Archive | Counterterrorism Policy RSS feed for this archive

How Obama Decides Your Fate If He Thinks You’re a Terrorist

Coauthored with Daniel Byman, The Atlantic, January 3, 2013 Over the past two years, the Obama administration has begun to formalize a so-called “disposition matrix” for suspected terrorists abroad: a continuously evolving database that spells out the intelligence on targets and various strategies, including contingencies, for handling them. Although the government has not spelled out […]

Continue Reading →

Two Parties, One Policy

Coauthored with Ritika Singh, Commonweal Magazine, September 14, 2012 Political parties in the United States, like a spatting couple in a bad marriage, have been fighting over the law of counterterrorism for more than a decade. And like the spatting couple, they have developed an almost rote script for their fight. The script has a […]

Continue Reading →

Liberty and Security: Hostile Allies

Hoover Institution, November 10, 2011 “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” —Benjamin Franklin They are perhaps the most famous words ever written about the relationship between liberty and security. They have become iconic. A version of them appears on a plaque in the […]

Continue Reading →

John Brennan’s Remarks on the Obama Administration’s Policy on Combating Terrorism

Brookings Institution, September 26, 2011 On September 16, 2011, President Obama’s chief counterterrorism advisor, John O. Brennan, told conferees in a keynote address at the Harvard Law School-Brookings conference (part of the new Harvard Law School-Brookings Project on Law and Security) that the United States must not let down its guard in fighting terrorist organizations […]

Continue Reading →

Assessing the Risk of Guantánamo Detainees

Brookings Institution, April 25, 2011 The press has discovered that it is shocked that America is releasing dangerous people from Guantánamo Bay. The New York Times reports, based on a new cache of Wikileaks documents, that Guantánamo detainees classified as low risk had turned out to be major terrorists, and that detainees classified as “high […]

Continue Reading →

Can President Obama and Congressional Republicans Reach a Deal on Guantánamo?

Brookings Institution, March 10, 2011 Is there a deal to be done between President Obama and congressional Republicans on Guantánamo? On the surface, the prospects don’t look good. Congress has slapped a series of impediments on detainee transfers from the base. In issuing his Executive Order to create a review process for Guantánamo detainees this […]

Continue Reading →

Time for Obama to Embrace Guantanamo

Brookings Institution, January 21, 2011 It is now two years since Barack Obama promised to close the detention facility at Guantanamo Bay within one year. It is one year since he missed his self-imposed deadline. And as he has no prospect of fulfilling his promise, it is almost certainly one year before he faces his […]

Continue Reading →

No Place to Write Detention Policy

Co-authored with Jack Goldsmith, The Washington Post, December 22, 2009 Since U.S. forces started taking alleged terrorists to Guantanamo Bay, Cuba, the task of crafting American detention policy has migrated decisively from the executive branch to federal judges. These judges, not experts in terrorism or national security and not politically accountable to the electorate, inherited […]

Continue Reading →

President Obama Needs More Legal Tactics Against Terrorists

The Washington Post, May 14, 2010 It is a pincer action against the presidency — a bipartisan, cross-ideological effort to make it as difficult as possible to handle domestic national security emergencies. In an unfolding terrorism crisis, the political class attacks whatever means any administration uses to neutralize a major terrorist suspect. If the president plays […]

Continue Reading →

Presumed Innocent? Representing Guantánamo Detainees

The New Republic, March 24, 2010 The attacks on the Justice Department lawyers who had represented Guantanamo detainees angered me for several distinct reasons. They typified a growing culture of incivility in the politics of national security and law that I have always loathed and have spoken against repeatedly. They sought to delegitimize the legal […]

Continue Reading →

Khalid Sheikh Mohammed’s Dispensable Trial

Co-authored with Jack Goldsmith, The Washington Post, March 19, 2010 The Obama administration and its critics are locked in a standoff over whether to try Khalid Sheikh Mohammed and the other alleged Sept. 11 conspirators in a military commission or in federal court. Both sides are busily ignoring the obvious solution: Don’t bother trying them […]

Continue Reading →

The Courts’ Shifting Rules on Guantánamo Detainees

Co-authored with Robert M. Chesney, The Washington Post, February 5, 2010 One judge rules that a detainee’s statements to his military review tribunal are tainted by past coercion — and orders him released. Within days, another judge rules that a detainee’s statements to the same sort of tribunal are not tainted, despite similar abuse — and affirms […]

Continue Reading →

The Scouting Report Web Chat: President Obama’s Progress on Closing Guantánamo

Brookings Institution, December 2, 2009 The decision to try accused 9/11 mastermind Khalid Sheikh Mohammed and his co-conspirators in New York has brought renewed attention to the thorny problem of how to deal with the detainees at Guantánamo Bay. The announcement followed the Obama administration’s admission that it will not meet its self-imposed January 22, […]

Continue Reading →

President Obama’s Decision on Closing Guantánamo

The Washington Post, September 29, 2009 President Obama’s decision not to go to Congress for help in establishing reasonable standards for the continued detention of Guantanamo detainees is a failure of leadership in the project of putting American law on a sound basis for a long-term confrontation with terrorism. It is bad for the country, […]

Continue Reading →

United States Detention Policy: Will Obama Follow Bush or FDR?

