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Category Archives: Detention: Law of

Hobby Lobby at Guantanamo?

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Monday, July 7, 2014 at 9:39 AM

Have a look at this emergency motion for a temporary restraining order, filed Thursday by attorneys for Guantanamo detainee Imad Hassan. It opens: This motion seeks a temporary restraining order (TRO) prohibiting Respondents from depriving Petitioner of the right to participate in communal prayers during the Islamic holy month of Ramadan, which commenced this year on June 28. . . .
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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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Global (Statutory) Habeas After Aamer

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Wednesday, June 25, 2014 at 4:00 PM

As my co-authors and I put the finishing touches on the 2014-15 Supplement to Aspen Publishers’ National Security Law and Counterterrorism Law casebooks, I had another thought about the potential consequences of the D.C. Circuit’s February 2014 decision in Aamer v. Obama—about which I’ve blogged a fair amount previously. Recall that, in Aamer, the D.C. Circuit held that the Supreme Court’s decision . . .
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The Obviously Unconstitutional Cotton Amendment

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Thursday, June 19, 2014 at 4:30 PM

Among the proposed amendments to the DOD appropriations bill currently under consideration in the House of Representatives is this doozy, courtesy of Arkansas Rep. Tom Cotton: None of the funds appropriated or otherwise made available by this Act may be used to transfer or release any individual detained at United States Naval Station, Guantanamo Bay, . . .
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Allaithi v. Rumsfeld: D.C. Circuit Affirms

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Tuesday, June 10, 2014 at 2:06 PM

A three-judge panel of the D.C. Circuit handed down its decision in Allaithi v. Rumsfeld today, affirming the district court’s ruling that six detainees subjected to prolonged detention and alleged mistreatment at Guantanamo did not sufficiently allege that the officials who authorized and supervised their detention acted outside the scope of their employment. At the outset, Judge Brown (also writing . . .
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The Uncertain Future of Military Detention Authority as “Combat Operations” in Afghanistan End

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Tuesday, May 27, 2014 at 4:23 PM

Scooping his own speech tomorrow at West Point, President Obama today announced his decision on future US force levels in Afghanistan.  Assuming that the winner of the Afghan presidential election will indeed sign the new Bilateral Security Agreement (which both leading candidates have pledged to do), the US will: – reduce its presence to 9800 . . .
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DDC Declines to Reissue TRO in Dhiab Hunger Strike Case, Blasts DoD “Intransigence”

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Friday, May 23, 2014 at 9:11 AM

Earlier in the week, I wondered aloud about the future of a temporary restraining order, entered by Judge Gladys Kessler and temporarily banning the force feeding of Guantanamo detainee Abu Wa’el Dhiab.  The court had called a status conference on Wednesday, and there addressed various discovery issues.  But Judge Kessler pointedly did not say what . . .
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New Trial Date Set for February 2015 in Al-Nashiri

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Thursday, May 22, 2014 at 1:30 PM

This marks the most significant among many dates set by the Second Amended Scheduling Order, in the military commission case of United States v. Al-Nashiri.  The ruling was issued on May 9 (and in response to defense requests), but only recently made its way through Guantanamo’s security morass. It remains to be seen whether this revised schedule will stick. . . .
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Read Out on Today’s GTMO Hunger Strike Hearing

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Wednesday, May 21, 2014 at 3:08 PM

Last week, U.S. District Judge Gladys Kessler entered a temporary restraining order in a habeas case filed by Guantanamo detainee Jihad Dhiab. Among other things, and most interestingly, her ruling temporarily forbade the government from engaging in “any Forcible Cell Extractions of Petitioner for purposes of enteral feeding and any enteral feeding of Petitioner until . . .
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DDC to GTMO: No Force Feeding Detainee Until Hearing

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Friday, May 16, 2014 at 7:44 PM

That’s perhaps the most eye-catching feature of this just-issued preservation order from U.S. District Judge Gladys Kessler. It reads, in pertinent part: On April 18, 2014, Petitioner Mohammed Abu Wa’el (Jihad) Dhiab filed an Application for Preliminary Injunction and an Immediate Order for Disclosure of Protocols Forthwith [Dkt. No. 203]. On May 2, 2014, the Court set a Motion . . .
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USG Filings in Al-Nashiri

