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Category Archives: Constitutional Rights

Status of Various Executive Branch Agencies’ Guidelines Regarding U.S. Person Information

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Thursday, February 19, 2015 at 12:26 PM

From the website of the Privacy and Civil Liberties Oversight Board (PCLOB): this helpful table, which was assembled by the Office of the Director of National Intelligence and released today. It describes the status of various agencies’ Attorney General-approved guidelines for collecting, retaining and disseminating U.S. person information pursuant to Executive Order 12,333. As the table reflects, . . .
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The Meaningful Legal Differences Between Stateside and Guantánamo Detention

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Thursday, February 5, 2015 at 3:30 PM

Gabor’s post from this morning, which is styled as a response to Ben’s thoughtful analysis of what it will take to close Guantánamo (while ignoring some of the other responses), concludes that the only meaningful way to “close” Guantánamo is for President Obama “to either release all detainees or try them in our time-tested federal courts,” at least largely . . .
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al-Nashiri Argument Preview: The CMCR’s Appointments Clause Problem

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Tuesday, February 3, 2015 at 8:17 AM

Next Tuesday, a three-judge panel of the D.C. Circuit (Henderson, Rogers, & Pillard, JJ.) is set to hear oral argument in In re al-Nashiri, the latest in a long-line of pre-trial disputes arising out of the Guantánamo military commission proceedings against Abd Al-Rahim Hussein Muhammed al-Nashiri, who is accused of involvement in two terrorist attacks . . .
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The French Response to Terror: Counterterrorism Detention and Prosecutions Across the Atlantic

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Wednesday, January 21, 2015 at 12:15 PM

In the aftermath of the Paris terror attacks on Charlie Hebdo and a kosher grocery, Western European security forces unleashed a dizzying storm of arrests and prosecutions and announced “exceptional” new measures to combat terrorism. In the space of just a few days, dozens of suspects were detained in Belgium, France and Germany, many of whom were questioned for days without . . .
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There is Nothing Wrong with Comey Criticizing the NYT

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Friday, January 16, 2015 at 1:30 PM

The U.S. government has effectively granted journalists immunity from prosecution for violating the criminal prohibitions on publication of certain classified information, and it has begun to recognize a norm against forcing journalists to disclose their sources.  As I wrote in Power and Constraint, “Underlying this persistent restraint [by the USG] is a recognition—based in part . . .
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Obstacles Loom for States’ Proposed “Fourth Amendment Protection” Laws

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Wednesday, January 7, 2015 at 9:30 AM

Legislators in several states have proposed bills over the past year intended to hamper the NSA’s efforts to collect signals intelligence.  In Utah, the site of a large NSA data center, a proposed bill would prevent the state, its cities, and its agencies from providing “material support or assistance in any form to any federal . . .
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The D.C. Circuit’s Mandamus Jurisdiction and the Legitimacy of the Military Commissions

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Sunday, December 7, 2014 at 11:10 AM

It now appears that the next military commissions case in which the D.C. Circuit will hear oral argument is that of Abd al-Rahim al-Nashiri (“Nashiri”), with oral argument scheduled before an as-yet unnamed three-judge panel on Tuesday, February 10, 2015. And although the underlying “merits” issue in Nashiri is hyper-narrow (whether two of the three judges set to hear . . .
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On Civil Liberties Groups, Threats and Free Speech (A Further Thought on Elonis)

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Tuesday, December 2, 2014 at 6:56 PM

I might react to the Elonis case a bit less stridently than I did last night had I not recently been involved in a horrid case of online threats directed at someone I know over material she wrote for a website. I’m not going to detail the incident here, since that would risk reigniting the firestorm directed at this . . .
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Threats, Terrorism, and Domestic Violence

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Monday, December 1, 2014 at 11:59 PM

I confess that I don’t have a lot of patience for all of the very serious discussion people seem to be having about the case of Elonis v. U.S., which was argued today in the Supreme Court. The question before the court was whether conviction under a federal law banning interstate communication of threats requires that . . .
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Confusing the Issues in al Bahlul

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Wednesday, October 1, 2014 at 10:11 PM

