updating the AUMF...
October 9, 2011 | Lawfare

Kenneth Anderson on Charlie Savage’s Story and Secrecy

I was planning to write a piece this morning pointing out that Charlie Savage’s story–to which I linked last night and which describes in some detail the legal rationale in the OLC opinion authorizing the Al-Aulaqi strike–actually heightens the problem of the administration’s refusal to discuss the drones program in public...
October 4, 2011 | Lawfare

More on Releasing the Legal Rationale for the Al-Aulaqi Strike

There is something deeply wrong about the faux covertness of this program...
September 21, 2011 | Lawfare

Against a Crude Balance

Those who enjoyed my two recent posts reflecting on Benjamin Franklin’s and Robert Jackson’s comments on the liberty-security relationship, may enjoy the larger piece of work from which those posts were spun off...
August 29, 2011 | Lawfare

Book Review: The Triple Agent: The al-Qaeda Mole Who Infiltrated the CIA

[The book], by Washington Post reporter Joby Warrick, ranks among the very best pieces of narrative journalism I have read related to the history of America’s conflict with Al Qaeda...
August 20, 2011 | Lawfare

David Remes on Ricin and other Matters

Stepping out of his persona as a Guantanamo habeas lawyer, David Remes writes in with the following comments in response to my recent post on fears that Al Qaeda of the Arabian Peninsula is working on refining ricin...
August 14, 2011 | Lawfare

Two New York Times Editorial…

…and guess what? This post is not about any gross factual errors in either of them concerning the legality of detention...
August 8, 2011 | Lawfare

Seventh Circuit on Torture Claims Against Donald Rumsfeld

Only days after a U.S. District Court in Washington allowed to proceed a suit by a U.S. citizen who alleged that he had been detained and tortured by U.S. forces in Iraq, the 7th Circuit Court of Appeals has permitted a strikingly similar suit to go forward as well...
August 8, 2011 | Lawfare

Paul Starobin Responds on Harold Koh

Paul Starobin, whose New York Times piece this weekend was the subject of these earlier thoughts, writes in with the following response...
August 7, 2011 | Lawfare

Paul Starobin on Harold Koh

Paul Starobin has a piece in the New York Times pondering the flip-flop of Harold Koh on war powers...
August 3, 2011 | Lawfare

Detainee Suit Against Rumsfeld Allowed to Proceed

I have only had a chance to skim this lengthy opinion by U.S. District Judge James Gwin allowing a suit against Don Rumsfeld and others to proceed on some counts. But it appears to allege quite remarkable facts...
July 28, 2011 | Lawfare

Guess Who Else Didn’t Mean What He Seemed to Say?

Yesterday, I ran across another such famed quotation on the liberty-security relationship that, in context, also turns out to mean something very different from the meaning its many quoters assume...
July 24, 2011 | Lawfare

Thoughts on Gul

Gul establishes a proposition that, in my opinion at least, should be pretty obvious: that Guantanamo habeas jurisdiction does not survive the release or transfer of the detainee from Guantanamo...
July 23, 2011 | Lawfare

Thoughts on Al Alwi

I normally have a pretty good read on the D.C. Circuit in habeas cases. Not this time. Al Alwi, one of the decisions which Wells posted yesterday, took me rather by surprise...
July 20, 2011 | Lawfare

More on the Committee Chairs’ Letter

Wells rightly points out the ridiculousness of the various House committee chairs yesterday demanding that President Obama follow the terms of unenacted legislation. I want to point out another feature of their letter...
July 18, 2011 | Lawfare

Kevin Jon Heller Defends the New York Times

...[J]ournalists who repeatedly declaim the state of the law in ignorance of–or without reference to–significant bodies of case law, do so at some risk of ridicule by bloggers...
July 18, 2011 | Lawfare

What Ben Franklin Really Said

Here’s an interesting historical fact I have dug up in some research for an essay I am writing about the relationship between liberty and security...
July 14, 2011 | Lawfare

What Ben Franklin Really Said

Here’s an interesting historical fact I have dug up in some research for an essay I am writing about the relationship between liberty and security...
July 11, 2011 | Lawfare

Are We Nearing an End of Hostilities?

When the Secretary of Defense declares, as Leon Panetta recently did, that the strategic defeat of Al Qaeda is “within reach,” it is probably time to start thinking about the termination of hostilities for purposes of AUMF detention authority...
July 6, 2011 | Lawfare

A Showdown with Congress over Warsame?

Just because the Left is wrong when it says that you can never use a hammer, the Right isn’t right that you must always and only use that hammer. Warsame might be a screw...
July 1, 2011 | Lawfare

The Next Step in Establishing the Legitimacy of Military Commissions

The appointment of Brig. General Mark Martins as chief prosecutor of the military commissions...is a step of enormous importance in establishing legitimacy for a commissions process that has floundered almost since the date of its inception...
June 30, 2011 | Lawfare

The Administration’s Strategic Errors–And Some Free Advice

As things stand now, the National Defense Authorization Act could end up being a disaster for the Obama administration on detainee matters...
June 25, 2011 | Lawfare

Senate NDAA Thought #1

The Senate’s NDAA language on detainee matters, about which I have previously written here and here, is now available. I have two additional thoughts on the Senate language...
June 24, 2011 | Lawfare

The Khairkhwa Decision and Updated Habeas Numbers

Yesterday’s release of the Khairkhwa decision prompts a few thoughts–and an update to the habeas data...
June 23, 2011 | Lawfare

