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Analysis and Commentary

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
Analysis and 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.

Speaking the Law: Chapter 4

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

In chapter 4, the authors discuss the Obama administration’s speeches in response to the NSA revelations made public by Edward Snowden and review the involvement of other branches of government in the legal framework described in the administration’s national security speeches. They explore the degree to which each branch is implicated in major aspects of the administration’s position. They also look at the degree to which the international system and its actors—other countries and international nongovernmental organizations—have had their voices heard, even though outsiders to the government, and have exerted leverage to influence it.

Analysis and Commentary

The Financial Costs of Guantanamo

by Benjamin Wittesvia Lawfare
Tuesday, September 23, 2014

Jessica Schulberg, writing at the New Republic, has a good piece about the financial costs of Congress’s insistence on maintaining the detention facility at Guantanamo:

Analysis and Commentary

Are We Facing an ISIS Detention Mess?

by Benjamin Wittesvia Lawfare
Monday, September 22, 2014

Over at Newsweek, Jeff Stein wonders: “What Will U.S. Forces Do With ISIS Prisoners?

Analysis and Commentary

Ongoing “Covert” Training of Syrian Rebels: But Is It Still Covert . . . , And, If So, Why?

by Jack Goldsmith, Marty Ledermanvia Lawfare
Monday, September 22, 2014

Last week Congress approved, and the President signed, legislation that authorizes the Secretary of Defense (see section 149) to “provide assistance, including training, equipment, supplies, and sustainment, to appropriately vetted elements of the Syrian opposition and other appropriately vetted Syrian groups and individuals,” for three specified purposes, including “defending the Syrian people from attacks by the Islamic State of Iraq and the Levant (ISIL), and securing territory controlled by the Syrian opposition.”

Analysis and Commentary

Readings: Adapting the Law of Armed Conflict to Autonomous Weapon Systems

by Kenneth Anderson, Matthew Waxmanvia Lawfare
Wednesday, September 17, 2014

We are pleased to share our recently published article on law and autonomous weapons, on which we teamed up with our good friend Daniel Reisner (formerly head of the Israel Defense Forces International Law Department). The article, “Adapting the Law of Armed Conflict to Autonomous Weapon Systems,” appears as 90 International Law Studies 386 (2014), available online at SSRN (free pdf download).

Analysis and Commentary

Further Reflections on the Legal Rationale For Using Force Against the Islamic State

by Jack Goldsmithvia Lawfare
Friday, September 12, 2014

I had a pretty harsh reaction to the administration’s claim that Congress in the 2001 AUMF authorized force against ISIS in Iraq and Syria.  (For a different view, see Marty Lederman’s post.)  While I think the administration’s interpretation of the 2001 AUMF is unconvincing, I do not believe (as Bruce Ackerman appears to say today in the NYT) that military action against the Islamic State — to date or in the future — is unlawful under the Constitution.  

Analysis and Commentary

Yet Another Iraq War Powers Letter, and a Response to Lederman

by Jack Goldsmithvia Lawfare
Tuesday, September 9, 2014

Yesterday the President sent his seventh Iraq-related War Powers Resolution (WPR) letter since June, and the fourth in about a month.  The new letter concerns U.S. Armed Forces using “targeted airstrikes in the vicinity of the Haditha Dam in support of Iraqi forces in their efforts to retain control of and defend this critical infrastructure site from ISIL.” 


The Hoover Institution Jean Perkins National Security & Law Task Force is no longer active as of August 31, 2015. This page will not be updated with future posts.

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

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Tad and Dianne Taube Senior Fellow
Senior Fellow

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.