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Monthly Archives: October 2011

And Another GTMO Habeas Denial: Bostan v. Obama

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Monday, October 31, 2011 at 4:36 PM

Judge Walton has released his unclassified opinion in Karim Bostan (ISN 975) v. Obama, denying Bostan’s habeas petition (the decisions appears to have issued in classified form on October 12th). The government had argued that Boston was part of an al Qaeda “bomb cell” involved in attacks on U.S. forces in Afghanistan in 2002, and . . .
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Today’s Headlines and Commentary

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Monday, October 31, 2011 at 3:59 PM

A whole unruly mess of weekend news to catch up on today. A deadly attack in Kabul, pulled off by the Haqqani network, killed at least 12 Americans this weekend, according to Joshua Partlow and Greg Jaffe at the Washington Post. The Times and the Los Angeles Times also have the story. In other news, the Times says . . .
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Five years ago…

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Monday, October 31, 2011 at 10:27 AM

Five years ago today, in remarks at the London School of Economics, I provided a comprehensive public statement of the U.S. Government’s views of the international legal framework applicable to the U.S. conflict with al Qaida, informed in part by two years of extensive discussions with U.S. allies.  My thinking has evolved on a number . . .
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Argument Recap in Lebron v. Rumsfeld (Padilla’s Bivens Suit)

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Monday, October 31, 2011 at 8:40 AM

Oral arguments in Lebron v. Rumsfeld took place before the Fourth Circuit on Wednesday. The oral argument audio recording is available here, and my argument preview, with background on the case as well as links to the lower court decision and the appellate briefs, is available here. The ACLU’s Benjamin Wizner argued for the petitioner, and Sidley Austin’s Richard . . .
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My Reponse to “Norwegian Shooter”

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Saturday, October 29, 2011 at 10:14 AM

Mark Erickson, who blogs under the most-unfortunate handle Norwegian Shooter, recently published some correspondence with me concerning his claim that the reported OLC memo reflects Lord Acton-style corruption on the part of its authors. Erickson–who, to be fair, he has been calling himself “Norwegian Shooter” since long before events in Oslo made the name horrifying–is . . .
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“I’m all for Leaking When It’s Organized”

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Saturday, October 29, 2011 at 8:55 AM

Speaking of the oddly-named Bmaz–which I was briefly yesterday–he has flagged an incredible snippet of a Politico interview with White House chief of staff Bill Daley on the subject of leaks. For those readers who thought Jack and I (here and here and here and here and elsewhere) were overstating or misstating the matter when we . . .
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Today’s Headlines and Commentary

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Friday, October 28, 2011 at 5:11 PM

Milton J. Valencia and Martin Finucane of  Boston Globe and Laurel J. Sweet of the Boston Herald report on the opening statements in Tarek Mehanna’s trial, which Bobby discusses here and here.  Peter Gelzinis at the Boston Herald has an op-ed on the free speech issue that is dominating the trial. Abu Zubaydah, one of the high-value detainees at Guantanamo . . .
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“…we on the Ninth Circuit now exercise jurisdiction over all the earth…”

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Friday, October 28, 2011 at 2:01 PM

Adding to this year’s judicial cornucopia of Alien Tort Statute decisions on corporate liability, on Tuesday an en banc Ninth Circuit released its long-awaited decision in the even longer-running (eleven years!) Rio Tinto case, ruling that the ATS does not generally preclude claims against corporations (although certain causes of action might not apply to corporations).  Over strong dissents, . . .
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Why Did Al-Hajj Drop His Habeas Petition?

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Friday, October 28, 2011 at 1:20 PM

The estimable, if oddly-named, Bmaz of the Empty Wheel blog asks in a Tweet “Why did al-Hajj withdraw his Habeas petition? Did he just give up like others have?” Short answer: I don’t know at this stage. The joint joint motion for dismissal gives basically no information. And when I asked Al-Hajj’s lawyer, John Chandler, he responded . . .
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Mehanna, Online Incitement as Material Support, and the First Amendment

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Friday, October 28, 2011 at 12:58 PM

I posted a few days ago regarding the Mehanna prosecution, noting that the defense requested a jury instruction on First Amendment issues.  It turns out this was a request for three preliminary instructions.  The 7-page document is posted here.  Instruction 1 would generally caution the jury regarding the right to hold noxious viewpoints, and includes . . .
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Sharqawi Abdu Ali al-Hajj Withdraws Habeas Petition

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Friday, October 28, 2011 at 12:23 PM

Judge Lamberth has granted a joint motion by Sharqawi Abdu ali Al-Hajj (ISN 1457) and the government to dismiss al-Hajj’s habeas petition, without prejudice.  The one-page order is here.  For prior coverage of this case, see here.