House and Senate NDAA Differences on Transfers

I promised earlier this week to explore the differences between the House and Senate language in their respective versions of the National Defense Authorization Act concerning retrictions on transfers of detainees from Guantanamo Bay...
June 22, 2011 | Lawfare

Duke Law Discussion of Theater Detention Operations

Some time back, I spoke at a panel at Duke Law School on detention policy alongside, among others, Michael Gottlieb, who had just completed a fourteen month tour as the top civilian official in Task Force 435 in Afghanistan...
June 21, 2011 | Lawfare

SASC Detainee Language: A Quick and Dirty Analysis

I just got a look at a bootlegged copy of the Senate Armed Services Committee language on detainee matters. The following is a quick and dirty summary–which proceeds in the order the provisions appear in the bill...
June 20, 2011 | Lawfare

Book Review: Habeas Corpus After 9/11: Confronting America’s New Global Detention System

Jonathan Hafetz’s new book on post-September 11 habeas corpus strikes an oddly dissonant chord...
June 15, 2011 | Lawfare

Briefing Paper on Guantanamo Transfers to Yemen

At this hour, I am participating in a briefing for the House Armed Service Subcommittee on Oversight and Investigations concerning transfers of Guantanamo detainees to Yemen...
June 14, 2011 | Lawfare

Predicting a Detainee Win at the D.C. Circuit

In the wake of the Almerfedi decision, the question necessarily arises whether any detainee might plausibly expect to prevail in front of the D.C. Circuit...
June 13, 2011 | Lawfare

The Significance of Guesthouses and Training II

A number of readers have written in to argue that my attempt to complicate the D.C. Circuit’s emerging doctrine on guesthouse stays and training camps is itself too simple...
June 10, 2011 | Lawfare

The Significance of Guesthouses and Training

Memo to the D.C. Circuit: Staying at a guesthouse is not the same as taking military training...
June 8, 2011 | Lawfare

An Additional Thought on Al-Hajj

The D.C. Circuit has so far avoided addressing issues related to the voluntariness of detainee statements...
June 7, 2011 | Lawfare

GTMO Habeas Numbers Update

There’s been quite a bit of activity in the Guantanamo habeas courtrooms since Larkin last posted these statistics in mid-April...
June 2, 2011 | Lawfare

Two Guantanamo Detainees Drop Appeals

While the press has focused on the habeas “scorecard” and reported that the government is losing lots of cases, the D.C. Circuit has quietly reoriented the law so fundamentally that detainees are not even pursuing their appeals to the end...
May 31, 2011 | Lawfare

Why No Veto Threat Here?

The administration just issued a Statement of Administration Policy on a DHS appropriations bill (H.R. 2017), which contains a spending restriction similar to one of the Guantanamo transfer restrictions that provoked the administration’s recent veto threat with respect to the McKeon legislation...
May 29, 2011 | Lawfare

Another Thought About Al Madhwani

One further thought about the D.C. Circuit’s Al Madhwani opinion...
May 27, 2011 | Lawfare

Five Thoughts on the Situation

Here are five quick thoughts about the legislative tussling over the AUMF and detention policy following yesterday’s House vote to pass the NDAA and its provisions on the subject...
May 26, 2011 | Lawfare

Responses to My AUMF Suggestion

I have received two interesting responses to my post from last night suggesting tweaks to the AUMF reauthorization language...
May 25, 2011 | Lawfare

An Easy Fix for the AUMF Language?

Ever since my exchange with Daphne Eviatar and Bobby’s post last night, I have been wondering if there’s an easy tweak to Rep. Buck McKeon’s AUMF reaffirmation language...
May 24, 2011 | Lawfare

Veto Threat Whiplash

I confess that I’m a bit bewildered by the aggressiveness of the Statement of Administration Policy on the NDAA...
May 19, 2011 | Lawfare

A Reply to Daphne Eviatar

I have a fair bit to say in response to Daphne Eviatar’s comments from earlier today concerning my post about yesterday’s New York Times editorial...
May 17, 2011 | Lawfare

Brookings ECPA Event Today

I was delighted to host an excellent panel event today at Brookings on the future of the Electronic Communications Privacy Act. For ECPA nerds, the video below is well-worth watching...
May 14, 2011 | Lawfare

“The Cup of Lawfare”

I was inexpressibly moved yesterday when I opened a surprise package that showed up in my office from a military base in Afghanistan...
May 12, 2011 | Lawfare

The Emerging Law of Detention 2.0

It is with great pleasure that we announce the second edition of the The Emerging Law of Detention: The Guantanamo Habeas Cases as Lawmaking...
May 10, 2011 | Lawfare

McKeon II: A Quick and Dirty Analysis

In this post, I will try to describe the current [the National Defense Authorization bill], how it is different from the earlier version, and where it needs further changes...
May 10, 2011 | Lawfare

A Clarification on McKeon II

A reader writes in to point out that, in my earlier post, I have given away the store on behalf of the administration–and, what’s worse, on matters on which I wholeheartedly agree with the administration...
May 9, 2011 | Lawfare

Benjamin Kleinerman on the Administration’s Silence

Benjamin Kleinerman, author of The Discretionary President: The Promise and Peril of Executive Power (a truly excellent book, by the way, about which I have been meaning to post thoughts), wrote in over the weekend to take issue with my post wondering about the absence of Harold Koh from the debate about the legality of the Bin Laden operation...
May 3, 2011 | Lawfare

A Response to Deborah Pearlstein

...[W]hat we have learned raises the possibility–once again–that [the CIA program or the coercive tactics used within it] may have made, and long after its closure may still be making, a significant contribution to American security...
May 2, 2011 | Lawfare

Will Bin Laden’s Death Reignite the Interrogation Debate?

