Peter Margulies recently discussed the effect of the Supreme Court’s recent decision in Clapper v. Amnesty International USA denying standing to plaintiffs challenging the NSA’s warrantless wiretapping program on the ongoing litigation in Hedges v. Obama. (Steve made a … Read more »
See this letter from Deputy Assistant Secretary of Defense Lietzau, on behalf of Secretary Hagel…
At bottom, it seems increasingly clear that there are two very different accounts out there about what’s happening on the ground at Guantánamo–that provided by … Read more »
Ben has already noted that the United States and Afghahnistan struck a deal to resume the process of handing over the remnants of U.S. detention operations in Afghanistan–a process that hit a rough patch recently when it began to appear … Read more »
From the Hedges files: attorneys for Senators McCain, Ayotte, and Graham yesterday submitted this reply brief in support of their motion to participate in oral argument before the Second Circuit. (The Hedges plaintiffs had opposed amici’s request to take part.)… Read more »
Andrew Kent (Fordham University School of Law) has posted a new paper to SSRN, “Judicial Review for Enemy Fighters: The Court’s Fateful Turn in Ex Parte Quirin, the Nazi Saboteur Case.” (66 Vanderbilt Law Review 101 (2013).) Professor Kent will … Read more »
Senators John McCain, Lindsey Graham, and Kelly Ayotte—who jointly filed an amicus brief in the Hedges appeal—are asking for argument time in the coming Second Circuit oral argument. They argue:
Senate Amici played a leadership role in the drafting
According to a notation on the Supreme Court’s docket, Justice Ruth Bader Ginsburg has denied the plaintiffs’ motion to vacate the stay entered by the Second Circuit in Hedges v. Obama. Thus the Court of Appeals’ interim order—which blocked … Read more »
The European Court of Human Rights (“ECHR”) today held that Macedonia had violated the rights of Khaled El-Masri. In 2003 El-Masri, a German national, was confused for a similarly-named terrorism suspect, and then, among other things, allegedly taken to Afghanistan—where … Read more »
To the day’s tally of important national security law filings, add this: the appellees’ brief in Hedges v. Obama.
The below comes from the brief’s argument section:
Comparing the text of the two enactments shows that the NDAA §1021(b)(2)
First up: on Monday the Hedges plaintiffs, with the United States’ consent, sought additional time with which to file their response brief. (From the docket, it seems the plaintiffs actually had requested the delay a few days prior; the clerk, … Read more »
So reports ABC News: Ali Mussa Daqduq—background on him here—is now a free man.
A Hezbollah commander wanted by the United States has been released from Iraqi custody and returned to the Lebanese capital on Friday,
Attorneys for Senators John McCain, Lindsey Graham, and Kelly Ayotte—all members of the Senate Committee on Armed Services—have filed an amicus brief in support of the government in Hedges v. Obama. (Background here.)
From the brief’s “Introduction and Summary … Read more »
Briefing is now complete on the government’s motion to stay pending appeal in Hedges v. Obama. (You’ll recall that a circuit judge already stayed the district court’s order temporarily, pending resolution of the government’s stay request. ) The plaintiffs’ … Read more »
Chris Hedges yesterday put out this op-ed about the case bearing his name—in which, as doubtless you know by now, a district judge recently enjoined the enforcement of Section 1021(b)(2) of the NDAA. (The article seems to be superseded by … Read more »
Circuit judge Raymond Lohier has granted the Justice Department’s request for an interim stay of the permanent injunction in Hedges, pending the Second Circuit’s consideration of the government’s motion to stay the injunction throughout its appeal. Judge Lohier’s order … Read more »
More on the government’s ongoing effort to stay the district court’s entry of permanent injunctive relief in Hedges v. Obama: it appears that the government’s initial motion before Judge Forrest was for an “administrative” stay only—that is, the Justice … Read more »
David Remes—who, in addition to representing several Guantanamo detainees, is a member of the plaintiffs’ legal team in Hedges v. Obama—sent in this note yesterday:
The debate on this blog about Judge Forrest’s decision has focused almost entirely on
Raha Wala of Human Rights First writes in with the following response to my comments on Hedges. My thoughts follow his critique and very-cautious defense of Judge Forrest:
Ben’s post on Judge Forrest’s opinion in Hedges I think provided
Well that sure didn’t take long [h/t: emptywheel].
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 »
I received the following email from human rights lawyer David Remes about a filing he and his colleagues just made on Monday on behalf of his Guantanamo client Yasein Khasem Mohammad Esmail. Esmail lost his habeas case, and according to … Read more »
That’s the word from The Miami Herald’s Carol Rosenberg. She also reports that the sworn-but-never-referred military commission charges against Faiz al Kandari, one of two Kuwaitis still held at Guantanamo, were dismissed without prejudice today.
