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Category Archives: Guantanamo: Litigation: Supreme Court

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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D.C. Circuit Affirms Denial of Preliminary Injunction in Abdullah v. Obama

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Friday, April 4, 2014 at 12:52 PM

The D.C. Circuit has just handed down a 12-page decision in Abdullah v. Obama, affirming the district court’s denial of Abdullah’s motion to enjoin the U.S. government from detaining him. Hani Saleh Rashid Abdullah, a Yemeni national, claimed his detention at Guantanamo violates a 1946 executive agreement between the U.S. and Yemen. He filed for habeas in 2005, and . . .
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Cert Petition Filed in Al Warafi v. Obama

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Friday, December 27, 2013 at 4:00 PM

Shortly before Christmas, counsel for Guantanamo detainee Mukhtar Yahia Naji Al Warafi filed a petition for a writ of certiorari in his habeas petition, having been denied earlier this year an en banc rehearing in the D.C. Circuit. (We’ve covered this case at length—read our coverage here.) Al Warafi had argued that his role was as a . . .
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Cert Denied in Obaydullah

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Wednesday, June 26, 2013 at 9:30 AM

It’s a big week at the Supreme Court, but Guantanamo habeas heads will not want to miss this development: the cert denial in Obaydullah on Monday. Steve wrote about this cert petition here, and coverage of the D.C. Circuit ruling is available here.

Boumediene‘s Fifth Anniversary

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Wednesday, June 12, 2013 at 12:59 AM

Five years ago today, the Supreme Court handed down its 5-4 decision in Boumediene v. Bush, holding that the Constitution’s Suspension Clause “has full effect” at Guantánamo Bay, and that the review scheme provided by the Detainee Treatment Act of 2005 was an inadequate substitute for the judicial review thus required by the Constitution. Boumediene thereby ushered in . . .
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Washington Post on “Imminence” and Cyber-Attacks

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Sunday, March 10, 2013 at 10:46 PM

Controversy surrounding the DoJ White Paper on targeting Americans abroad has generated interest and debate about the meaning of “imminence” in the terrorism context, for purposes of self-defense and other legal doctrines.  Similar debates have abounded in the context of WMD threats, especially after the Bush Administration’s 2002 National Security Strategy document declared: “We must . . .
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The Obaydullah Cert. Petition: One More Shot for the Supreme Court…

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Friday, March 1, 2013 at 5:22 PM

Amidst all the hubbub earlier this week, we neglected to note the filing of a new cert. petition in a Guantánamo habeas case–in Obaydullah v. Obama, filed in the Supreme Court on Tuesday. Our coverage of the D.C. Circuit’s decision in Obaydullah is available here (and Wells noted the developments earlier this week in the related but distinct Rule 60(b) . . .
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The Merits of DOJ’s Supplemental Brief in Al Bahlul

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Thursday, January 10, 2013 at 9:06 AM

Yesterday, we posted the government’s supplemental brief in the Al Bahlul military commission appeal in the D.C. Circuit, the headline of which was the government’s concession that Judge Kavanaugh’s opinion for the Court of Appeals in Hamdan II requires reversal of Bahlul’s conviction, as well. Without question, though, the far more interesting part of the brief is the . . .
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The Government’s Supplemental Brief in Al-Bahlul

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Wednesday, January 9, 2013 at 3:33 PM

…is available here.  In a nutshell: Hamdan II requires reversal of Bahlul’s convictions by military commission of providing material support for terrorism, conspiracy to commit war crimes, and solicitation to commit war crimes. Because the Court is bound by Hamdan II, the government respectfully submits that it would be appropriate for the court to dispense with holding oral argument and proceed . . .
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Amicus Brief in Trinidad y Garcia: The Suspension Clause and Transfer to Torture

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Friday, November 9, 2012 at 2:23 PM

Back in June, I wrote a fairly lengthy post analyzing the ability of detainees in U.S. custody facing extradition or other involuntary transfer to a foreign sovereign to challenge their transfer pursuant to the federal statute implementing the United States’ treaty obligations under the U.N. Convention Against Torture, the Foreign Affairs Reform and Restructuring Act . . .
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Cert Briefing Completed in Suleiman

