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Monthly Archives: March 2011

Judge Robertson on Habeas Legislation

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Thursday, March 31, 2011 at 9:50 PM

Former U.S. District Judge James Robertson published this interesting letter to the editor in the Washington Post. Judge Robertson is, to my knowledge, the first member of either the district court or the court of appeals to publicly express comfort with the role the judges have been asked to play in the Guantanamo habeas cases . . .
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Should Mexican Cartels Be Designated as Terrorist Organizations?

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Thursday, March 31, 2011 at 6:38 PM

Rep. Michael McCaul proposes doing just that, in this legislation, with the goal of enabling material support prosecutions under 18 USC 2339B against those who supply guns (or just about anything else) to the six cartels named in the bill (Sinaloa, Gulf, La Familia, Beltran-Leyva, Los Zetas, and Arellano Felix Organization).  Here is the key passage from his . . .
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Sylvester on the US Response to the Recommendations of the UN Human Rights Council

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Thursday, March 31, 2011 at 3:21 PM

I’m very happy to present this very interesting and useful summary produced by Ryan Sylvester, a third-year student at Fordham Law: On March 10, 2011, the U.S. Department of State posted its Response to UN Human Rights Council Working Group Report (U.S. Response) as part of the Universal Periodic Review process.  The original working group . . .
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Senator Rand Paul’s Impish Amendment

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Thursday, March 31, 2011 at 9:18 AM

Senator Rand Paul has attached the following Amendment to S. 493, the SBIR/STTR Reauthorization Act of 2011: It is the sense of the Senate, that “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the . . .
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Does HPSCI’s Chair Claim Authority to Veto Covert Action Programs?

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Wednesday, March 30, 2011 at 11:18 PM

Josh Rogin has an intriguing post up over at the Cable, detailing an interview with HPSCI Chairman Mike Rogers (R-MI) concerning the ongoing debate regarding whether to arm the Libyan rebels.  There is much worth comment here, but I’ll confine myself to the legal issue that Rep. Rogers raised.  Here is the relevant passage: Rogers . . .
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After Uthman: Looking Forward by Looking Back

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Wednesday, March 30, 2011 at 5:36 PM

As Ben mentioned yesterday, the D.C. Circuit’s new Uthman decision signaled a notable clarification in how lower courts should consider evidence in habeas cases: When considering whether a detainee is “part of” Al Qaeda or the Taliban, Judge Kavanaugh wrote, the test courts should apply is a functional one. The court then reversed Judge Kennedy’s . . .
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Two New Supreme Court Habeas Filings

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Wednesday, March 30, 2011 at 10:38 AM

On Monday, counsel for the habeas petitioners Farhi Saeed Bin Mohammed and Omar Khadr replied to the government’s oppositions to their cert. petitions. The Khadr reply is short, and the Mohammed reply even shorter. In fact, the Mohammed reply, which came after the government transferred Mohammed from Guantanamo Bay to Algeria, concedes that the transfer . . .
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Peter Margulies on Uthman

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Wednesday, March 30, 2011 at 7:37 AM

Peter Margulies of Roger Williams University School of Law offers the following brief comment on yesterday’s D.C. Circuit opinion in Uthman, about which I wrote about here: The case is a victory for common sense.  Ironically, we could have had the same result in 2003 or 2004, if the Bush administration hadn’t viewed judicial review . . .
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David Remes Rewrites Genesis

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Wednesday, March 30, 2011 at 7:30 AM

Habeas lawyer David Remes sent me the following the other night from Guantanamo. I am not sure what to say about it, so I pass it on without comment: Being in Guantanamo, visiting clients who understand they’ll spend the rest of their lives here because all three branches of government are arrayed against them, and . . .
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Updated GTMO Habeas Numbers

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Tuesday, March 29, 2011 at 5:26 PM

The recent decisions from the D.C. Circuit (the Mohammed dismissal and Uthman reversal), as well as some activity in the district court, meant an update to the habeas numbers was in order: –       Uighur cases in which detention was deemed or conceded unlawful: 17 –       Petitioners’ district-court wins pending at D.C. Circuit: 3 –       Petitioners’ . . .
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Thoughts on Uthman