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Friday, May 16, 2014 at 1:00 PM

There are two: a cross-motion to hold Al-Nashiri’s habeas case in abeyance, pending resolution of his military commission trial at Guantanamo; and a legal memorandum setting forth the government’s arguments, both in support of its motion and in opposition to Al-Nashiri’s bid to have the habeas court preliminarily enjoin the commission.   You’ll find both here, . . .
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On the Rights of GTMO Detainees Upon Transfer to the United States

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Thursday, May 15, 2014 at 3:05 PM

Back in February, I noted a provision tucked away in last year’s National Defense Authorization Act: Section 1039, which obligated the Administration to study and report back to the House and Senate Judiciary Committees on “the legal rights, if any, for which an individual detained at Guantanamo … if transferred to the United States, may . . .
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Abstention, Balancing the Equities, and Armed Conflict in Al-Nashiri: A Reply to Steve Vladeck and Kevin Jon Heller

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Wednesday, May 7, 2014 at 7:35 AM

There’s much common ground evident in Steve’s reply to my earlier post on the effort of Abd Al-Nashiri, the accused mastermind of the USS Cole bombing, to enjoin his military commission trial.  Steve and I agree that the central question is whether the federal district court should abstain from exercising jurisdiction. Moreover, Steve is clearly right that . . .
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Confusing Jurisdiction, Abstention, and Substance: A Reply to Peter Margulies

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Tuesday, May 6, 2014 at 3:00 PM

It’s clear from his post this morning that my friend Peter Margulies believes that Al-Nashiri’s new habeas challenge to his trial by military commission, which rests on the claim that the United States was not involved in an armed conflict with al Qaeda at the time of his alleged crimes, is without merit. Unfortunately, Peter’s . . .
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Al-Nashiri, the Cole Bombing, and the Start of the Conflict with Al-Qaeda

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Tuesday, May 6, 2014 at 10:00 AM

The habeas challenge to military commissions recently filed by Abd Al Rahim Al-Nashiri is a loser on both procedure and substance.  Al-Nashiri, the alleged mastermind of the 2000 bombing of the USS Cole, argues that a federal court can, and should, enjoin his pending commission trial because the charges against him concern acts that occurred . . .
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Filings from Al-Nashiri’s Habeas Challenge in the D.C. District Court

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Friday, May 2, 2014 at 11:25 AM

You’ve likely heard: Abd al-Rahim al-Nashiri, a Guantanamo detainee facing capital military commission charges, last month mounted a new habeas challenge in the district court for D.C.  A few key documents in that litigation were made available yesterday, including Al-Nashiri’s motion for a preliminary injunction, which aims to stop his military trial pending resolution of . . .
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Today’s Stunner from the Supreme Court

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Monday, April 28, 2014 at 10:45 AM

Denied without comment today, by the United States Supreme Court: the petition for a writ of ceritorari in Hedges v. Obama. 

Marty Lederman on Justice Breyer’s Hussain Opinion

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Sunday, April 27, 2014 at 7:06 AM

Very interesting and thoughtful comments over at Just Security by Marty Lederman on Justice Breyer’s brief opinion in the Hussain cert denial the other day. Marty writes: As Justice Breyer notes . . ., the Supreme Court has never actually opined on whether being a member of Taliban forces, standing alone, is sufficient for AUMF detention.  Justice O’Connor’s controlling . . .
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Cert Denial Comment from Justice Breyer in Hussain

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Monday, April 21, 2014 at 10:28 AM

The Supreme Court this morning denied cert in the Guantanamo habeas case of Hussain v. Obama. A few weeks back, Marty Lederman flagged this case over the Just Security as likely to provoke at least one justice to write a dissenting or concurring statement in connection with the denial of cert. Marty nailed it. Justice Breyer writes . . .
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Marty Lederman on the Hussain Case at the Supreme Court

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Friday, March 28, 2014 at 9:46 AM

Over at Just Security, Marty Lederman has an interesting piece about a Guantanamo case the Supreme Court has relisted three times for consideration at conference. He writes: The Supreme Court has relisted for conference three times a pending Guantánamo habeas petition, Hussain v. Obama, No. 13-638.  The Court will consider the case for the fourth time at its . . .
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