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Monthly Archives: February 2011

Should Detention Based on Non-Member Material Support Be Reconceived in Terms of Security Internment?

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Monday, February 21, 2011 at 4:17 PM

As Ben notes below, Steve Vladeck objects to the Circuit’s recent ruling in Hatim insofar as that decision suggests that the Circuit has held that detention may be predicated on provision of material support to an AUMF-covered group, as opposed to predicating it on membership in such a group.  Steve’s argument is that the Circuit’s . . .
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Another GTMO habeas denial…

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Monday, February 21, 2011 at 3:23 PM

* Alsabri v. Obama (D.D.C. Feb. 3, 2011) (GTMO habeas petition denied)  In a 60-page opinion issued earlier this month but released in unclassified form last Friday, Judge Urbina has denied habeas relief to Mashour Abudllah Muqbel Alsabri, a GTMO detainee from Yemen.  Highlights from the opinion: Substantive Scope of Detention Authority – Judge Urbina . . .
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Steve Vladeck on Hatim

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Saturday, February 19, 2011 at 9:18 PM

Steve Vladeck has this very interesting take on last week’s Hatim decision. Put simply, Steve thinks this case is a way bigger deal than we have suggested, for the following reason: Buried in the three-page order, however, is a critically important–and dangerously wrong–holding that will likely prejudice Hatim’s case on remand (and any number of . . .
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Kiyemba III Cert. Reply Brief

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Friday, February 18, 2011 at 3:26 PM

Counsel for the Kiyemba III petitioners, who filed a petition for certiorari with the Supreme Court a few months back, just filed their reply to the government’s opposition brief. Relatedly, one of the attorneys for the Kiyemba III petitioners, Saban Willett, recently gave a speech at the Union Club of Boston.  The full text is . . .
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Detention Event at American, Video Stream

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Friday, February 18, 2011 at 12:08 PM

Today at Washington College of Law at American University, the Program on Law and Government and the National Institute of Military Justice are hosting an event called “The Guantanamo Detainees: What Next?”  The event takes place from 12-2. Jack will be giving the keynote, and Bobby is a panelist. For those interested, here is the . . .
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More Video from the Air & Missile Warfare Symposium, and Drone-Related Issues

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Friday, February 18, 2011 at 10:26 AM

The Texas International Law Journal has now posted the rest of the videos from last week’s symposium on the HPCR Air & Missile Warfare Manual.  The links appear below, along with a brief discussion of issues the HPCR manual raises with respect to the legality of CIA-operated drone strikes. On the role of military manuals . . .
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ACLU Statement on Padilla Decision

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Thursday, February 17, 2011 at 4:51 PM

The ACLU just released the following statement on today’s Padilla decision: In A Blow To The Rule Of Law, Court Dismisses Lawsuit To Hold Former Government Officials Accountable For Torture Of Jose Padilla Torture Crimes Must Not Go Unpunished, Says ACLU FOR IMMEDIATE RELEASE February 17, 2011 CONTACT: Elizabeth Beresford, (212) 549-2666 or 519-7808; media@aclu.org . . .
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Transcript of Padilla Hearing

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Thursday, February 17, 2011 at 4:10 PM

Here is the transcript of the Padilla hearing, which resulted in today’s opinion.

Innovation, Security, and Catastrophe

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Thursday, February 17, 2011 at 3:04 PM

A new essay of mine appears in the Hoover Institution’s publication, Defining Ideas. The essay is adapted from the chapter I wrote in the book “Rules for Growth” published by the Kauffman Task Force on Law, Innovation and Growth. It deals with themes on which I mean to spend a great deal more time in the . . .
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Detention Policy: The Executive Branch is a “They,” Not an “It”

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Thursday, February 17, 2011 at 2:39 PM

As Bobby mentioned, I’m giving a keynote address at noon tomorrow at American University’s Washington College of Law on the question, “The Guantanamo Detainees, What Next?”  In that speech I will try, among other things, to assess the significance of these five statements from senior Obama administration officials in the last two days: CIA Director . . .
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District Court Dismisses Padilla’s Civil Suit Against Various Government Officials

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Thursday, February 17, 2011 at 12:30 PM

