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Material Support Law Upheld

Monday, June 21st, 2010

Sorry for the long break between posts.  I don’t have time to add a long one, but for those of you who haven’t read it, the Supreme Court’s opinion today in Holder v. Humanitarian Law Project is a must-read.

Although controversial, the material support laws have been among the most frequently-used weapons in the federal government’s legal arsenal against terrorists.

For a look at what some of the leading national security law scholars in the nation have to say about the decision, the N.Y. Times has a great piece with brief summaries from a number of leading professors.

With any luck, we should be able to put up a summary and analysis of this decision shortly.

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GTMO Detainee Review Complete; Political Fight Looms

Friday, May 28th, 2010

No time now for any analysis, but the Washington Post has a good piece on it.  Among other key excerpts:

About 10 percent of the 240 detainees held at Guantanamo Bay, Cuba, when President Obama took office were “leaders, operatives and facilitators involved in plots against the United States,” but the majority were low-level fighters, according to a previously undisclosed government report. About 5 percent of the detainees could not be categorized at all.

The final report by the Guantanamo Review Task Force recommends that 126 of the detainees be either transferred home or to a third country; that 36 be prosecuted in either federal court or a military commission; and that 48 be held indefinitely under the laws of war. A group of 30 Yemenis was also approved for release if security conditions in their home country improved.

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It remains unclear if the administration can now gain enough support on Capitol Hill to move forward with its plans to buy a state prison in Illinois to replace Guantanamo, where 181 detainees remain. Key committees in both the House and Senate this month introduced language into defense bills that would bar funding for any such facility in the United States.

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The report said those recommended for indefinite detention had significant roles in al-Qaeda or the Taliban and advanced training or expertise. It also noted that “some detainees designated for detention have, while at Guantanamo, expressly stated or otherwise exhibited an intent to reengage in extremist activity upon release.”

Enjoy your weekends!

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UN To Apply Pressure to Stop Drone Killings

Friday, May 28th, 2010

The N.Y. Times reports, in an interesting article, that the United Nations is going to call on the United States to stop using unmanned aerial vehicles (UAVs) against suspected members of al Qaeda.  Such pressure would not be legally binding, and is probably unlikely to put a stop to the military tactic.  However, it could certainly deal a blow to President Obama’s national security strategy, which relies heavily on efforts to adhere to international norms.

Harold Koh, the Legal Adviser to the State Department and the former Dean of Yale Law School, gave a great speech at ASIL’s annual meeting; during that speech, he laid out the foundation for a legal argument concerning the legality of UAV strikes both within and external to active combat zones.   Such strikes are almost certainly legal if the targets are in fact engaged in an armed conflict against the U.S.  As Koh noted, “a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.”

Some potentially serious problems with the UAV program are discussed in greater detail, after the jump.

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House Votes To Repeal Don’t Ask Don’t Tell

Thursday, May 27th, 2010

CNN reports that Representative Murphy (D-PA) pushed for a vote on the revised language, and it passed the House tonight, 234-194.

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Don’t Ask Don’t Tell On Verge Of (Sort Of) Repeal

Thursday, May 27th, 2010

This post is a submission from John Power Hely VI, a recent graduate of Columbia Law School and a former United States Marine.

The New York Times reports that “The Senate Armed Services Committee on Thursday voted to let the Defense Department repeal the ban on gay and bisexual people from serving openly in the military.”

Servicemembers United, the Servicemembers Legal Defense Network, Rep. Murphy (D-PA), Sen. Lieberman (D-CT), and others met at the White House early this week to discuss the fact that repeal seemed to be going forward despite Secretary Gates’ desire to wait until the Pentagon Working Group report issues in December.  In order to secure passage through the Committee, the drafters crafted “compromise language,” which some applaud but others believe renders the bill toothless.

The compromise language repeals Don’t Ask Don’t Tell (10 U.S.C. 654) itself, but without drafting any nondiscrimination language to replace it.  This returns absolute authority to the Pentagon, essentially winding back the clock to 1992. The compromise language requires that the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff all confirm that any repeal plan would not adversely affect military readiness prior to enacting such a plan.  In order to get the vote of Sen. Byrd (D-WV), a possible blocking vote on the Senate Armed Services Committee, an amendment to the compromise language was created, giving Congress 60 days to review the repeal plan before it went into effect.

Find out what the compromise does NOT do, after the jump…

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The New National Security Strategy

Thursday, May 27th, 2010

Over at The Atlantic, Marc Ambinder has his take on Obama’s new National Security Strategy. Worth reading.

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Al Maqaleh Decision

Friday, May 21st, 2010

A decision has been reached in the Al Maqaleh case.  Al Maqaleh had been trying to extend habeas rights to Bagram.  Judge Bates of the District of D.C. had granted his petition, but was just reversed by the D.C. Circuit.

The full opinion is available here.

We should be able to post some analysis soon, but wanted to get this up ASAP.

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D.N.I. Blair To Resign

Thursday, May 20th, 2010

The Office of the Director of National Intelligence, Admiral Dennis Blair, posted a brief statement on its website:

STATEMENT FROM DIRECTOR DENNIS C. BLAIR TO THE ODNI AND INTELLIGENCE COMMUNITY WORKFORCE


It is with deep regret that I informed the President today that I will step down as Director of National Intelligence effective Friday, May 28th.

I have had no greater honor or pleasure than to lead the remarkably talented and patriotic men and women of the Intelligence Community.

Every day, you have worked tirelessly to provide intelligence support for two wars and to prevent an attack on our homeland.

You are true heroes, just like the members of the Armed Forces, firefighters, and police whose job it is to keep our nation safe.

Your work over the past 16 months has made the Intelligence Community more integrated, agile, and representative of American values.  Keep it up – I will be cheering for you.

Dennis C. Blair

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Mexican President Calls for Assault Weapon Ban

Thursday, May 20th, 2010

The N.Y. Times reports that Mexican President Felipe Calderón, in addressing Congress, issued an impassioned plea for the United States to renew its ban on assault weapons.  Calderón reportedly decried the new Arizona immigration law as well.

Although Calderón’s struggles containing the horrific drug war in Mexico have been relatively well-publicized, the problem is largely considered to be a Mexican problem  with only spillover effects on the United States.  However, Calderón correctly notes that most of the weapons captured from Mexican cartel soldiers have been produced in and smuggled from the United States.

On the gun question, Mr. Calderón said: “We have seized 75,000 guns and assault weapons in Mexico in the past three years, and more than 80 percent of those we have been able to trace came from the United States.”

He said it did not seem coincidental that violence in Mexico had begun to grow in 2006, not long after the weapons ban expired in the United States. Drug-related killings are estimated to have approached 23,000 since Mr. Calderón began a war on trafficking that year.

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D.C. District Court Denies Esmail Habeas Petition

Tuesday, May 18th, 2010

In a May 4th opinion in Abdah v. Obama (available here), D.C. District Court Judge Kennedy denied Yemeni citizen Yasein Khasem Mohammad Esmail relief on his Habeas petition.  Esmail was captured in Afghanistan in 2001 and has been held at GTMO since May 2002.

Judge Kennedy made several legal conclusions before delving into the facts of the case.  Notably, Kennedy wrote that the government could detain those people proved “by a preponderance of the evidence” to be lawfully detained.  The government is permitted to lawfully detain members of al Qaeda or the Taliban.

Most of the analysis in this case centered on the probative value of various factors in establishing Esmail’s alleged membership in al Qaeda.  The reliability of various forms of evidence and the sufficiency thereof were both discussed in detail.

After the jump, more specifics on the factors that Judge Kennedy found most relevant in assessing Esmail’s status.

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