...[T]he following passage stands out and suggests that the full story here may–and I want to stress may, not will or not should–reignite the debate over interrogation tactics...
April 28, 2011 | Lawfare

Mixed Feelings About This

[In their recent op-ed,] Jaffer and Siems are conflating two very distinct issues that it is important to keep separate...
April 25, 2011 | Lawfare

Paul Clement and the Guantanamo Lawyers

I think it’s important today to stand up for what Clement did–that is, resigned when King & Spalding this morning pulled the plug on his defense of DOMA–and to insist that it actually does have something to do with the subject of this blog...
April 25, 2011 | Lawfare

Releasing “High Risk” Detainees

[This meme] provokes me to defend the repatriation and resettlement efforts of both the prior and the current one. I worry that this meme will catch on. It will be very damaging if it does...
April 24, 2011 | Lawfare

How Many to Try

The most remarkable passage in the Washington Post story to which I linked earlier is this one, which highlights the remarkable naiveté with which the incoming Obama administration–including the President himself–approached the Guantanamo closure...
April 20, 2011 | Lawfare

Of Justice Breyer, Uighurs, the Left, and Judge Silberman

I wanted to highlight how Justice Breyer’s statement in the Kiyemba cert denial this week once again repudiates the factual predicate for this strange intellectual marriage...
April 17, 2011 | Lawfare

The Latest New York Times Editorial

Two quick comments on today’s New York Times editorial...
April 14, 2011 | Lawfare

“I’m from the NSA, and We Don’t Get Out Much”

It isn’t every day that a representative of the National Security Agency gives a public speech on the agency’s understanding of “Protecting Civil Liberties in a Cyber Age...”
April 11, 2011 | Lawfare

Almerfedi Oral Argument Summary

They say you can’t tell how a case is going to come out from an oral argument. Sometimes you can, and today is one of those days...
April 8, 2011 | Lawfare

Thoughts on Judge Silberman’s Opinion

Judge Laurence Silberman’s concurring opinion today in Esmail makes three points, each of them warranting comment...
April 4, 2011 | Lawfare

Thought #1 on the Holder Statement

I don’t disagree with Eric Holder’s complaint regarding the role Congress has played in tying the Executive Branch’s hands with respect to bringing the 9/11 conspirators to trial...Having said that, the tone of Holder’s comments today seems to me all wrong...
March 29, 2011 | Lawfare

Thoughts on Uthman

It’s an excellent opinion–and it will be a consequential one. Uthman is a big deal for a few reasons...
March 25, 2011 | Lawfare

The FBI’s Miranda Memo: Some Thoughts

The major significance of the FBI’s Miranda memo, in my view, having now read it, is two-fold...
March 24, 2011 | Lawfare

Wall Street Journal on New Miranda Rules

Evan Perez of the Wall Street Journal has this very interesting piece reporting that “New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades...
March 24, 2011 | Lawfare

Washington Post on Graham Habeas Bill

The Washington Post has an interesting editorial today largely in support of Senator Lindsey Graham’s new habeas bill...
March 21, 2011 | Lawfare

The Chambliss Interrogation Bill

This is the final installment in my series of posts on the post-Executive Order spree of legislation emerging from Capitol Hill...
March 20, 2011 | Lawfare

Thoughts on Thursday’s HASC Hearing

I have now had the chance to go over a transcript of Thursday’s House Armed Services Committee hearing on detention policy, at which Pentagon General Counsel Jeh Johnson and Deputy Defense Secretary William J. Lynn III both testified...
March 17, 2011 | Lawfare

Comment OR Vote!

I am pleased to announce the launching of the Comment OR Vote! campaign, which I consider to be the most important work I have ever done...
March 15, 2011 | Lawfare

Latif Oral Argument Summary

...Judge Karen LeCraft Henderson opened today’s arguments by announcing that almost none of the case could be discussed in open session and that she would thus allow counsel to make only brief presentations in public session...
March 15, 2011 | Lawfare

The Graham Habeas Bill–A Brief Analysis

In fulfillment of my promise last week to provide analysis of the various pieces of new Senate legislation, here are some thoughts on the new version of Senator Lindsey Graham’s habeas reform bill...
March 12, 2011 | Lawfare

Analysis of the McCain Legislation

Broadly speaking, the McCain bill has similar policy ambitions to the McKeon bill–for good and ill. It too would put limits on the review process the President has created...
March 10, 2011 | Lawfare

Al Madhwani Argument Summary

I can only give a partial account of the argument. Fortunately, the redoubtable Larkin Reynolds was there too, so this post is a tag-team effort. The first chunk of it contains my impressions and account, the second hers...
March 9, 2011 | Lawfare

An Analysis of the McKeon Legislation

House Armed Services Chairman Buck McKeon lost no time in introducing legislation in response to the President’s Executive Order yesterday. Here is a quick and dirty analysis...
March 8, 2011 | Lawfare

Peter King on the Executive Order

Rep. Peter King, Chairman of the House Committee on Homeland Security, has been taking a beating for his planned hearing on radicalization in the Muslim-American community–and that is probably not unjust. Don’t miss, however, the statement he issued yesterday...
March 7, 2011 | Lawfare

