The Week That Was: All of Lawfare in One Post

Bobby discussed the recent White House decision to deploy special operations forces to Syria and asked how the decision fits into the larger discussion surrounding the evolving U.S. combat roles abroad.

As questions have surfaced concerning the U.S. combat role in Iraq following the joint U.S.-Kurdish operation which left one American serviceman dead, Bobby also considered the role of U.S. ground forces is in fight against the Islamic State. Considering Defense Secretary Ashton Carter’s comments following the incident, he concluded that the “U.S. ground forces do have something akin to a direct ground combat role” and ability to use force in assistance to Iraqi and Kurdish allies in combat situations and in specific solo-raids. He considered whether there will be “an increased operational tempo of raids that emphasize Kurdish (or Iraqi) personnel but also feature not just U.S. air support but also U.S. personnel directly engaged in the fighting under color of the self-defense rationale.”

Dustin Lewis, Naz Modirzadeh, and Gabriella Blum considered the series of hospitals that have been bombed in Afghanistan, Syria, and Yemen in recent days. They argue that the international humanitarian law that has protected medical staff and facilities since 1864 should not be abandoned simply due to states’ changing perception of what qualifies as impermissible support to terrorists.

In light of Charlie Savage’s article in the New York Times which sheds light on the deliberations and legal memos leading up to the raid on Osama bin Laden’s compound in Pakistan, Jack explored the decline of Office of Legal Counsel and considered some reasons why neither the Attorney General nor the OLC were consulted on the raid.

With more than 500,000 refugees recently entering Europe, Daniel Byman asked whether Syrian refugees pose a potential terrorism threat in this week's Foreign Policy Essay. He argues that “concerns about terrorism and the refugees are legitimate, but the fears being voiced are usually exaggerated and the concerns raised often the wrong ones,” suggesting that the risk of radicalization would increase if refugees were not integrated into their host communities.

Ryan Scoville asked how American courts ascertain customary international law. Despite the established doctrine "that custom arises from general and consistent state practice that is backed by a sense of legal obligation," he argues that federal courts do not appear to follow the doctrine and have instead “focused overwhelmingly on the United States and, to a lesser degree, other parts of the West.”

Coverage of the 9/11 military commission trial continued as Zack Bluestone summarized the Sunday session in which only one defendant was present, prompting the judge to consider whether the other detainees had waived their right to be present. Among other issues discussed, the hearing focused on "potential conflict of interest for the defense teams based on a government investigation of their conduct related to communications with a foreign national.” Yishai Schwartz covered the 10/26 motions in which the question of conflict is discussed. Francesca Procaccini discussed the 10/28 proceedings which largely focused on Walid Bin Attash’s right to replace his counsel and pro se representation.

Reflecting on Shaker Aamer’s release from Guantanamo Bay, Ben speculated that Aamer was, in fact, “part of enemy forces and lawfully subject to detention” and that his release was precipitated by the desire of a U.S. ally which prompted “compelling diplomatic reasons to resolve his case without holding him longer than is strictly necessary.” Quinta shared the press statements on Aamer’s release and that of another Guantanamo detainee.

Responding to arguments in favor of closing Guantanamo Bay’s detention facility, Jack argued that proponents of closing the facility make a weak case for the unconstitutionality of detainee transfer restrictions. Ingrid Wuerth also discussed the “constitutionality of congressional restrictions on the transfer of prisoners,” arguing that the Captures Clause of the Constitution does not give Congress the authority to regulate the treatment of prisoners captured in war.

David Ryan updated us on the ongoing litigation in Dhiab v. Obama, reporting that Judge Gladys Kessler denied the government’s motion to reconsider her order to unseal classified videotapes of force-feeding at Guantanamo Bay as she suggested that “the government had failed to meet the legal standards for granting a motion for reconsideration.” He added that the DOJ will have another opportunity to push for the tapes’ release as it is “virtually certain her ruling will be reviewed by the D.C. Circuit.”

C. Christine Fair reflected on her recent debate with Glenn Greenwald on Al Jazeera and responded to his arguments about the U.S. use of drones. She pointed out what she considered to be several of the discrepancies between Greenwald’s discourse and the realities of the drone program in Pakistan.

David Ryan highlighted the DOJ victory in the D.C. Circuit’s decision in Meshal v. Higgenbotham which held that a plaintiff cannot invoke Bivens for an alleged constitutional violation that occurred during a terrorism investigation abroad. Discussing Meshal’s complaint against federal agents under Bivens was dismissed as his claim “involved a criminal terrorism investigation that implicated national security concerns” and “would require the extraterritorial application of the U.S. Constitution’s protections.”

Nicholas Weaver shared the second edition of the Nusra Front’s “purported English-language magazine,” which features “some spectacularly bad computer security advice provided by the ‘Global Islamic Media Front.’” Despite the questionable advice, he argues that the it “shows the difficulties faced by those attempting to evade the full attention of the modern surveillance state.”

Aaron Zelin posted the latest Jihadology Podcast, which featured Mokhtar Awad. The two discussed jihadism in Egypt, the rise of jihadism in the Sinai before the uprising in 2011, the activities of jihadis between 2011 and 2013, and the Jama’at Ansar Bayt al-Maqdis among other topics.