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Will Military Commissions Survive KSM?

The Washington Post, May 3, 2012 When Khalid Sheik Mohammed and four others are arraigned Saturday in a military commission at Guantanamo Bay on charges of orchestrating the Sept. 11, 2001, attacks, it will be the public’s first glimpse in several years of the 9/11 mastermind. The event holds the promise of long-delayed justice and […]

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Regulating Domestic Drones on a Deadline

Coauthored with John Villasenor. The Washington Post, April 20, 2012. In February, President Obama signed into law a reauthorization of the Federal Aviation Administration (FAA) that requires the agency — on a fairly rapid schedule — to write rules opening U.S. airspace to unmanned aerial vehicles. This puts the FAA at the center of a […]

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How the Next 10 Years of Guantanamo Should Look

The Washington Post, January 11, 2012 In a decade of policy experimentation at Guantanamo, some efforts have succeeded, some have failed tragically and some are still in process. But far more interesting than the past 10 years is what the next 10 will look like. And that subject seems oddly absent from the current conversation.

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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 […]

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Skip the Trials for Terrorists

Co-authored with Jack Goldsmith, The Washington Post, November 19, 2010 The Obama administration’s critics are missing the point on Ahmed Ghailani. Their reaction to his acquittal this week on 284 criminal counts and conviction on only one exaggerates both the vices of civilian courts and the virtues of military commissions. And it elides an important […]

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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 […]

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What Supreme Court Nominee Elena Kagan Should Expect

The Washington Post, May 10, 2010 Elena Kagan, like the three sitting members of the Supreme Court whose nominations immediately preceded her, warrants confirmation in a matter of hours. Like John Roberts, Samuel Alito and Sonia Sotomayor, she is obviously smart, capable and well-qualified, and her views obviously fall within the diverse streams of thought […]

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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 […]

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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 […]

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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, […]

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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 […]

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The Supreme Court Confirmation of Judge Sonia Sotomayor

The Washington Post, May 27, 2009 Only a few years ago, a Supreme Court nominee like Judge Sonia Sotomayor could expect quick, nearly unanimous confirmation. She is, after all, a long-serving appellate court judge who has also served on the district court bench, and she is qualified for the high court in every formal sense. […]

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The Best Judges Obama Can’t Pick

The Washington Post, May 3, 2009 What do Merrick Garland, David Tatel and Jose Cabranes have in common? All are sitting federal court of appeals judges who were nominated by Democratic presidents. All three are deeply admired by their colleagues and are among a small group of the very finest federal judges in the country. […]

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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 […]

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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 […]

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