Al Madhwani Argument Preview

On Thursday morning, a panel of the D.C. Circuit Court of Appeals will hear arguments in the latest in a long string of habeas appeals to make their way up the appellate chain...
March 7, 2011 | Lawfare

An Anxious Thought on the Executive Order

I could pick nits about the President’s Executive Order, but I don’t feel like it. The truth of the matter is that this is pretty good policy...
March 5, 2011 | Lawfare

Detention and Denial at Politics & Prose

Here is the video of my talk today at Politics & Prose on Detention & Denial: The Case for Candor After Guantanamo...
March 5, 2011 | Lawfare

Thoughts on Alsabri

I have been meaning for some time to post thoughts on the recent habeas denial in the case of Mashour Abudllah Muqbel Alsabri...
March 2, 2011 | Lawfare

We Have Seen the Enemy

The meme has been floating about for some time: the D.C. Circuit–and, particularly, the evil Judge A. Raymond Randolph–is subverting habeas, fighting a rear-guard action against the rule of law, and turning Boumediene into an empty shell...
March 1, 2011 | Lawfare

A Reply to Ken Jost

In his thoughtful critique of Jack and my recent statements, Ken Jost makes three distinct points that are each worthy of consideration. I will address them in turn...
March 1, 2011 | Lawfare

Al Warafi Transcript

Speaking of Al Warafi, I promised after the oral argument a few weeks back that I would reality-check my summary of the argument on a key point against the transcript of the argument when one became available to me...
February 23, 2011 | Lawfare

House GOP to Supreme Court: Bring Gitmo Detainees Here

Yesterday, I drew attention to the mindless House amendment designed to zero out funding for State Department efforts to resettle Guantanamo detainees...
February 22, 2011 | Lawfare

That’s Not Constructive

Unless Rep. Scalise and his colleagues want to be stuck with all Guantanamo detainees forever, and want eventually to taunt the Supreme Court into ordering their release into the United States, they ought to think better of this [amendment]...
February 16, 2011 | Lawfare

Esmail Oral Argument Summary

Rising before the D.C. Circuit this morning on behalf of Yasein Khasem Mohammad Esmail, Danielle Barbour faces some non-trivial problems...
February 15, 2011 | Lawfare

Esmail Oral Argument Preview

Another day, another D.C. Circuit argument preview coming a Yemeni detainee at Guantanamo Bay...
February 11, 2011 | Lawfare

Uthman Oral Argument Summary

Facing a relatively congenial D.C. Circuit panel for a Guantanamo detainee and represented by counsel who did an excellent job presenting his case, [Uthman Abdul Rahim Mohammed Uthman] made no headway...
February 10, 2011 | Lawfare

Uthman Oral Argument Preview

Tomorrow morning, a panel of the D.C. Circuit Court of Appeals will hear arguments in another Guantanamo habeas case, that of Uthman Abdul Rahim Mohammed Uthman (Case No. 10-5235)...
February 8, 2011 | Lawfare

Al Warafi Post-Argument Maneuvering

The letter filed today with the D.C. Circuit by Al Warafi’s attorney, which Larkin noted earlier, appears to be a response to my earlier post on the argument...
February 7, 2011 | Lawfare

Al Warafi Oral Argument Summary

To bring you this here summary of today’s oral argument in Mahktar Al-Warafi v. Barack Obama, I have had to engage in a mortification of the flesh...
February 3, 2011 | Lawfare

Eugene Volokh and a Reader on the NYT Detention Editorials

To put the matter simply, it is not indefiniteness to which the Times is objecting. It is non-criminal detention itself...
February 2, 2011 | Lawfare

Speaking of New York Times Editorials…

...I actually agree with this one this morning, arguing that the separation of the investigative functions of the Justice Department’s inspector general and its Office of Professional Responsibility is a silly anachronism...
February 1, 2011 | Lawfare

Former Guantanamo Detainee Convicted in Italy

It’s another case that seems to me to beg the question of how we define success as we navigate the benefits and perils of long-term detention, transfers to foreign governments, and criminal trials of various sorts...
January 27, 2011 | Lawfare

A Right Without a Remedy?

You would think that Guantanamo is full of people who have won their habeas cases but whom the government refuses to let go, flouting feckless court orders with nothing behind them. The reality is rather different...
January 25, 2011 | Lawfare

Priorities, Priorities

...Obama isn’t even treating the Gitmo spending restrictions as seriously as he proposes to treat small wastes of federal money...
January 24, 2011 | Lawfare

Gabor Rona on Embracing Guantanamo

Gabor Rona of Human Rights First sent me the following email this morning in response to my post from last week urging President Obama to make his peace with Guantanamo...
January 21, 2011 | Lawfare

Time for Obama to Embrace Guantanamo

It is now two years since Barack Obama promised to close the detention facility at Guantanamo Bay within one year...it is almost certainly one year before he faces his third anniversary failure...
January 19, 2011 | Lawfare

Does Buck McKeon Really Mean This?

