There’s been a fair amount of buzz over the past few days centered around the idea of a statutory “drone court”–a tribunal modeled after the Foreign Intelligence Surveillance Court (FISC) that would (presumably) provide at least some modicum of due … Read more »
Judge Colleen McMahon of the District Court of the Southern District of New York has granted summary judgment to the government in the consolidated FOIA cases brought by the New York Times and the ACLU. The plaintiffs were seeking information … Read more »
Proving once again that the judiciary is the most hardcore of the three branches, the Supreme Court remains open for business this morning. The Justices will hear oral argument in Clapper v. Amnesty International, about whether human rights groups … Read more »
I received the following response from Richard Klingler to my ACSblog post on Monday re: the Al-Aulaqi suit and Bivens, and thought I’d post it in its entirety (below the fold) before replying (also below the fold):
Over at the ACSblog, I have a guest post up on Al-Aulaqi v. Panetta and Ben’s suspicion that the lawsuit will go the way of Arar, Lebron, Doe, and Rasul–with courts holding that there should be … Read more »
Here is the Government’s brief in support of its summary judgment motion in response to requests by the NYT and ACLU for records on targeted killings, especially with regard to U.S. citizens. This is the brief for which the USG … Read more »
Back in March, we shared the appellant’s brief in the D.C. Circuit Court of Appeals case of American Civil Liberties Union v. CIA. The Central Intelligence Agency has filed its respondent brief in that case. The CIA summarizes its … Read more »
The American Civil Liberties Union has filed its opening brief in its appeal of the District Court of the District of Columbia’s granting of a motion for summary judgment for the Central Intelligence Agency. The case stems from a FOIA … Read more »
Peter Margulies of Roger Williams University School of Law has sent in two accounts of panel discussions at the annual meeting of the American Association of Law Schools. Here is the first:
Federal Courts and National Security: A D.C. Circuit
The UK for some time has been wrestling with the problem of civil litigation that implicates states secrets. Foreign Minister William Hague addressed the issue eloquently in this speech, which in relevant part takes up the possibility of using … Read more »
In the past couple of days, both Jack and I have called for greater transparency concerning the legal rationale for the drones program. Lurking behind both of our posts–and peeking out of both occasionally–is a point that is worth making … Read more »
That’s what somebody in the government is saying today, on reading this Washington Post story about a contract dispute between two aviation companies involved in CIA renditions–a dispute that seems to involve airing a lot of material in public. Money … Read more »
Josh Gerstein at the Politico is reporting:
The Obama administration is invoking the state secrets privilege to seek dismissal of part of a lawsuit brought by Muslims who claim that the FBI conducted sweeping unconstitutional surveillance of Southern California
The Supreme Court today issued a unanimous opinion in General Dynamics Corp. v. United States, bringing to a close (for now) a long-running dispute between GD and the US Government concerning a contract to build stealth aircraft for the … Read more »
The Supreme Court denied cert this morning in Mohamed v. Jeppesen Dataplan, leaving in place the Ninth Circuit’s en banc opinion affirming dismissal of a civil suit (relating to rendition) on state secrets privilege grounds.
Having now read the transcript of today’s oral argument in General Dynamics v. United States/Boeing v. United States, I hold strong to my opinion that this is an important case for government contracting law but not an important case … Read more »
Back in September I noted that the Supreme Court granted cert. in a pair of state-secrets privilege (“SSP”) cases, General Dynamics v. United States and Boeing v. United States. I wrote then that the cases raise an important … Read more »
Lyle Denniston of SCOTUSblog has a useful preview of today’s oral argument in General Dynamics Corp. v. U.S. and Boeing Co. v. U.S., a pair of Supreme Court cases that test the ongoing vitality of the state secrets privilege.