Steve’s post on Garcia and Munaf got me thinking about seepage. Remember this? It is the idea that seemingly fact-bound national security cases can announce rules of more general applicability – ones that could influence other corners of the law. … Read more »
Yesterday’s news out of the Supreme Court may well have obscured another significant detainee-related legal development: As Lyle Denniston has noted over at SCOTUSblog, on Friday, the en banc Ninth Circuit handed down a thoroughly fractured decision in Garcia … Read more »
As both Wells and Ben noted previously, there are renewed signs of interest in the fate of military detention in Afghanistan, in the form of an NPR story by Quil Lawrence and an order that same day from Judge Bates … Read more »
A few reflections on Hedges v. Obama, enjoining at least some aspects of section 1021 of the NDAA:
A Self-Inflicted Wound? Let me begin by saying that I agree with Steve: it does seem from the opinion that … 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 »
Out today, a 68-page opinion from Judge Katherine Forrest of the U.S. District Court for the Southern District of New York, entering a preliminary injunction barring the federal government from enforcing the substantive detention authority codified by the FY2012 NDAA … Read more »
Bobby joined Charlie Savage and Jack Healy in querying here whether the U.S. Government might consider asking the Iraqis to extradite Lebanese national Ali Musa Daqduq to the United States. It is not a no-brainer for the United States to … Read more »
I don’t think today’s Ninth Circuit decision throwing out Jose Padilla’s damages suit against John Yoo is particularly surprising–notwithstanding the typical (albeit utterly and alarmingly inaccurate) trope about the liberal Ninth Circuit. That doesn’t mean that the suit was “baseless” … Read more »
The 9th Circuit Court of Appeals has reversed a district court decision allowing Jose Padilla to sue John Yoo. Writing for a unanimous panel consisting of himself, 9th Circuit Judge N. Randy Smith, and Rebecca R. Pallmeyer, a district judge … Read more »
Yesterday, Jack posed the question of what ever happened to the periodic review process that President Obama had ordered for long-term detention review at Guantanamo Bay. “I have heard little about these reviews since last Spring, and the deadline for … Read more »
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 »
I hope you aren’t too sick of reading about Abd Al-Rahim Hussein Muhammad Abdu Al Nashiri, ’cuz there’s more. No, this isn’t from his military commission case. It’s from his civil case against hizzoner, the Convening Authority, in federal court … Read more »
Note this passage in the coverage by the Times:
The United States will retain custody of non-Afghan prisoners, about 50 mostly Al Qaeda militants from Pakistan, Arab countries and Central Asia, the American officials said. An American military official declined
Does the announcement of a deal between Afghanistan and the United States regarding transfer of the DFIP (Detention Facility in Parwan) to Afghan control (see Ben’s post below) herald a new Afghan position on the acceptability of non-criminal … Read more »
As Jack and Steve have both noted, yesterday the Fourth Circuit issued its opinion in Lebron v. Rumsfeld, the appeal seeking reversal of a district court’s decision denying Jose Padilla declaratory and equitable relief against several current and … Read more »
Jack just flagged the Fourth Circuit’s unanimous 39-page opinion throwing out Lebron v. Rumsfeld–one of the two pending Bivens suits brought by Jose Padilla arising out of his detention (and alleged abuse) as an “enemy combatant.” Although Padilla’s allegations … Read more »
On Thursday, Judge Richard Leon of the U.S. District Court in D.C. issued a little-noticed decision granting dismissal in Al Janko v. Gates. The case is noteworthy, however, because Al Janko–unlike other former detainees who have filed civil suits–“is … Read more »
The 31st Quadrennial Conference of the International Red Cross and Red Crescent closed on Thursday in Geneva with the adoption of a resolution inviting the International Committee of the Red Cross (ICRC) to study whether existing international humanitarian law … Read more »
Last week I noted that al-Nashiri has moved for an order compelling the government to state whether it would remand him to military detention for the duration of hostilities in the event of an acquittal. The government’s response brief is … Read more »
The full Seventh Circuit has granted the government’s motion to rehear en banc Vance v. Rumsfeld, a suit by two U.S. citizens alleging that they were detained and tortured by U.S. forces in Iraq. The date of oral argument … Read more »
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 … Read more »
Yesterday I asked whether there are any historical examples in which (i) a military commission prosecution occurred during an armed conflict rather than afterwards, (ii) the defendant was acquitted, and (iii) the defendant was nonetheless remanded back to military custody … Read more »
The defense in United States v. al-Nashiri (the next military commission proceeding set to come to trial) has moved for an order (see the second entry under al-Nashiri, # AEO11) obliging the government to declare whether it would continue to … Read more »
An interesting story in the Post this weekend draws attention to the fact that about 7,000 detainees currently are held without criminal charge in various locations throughout Libya, and with varying degrees of accountability to the transitional government authorities. The … Read more »
The text of the speech that Jeh Johnson, General Counsel of the Department of Defense, gave at the Heritage Foundation earlier today is available here. We will post the video of the event, including the Q&A, as soon as … Read more »
Yesterday, the Fourth Circuit announced decisions in Al Shimari v. CACI International and Al-Quraishi v. L-3 Services, Inc. Both cases involved tort suits brought by Iraqi civilians against U.S. military contractors alleged to have engaged in detention and interrogation abuses … Read more »
Prof. David Barron kicks off the last panel discussion of the conference, focusing on the Presidency in the Post-9/11 World. He begins by noting that it is not surprising that a serious national security crisis will change the presidency. Second, … Read more »
Friday, May 17, 2013
The Department of Justice’s Inspector General released an interim report on the Department’s handling of “known or suspected” terrorists who have entered the government’s witness protection program. The report found, among other things, that information on some program participants had not been turned over to no-fly list authorities; and, that two such people could not be located—though one… Read more »