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Wednesday, September 5, 2012 at 1:28 PM

Remember Suleiman v. Obama?  That’s the habeas case in which the petitioner had claimed, among other things, that he could not be detained because he was merely a Taliban functionary who never took up arms against the United States.  The district court rejected Suleiman’s arguments, as did the court of appeals.  Citing prior decisions, the . . .
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July 17 Constitution Project Event on Boumediene’s Legacy

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Tuesday, July 3, 2012 at 3:13 PM

For those D.C.-area Lawfarers interested in continuing the conversation Ben, Bobby, and I had in June about Boumediene‘s legacy (or lack thereof), the Constitution Project is hosting what promises to be a lively discussion of the topic @ Covington & Burling on Tuesday, July 17, from 12-1:30 p.m. The panel features former D.C. District Judge . . .
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More of Less GTMO at SCOTUS: Cert. Denied in El Falesteny

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Monday, June 18, 2012 at 11:01 AM

One of the more obscure habeas cases of the last few years has been El Falesteny v. Obama.  The case’s key documents were sealed, both on appeal to the D.C. Circuit and during certiorari-phase litigation at the Supreme Court.  During district court proceedings, El-Falesteny had challenged, among other things, the conditions of his confinement at Guantanamo as incompatible with the third Geneva Convention.  The arguments he made to the Supreme . . .
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The New York Times on the Cert Denials

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Friday, June 15, 2012 at 6:14 AM

I actually don’t have much to say, now that it’s here, on the New York Times editorial on the detention case cert denials. It is almost exactly the editorial I predicted the Times would run (“the inevitable editorial bashing the justices for failing to rebuke the rogues in robes who have so craftily undone the justices’ . . .
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Why “Meaningful” Review Isn’t an Abstraction…

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Tuesday, June 12, 2012 at 5:21 AM

I’m pleased to see that Ben largely agrees with my reaction to the Guantanamo cert. denials. But Ben goes on to rehash a point he has made before about the meaning of “meaningful” habeas review–and with which I rather vehemently disagree: I cannot say that the system the D.C. Circuit has created, warts and all, . . .
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Thoughts on the Cert Denials

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Tuesday, June 12, 2012 at 4:42 AM

Being in a time zone very far from home, I am late to the discussion of the cert denials in the Guantanamo cases. I have only one thought to offer beyond what Steve said earlier–with which I almost entirely agree. There will surely be a cascade of commentary now to the effect that the Supreme . . .
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D.C. Circuit 1, Guantanamo Bar 0?

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Monday, June 11, 2012 at 11:33 AM

As Wells already noted, the Supreme Court denied certiorari today without notation or dissent in all of the seven pending Guantanamo “merits” habeas cases (i.e., cases where the central issue goes to whether the government has proven its case to hold the detainee in question in military detention at Guantanamo). No doubt, the headline that will . . .
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SCOTUS Denies Cert in Seven GTMO Habeas Cases, and Lebron Too

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Monday, June 11, 2012 at 10:50 AM

That’s the outcome of orders from the Supreme Court today, an across-the-board denial of review in seven Guantanamo habeas cases: Latif, Al-Bihani, Uthman, Almerfedi, Al-Kandari, Al-Madhwani, and Al-Alwi.  For good measure, the Court also voted not to take up Lebron v. Rumsfeld, in which the Fourth Circuit had rejected a Bivens action by Jose Padilla.  No dissents from these denials were noted in today’s order.  There . . .
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Emerging Law of Detention–A Further Update

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Wednesday, June 6, 2012 at 5:18 PM

I have resisted linking to the latest updates to Bobby, Larkin, and my paper–The Emerging Law of Detention 2.0: The Guantanamo Habeas Cases as Lawmaking–because the redesign of the Brookings web site temporarily messed up a bunch of the links and some of the formatting. Those issues have now been resolved, so I’m pleased to . . .
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Can Kicked Down the Road: Still No SCOTUS Action in Detainee Cases

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Monday, June 4, 2012 at 3:25 PM

This morning’s Supreme Court orders list makes no mention of the unresolved petitions in several Guantanamo-related cases.  That means a re-listing for the justices’ conference this Thursday.  Stay tuned . . . again.