According to CNN, the new chairman of the House Armed Services Committee, Buck McKeon, suggests not closing Guantanamo but expanding it...I actually think this is an interesting idea...
January 18, 2011 | Lawfare

Why the Al Adahi Cert Denial Matters

The Supreme Court’s denial of cert in Al Adahi is not in any sense a surprise. To the contrary, I would have been shocked if the justices had agreed to hear the case. It is, however, an important development worthy of note...
January 13, 2011 | Lawfare

Redoing the Human Rights First Report Card VI

The Obama administration does badly on each of the final three elements of the Human Rights First report card...
January 12, 2011 | Lawfare

Redoing the Human Rights First Report Card IV

I’m very glad that President Obama has acted in a fashion that has won him a failing grade from Human Rights First in [the Accountability for Torture] category...
January 12, 2011 | Lawfare

Redoing the Human Rights First Report Card V

I am perplexed by this category and grade...HRF already gave the Obama administration a D for its performance in the important (in its view) task of ending indefinite detention altogether...
January 11, 2011 | Lawfare

Redoing the Human Rights First Report Card I

So here are the first two elements of the Human Rights First report card, how I would recast them, and the grades I would assign. HRF’s initial element reads...
January 11, 2011 | Lawfare

Redoing the Human Rights First Report Card II

The next several elements of the Human Rights First report card all deal with detention and trial. The first of these is the failing grade HRF gives to the Obama administration for not closing Guantanamo...
January 10, 2011 | Lawfare

The Human Rights First Scorecard–And Mine

Human Rights First has published a report card...In reading it over, I find myself disagreeing with so many of the premises of the grading criteria that I can’t decide whether I agree with the grades the group has assigned...
January 7, 2011 | Lawfare

Whining Statement

Congressional Republicans are quaking now. The President today expressed his “strong objection” to two provisions of the defense authorization bill and has threatened to “work with the Congress to seek [their] repeal...”
January 5, 2011 | Lawfare

In Defense of Signing Statements

An interesting debate has broken out among liberals about the possibility of President Obama’s issuing a signing statement on the Guantanamo restrictions...All of this prompts me to say a few words in defense of signing statements, which have gotten a bum rap over the years...
January 4, 2011 | Lawfare

Thoughts on a Possible Signing Statement

I have a few thoughts on Dafna Linzer’s story from yesterday, which reported that the President means to push back against congressional efforts to impede trial and transfer of Guantanamo detainees by issuing a signing statement...
December 15, 2010 | Lawfare

David Cole on Continuity and Change

Back in October, I posted a link to a speech I had given some months earlier on continuity and change between the Bush and Obama administrations on counterterrorism. This week...David Cole takes on the same subject and comes to a rather different conclusion...
December 14, 2010 | Lawfare

Interesting Reader Responses on Wikileaks

I’ve received a number of interesting responses to my post from Sunday on rewriting the Espionage Act. Two bear particular attention...
December 13, 2010 | Lawfare

A New Court to Issue Targeted Killing Warrants?

As one of those people who believes in this logic as it pertains to detention, count me out as to killing people...
December 13, 2010 | Lawfare

David Remes Responds

I received the following note today from Guantanamo lawyer David Remes in response to my post from Friday on recidivism...David makes some good points here. His last, however, requires a response...
December 8, 2010 | Lawfare

Some Thoughts on Judge Bates’ Decision

Five thoughts on Judge Bates’ Al Aulaqi decision...
December 7, 2010 | Lawfare

Initial Thought on Al Aulaqi and the Press

I wonder how many media outlets that misleadingly made the government’s invocation of the state secrets privilege the central feature of their coverage of its arguments will eat crow in light of Judge Bates’ refusal (at the government’s urging) to engage the subject of the privilege...
December 6, 2010 | Lawfare

Espionage Act Amendments

Senators Joseph Lieberman, John Ensign, and Scott Brown have introduced a bill to amend the Espionage Act in order to facilitate the prosecution of folks like Wikileaks...
December 2, 2010 | Lawfare

Problems with the Espionage Act

Amid the proliferating cries for prosecuting Julian Assange and shutting down Wikileaks–for which, I should note, I harbor no small sympathy–a few people have noted that the Espionage Act has, well, some problems as a legal instrument for the project...
November 30, 2010 | Lawfare

Wikileaks on Guantanamo Resettlement

Larkin and I were planning to post a detailed account of what the Wikileaks cables say about Guantanamo resettlement efforts...I won’t repeat the facts here, but a few thoughts are in order...
November 30, 2010 | Lawfare

A Response to Nick Baumann

Over at Mother Jones, Nick Baumann accuses me of arguing against straw terrorists...I think [he] makes several important analytical [errors], errors which lead to a too-simplistic boiling down of positions that one cannot so easily condense...
November 28, 2010 | Lawfare

Updating the AUMF–A Discussion

We have a war going on. We have a legal instrument authorizing that war that is growing by the day more attenuated in its description of the conflict. Logically, therefore, if we want to both authorize and cabin the war we are fighting, we should update the [AUMF]...
November 24, 2010 | Lawfare

“Blind Vengeance and a Thorough Disdain for the Law”

This is how the always-entertaining British journalist, Andy Worthington describes critics of federal court trials, including–it seems–Jack and Bobby and me, which is kind of funny considering that we are not really critics of federal court trials at all...
November 23, 2010 | Lawfare

A Reply to Steve Vladeck

...Steve has written a thoughtful objection to Jack and my oped and series of posts arguing against bringing Guantanamo detainees to trial...[he]makes several thematically-related points that I wish to address specifically...
November 22, 2010 | Lawfare

Thoughts on Being Groped by TSA

A great deal of the criticism of TSA boils down to a simple often unstated proposition: TSA should be more like the Israelis. We should deemphasize technology and focus on targeted interviews...
November 19, 2010 | Lawfare

