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Executive & Military

Harold Koh on the International and Domestic Legal Options for Containing ISIL

Just Security’s Harold Koh has a must-read piece in Politico, analyzing the legal and policy choices for the President to confront ISIL. Harold stakes out several important positions including:

On Article II authority:

“President Obama can hardly extend a conflict with ISIL to Syria based on claims of inherent constitutional authority, when he rightly criticized the Bush administration for pursuing a ‘Global War on Terror’ based on similar sweeping claims.”

On the need for the President to go to Congress for a new AUMF:

“To secure a domestic legal ground for action, the administration should engage with Congress to develop an ISIL-specific AUMF.”

On the purpose of the military mission (containment):

“We should ‘re-contain’ ISIL by using military force to stop it from metastasizing and ‘shrink ISIL back into ISIS’ as a smaller, less ambitious non-state actor that limits its aspirations and activities to Syrian territory.”

Harold also analyzes the international legal basis for different missions, the scope of existing AUMFs, the conditions that Congress should place on the ISIL-specific AUMF, and more.…   continue »

International Law on Airstrikes against ISIS in Syria

The administration is actively considering the option of using military force against ISIS in Syria. As the New York Times editorial board states today: “The United States, however, has not been invited into Syria, and the Obama administration has not articulated a legal justification for crossing the border.”

So what might be the justification under international law?…   continue »

Australia’s collateral damage in the US drone program

In the last few years there has been a hotly contested global debate about the civilian impact of the U.S. drone strike program and its moral and legal justifications. Despite being geographically part of Asia (where the majority of drone strikes took place) and politically aligned with the west (states responsible for the strikes), until now the global debate went largely unnoticed in Australia.…   continue »

The National Security Implications of Pakistan’s Latest Political Crisis

Once again, Pakistan is suffering from a self-induced political crisis. For days, street protests led by opposition politicians Imran Khan and Tahir-ul-Qadri have paralyzed Islamabad and threatened the government of Prime Minister Nawaz Sharif. Layers of intrigue surround Pakistan’s domestic political soap opera, keeping Pakistan’s cable news anchors hyperventilating and its twittersphere on overdrive.…   continue »

Hope for Yemeni Detainees?

Over at Politico, Josh Gerstein reports that the Obama administration has broken its self-imposed suspension of transfers to Yemen and sent two long-term detainees from U.S. military custody in Afghanistan to Yemen earlier this week. This is welcome news.

The two men returned to Yemen reportedly have been held in U.S.…   continue »

The Administration’s Theory for How the 2001 AUMF Could Apply to ISIS

Senator Tim Kaine, in a statement on Monday, marked out the position that expanded military operations against ISIS are not covered by Congress’s 2001 authorization for use of military force (AUMF). Sen. Kaine then stated that he is “encouraged by reports that indicate Administration officials have signaled that seeking Congressional authorization for U.S.…   continue »

Does the Administration consider the War Powers Resolution applicable in Iraq?

Some might think a recent report in the Washington Post provides significant information on the administration’s views on the applicability of the War Powers Resolution (WPR) to Iraq—but I don’t think so. A key legal question is whether the WPR applies to ongoing military operations against ISIS such that the President will have to obtain affirmative congressional authorization after the WPR 60-day clock expires.…   continue »

Cert. petition in Ali accepts Justice Breyer’s invitation

As I posted back in April, Justice Breyer issued a statement respecting denial of certiorari in the case of Hussain v. Obama in which he more or less invited Guantánamo habeas petitioners to raise two questions that the Court had not yet considered:

The Court has not directly addressed whether the AUMF authorizes, and the Constitution permits, detention on the basis that an individual was part of al Qaeda, or part of the Taliban, but was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture. 

  continue »

Fast and Furious: Mixed Ruling in Oversight Committee v. Holder

This week, Judge Amy Berman Jackson issued an important opinion in Oversight Committee v. Holder, ongoing litigation in federal court in the District of Columbia. After the House of Representatives held Attorney General Holder in contempt, it brought this civil action seeking judicial enforcement of congressional subpoenas issued in the investigation of problematic gun trafficking investigations along the southwest border (commonly referred to as Operation Fast and Furious).…   continue »