Co-authored with Jack Goldsmith, The Washington Post, June 29, 2009 Soon after the Sept. 11, 2001, attacks, the Bush administration faced a fateful choice about terrorist detainees: Should it get Congress on board, or go it alone? President George W. Bush bypassed the legislature and for seven years based U.S. detention policy on his own […]

Continue Reading →

Nuts and Deadbolts: A Blueprint for the Closure of Guantanamo Bay

Co-authored with Jack Goldsmith, Slate, December 8, 2008 President-elect Barack Obama has made clear that he will close the Guantanamo Bay detention center. Notwithstanding the news this morning that Khalid Sheik Mohammed and four others want to confess their guilt in the 9/11 plots, closing the Cuban detention center is easier said than done. Closing […]

Continue Reading →

Wrenching Choices on Guantanamo

The Washington Post, November 21, 2008 Secretary of Defense Robert Gates came into office wanting to close the American detention operation at Guantanamo Bay, Cuba. Nearly two years later, Guantanamo is still there. Secretary of State Condoleezza Rice has said she wants to close it. Guantanamo will outlast her. Yet, to watch the post-election Democratic […]

Continue Reading →

One Side Only

Policy Review – Hoover Institution, October 1, 2008 Jane Mayer begins her new bestseller with a subtitle that, even before the book’s opening page, warrants a moment’s reflection: On The Dark Side’s cover appear the words: “The Inside Story of How the War on Terror Turned into a War on American Ideals.” Mayer’s subtitle pulls one […]

Continue Reading →

Seven Years Later: Complacency

The New Republic, September 11, 2008 America has grown complacent, and how could it have done otherwise? For years, we have not felt the war our government insists remains a reality. We keenly feel two related wars, the ones in Iraq and Afghanistan. And the war on terror has certainly persisted as a legal reality, and in some sense also as a civic reality. […]

Continue Reading →

How Do We Bring Osama Bin Laden to Justice? America is Clueless

NY Daily News, July 5, 2008 News flash: Osama Bin Laden and his deputy Ayman al-Zawahiri are captured in Pakistani tribal areas and turned over to American custody. What would happen next? Celebratory news stories, cries of a major victory in the war on terrorism – and total confusion. This is the shameful truth: Six […]

Continue Reading →

Congress’s Guantanamo Burden

The Washington Post, June 13, 2008 The key words in Justice Anthony M. Kennedy’s Guantanamo opinion do not involve the history of habeas corpus, the territorial status of Guantanamo Bay or the accountability of the executive branch to the rule of law. They appear on the opinion’s penultimate page and are unlikely to attract much […]

Continue Reading →

John Yoo Interrogation Memo

The New Republic, April 8, 2008 The disclosure of the former Bush administration lawyer John Yoo’s “torture memo” this week was, in most senses, an exercise less in news than in archaeology. The public has long known the memo existed. And it has also known, in broad strokes, what it says: that military interrogators aren’t […]

Continue Reading →

Detention Retention: Are Guantanamo Detainees All Innocent?

The New Republic, December 7, 2007 Seth Waxman, arguing on behalf of 37 detainees at Guantanamo Bay, Cuba, told the Supreme Court Wednesday that each of these men “maintains, as this Court explained [in an earlier case] that he is quote ‘innocent of all wrongdoing.’” Waxman, a former solicitor general, is the kind of oral […]

Continue Reading →

The Democrats and Bush Don’t Really Disagree Much on FISA

The New Republic, October 15, 2007 For all the fire-breathing rhetoric we can expect to hear about modernization of the Foreign Intelligence Surveillance Act in the coming months, last week’s introduction by House Democrats of their bill on the subject makes one thing abundantly clear: The Democrats and the Bush administration aren’t very far apart.

Continue Reading →

José Padilla: Would-Be Terrorist or White House Victim?

The New Republic, March 6, 2007 “We will probably never know if [José] Padilla was a would-be terrorist,” editorialized The New York Times last week. His “trial has been a reminder of how Mr. Bush’s policy on prisoners has compromised the judicial process. And it has confirmed the world’s suspicions of the United States’ stooping […]

Continue Reading →

The Courts Can’t Fix Guantanamo

The New Republic, February 22, 2007 Amnesty International calls it “shocking” and insists it “must be challenged.” Human Rights First complains that it “runs counter to one of the most important checks on unbridled executive power enshrined in the U.S. Constitution: the right to challenge imprisonment in a full and fair proceeding.” So, at the […]

Continue Reading →

Whose Court Is It Really?

The Atlantic Magazine, January/February 2006 What are the early indications of what the Roberts Court will be like? It’s not the Roberts Court—at least not yet. It’s still the Stevens Court. Excuse me? For a few weeks this past summer, between the death of Chief Justice William H. Rehnquist and the confirmation of John G. […]

Continue Reading →

Leaks and the Law

The Atlantic Magazine, December 2004 Who is Patrick J. Fitzgerald, and why is the press so upset with him? Patrick J. Fitzgerald is the United States attorney for the Northern District of Illinois, based in Chicago. He was widely regarded as an excellent prosecutor and a fine man. Late last year, however, Deputy Attorney General […]

Continue Reading →