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Category Archives: Detention: Law of: D.C. Circuit Development

DC Circuit Temporarily Stays United States’ Appeal in Al-Nashiri, Pending Consideration of Mandamus Petition

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Wednesday, November 12, 2014 at 8:55 PM

The order grants a motion filed by Al-Nashiri, and was handed down today by Circuit Judges Cornelia Pillard and Judith Rogers, over the dissent of Circuit Judge Brett Kavanaugh. It’s gist is temporarily to pause the government’s appeal, to the Court of Military Commission Review (“CMCR”), of the dismissal of some (though not all) of the capital military . . .
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D.C. Circuit Denies En Banc Rehearing in Hatim v. Obama, Counsel-Access Case

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Friday, October 31, 2014 at 7:00 PM

The D.C. Circuit has just issued a per curiam order denying the detainees’ petition for an en banc rehearing in Hatim v. Obama. So ends—for the time being—Saeed Mohammed Saleh Hatim, Abdurrahman al-Shubati and Fadel Hentif’s bid to reinstate District Chief Judge Lamberth’s July 2013 ruling as to the unconstitutionality of the challenged Guantanamo security . . .
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Government Files Response in Hatim v. Obama

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Tuesday, October 14, 2014 at 4:30 PM

Today the government filed a short response to the detainees’ petition for an en banc rehearing in Hatim v. Obama, the Guantanamo counsel-access case. Recall that last month the D.C. Circuit ordered the United States to respond to a joint motion filed by Saeed Mohammed Saleh Hatim, Abdurrahman al-Shubati and Fadel Hentif. The detainees are seeking review of a . . .
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Dhiab Preliminary Injunction Hearing Read-Out, Part Three

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Thursday, October 9, 2014 at 1:38 PM

Today marks our last little dispatch about the preliminary injunction hearing in the case of Abu Wa’El (Jihad) Dhiab, Syrian national, cleared-for-release Guantanamo detainee, and—most relevantly for present purposes—intermittent hunger-striker. Yesterday’s open proceedings can be summarized straightforwardly: in essence, the government concluded its evidence against Dhiab’s motion for a preliminary injunction with respect to certain Guantanamo . . .
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Petitioner Files Reply in Bahlul v. United States

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Tuesday, October 7, 2014 at 4:00 PM

Petitioner Ali al-Bahlul filed his reply brief yesterday in Bahlul v. United States, the D.C. Circuit case that will decide whether a military commission may render a stand-alone conspiracy conviction. In the new filing, petitioner makes a point of rejecting the government’s claim for plain error review before elaborating on the four arguments put forth in his opening brief. The argument . . .
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Judge Kessler’s Videotape Order and the Costs of Crying Wolf

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Saturday, October 4, 2014 at 9:57 AM

The First Amendment question in Judge Kessler’s opinion in support of her Order directing the videotapes of Abu Wa’el Dhiab’s forced feedings to be unsealed (see Jane’s summary) is whether the public’s presumptive right of access is outweighed by the government’s well-specified “compelling interest” in keeping the classified tapes sealed.  The Government claims there are five . . .
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DCCA: USG Must Respond to Detainees’ Petition for En Banc Rehearing in Hatim

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Tuesday, September 23, 2014 at 11:00 AM

Now this is interesting. Last week, detainees Saeed Mohammed Saleh Hatim, Abdurrahman al-Shubati and Fadel Hentif together sought en banc rehearing in Hatim v. Obama, the so-called “counsel access” case. Yesterday, the D.C. Circuit ordered the United States to respond to the detainees’ arguments supporting rehearing—a summary of which can be found here—within 15 days. Stay tuned.

CRS Report on Major Court Rulings Concerning Enemy Combatant Detainees

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Monday, September 22, 2014 at 1:21 PM

The Congressional Research Service has put out a new report entitled “Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings.” The summary reads, in part: This report discusses major judicial opinions concerning suspected enemy combatants detained in the conflict with Al Qaeda and the Taliban. The report addresses all Supreme Court decisions concerning enemy combatants. It . . .
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Detainees File Petition for Rehearing En Banc in Allaithi v. Rumsfeld

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Tuesday, August 26, 2014 at 8:58 AM

Yesterday, plaintiff-appellants in Allaithi v. Rumsfeld filed their petition for a rehearing en banc, two months after the D.C. Circuit affirmed 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 . . .
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Three More Amicus Briefs in Support of Petitioner in Al Bahlul v. United States

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Tuesday, August 19, 2014 at 9:31 AM

Yesterday we flagged two amicus briefs filed on behalf of the petitioner in al-Bahlul v. United States by (1) the National Institute of Military Justice and (2) Professor David Glazier of Loyola Law School. The day saw three more briefs filed on Ali al-Bahlul’s behalf, each presenting different arguments for why the D.C. Circuit should reverse al-Bahlul’s military-commission conviction for conspiracy to commit war crimes. (3) . . .
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Another Amicus Brief Filed in Support of Petitioners in al Bahlul v. United States

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Monday, August 18, 2014 at 7:04 PM

This morning Steve summarized the amicus brief he co-authored on behalf of the National Institute of Military Justice in support of the petitioner in al Bahlul v. United States. Professor David Glazier of Loyola Law School has also just filed an amicus brief in support of petitioner, supplementing historical arguments he initially presented in an earlier . . .
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David Remes on the Counsel Access Case

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Saturday, August 2, 2014 at 6:30 PM

David Remes, an attorney representing Guantanamo detainees–and, in particular, co-counsel for the petitioner in Hatim–writes in with this comment on Friday’s ruling in that case from the D.C. Circuit: The D.C. Circuit’s decision is disappointing, but in a sense it is anticlimactic. The government effectively won the case over a year ago, when the court stayed Judge . . .
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D.C. Circuit Upholds Security Policies in Hatim v. Obama

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Friday, August 1, 2014 at 9:06 PM

Today the D.C. Circuit handed down its decision in the “counsel access” case, upholding the constitutionality of security procedures instituted at Guantanamo in 2012 and 2013. The panel decision, written by Judge Griffith for himself, Chief Judge Garland and Judge Henderson, reverses Chief Judge Royce Lamberth’s July 11, 2013 ruling partially invalidating the procedures on the grounds that . . .
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D.C. Circuit Overturns District Court’s Invalidation of GTMO Procedures in Counsel Access Case

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Friday, August 1, 2014 at 10:21 AM

Here is the panel’s opinion in Hatim v. Obama, which opens: GRIFFITH, Circuit Judge: Guantanamo Bay detainees challenge two new policies they claim place an undue burden on their ability to meet with their lawyers. The district court upheld the detainees’ challenge, but we reverse, concluding that the new policies are reasonable security precautions.

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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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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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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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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Oral Argument Summary: Al Laithi v Rumsfeld

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Saturday, February 22, 2014 at 12:00 PM

The courtroom is nearly full at the DC Circuit Court of Appeals for oral arguments in Al Laithi v. Rumsfeld. It is full mostly with a large number of students—apparently both college and law-school-age students—who fill the four back-most rows. Al Laithi is a bit of a weird case for students to use as an entry point into the Guantanamo discussion: It . . .
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