For the two people still following the exchange between me and Peter Margulies over the bottom-side briefing in the al Bahlul D.C. Circuit military commission appeal, I wanted to offer a very quick (and hopefully final) word in response to Peter’s surreply from this afternoon, in an effort to crystallize the true points of departure between . . .
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Why Article III Matters: A Reply to Peter Margulies on al Bahlul

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Tuesday, September 30, 2014 at 10:23 PM

I must confess that I don’t fully understand Peter Margulies’ response to my post from earlier today. My post argued that the bottom-side briefing in the D.C. Circuit in al Bahlul offers a relatively weak (and, in my view, already debunked) explanation for why Congess can allow allow military commissions to try enemy belligerents for wholly domestic offenses without . . .
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Article III and the Bottom-Side Briefing in al Bahlul

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Tuesday, September 30, 2014 at 12:02 PM

Jane already flagged the merits brief filed by the U.S. government on September 17 in al Bahlul v. United States, the major challenge to the power of the Guantánamo military commissions to try non-international war crimes that was remanded by the en banc D.C. Circuit to the original three-judge panel back in July (and in which oral argument is . . .
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The FBI’s Facial Recognition Program

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Thursday, September 18, 2014 at 8:30 AM

Earlier this week, the FBI announced the completion of its “next generation” facial recognition program.  The system, now “fully operational” will house more than 52 million faces, which (assuming no duplication) is roughly 1 in 6 Americans.  The system is said to be only moderately effective — it will typically return 50 possible matches for . . .
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Article III and the al Bahlul Remand: The New, New NIMJ Amicus Brief

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Monday, August 18, 2014 at 12:59 PM

On July 14, the en banc D.C. Circuit ruled in al Bahlul v. United States that “plain error” review applied to Bahlul’s ex post facto challenge to his military commission convictions for conspiracy, material support, and solicitation–and then upheld the first of those charges under such deferential review (while throwing out the latter two). One of the potentially unintended consequences of the Court . . .
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Pre-Abu Khattala: Yunis, That 1987 Shipboard Terrorist Interrogation Case

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Tuesday, July 1, 2014 at 10:00 AM

Ahmed Abu Khattala is not the first person to be whisked onto a ship in the Middle East by U.S. forces, interrogated aboard, and then dropped in a U.S. court. There are some recent famous cases, of course, but there are also some older ones—one of which, in particular, may have precedential value for the . . .
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SCOTUS: Without a Warrant, Police Generally Cannot Search Digital Information on Arrestees’ Cell Phones

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Wednesday, June 25, 2014 at 11:20 AM

You’ve likely heard the news, made earlier this morning by the opinion in Riley v. California.  

The Bond Case, Statutory Interpretation, and the Executive Branch

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Sunday, June 8, 2014 at 2:58 PM

The Supreme Court had the opportunity in Bond v. United States to tackle constitutional questions about the scope of the Treaty Power and the Necessary & Proper Clause, but the six-justice majority declined that invitation. So, in the end, Bond is a statutory interpretation case. Although lacking the drama of a major constitutional ruling, statutory . . .
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Chief Justice Roberts – [Not yet] The Most important Author of Foreign Relations Opinions in the History of the Supreme Court?

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Monday, May 12, 2014 at 10:47 AM

It seems likely that Chief Justice Roberts will author the much-anticipated opinion in Bond v. United States. This comes as no surprise. The Chief Justice has assigned much opinion-writing in close and/or important foreign relations cases to himself, perhaps consistent with how Chief Justices generally use their assignment power.   In foreign relations cases, this trend . . .
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Oral Argument Summary: Ralls Corporation v. CFIUS

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Thursday, May 8, 2014 at 12:00 PM

The courtroom was nearly full Monday for the DC Circuit Court of Appeals oral arguments in Ralls Corporation vs Committee on Foreign Investments. Ralls is a fascinating case that tests Presidential power at its apex—in actions related to national security and specifically authorized by Congress—against the due process claims and the property interests of foreign . . .
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New Draft Article, “The Fourth Amendment and the Global Internet”

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Thursday, April 24, 2014 at 12:32 PM

I have a new forthcoming article that may be of interest to readers: The Fourth Amendment and the Global Internet, forthcoming in the Stanford Law Review. Here’s the abstract: This article considers how Fourth Amendment law should adapt to the increasingly worldwide nature of Internet surveillance. It focuses on two types of problems not yet . . .
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