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Questions That Should be Asked About Seal Team 6 and the Laws of War

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

On June 6, the New York Times published “The Secret History of SEAL Team 6: Quiet Killings and Blurred Lines,” a piece describing a number of operations in Afghanistan, which, if the Times’ reporting is true, raise serious concerns about the unit’s compliance with the laws of war.…   continue »

The CIA Can’t Keep Its Drone Propaganda Straight

This week, one government intelligence agency, after patiently and methodically tracking a terrorist leader for months through precise electronic surveillance, successfully targeted him for death by drone. Also this week, a government intelligence agency eliminated a terrorist leader through a drone strike without even knowing the leader was present, basing its decision to use lethal force on sophisticated analysis of militants’ patterns of life.…   continue »

What al Bahlul Says, and What It Means

It’s going to take some time to fully work through the lengthy opinions handed down by the D.C. Circuit this morning in al Bahlul v. United States. But at the risk of oversimplifying things, what follows is a quick and dirty take on the holdings and implications of the ruling:

  1. The Bottom Line: Writing for herself and Judge Tatel, Judge Rogers held that (1) the court was required to review Bahlul’s Article III challenge to his military commission prosecution for conspiracy de novo (because it’s a structural challenge to the jurisdiction of a court); and (2) on de novo review, “the Article III exception for law of war military commissions does not extend to the trial of domestic crimes in general, or inchoate conspiracy in particular.” There’s a lot of analysis supporting this conclusion about which I’m sure we’ll have more to say in the days to come, but the gist is relatively simple: There’s no precedent supporting the extension of Article III’s carve-out for military commissions to encompass wholly domestic offenses like the inchoate conspiracy charge at the heart of this case, and the government’s arguments for doing so fail to persuade.
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Three Problems With Judge Brown’s Opinion in Tuaua

On Friday, I promised to write more about the D.C. Circuit’s decision in Tuaua v. United States, in which the three-judge panel (Brown, Silberman, & Sentelle, JJ.) held that individuals born in American Samoa are not entitled to birthright citizenship under the Citizenship Clause of the Fourteenth Amendment (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”).…   continue »

What Did the USA Freedom Act Actually Amend?

There has been a lot of ink spilled here and elsewhere about the USA Freedom Act over the last several weeks. Its privacy protections. Its alterations to the government’s surveillance authority. Its increase in material support for terrorism sentences. But I have two much more basic (and very nerdy) questions to ask: What did the USA Freedom Act actually amend and how will the US Code read once all the dust settles?…   continue »

The apparent end of the “gag orders” for GTMO detainees

Back in February, I explained that the protective orders in two Military Commissions cases had been amended to now permit the defendants and their counsel to speak publicly about their treatment and conditions of confinement in U.S. custody–undoing a longstanding restriction that had been deeply problematic on both policy and legal grounds, and that had contributed substantially to the widespread discrediting of the Commissions process.…   continue »