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 … Read more »
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 … Read more »
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 … Read more »
…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
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’ … Read more »
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 … Read more »
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 … Read more »
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 … Read more »
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 … Read more »
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 … Read more »
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 … Read more »
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 … Read more »
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 … Read more »
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 … Read more »
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.
Over at SCOTUSblog, Lyle Deniston yesterday noted that, according to the Supreme Court’s electronic docket, the Court’s Thursday conference will address seven petitions for review in detainee-related cases. Action on one or more of them could mean orders as early … Read more »
The Supreme Court orders list just came down, and there appears to have been no cert action on any of the Guantanamo cases on which cert decisions were expected.
As usual, SCOTUSblog has a helpful post summarizing some of the key petitions for certiorari that the Supreme Court’s nine Justices are set to review at their Conference this Friday. I just thought I’d flag it here because two of … Read more »
The government’s opposition to cert in Latif is now public. The government argues that “The decision of the Court of Appeals is correct and does not conflict with any decision of this Court or any other court of appeals. Further … Read more »
Today the Supreme Court issued cert. determinations in two of the several Guantanamo-related petitions that have been filed this term. The Court denied both petitions, declining to hear either Abdah v. Obama (11-421) (Justice Kagan recused) or Gul v. Obama… Read more »
Last week, we brought you the first sets of filings in Moath Hamza Ahmed Al Alwi’s petition for a writ of certiorari. Al Alwi has now filed his reply to the government’s brief opposing his cert petition.
The reply advances … Read more »
Two new amicus briefs concerning the petition for a writ of certiorari in Latif.
The first is on behalf of thirteen retired federal judges, who offer four main arguments:
As This Court Recognized In Boumediene, Meaningful Habeas Review
The government filed its opposition to cert in the case of Moath Hamza Ahmed Al Alwi–a Guantanamo habeas petitioner. Al Alwi filed a petition for a writ of certiorari back in December, though we missed it at the time. He … Read more »
Raffaela linked to this the other day, but I only now just got around to reading it. Lyle Denniston at SCOTUSblog has an interesting piece on the various cert petitions in Guantanamo cases now pending before the Supreme Court. While … Read more »
Someone pointed out to me yesterday that in the recent Al Kandari cert petition, there is exactly one secondary source site: a Lawfare post. (See pp. vii and p. 12).
Neato.
Fayiz Mohammad Al Kandari, a Guantanamo detainee, has filed a petition for a writ of certiorari in his habeas case. This comes after the D.C. Circuit denied his petition for en banc review in late January.
The petition opens:
In
The reply brief in support of certiorari in Al-Madhwani v. Obama has been filed. We earlier posted Al Madhwani’s cert petition and the government’s opposition to cert. Al-Madhwani is seeking review of this DC Circuit opinion affirming his detention. … Read more »
The government has filed its opposition to cert in the case of Al Madhwani v. Obama–a Guantanamo habeas case. Al Madhwani’s cert petition seeks review of this DC Circuit opinion affirming his detention. That opinion, in turn, affirmed District … Read more »
Here it is–redactions and all. Enjoy!
The cert petition in Latif has been filed. So far, only the questions presented have been released publicly. They are as follows:
1. Whether requiring the district court to presume the accuracy of intelligence reports denies Guantanamo habeas petitioners the
Counsel for Guantanamo habeas petitioners Uthman, Almerfedi, and Latif–all of whom have cert petitions pending or imminent–have asked the Supreme Court to hold off on deciding whether to grant until the petitions can be considered in concert. In … Read more »
Uthman Abdul Rahim Mohammed Uthman responds to the government’s argument against his cert petition in his new reply brief, available here. It opens:
The petition in this case presents in stark terms the D.C. Circuit’s failure to articulate and
At least, Adam Liptak does in a well-worth-reading column about Latif. Take that, editorial staff!
On a more serious note, here’s the money quote:
Latif is the next great Guantánamo case–whether the Supreme Court agrees to hear it or
Whatever else one might say about the D.C. Circuit’s jurisprudence in the Guantanamo litigation, it’s certainly been a jobs program… To that end, I thought I’d post the (just-published) final version of an essay of mine in the Seton Hall … Read more »
A redacted version of the cert petition in the case of Hussain Salem Mohammed Almerfedi is now public.
The government has, unsurprisingly, filed a brief in opposition to Uthman Abdul Rahim Mohammed Uthman’s cert petition. Uthman, a Guantanamo habeas petitioner, had asked the Supreme Court to review this decision by the D.C. Circuit Court of Appeals affirming … Read more »
Hussain Salem Mohammed Almerfedi, a Guantanamo habeas petitioner, has filed a cert petition that presents the following questions:
1. Whether the Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001) (“AUMF’), or Boumediene
Uthman Abdul Rahim Mohammed Uthman, a Guantanamo habeas petitioner, has filed a cert petition, asking the Supreme Court to review the D.C. Circuit’s March decision in his case. The cert petition presents two questions for review:
1. Whether
It comes in the case of Abdah and is available here, posing the following question:
Whether, in a habeas corpus action, a Guantánamo detainee has a right to challenge his transfer to a
foreign country on the ground that
Several pieces in the news today may be of interest to Lawfare Readers.
The Washington Post reports on the Pentagon’s list of critical cyber-weapons:
The Pentagon has developed a list of cyber-weapons and -tools, including viruses that can sabotage an
Over the dissent of Justices Breyer and Sotomayor (no separate opinions), the Supreme Court today denied cert. in Khadr v. Obama. The cert petition (discussed by me here) raised the questions whether a judge should be able to second-guess … Read more »
Last Wednesday counsel for Toffiq Al Bihani filed a petition for certiorari in the Supreme Court. Readers may recall that the D.C. Circuit summarily affirmed Judge Reggie Walton’s 2010 decision denying Toffiq Nasser Awad Al Bihani the writ.
The petition … Read more »
The other day, I expressed bewilderment at the intellectual convergence between the political Left and Judge Laurence Silberman over whether post-Boumediene litigation has left habeas an empty shell. I’ve been mostly out of pocket for the last two days, … Read more »
One GTMO-related case—Khadr v. Obama (No. 10-751) remains pending before the Supreme Court at the certiorari stage, and it has just been re-listed for the first time (Kiyemba, in which the Court just denied cert., was re-listed … Read more »
Today the Supreme Court denied cert. to the five Uighur detainees held at Guantanamo. The Uighurs had asked the Court to determine that a federal judge who has granted a detainee’s habeas petition also has the judicial power to direct … Read more »
Today counsel for the five Kiyemba v. Obama petitioners who are seeking cert. in the Supreme Court submitted a supplemental brief to augment some of the arguments they made in their petition and reply brief. I’ve previously explained the … Read more »
The recent decision from the D.C. Circuit (the Esmail affirmance), and Supreme Court’s recent cert. denials in several cases, warrant an update to our habeas numbers. Before we get to that, however, it seemed appropriate to correct a … Read more »
Judge Laurence Silberman’s concurring opinion today in Esmail makes three points, each of them warranting comment. I have enormous regard for Judge Silberman, and I critique his opinion with caution. But I confess myself a little perplexed by it. The … Read more »
Tuesday, May 21, 2013
William P. Barr (former Attorney General), Jamie S. Gorelick (former Deputy AG), and Kenneth L. Wainstein (former Assistant AG for National Security) have this Times op-ed on the AP subpoena controversy. They write:
While neither we nor the critics know the circumstances behind the prosecutors’ decision to issue this subpoena, we do know from the government’s public disclosures that the prosecutors were right to investigate this leak