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Tuesday, March 29, 2011 at 2:00 PM

The D.C. Circuit continued this morning its broad-based, cross-ideological conspiracy to mess up my schedule. I was returning this morning from a perfectly delightful trip to Saratoga Springs, NY to teach some classes and give a lecture at Skidmore College, and was not planning to do any more blogging today than a short shout-out to . . .
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Tushnet on the Domestic Legality of Intervention in the Libyan Civil War: Does Security Council Authorization Make this Something Other Than “War”?

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Tuesday, March 29, 2011 at 1:33 PM

In a post this morning at Balkinization, Mark Tushnet argues that President Obama need not seek Congressional approval for U.S. participation in the Libyan Civil War because this armed conflict is not a “war” within the meaning of the Declare War clause.  Mark’s argument proceeds in two major steps, which I paraphrase below (my apologies . . .
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D.C. Circuit Reverses Uthman

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Tuesday, March 29, 2011 at 10:54 AM

Today a D.C. Circuit panel of judges Garland, Griffith, and Kavanaugh reversed and remanded, with instructions to deny, Uthman v. Obama (Case No. 10-5235). Uthman is the merits appeal concerning habeas petitioner Uthman Abdul Rahim Mohammed Uthman. The government had appealed Judge Henry Kennedy’s April 2010 decision granting Uthman’s habeas petition. The panel heard oral . . .
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The Libya Intervention as Precedent

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Tuesday, March 29, 2011 at 8:02 AM

President Obama’s speech was a full-throated defense of his deployment of U.S. military force, without congressional authorization, in a situation “when our safety is not threatened, but our interests and our values are.”  The President added that he (not he and Congress, but he) will also “never hesitate to use our military swiftly, decisively, and . . .
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D.C. Circuit Dismisses Mohammed Appeal

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Monday, March 28, 2011 at 4:49 PM

Today the D.C. Circuit granted the government’s motion to dismiss as moot Farhi Saeed Bin Mohammed’s Guantanamo habeas merits appeal. The government had appealed Judge Gladys Kessler’s grant of Mohammed’s habeas petition. However, the government soon requested that the merits appeal be held in abeyance, apparently because it had decided instead to transfer Mohammed to his home . . .
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Harold Koh on the Legality of the Libya Intervention

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Sunday, March 27, 2011 at 1:28 PM

At the American Society of International Law annual meeting yesterday, State Department Legal Advisor Harold Koh gave this statement on the legality of the use of force in Libya.  The international law justification relied straightforwardly on UNSCR 1973.  As for the legality of the intervention under domestic law, Koh explained: The President directed these actions, . . .
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Jonathan Rauch on Comment OR Vote

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Sunday, March 27, 2011 at 1:14 PM

My partner in the Comment OR Vote campaign, Jonathan Rauch, has this column today in The Daily.

Ad-Free Lawfare

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Sunday, March 27, 2011 at 8:25 AM

Back in December, we announced the Lawfare Official Advertising for Charity program, the LOAC Fund as we jokingly named it. The idea was to create a revenue stream through advertising on the blog for two particularly worth causes: the CIA Officers Memorial Foundation and Fisher House. Unfortunately, the program was not a success. The ads generated virtually no . . .
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The FBI’s Miranda Memo: Some Thoughts

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Friday, March 25, 2011 at 3:58 PM

The major significance of the FBI’s Miranda memo, in my view, having now read it, is two-fold. First, it essentially states a policy of exploiting fully the Quarles public safety exception to Miranda in terrorism cases and interprets that exception broadly. Second, it sets up a process for continued unwarned questioning beyond the public safety window in some . . .
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Text of FBI Memorandum on Miranda

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Friday, March 25, 2011 at 12:07 PM

Charlie Savage of the New York Times has posted the text of the FBI’s new guidance on Miranda. I’ll post thoughts after I’ve had a chance to digest it.