General Counsel and Senior Editor @lawfare. Fellow @BrookingsInst and @ColumbiaLaw. Co-host @RatlSecurity. Former @StateDept / @USEmbBaghdad lawyer.
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Jun 29, 2023 • 17 tweets • 6 min read
Just after the MAL indictment, I wrote about the additional charges—against Trump and others, in FL and elsewhere—it hinted might be coming in the classified documents investigation.
Now we're seeing signs that may happen even sooner than I thought...
lawfaremedia.org/article/shoes-…
As I lay out, the indictment hints at add'l possible criminal conduct: (1) in D.C., relating to removing the docs; (2) in FL, at Mar-a-Lago; and (3) in NJ, at Trump's Bedminster golf club.
This is in addition to the (4) 2020 election and (5) related fundraising investigations.
Mar 24, 2023 • 15 tweets • 7 min read
This was almost certainly done pursuant to Biden’s Art. II constitutional authority, like the three prior similar strikes he’s pursued since coming into office.
But this highlights a weird way constitutional authority and the 2001 and 2002 AUMFs interact in this space…
I don’t feel like people are grasping how strange it is for the D.C. Circuit to have moved at lightning speed on this.
Or what I think it might mean: that DOJ thinks there is still classified information in the wild and Corcoran can lead them to it.
nytimes.com/2023/03/22/us/…
An overnight briefing schedule like we appear to have seen here is almost unheard of. Assuming it was at DOJ’s request, they would have to show pretty extenuating circumstances—especially in a case involving as sensitive an issue as crime-fraud in relation to a former president.
Feb 21, 2022 • 23 tweets • 4 min read
This move by Putin uses international recognition to build a (weak and pretextual) legal case for military action in Donetsk and Lugansk, and possibly against the rest of Ukraine.
But how could recognition help do this? Let's unpack what's happening...
nytimes.com/live/2022/02/2…
Recognition is a type of international legal act in which the government of one state recognizes another entity as a state within certain territorial boundaries and/or an associated regime as its government.
Feb 21, 2022 • 9 tweets • 3 min read
While I agree with the call for action in this piece from @ezraklein, it unfortunately misunderstands what's happening with Afghanistan's central bank assets and, as a result, gives a flawed prescription.
nytimes.com/2022/02/20/opi…
U.S. victims of terrorism are able to try and attach Afghanistan's central bank assets due to laws put in place by Congress.
Biden could take a stronger stance against these efforts, but it'd be unlikely to change much. The laws are simply out of the executive branch's control.
Feb 11, 2022 • 32 tweets • 7 min read
There is a lot of confusion over what this EO does and doesn't do. It's not as simple as the Biden administration seizing and splitting up the money. But it's being explained badly, including by the White House.
To start, there is about $7 billion of Da Afghanistan Bank ("DAB") state assets in the U.S., much of which seems to be at the N.Y. Federal Reserve Bank.
Those assets have been in an effective holding pattern since August, as it's not clear who can control them.
Jan 20, 2022 • 10 tweets • 3 min read
If I'm reading it right—and I'm not sure I am, as it's confusing as hell—tonight's order in Trump v. Thompson isn't just a win for the Jan. 6 committee in this case, but has big potential implications that should have Trump and his supporters worried.
supremecourt.gov/opinions/21pdf…
The Court writes that, "[b]ecause the [D.C. Circuit] concluded that [Trump]’s claims would have failed even if he were the incumbent, his status as a former President...made no difference" and its discussion of that issue is dicta.
But the rest of the D.C. Cir. opinion controls.
Aug 17, 2021 • 4 tweets • 2 min read
This should not be surprising, nor is it unprecedented.
The Biden administration has had success diplomatically engaging with the Taliban over the Doha Agreement and Kabul airport.
Keeping those lines of communication may be the best way to secure U.S. interests moving forward.
Nor would this move necessarily mean recognizing the Taliban. The U.S. maintained a diplomatic presence in Afghanistan from 1979 until 1989, even though it did not recognize any party as the legitimate government.
My unsolicited two cents: the White House has been too focused on defending the policy logic of withdrawal and not focused enough on empathizing with and accepting responsibility for the human consequences—or laying out a way to minimize them moving forward.
There are strong counterterrorism and strategic cases for withdrawal, which the admin has made ably for months.
