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Category Archives: Detention: Law of: Other

A Bit More On the Debate About the Extraterritorial Scope of the Torture Convention’s Provisions on Cruelty

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Monday, October 27, 2014 at 7:45 AM

In his piece on Nobel Peace Prize Laureates pressuring the President to disclose information about torture, Charlie Savage explains why some officials in the administration oppose the broad extraterritorial expansion of Article 16 of the CAT: The officials opposed to accepting the cruelty provision as applying abroad insist they do not want to resume abusive . . .
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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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CTA9 Decides Al-Nashiri v. MacDonald

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Friday, December 20, 2013 at 1:56 PM

I’ve only skimmed this unsurprising ruling from the panel, which affirms the district court’s dismissal of the detainee’s suit against the military commissions’ Convening Authority. From its opening: Abd Al Rahim Hussein Al-Nashiri is a noncitizen “enemy combatant” undergoing proceedings before a military commission at the United States Naval Base in Guantanamo Bay, Cuba. The charges . . .
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Relaunch of the GTMO Periodic Review Boards

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Wednesday, October 9, 2013 at 3:11 PM

Just as the great post-2008 wave of GTMO habeas litigation winds down, it appears to be time, at last, to revive the Periodic Review Board system at GTMO. DOD breaks the news here (text reprinted below the fold).  Of course, I wrote something similar back in June, which tells you something about how slow this . . .
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When I’m 64: The Geneva Conventions and the Obama Administration

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Sunday, August 11, 2013 at 11:13 PM

August 12 is the 64th anniversary of the signing of the Geneva Conventions.  As a candidate, Senator Obama was highly critical of the Bush Administration’s non-application of the Geneva Conventions to detained members of al-Qaida and the Taliban.   His Administration came into office pledging to “abide” by the Geneva Conventions, and President Obama himself received . . .
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The Construction of the NDAA in Hedges

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Thursday, July 18, 2013 at 12:11 PM

Judge Lewis Kaplan’s excellent Second Circuit opinion in Hedges yesterday should end the controversy over whether the 2012 NDAA expands or merely codifies the government’s AUMF detention authority—though it almost surely won’t. The key discussion begins on page 33 and represents as lucid and straightforward an account of how to read the detention language of Section 1021 as . . .
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EDVA Grants Motions to Dismiss in Ameur v. Gates

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Thursday, June 27, 2013 at 11:30 AM

Last Thursday, Judge Gerald Bruce Lee of the U.S. District Court for the Eastern District of Virginia granted motions to dismiss the suit of a former Guantánamo detainee in Ameur v. Gates for lack of subject-matter jurisdiction. Mammar Ameur, an Algerian citizen, was captured in Pakistan during a July 2002 raid. He was transferred to U.S. custody and held for three months . . .
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Oral Argument Audio in Hamad and Al-Nashiri Civil Cases

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Wednesday, June 5, 2013 at 10:04 AM

On Monday, the Ninth Circuit heard argument in Hamad v. Gates and Al-Nashiri v. MacDonald, two civil cases involving Guantanamo.  You can find audio recordings of the arguments here and here, respectively. By way of overview, Hamad is a damages action brought by a former detainee against government individuals in their individual capacities, and alleging procedural flaws during Hamad’s Combatant Status Review Tribunal . . .
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The President’s Speech: What About GTMO Detainees Who Cannot be Tried, but also Cannot be Released?

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Thursday, May 23, 2013 at 3:33 PM

In his speech today, President Obama explicitly raised this perennial, maddeningly difficult issue.  But he stopped well short of proposing a solution. Instead he said that “once we commit to a process of closing GTMO, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.” That might . . .
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Motions on Clapper‘s Implications for Standing in the Hedges Second Circuit Appeal

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Saturday, April 6, 2013 at 1:35 PM

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 similar argument last May, before the Court decided Clapper.) Hedges, you will recall, is a challenge to the . . .
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DOD Responds–Cryptically–to CCR Hunger Strike Letter

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Tuesday, April 2, 2013 at 2:48 PM

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 detainee counsel, and that provided by the government.  Hopefully, Judge Hogan’s April 15 hearing in al-Madhwani will help . . .
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The Lingering Elements of Detention in Afghanistan: Non-Afghans and Afghan ESTs

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Monday, March 25, 2013 at 3:48 PM

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 that Afghanistan would not after all employ non-criminal detention for certain cases and might as a . . .
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More from Senate Amici on Oral Argument in Hedges

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Wednesday, January 9, 2013 at 2:23 PM

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.) Interestingly, the Senators’ counsel highlight their clients’ unique institutional position relative to that of the executive . . .
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Readings: Andrew Kent on Ex Parte Quirin

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Friday, January 4, 2013 at 8:48 AM

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 be guest-posting about the article, so the Readings post will be brief, but we wanted . . .
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Senators Ask for Argument Time in Hedges

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Wednesday, December 26, 2012 at 10:34 AM

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 and enact- ment of Section 1021 of the National Defense Authorization Act for Fis- cal Year . . .
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Emergency Motion Denied in Hedges

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Friday, December 14, 2012 at 2:49 PM

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 a permanent injunction entered by the district court—remains in force pending resolution of an appeal by the . . .
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El-Masri Awarded Damages by ECHR

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Thursday, December 13, 2012 at 10:22 AM

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 he was interrogated and abused by the CIA.  The gist of the Strasbourg-based court’s ruling . . .
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Appellees’ Brief Filed in Hedges

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Monday, December 10, 2012 at 7:23 PM

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) and the AUMF are not co-extensive, as the district court concluded.  Decision at 34-35.  The AUMF states: The President . . .
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Two Developments in Hedges

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Thursday, December 6, 2012 at 4:15 PM

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, however, found that these initial filings had violated certain local rules, and thus refused to recognize them.)  . . .
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Iraqi Government Releases Daqduq

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Friday, November 16, 2012 at 12:21 PM

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, his lawyer said. The move is likely to complicate the Obama administration’s efforts to prosecute the militant believed to . . .
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