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Hawk v. Drone

by Benjamin Wittesvia Lawfare
Sunday, October 12, 2014



What Will U.S. Troops in Baghdad Do When Islamic State Militants Arrive?

by Jack Goldsmithvia Lawfare
Saturday, October 11, 2014

There are several stories today about how Islamic State militants are threatening Baghdad.  Some of the stories suggest that “an all-out assault on Baghdad” may be in the cards, while others say that the militants will instead simply “wreak havoc” on the city from its western edge.  Whichever is right, Islamic State forces are threatening Baghdad itself.

The White House

The Administration Has Violated the War Powers Resolution Unless It is Right About the Applicability of the AUMFs to the Islamic State

by Jack Goldsmithvia Lawfare
Wednesday, October 8, 2014

On Monday, Senator Cruz maintained that the War Powers Resolution (WPR) clock had expired because 60 days had passed since the first air strikes against the Islamic State, which the President notified Congress about in a letter to Congress on August 8.


History Suggests That Congress Will Only Authorize Force Against the Islamic State If the President Proposes and Pushes For an Authorization (or Screws Up Unilateral Force Badly)

by Jack Goldsmithvia Lawfare
Tuesday, October 7, 2014

President Obama says he would “welcome congressional support” but does not need authorization from Congress in order to use force against the Islamic State.  The President appears to have taken no steps to propose actual language to Congress or to move the idea of an authorization along. 


The Significance of Harold Koh’s Legal Defense of the Administration’s Interpretation of the 2001 AUMF

by Jack Goldsmithvia Lawfare
Wednesday, October 1, 2014

Harold’s Koh’s grudging defense of the domestic legal basis for President’s Obama’s use of force against the Islamic State in Iraq and Syria is important.  It adds little new to other defenses of the President’s position – a legal position, I have argued in past posts, is politically stupid and constitutionally imprudent but nonetheless legally defensible under Article II and the 2002 AUMF (but not the 2001 AUMF).


Why it Might Matter Whether the Islamic State Was AUMF-able Last Year

by Jack Goldsmithvia Lawfare
Tuesday, September 30, 2014

In February, Karen DeYoung and Greg Miller wrote a story in the WP about how Al-Qaeda’s then-recent expulsion of the Islamic State of Iraq and Syria (ISIS, now Islamic State, or IS) raised questions about whether the AUMF “still applies” to ISIS. 


Breaking News: Guantanamo Closure Plans Are Stalled (But Now it’s the Pentagon’s Fault)

by Matthew Waxmanvia Lawfare
Tuesday, September 30, 2014

So reports the Associated Press this morning. This story stating the obvious upshot of President Obama’s doomed Guantanamo policy has a few interesting aspects to it, but fails to put Guantanamo policy in the broader context of a legal framework that President Obama has talked about putting in place, or how recent events with respect to ISIL further undermine any remaining efforts to close Guantanamo.


Readings: An International Legal Framework for Surveillance, a New Article by Ashley Deeks

by Kenneth Andersonvia Lawfare
Friday, September 26, 2014

Lawfare’s own Ashley Deeks (University of Virginia School of Law) has released a new article, “An International Legal Framework for Surveillance,” available on SSRN and forthcoming in the Virginia Journal of International Law (Vol. 55, 2015). 

Speaking the Law book cover
Featured Commentary

Speaking the Law: Chapters 4 and 5

by Kenneth Anderson, Benjamin Wittesvia Lawfare
Wednesday, September 24, 2014

The Hoover Institution has released Chapter 4 and Chapter 5 of our serialized book: Speaking the Law: The Obama Administration’s Addresses on National Security Law. Here are the Introduction and Chapter 1Chapter 2,  and Chapter 3.

Speaking the Law: Chapter 5

by Kenneth Anderson, Benjamin Wittesvia Analysis
Tuesday, September 23, 2014

In chapter 5, the authors look at the criticisms of the Obama administration’s legal policies on counterterrorism from both the political Right and the political Left—and explain why they largely reject both. They assert that although the framework of law and legitimacy that the administration has laid out is not without its problems, the legal, ethical, and policy framework is far more robust, as a matter of law, morality, and legitimacy, than the critics acknowledge. Moreover, in the view of the authors, it compares favorably with all the alternatives the various strains of critics have proposed in its stead.


The Briefing

The Briefing provides perspectives on national security under the auspices of the rule of law and US constitutional law.

Lawfare Blog

The National Security and Law Task Force examines the rule of law, the laws of war, and American constitutional law with a view to making proposals that strike an optimal balance between individual freedom and the vigorous defense of the nation against terrorists both abroad and at home.

The task force’s focus is the rule of law and its role in Western civilization, as well as the roles of international law and organizations, the laws of war, and U.S. criminal law. Those goals will be accomplished by systematically studying the constellation of issues—social, economic, and political—on which striking a balance depends.

Peter Berkowitz serves as chair of the National Security and Law Task Force.