Military Commission Rules on Coerced Evidence

There has been a lot of debate about whether the result in the Ghailani trial would have been different in a military commission...
November 17, 2010 | Lawfare

The Politics of the Ghailani Verdict

The Ghailani verdict is going to play badly–very badly–in the political arena...he only thing that will matter in the political sphere will be that prosecutors won a conviction on only one of 285 criminal counts...
November 16, 2010 | Lawfare

Rep. McKeon's Detention Bill

In his speech yesterday, incoming House Armed Services chairman Buck McKeon promised that his committee would work in the coming Congress on a “legal framework” for detention...
November 15, 2010 | Lawfare

Eric Holder’s Surprise

This article in GQ has generated a fair bit of unfavorable buzz about Attorney General Eric Holder. The article is, in my judgment, rather unfair–both to Holder and to the Bush administration folks who preceded him...
November 15, 2010 | Lawfare

Thoughts on Rep. McKeon’s Speech

...[V]ices of [this speech by Republican Rep. Buck McKeon] include its laughably unfair analysis of current American policy, one that does not auger well for a strong working relationship with the administration on counterterrorism issues...
November 10, 2010 | Lawfare

Justice Breyer on Korematsu and the Guantanamo Cases

This afternoon, the Brookings Institution was honored to host Justice Stephen Breyer for a lively discussion, which I moderated, on his new book: Making Our Democracy Work: A Judge’s View...
November 9, 2010 | Lawfare

Notes from the Hatim Oral Argument

They say you can’t tell where an appeals panel is headed based on the oral argument. Sometimes you can. I will go out on a limb on the one I attended today: I will eat my computer if the D.C. Circuit affirms Judge Ricardo Urbina’s decision in Hatim v. Obama...
November 8, 2010 | Lawfare

Argument Preview: Hatim v. Obama

Tomorrow, D.C. Circuit Judges Karen LeCraft Henderson, A. Raymond Randolph, and Stephen Williams will hear oral argument in Hatim v. Obama, a habeas merits appeal of some potential importance...
November 8, 2010 | Lawfare

Notes from the Al Aulaqi Argument

The Al Aulaqi argument today was long...Rather than focus on the arguments of the parties, therefore, I am going to give my impressions of Judge John Bates’ reactions to these arguments...
November 6, 2010 | Lawfare

Reflections on Malinowski’s Clarification

I promised I would offer thoughts on Tom Malinowski’s latest missive after I had a chance to digest and reflect on it...For whatever they are worth, here are my brief thoughts on Tom’s clarification...
November 5, 2010 | Lawfare

Comments on Salahi

This morning the D.C. Circuit vacated and remanded a decision by former U.S. District Judge James Robertson, granting habeas relief to Mohammedou Salahi...The decision, however, is interesting in several respects...
November 4, 2010 | Lawfare

Note from the Al Alwi Argument

I just returned from the D.C. Circuit’s Al Alwi oral argument–or, at least, the portion of it that the court conducted in open session. Here is a quick and dirty summary...
November 4, 2010 | Lawfare

Gitmo Recitivism and Innocence

I certainly agree with Adam Serwer’s point in this post that it will be mindless and destructive if Republicans really tried to prevent transfers from Guantanamo. Along the way, however, Adam makes the following point which warrants a brief response...
November 3, 2010 | Lawfare

What Does the Election Mean?

This election wasn’t fought over the issues we deal with here at Lawfare. It was about the economy, jobs, spending, health care, and all that jazz. Yet national security issues always lurk in the background in the post-9/11 era...
November 2, 2010 | Lawfare

Al Alwi Argument Preview

On Thursday, D.C. Circuit Judges David Tatel, Merrick Garland, and Stephen Williams will hear oral arguments in Al Alwi v. Obama...The case is an appeal from a decision by U.S. District Judge Richard Leon denying Moath Hamza Al Alwi’s habeas corpus petition...
November 1, 2010 | Lawfare

On the Original Understanding of Malinowski

Kevin Jon Heller makes several challenging points in response to my earlier thoughts on Tom Malinowski’s statement on targeted killings...I address Kevin’s points in no particular order...
October 31, 2010 | Lawfare

When Everything is Secret, Nothing is Secret

For more than a decade now, Steve Aftergood of the Federation of American Scientists has been on a lonely crusade to get the government to declassify the annual top-line budget number for the intelligence community...
October 29, 2010 | Lawfare

A Prosecutor’s Response

Today, I had an exchange with a distinguished former terrorism prosecutor for whom I have enormous respect about my oped this morning and my earlier Lawfare proposal for multiple-venue prosecution of the 9/11 conspirators...
October 28, 2010 | Lawfare

In Praise of Human Rights Watch

I have been thinking a lot over the last couple of days about Tom Malinowski’s statement in response to my post about the Lord’s Resistance Army (LRA) and drone strikes in Yemen. The more I think about it, the more I admire it...
October 26, 2010 | Lawfare

Something Like Justice

To me [Omar Khadr's guilty] plea and the adjudication look at least something like justice–and maybe quite a lot like justice...
October 25, 2010 | Lawfare

Wittes v. O’Connell on Targeted Killing and Drones

Here is the video of my debate with Mary Ellen O’Connell of Notre Dame law school on targeted killings and drone warfare on Saturday at International Law Weekend in New York...
October 22, 2010 | Lawfare

