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Executive & Military

The President’s NDAA signing statement re: GTMO and anti-torture provisions

The President today signed into law into law S. 1356, the National Defense Authorization Act for Fiscal Year 2016.

The good news is that Section 1045 of the NDAA in effect codifies two of the provisions of the President’s Executive Order 13491, “Ensuring Lawful Interrogations.”

Subsection 1045(a) provides that any individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the Army Field Manual 2–22.3.…   continue »

Liberté, Égalité, Fraternité … Sécurité

Within a few hours of the terrorist attacks on Paris which left 130 dead and some 350 injured, President François Hollande declared a nationwide state of emergency in accordance with Public Law 55-385. As we noted previously, this declaration marked only the second time that a nationwide state of emergency was declared in France since the end of World War II.…   continue »

Power Wars Symposium: A Study in Contrasting Views of Executive Authority

Editor’s Note: This is the latest entry in a symposium Just Security is hosting in conjunction with the recent release of Power Wars: Inside Obama’s Post-9/11 Presidency by Charlie Savage. The series includes posts by Oona Hathaway, Marty Lederman (here and here), Laura DonohueJennifer DaskalJennifer Daskal & Steve VladeckRichard Pildes, David Golove, and Bob Bauer.  continue »

The Government Should Stop Rewarding Bad Policies for Police Body Cameras

Body cameras have major potential to increase police accountability. However, without informed policies governing their use, they might not only fail in this goal, they could actually increase street-level surveillance and the targeting of minorities. Cameras may be intended to better review police conduct but these cameras aren’t pointed at officers — they’re recording the community around them.…   continue »

Still Secret: Second Circuit Keeps More Drone Memos From the Public

Secret law has been anathema to our democracy since its Founding, but a federal appeals court just gave us more of it.

Almost two centuries ago, James Madison wrote that “[a] popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.” The members of Congress surely had Madison’s wisdom in mind when they enacted the Freedom of Information Act — a statute that, in the Supreme Court’s words, “represents a strong congressional aversion to secret agency law.” And it seems likely that, on his first day in office, President Obama was thinking of both Madison and the FOIA-enacting Congress when he issued a presidential directive signaling a new beginning for open government that linked transparency, and FOIA in particular, to “the idea that accountability is in the interest of the Government and the citizenry alike.”

We might forgive the citizenry’s confusion, though, in attempting to square those principles with the decision by the Second Circuit Court of Appeals, published yesterday, holding that the government may continue to keep secret nine legal memoranda by the Justice Department’s Office of Legal Counsel analyzing the legality of targeted killings carried out by the US government.…   continue »

Cross-Border Data Requests: A Proposed Framework

Editor’s note: This post also appears on Lawfare.

We’ve both written and spoken extensively (for example, here, here, here, here, and here) about issues related to cross-border data requests. At this point, it seems that the contours of the problem are well established, and our goal here is to try and flesh out a principled framework for moving forward.…   continue »

Connecting Past and Present: Assessing French Emergency Powers in Historical Perspective

Editor’s note: Some parts of this post first appeared in the book Law in Times of Crisis.

Reflecting on the horrific events of Friday, November 13, in Paris and the French governmental turn to emergency powers, it bears reminding that the resort to a state of emergency in a situation of crisis is not new.…   continue »