Next Thursday, the Supreme Court will decide whether or not to grant certiorari in United States v. Ali–the case in which the highest court in the military justice system, the Court of Appeals for the Armed Forces (CAAF), unanimously … Read more »
As Raff noted last week, the lawyers for the defendant-appellant in United States v. al-Bahlul–the military commission case in which the D.C. Circuit surprisingly granted rehearing en banc–had moved to “clarify” the scope of such rehearing, including … Read more »
The more I reflect on last week’s drone contretemps–and what effect the efforts of Senator Paul and his followers has had / may still have on U.S. policy–the more I have a profound and distressing sense of déjà vu. After … Read more »
One of the more interesting structural constitutional questions to emerge from the post-9/11 detention litigation has been the previously under-explored relationship between the Constitution’s Suspension and Due Process Clauses–and the extent to which they might do separate work with regard … Read more »
For those who can’t get in to the Supreme Court oral argument in Shelby County v. Holder, and who aren’t otherwise enticed by the Journal of National Security Law & Policy‘s inaugural symposium, “Swimming in the Ocean … Read more »
There’s been a fair amount of buzz over the past few days centered around the idea of a statutory “drone court”–a tribunal modeled after the Foreign Intelligence Surveillance Court (FISC) that would (presumably) provide at least some modicum of due … Read more »
There’s certainly a lot to say about the DOJ white paper on targeted killings, much of which has been said already (and well) by others (see Raff’s “Headlines and Commentary” post for links). At the risk of being unintentionally … Read more »
Under the snazzy headline “Renditions continue under Obama, despite due-process concerns,” today’s Washington Post has a long article on the overseas arrest, detention, and subsequent criminal indictment in New York (civilian) federal court of three “European men with Somali roots.” … Read more »
Back in early November, Ben and I blogged about Fordham Professor Andrew Kent’s provocative new essay, “Do Boumediene Rights Expire?,” which he published in “PENNumbra,” the online companion to the University of Pennsylvania Law Review. … Read more »
Readers probably won’t be surprised that, as Professor Andrew Kent noted at the end of his guest post, I’ve already drafted a longer response to Andrew’s important and provocative new essay, “Do Boumediene Rights Expire?” — which … Read more »
[Update (11:41 a.m. EDT)]: The always reliable Josh Gerstein already had a story up on this late last night over @ Politico, which reports that an “administration official” suggested that “Friday’s filings were made in order to keep open … Read more »
Thanks to an unexpected pair of days off, I’ve finally had the chance to review Judge Bates’s October 19 rulings in Al-Maqaleh v. Gates ["Al-Maqaleh II"] and Hamidullah v. Obama. As readers know, these are the habeas … Read more »
Steve, Ben, Jack, and Bobby have already posted some excellent thoughts on the DC Circuit’s decision in Hamdan II. I agree with many of them. In particular, I think Jack is right to suggest that, wholly … Read more »
Five brief thoughts on yesterday’s Hamdan decision:
First, I am less confident than Steve and Ben that this opinion forecloses conspiracy claims in military commissions. The historical arguments for a conspiracy charge in military commissions under the laws of … Read more »
I largely agree with Steve’s excellent post on the D.C. Circuit’s Hamdan decision today. In particular, and most importantly, I agree that the logic of the opinion strongly indicates that military commissions will likely not be available to try allegations … Read more »
Raff already shared the news re: this morning’s D.C. Circuit decision reversing Salim Hamdan’s military commission conviction for providing material support to terrorism (MST), holding that MST wasn’t a recognized violation of the laws of war prior to 2006 (when … Read more »
Based on the voluminous media and blog coverage of last week’s decision in Hedges v. Obama, in which Judge Forrest permanently enjoined at least part of the detention provision of the FY2012 NDAA [section 1021(b)(2)], one of two things … Read more »
I don’t have a lot to add to Ben’s analysis of Judge Forrest’s decision yesterday in Hedges v. Obama, permanently enjoining section 1021(b)(2) of the FY2012 NDAA (Just to refresh our memories, that section authorizes the detention of “A … Read more »