Segal and Waxman on the London Conference on Cyberspace

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Friday, October 28, 2011 at 11:07 AM

Next week’s London Conference on Cyberspace will include a closed session on international security. Some maintain that the session “could be an early step to some kind of ‘ultimate cyber arms control.’” But on CNN’s Global Public Square blog, Adam Segal and Matthew Waxman write that “a cybersecurity treaty is a pipe dream.” They argue that the United States “should prepare instead for deep international divides . . .
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The Pandora’s Box Critique of Drones, and Other Concerns

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Friday, October 28, 2011 at 10:48 AM

Yesterday Harper’s ran a piece by Daniel Swift on drones, criticizing the extensive but selective leaking of details about the CIA drone program.  It’s a fair point, resonating with Ken Anderson’s concerns regarding the legitimacy issues that arise with deniable-but-not-truly-covert activity.   I have problems with several of Swift’s other arguments, however. First, the article points . . .
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Al-Madhwani Cert Petition

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Thursday, October 27, 2011 at 9:24 PM

Musa’ab Omar Al-Madhwani, a Guantanamo habeas petitioner, has filed a cert petition seeking review of the DC Circuit opinion affirming his detention. That opinion, in turn, affirmed District Judge Thomas Hogan’s earlier opinion. The petition presents the following questions: Whether the Court of Appeals’ expansive detention standard, approving detention based on peripheral association with others now suspected of being . . .
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(Drones) Out of Africa

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Thursday, October 27, 2011 at 6:07 PM

The Washington Post has a story this afternoon in which the Air Force confirms that it is operating armed Reaper drones out of a particular location in Ethiopia.  It is an interesting contribution to the larger, ongoing story of America’s increasing focus on the Yem-Som theater (I admit that is not as catchy as Af-Pak; perhaps the Horn of Africa theater or . . .
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Another Habeas Denial

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Thursday, October 27, 2011 at 5:43 PM

On October 12th, Judge Walton denied habeas relief to GTMO detainee Abdul Qader Ahmed Hussein (ISN 690), and the 22-page unclassified opinion is now available here. I don’t think the opinion breaks any new legal ground (though footnote 11 does note the “open” question whether the government should be held only to a “some evidence” standard . . .
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Today’s Headlines and Commentary

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Thursday, October 27, 2011 at 4:23 PM

The Associated Press and Dina Temple-Raston of National Public Radio  have the story of Tarek Mehanna’s trial, which began today, and which Bobby discussed here.  Omar Khadr, a Guantanamo Bay detainee, is eligible for repatriation to Canada, reports Paul Koring of the Globe and Mail — but when he will return and under what conditions remains unclear. . . .
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Judge Rejects Extraterritoriality Objection in Terrorism Prosecution

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Thursday, October 27, 2011 at 9:51 AM

One of the interesting things about 18 USC 2339B (the 1996 material support law) and 18 USC 2339D (the prohibition on receipt of military-type training from designated foreign terrorist organizations) is that they extend, in theory, to noncitizens whose conduct occurs entirely outside the United States. Last week, Judge Castel (SDNY) held that the 5th Amendment . . .
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NSA Helps Banks Protect Against Cyber Attacks

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Thursday, October 27, 2011 at 5:16 AM

Reuters has an interesting story about the NSA helping U.S. banks defend against foreign cyber attacks by providing them with “technical expertise.” According to the article, the NSA has already been helping NASDAQ protect against hackers. The government appears to consider the the threat of cyber attack against the nation’s financial infrastructure to be serious enough . . .
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The Mehanna Prosecution and the First Amendment

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Wednesday, October 26, 2011 at 5:28 PM

An important case gets underway tomorrow in Boston: the civilian criminal prosecution of Tarek Mehanna, charged with an array of offenses stemming from allegations that he traveled to Yemen in 2004 in an effort to get training so he could go on to fight against U.S. forces in Iraq, and that he subsequently became involved . . .
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