A very big win today for a collection of former government officials and military officers, as a district court dismissed all claims against them in a civil suit filed by Jose Padilla and his mother in connection with his former detention as an enemy combatant. In brief, Judge Richard Gergel concluded that (i) no Bivens . . .
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Panetta on Bin Laden and Gitmo

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Wednesday, February 16, 2011 at 3:45 PM

Bet you weren’t expecting CIA Director Leon Panetta to say this: If the U.S. captures top al-Qaida leaders Osama Bin Laden or Ayman al-Zawahiri, they would likely be sent to the Guantanamo Bay military prison, CIA Director Leon Panetta told senators Wednesday. This suggests that, given the choice, President Barack Obama would not try the . . .
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Esmail Oral Argument Summary

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Wednesday, February 16, 2011 at 3:33 PM

Rising before the D.C. Circuit this morning on behalf of Yasein Khasem Mohammad Esmail, Danielle Barbour faces some non-trivial problems. She has bad facts, a hostile panel, a relatively solid-seeming lower-court opinion to attack, a client who–the lower court found–is more likely than not to be part of Al Qaeda, and a clear error standard of . . .
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GTMO Habeas Numbers Update

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Wednesday, February 16, 2011 at 2:52 PM

We haven’t circulated an update on the Guantanamo habeas numbers in a while, and this new set includes updates in several categories, as well as a minor methodological change. Previously we had separate categories for “district-court wins in which the D.C. Circuit dismissed the appeal,” one category for detainee wins and one for government wins.  . . .
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“The Guantanamo Detainees: What Next?” – An Event at American University this Friday

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Wednesday, February 16, 2011 at 2:29 PM

Both Jack and I will be part of a Guantanamo-focused event this Friday at American’s Washington College of Law, from 12 to 2.  Jack delivers the keynote address, and then I’ll appear as a panelist alongside Deborah Pearlstein and Steve Vladeck (with Dan Marcus moderating), with Q&A to follow.  Should be lots of fun, and pretty . . .
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New Brief in Khan, Al Madhwani Public Merits Briefing Complete

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Wednesday, February 16, 2011 at 12:37 PM

Yesterday two new GTMO habeas briefs became publicly available. The first is the appellant’s opening brief in Khan v. Obama (No. 10-5306). In this case, petitioner Shawali Khan appeals Judge John Bates’s September 2010 decision denying his habeas petition. Khan argues that the government’s evidence was insufficient to prove by a preponderance of the evidence . . .
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Al Maqaleh Update

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Tuesday, February 15, 2011 at 5:29 PM

As Josh Gerstein reports over at Politico, U.S. District Judge John D. Bates today granted the Al Maqaleh petitioners’ motion for leave to file amended habeas petitions.  Al Maqaleh concerns the habeas petitions of detainees held at the Bagram Theater Internment Facility in Afghanistan. In April 2009, Judge Bates denied a government motion to dismiss . . .
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Hank Crumpton’s Keynote Address at the Texas International Law Journal’s Symposium on Air & Missile Warfare

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Tuesday, February 15, 2011 at 12:34 PM

As noted below, Ambassador Hank Crumpton gave the keynote address at last week’s symposium on air & missile warfare sponsored by the Texas International Law Journal.  His speech was terrific, and the Q&A was uncommonly interesting. The most interesting passage, as I noted yesterday, occurs when Mike Lewis asks Ambassador Crumpton about CIA compliance with IHL . . .
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D.C. Circuit Vacates and Remands Hatim v. Gates

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Tuesday, February 15, 2011 at 10:30 AM

The D.C. Circuit just issued its very brief decision to vacate and remand Hatim v. Gates (No. 10-5048). Text follows: PER CURIAM: Saeed Mohammed Saleh Hatim, a Yemeni national, is a prisoner at the Guantanamo Bay Naval Base. The district court granted Hatim’s petition for a writ of habeas corpus in December 2009. Hatim v. Obama, . . .
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Esmail Oral Argument Preview

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Tuesday, February 15, 2011 at 10:18 AM

Another day, another D.C. Circuit argument preview coming a Yemeni detainee at Guantanamo Bay. This time, it’s Yasein Khasem Mohammad Esmail, whose detention Judge Henry Kennedy approved last April. Esmail has a got a tough road ahead of him at the D.C. Circuit, I suspect–and would have one even if he weren’t facing a bad . . .
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