With a hat tip to Bobby, I wanted to flag that the Fourth Circuit on Friday upheld the conviction of Sean Brehm, a non-citizen convicted under the Military Extraterritorial Jurisdiction Act (MEJA) for an offense committed against another non-citizen on … Read more »
I received the following response from Richard Klingler to my ACSblog post on Monday re: the Al-Aulaqi suit and Bivens, and thought I’d post it in its entirety (below the fold) before replying (also below the fold):
As I noted yesterday, the highest court in the U.S. military justice system—the Article I Court of Appeals for the Armed Forces (“CAAF”), a circuit-level court with mostly discretionary jurisdiction over each of the service branch courts of criminal … Read more »
Ben already posted last week about the new battle a-brewing over the “Memorandum of Understanding” (MOU) that the Department of Justice is apparently requiring counsel in the Guantanamo habeas cases to sign in order to continue meeting with … Read more »
Why have victims of alleged governmental misconduct arising out of post-September 11 counter-terrorism policies met with virtually no success thus far in pursuing damages claims arising out of the government’s claimed abuses? It can’t be the lack of merit to … Read more »
I’ve gotten lots of helpful feedback both on- and offline re: yesterday’s post on Clapper v. Amnesty International, and wanted to write in a bit more detail about (my understanding of) the foreign intelligence surveillance exception to the Fourth … Read more »
In light of the Supreme Court’s grant of certiorari yesterday to review the Second Circuit’s decision in Clapper v. Amnesty International, I thought I’d put together a background post trying to explain why, in my view, Clapper is such … Read more »
I’ve now had more of a chance to read through Judge Forrest’s decision Wednesday in Hedges v. Obama, which (seems to) enter a preliminary injunction against some or all of section 1021 of the FY2012 National Defense Authorization Act. … Read more »
An important story from Ben Weiser at the New York Times, from this morning, describes an interesting new development in the prosecution of Mohamed Ibrahim Ahmed–a case that receives little attention, but is in fact quite important. Ahmed is an … Read more »
Both because of my own biases and because Wells is going to be posting more of a blow-by-blow at some point (on top of his initial reaction, which I basically share), I’ll spare readers from a comprehensive account of … Read more »
Back in March (so, well before John Brennan’s new remarks on the issue), my friend and colleague Mike Lewis from Ohio Northern and I participated in a “teleforum” debate for the Federalist Society on the targeted killings issue, especially as … Read more »
Professor Jonathan Hafetz (Seton Hall) writes in with the following response to my critique of the qualified immunity ruling in Hamad v. Gates. My thoughts in reply appear at the bottom. Jonathan writes:
Bobby makes a number of excellent points
Was it clearly established in 2006-07 that GTMO detainees were entitled to the protections of the Fifth Amendment? A district judge in Washington State thinks so, adding that it was clearly established that these rights were violated in the case … Read more »
Pardon the interruption from the wall-to-wall Nashiri coverage, but before it disappears too far into the past, I wanted to flag United States v. Ali–a case in which the Court of Appeals for the Armed Forces (“CAAF”) heard oral … Read more »
For those interested in the ongoing academic debate over the rationale and implications of the Supreme Court’s decision in Boumediene, I have a new (short) piece in the Iowa Law Review Bulletin responding to Professor Andrew Kent’s November 2011 … Read more »
Ben’s two questions in response to my post yesterday on the D.C. Circuit’s decision in al-Zahrani are both right on the money, but I think they both have answers–and take a shot below the fold.
An interesting ruling from the 9th Circuit yesterday in Ibrahim v. DHS (Judge W. Fletcher, joined by Judge Nelson, dissent by visiting Judge Duffy (the latter appearing by designation)).
Rabinah Ibrahim is a Malaysian professor who obtained her PhD … Read more »
Friday, May 24, 2013
Coverage of President Obama’s speech yesterday is plentiful: Here are Peter Baker of the New York Times, Karen DeYoung and Greg Miller of the Washington Post, and Mark Mazzetti of the Times with an analysis of the key points of the speech. Scott Wilson of the Post also provides a rundown of the speech, and cites Ben. The Associated Press reports on lifting the transfer ban on Yemeni detainees, and Colleen McCain Nelson, Adam Entous, and Julia E. Barnes… Read more »