But even those who agree with them are now focused on the political and humanitarian consequences of how it was executed, which clearly exceed what was anticipated.
Feb 26, 2021 • 30 tweets • 6 min read
Some observations on the Biden administration's response to recent attacks in Erbil and Baghdad, including last night's airstrike in Syria—all of which reflect a much needed return to a more considered and sustainable Iraq policy. ...
defense.gov/Explore/News/A…
Threats from Iran-backed militias are a deadly reality for U.S. personnel in Iraq, and will be for the foreseeable future.
But how the United States deals with these threats has major ramifications for the bilateral relationship, and other U.S. interests there.
May 31, 2020 • 9 tweets • 3 min read
This is just not legally possible, under any of the existing legal regimes used to designate terrorist groups.
Giuliani hands it to Pompeo early in 2019 during the push for Yovanovitch’s removal.
Pompeo doesn’t know what to do with it (though Yovanovitch is eventually removed) and hands it off to 7th Floor subordinates...
Aug 5, 2019 • 9 tweets • 3 min read
“[T]he administration has made clear that it cannot, under existing congressional authorities, intervene to protect the Kurdish fighters.”
Interesting—because that’s not exactly what the Trump administration has said in the past... washingtonpost.com/national-secur…
In Syria, the U.S. has previously claimed that the AUMF authorizes it to take defensive action on Kurdish allies’ behalf, specifically against the Assad regime and its partners.
This op-ed by Secretary of State Pompeo and the U.S. Ambassador to Israel is complete nonsense, legal and otherwise.
wsj.com/articles/inter…
First, states do not "sign on" to U.N. Security Council Resolutions (UNSCRs). UNSCRs are not treaties. Where binding, their terms apply to all U.N. member states by virtue of the U.N. Charter, regardless of whether they've consented to them specifically.
Mar 12, 2019 • 14 tweets • 3 min read
A "constraint on U.S. policy" in that leaving U.S. diplomats in a deteriorating security situation with a hostile host government was a terrible idea.
Few realize the extent to which foreign embassies rely on host governments. They don't just secure supply, communication, and transportation routes, but generally also provide the bulk of each embassy's outward-facing security (with a few exceptions, like Afghanistan and Iraq).
Mar 7, 2019 • 14 tweets • 4 min read
Reports that Jared Kushner cut the U.S. Embassy out of the loop on his meetings with the Saudi government, even for security reasons, aren't just disturbing—they're also contrary to longstanding federal laws structuring U.S. diplomatic operations . . . thedailybeast.com/embassy-staffe…
Federal law places executive branch employees under what is called "Chief of Mission" (or COM) authority when operating overseas.
This means they have to keep the COM informed of their activities and follow the COM's directives, especially re: security. uscode.house.gov/view.xhtml?req…
Jan 15, 2019 • 4 tweets • 2 min read
Given today’s revelation that President Trump supports withdrawal from NATO, I’m re-upping this @lawfareblog piece.
Long story short, Trump has a lot of unilateral power in this area, but there are things Congress could do to make an exit much harder...
lawfareblog.com/saving-nato
Specifically, Congress could enact legislation that expressly prohibits the president from withdrawing and authorizes litigation on its behalf if he does so.
This should get past the ripeness and standing barriers that have hindered prior legal challenges to treaty withdrawals.
Nov 21, 2018 • 17 tweets • 5 min read
This report from @TaraCopp at @MilitaryTimes that a "cabinet order" has authorized U.S. soldiers on the border to use force is a very big deal—not least because the President is likely making some very extreme legal claims to justify doing so.
The posse comitatus makes it a crime to use the U.S. Army for law enforcement purposes, except where "authorized by the Constitution or Act of Congress." law.cornell.edu/uscode/text/18…
Sep 10, 2018 • 29 tweets • 7 min read
Thanks to @AJEnglish for having me on earlier today to talk about the implications of National Security Advisor John Bolton's remarks regarding the ICC and closure of the PLO office here in Washington, D.C.
Here are some expanded thoughts that I wasn't able to get into on-air...
As a preliminary matter, there is no doubt that this policy is a Bolton original.
He has targeted the ICC for years, and his remarks closely crib a @WSJ op-ed he wrote before entering government—right down to the weird "dead to us" rhetoric.