Thoughts on Judge Randolph’s Speech

Judge A. Raymond Randolph, in his speech the other day at the Heritage Foundation, addressed two intertwined but ultimately distinct issues: Whether the Supreme Court’s Boumediene decision is historically and jurisprudentially sound, and the “mess” it has created in the lower courts...
October 19, 2010 | Lawfare

Adam Serwer on the John Allen Muhammad Model

Adam Serwer has a very interesting response to my post a few days back about charging KSM and friends in both Article III courts and military commissions...
October 18, 2010 | Lawfare

Gabor Rona on Choice of Forum

I intended this post as a challenge to the political Right, not the human rights community, on military commissions. I was, therefore, a little surprised to receive this note from Gabor Rona, international legal director of Human Rights First, in response...
October 16, 2010 | Lawfare

The John Allen Muhammad Model for KSM

I’m not 100 percent certain that what I am suggesting is wise, politically astute, or even that it would work legally....But maybe, just maybe, it is the answer–or an answer–to the problem of how to try KSM and the 9/11 conspirators...
October 15, 2010 | Lawfare

A Thought Experiment for Article III Skeptics

I want to make an affirmative argument against principle here–specifically, against the conviction that is now so prevalent in conservative circles that military commissions represent the only acceptable trial venue for KSM...
October 13, 2010 | Lawfare

Where the ACLU/CCR Arguments Eventually Lead

If we make the use of highly-targeted killing legally impossible or especially difficult, what do we have to fall back on...?
October 12, 2010 | Lawfare

Marc Thiessen on “Holder’s Terror Trial Catastrophe”

I disagree with a great deal in this oped and don’t mean to pick every nit I could find in it. But it is worth answering some of Marc Thiessen’s major points...
October 11, 2010 | Lawfare

Still No Coverage of ACLU/CCR Arguments

In my initial post on the ACLU/CCR brief in Al Aulaqi, I promised to return to several of the themes I sketched out...[The] first: The total absence of press coverage of the substance of the arguments the groups are making...
October 9, 2010 | Lawfare

Initial Thoughts on the ACLU-CCR Al-Aulaqi Brief

First, the brief is a remarkable piece of work–elegantly-argued, well-crafted, and powerful. It is persuasive on some points, and challenging even where unpersuasive...
October 8, 2010 | Lawfare

Two Thoughts on Judge Walton’s Al-Bihani Decision

I have now read Judge Reggie Walton’s opinion affirming the detention of Guantanamo detainee Toffiq Nasser Awad Al-Bihani. In keeping with my usual practice, I will leave it to others to discuss the case’s effect on the “scorecard...
October 6, 2010 | Lawfare

In Defense of Hand-Wringing

I want to reflect [on the New York Times's editorial] conclusion, which reads, “This is the choice: Justice in long-established federal courts that Americans can be proud of and the rest of the world can respect. Or illegal detentions and unending, legally dubious military tribunals. It is an easy one...”
October 6, 2010 | Lawfare

Clearly Illegal?

I was amused, in reading Judge Bates’ Khan opinion just now, to run across the judge’s account of the scope of the government’s detention authority...
October 5, 2010 | Lawfare

A Request for Reader Assistance

One of the questions I have been fascinated by over the past year, but unable to shed much light on, is how the court rulings in the Guantanamo habeas cases play out in the field...
October 4, 2010 | Lawfare

Reader Response on State Secrets and Standing

In response to my call the other day for readers to poke holes in what seems to me an interesting state secrets argument, Peter Margulies wrote in with the following...
October 3, 2010 | Lawfare

An Important Statement

This is admittedly a slight tangent from the Lawfare’s broad themes, but Eugene Volokh drew my attention the other day to this statement on free speech, issued by a group of Muslims in the United States and Canada...
October 1, 2010 | Lawfare

Really Dumb Editorial Watch

I find my sense of craft offended by this editorial on the state secrets privilege in the New York Times the other day. Put simply, it bugs me that the paper of record has nothing interesting or useful to say about this subject–and that it says that nothing so badly...
October 1, 2010 | Lawfare

Another Interesting State Secrets Argument

This morning, I had a bit of correspondence with an administration lawyer in response to my critique of the New York Times’s state secrets editorial...
September 30, 2010 | Lawfare

Thoughts on Al Kandari, the Burden of Proof, and Matt Waxman

The Al Kandari opinion declassified yesterday does not present a particularly interesting fact pattern. The case, however, is deeply interesting in one respect...
September 28, 2010 | Lawfare

Adam Serwer on Al Aulaqi

Adam Serwer of the American Prospect has a typically thoughtful post on the government’s Al Aulaqi brief, notable for his taking the government’s arguments seriously even in dismissing them...
September 26, 2010 | Lawfare

The Al Aulaqi Brief’s Privilege Claim

Jack has already pointed out that the government’s invocation of the states secrets privilege in its Aulaqi brief is reluctant, even grudging. If anything, he is understating the point...
September 26, 2010 | Lawfare

The Grounds on which the Government Wants to Win

In my previous post, I argued that the government’s Al Aulaqi privilege claim, for all the attention it is getting, is not the grounds on which the government wants to get this case thrown out. The preferred grounds, to which the government’s brief devotes most of its attention, are two-fold...
September 24, 2010 | Lawfare

The GOP Pledge on Detention Policy

The consensus GOP position on some of the most vexing national security law issues of our day is a three part policy...
September 23, 2010 | Lawfare

“We Can Absorb a Terrorist Attack”

If President Obama does not already regret saying these words to Bob Woodward for a book slated for release just before the mid-term elections, he surely will...
September 21, 2010 | Lawfare

An Important New Article By Aziz Huq

More than two years ago, in my book Law and the Long War: The Future of Justice in the Age of Terror, I wrote the following paragraph about the value of habeas review to innocent detainees...
September 19, 2010 | Lawfare

Salahi Coverage and the Scorecard

Just a brief follow-up on my earlier complaints about the “scorecard” approach to detainee litigation coverage...
September 16, 2010 | Lawfare

Divisions within the Administration Concerning Al Aulaqi Response?

Don’t miss this very interesting story from Charlie Savage on the argument going on within the administration concerning how to respond to the Al Aulaqi lawsuit...
September 15, 2010 | Lawfare

Why Salahi is Important

I think this case [Salahi v. Obama] is a big deal, one that stands to make a significant mark on the law of detention...
September 14, 2010 | Lawfare

Some Thoughts in Response to Steve Vladeck

In his two responses (here and here) to Steve Vladeck’s earlier post on S. 3707, Bobby has said, better than I could, much of what what I believe. What remains are a few isolated points of disagreement between me and Steve that are, I think, worth airing...
September 12, 2010 | Lawfare

Vladeck on S. 3707

Steven Vladeck has an extensive discussion of, really an indictment of, the Graham bill over at Prawfsblog. I will have a fair bit to say in response to Steve...
September 11, 2010 | Lawfare

Is Gitmo Really an Important Recruiting Tool or Do We All Just Say That?

What do we really know about the importance of Guantanamo to enemy recruitment...?
September 11, 2010 | Lawfare

A Thought on President Obama’s Remarks

I think Obama’s comment [on closing Guantanamo] reflects a certain lack of awareness concerning where his Guantanamo policy went off the rails...
September 8, 2010 | Lawfare

More on the Scorecard

Steve Vladeck makes a few important points in response to my post on the habeas scorecard...
September 8, 2010 | Lawfare

Why I Don’t Like the “Scorecard”

It has become something of a convention in the copious journalism surrounding the Guantanamo habeas litigations to keep a win-loss scorecard...
March 9, 2010 | New York Times

Demagoguery on Legal Defense

It is deeply wrong to stigmatize those in the Justice Department who have represented Guantánamo detainees in their prior careers. . . .

Interviews

September 24, 2012 | John Batchelor Show

Benjamin Wittes on the John Batchelor Show (20:02)

May 9, 2012 | Lawfare

Peter Berkowitz on Israel and the Laws of War

Peter Berkowitz of the Hoover Institution has a new book out, entitled Israel and the Struggle Over the International Laws of War...
March 12, 2012 | Lawfare

Lawfare Podcast Episode #6: Jack Goldsmith on Power and Constraint

Guess what? Jack has a new book out. You probably already knew that, but in case you didn’t, it’s called Power and Constraint: The Accountable Presidency after 9/11...
January 6, 2010 | News Hour

Yemen's Instability Muddles Plan to Close Guantanamo

Now Margaret Warner looks at what the Yemen terrorism connections mean for Guantanamo detainees. . . .

Other Media

November 10, 2011 | Defining Ideas (Hoover Institution)

Liberty and Security: Hostile Allies

We do not purchase one at the expense of the other...
September 21, 2011 | Brookings Institution

Against a Crude Balance

Platform Security and the Hostile Symbiosis Between Liberty and Security...
February 16, 2011 | Defining Ideas (Hoover Institution)

Imperiled By Innovation

Technology aids national security. It also makes us vulnerable...
January 18, 2011 | Harvard National Security Journal

Preventive Detention in American Theory and Practice

Adam Klein and Benjamin Wittes show that contrary to civic mythology, the extra-criminal detention of terrorism suspects is not “an extraordinary aberration from a strong American constitutional norm...
January 7, 2011 | Brookings Institution

Rationalizing Government Collection Authorities: A Proposal for Radical Simplification

In this paper, we look at one corner of the problem of regulating the mosaic—the problem of access by government investigators to individuals’ personal data stored in the hands of third parties...
December 8, 2010 | Brookings Institution

Innovation’s Darker Future: Biosecurity, Technologies of Mass Empowerment, and the Constitution

The future of innovation has a dark and dangerous side, one we dislike talking about and often prefer to pretend does not, in fact, loom before us. Yet it is a side that the Constitution seems preponderantly likely to have to confront...
June 10, 2010 | Future Challenges in National Security and Law

Future Challenges E-Book

In the new online volume, Future Challenges in National Security and Law, members of the Hoover Institution’s Koret-Taube Task Force on National Security and Law and guest contributors offer incisive commentary on the controversies that have erupted over national security law in the wake of the 9/11 attacks, laying the foundations for understanding such future issues...

March 8, 2010 | Foreign Policy

Democratic pollsters warn: Obama losing ground on national security

Despite his decisions to surge troops to Afghanistan, delay the closure of the U.S. prison at Guantánamo Bay, and perhaps reverse himself by endorsing military commissions for terror suspects, President Obama is still losing ground in polls related to national security. . . .

January 22, 2010 | Brookings Institution

The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking

President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means that, for good or for ill, judges must write the rules governing military detention of terrorist suspects. . . .

September 11, 2008 | New Republic

Seven Years Later: Complacency

America has grown complacent, and how could it have done otherwise?...