Taking up the thread of Ben’s project (recasting the HRF scorecard here, here, and here), I’d like to offer an alternative take on the administration’s handling of the state secrets privilege. Under the heading “Abuse of the … Read more »
[Update: Readers should also check out John Radsan's just-published paper on CIPA reform, in Cardozo Law Review, here. Further update: the server hosting that paper is down until the afternoon of Dec. 29th, FYI].
Senator Cardin has introduced a … Read more »
Today the D.C. Circuit released the public version of the appellant’s brief in another habeas merits appeal, Abdah v. Obama, No. 10-5319. In this case, the government appeals Judge Henry Kennedy’s July 2010 opinion granting a writ of habeas … Read more »
The New York Times has, for the second time, glibly proposed establishing a new court to authorize killing people. In an editorial today–I am not making this up–the paper publishes a detailed two-sentence road-map for this modest addendum to Article … Read more »
Rounding out the public merits briefs in Uthman v. Obama, yesterday the government’s public reply brief became available. Below we link to that brief, the other two public merits briefs, and Judge Henry Kennedy’s district court opinion. Oral argument … Read more »
Five thoughts on Judge Bates’ Al Aulaqi decision:
First, as far as I’m concerned, there is really only one surprising thing about the decision, whose holdings any Lawfare reader could have anticipated relatively precisely. The surprise is that Judge … Read more »
Judge Bates wrote a solid, careful, and in my view persuasive opinion in al-Aulaqi. The opinion is clearly a victory for the government. But it was not without small victories for ACLU, CCR, and others who want to establish … Read more »
Don’t have time to read the 83-page opinion in Al-Aulaqi? Here are the key points in outline format, sans commentary:
I wonder how many media outlets that misleadingly made the government’s invocation of the state secrets privilege the central feature of their coverage of its arguments will eat crow in light of Judge Bates’ refusal (at the government’s urging… Read more »
Opinion here. More to come after we’ve had a chance to digest the full opinion.
UPDATE: Below are selected excerpts from the opinion (footnotes omitted).
Excerpt from introduction:
This is a unique and extraordinary case. Both the threshold and
William Greider argues in an interesting essay in The Nation that President Obama’s political difficulties are tied to his failure to exercise the full powers of the presidency.
Given the election results, the question Barack Obama has to decide for
The Al Aulaqi argument today was long—far too long for me to write a blow-by-blow account of the entire session. It went on for three hours, and I had to duck out just before it ended. Even a brief summary … Read more »
On Thursday, the White House issued a new executive order to establish a uniform policy for government treatment of “controlled unclassified information” (CUI). The order defines CUI as “information that requires safeguarding or dissemination controls pursuant to and consistent with … Read more »
Steve Aftergood has the link, and very useful commentary, here.
Two important points highlighted by Steve:
(i) The FISC remains obligated under its own Rule 3 to comply with EO 13526, which among other things prohibits disclosures of … Read more »
General Michael Hayden, former Director of the CIA and the NSA, gave an interesting speech on the media and national security last Friday at the Newseum’s conference last Friday on Criminal Law, National Security, and the First Amendment. (Hayden’s … Read more »
Speaking of Steve Aftergood, a few months ago over lunch, Steve and I had a lengthy discussion of the state secrets privilege and the problems its use creates in situations of genuine harm and government error. I mentioned to him … Read more »
For more than a decade now, Steve Aftergood of the Federation of American Scientists has been on a lonely crusade to get the government to declassify the annual top-line budget number for the intelligence community: How much the United States … Read more »
Last week I wrote that Barhoumi v. Obama, one of the government’s D.C. Circuit wins, had an outcome that was tentative because of underlying material the government had failed to produce in the district court. Here are the documents … Read more »
Earlier this week Michael Isikoff wrote about the classified secrets revealed by top officials in Woodward’s Obama’s Wars and asked whether there is a double standard in the Obama administration’s prosecutions of lower-level leakers of classified information. I build on … Read more »
One of the many headaches associated with the GTMO habeas litigation concerns the process of deciding which items of information used in the litigation should be treated as “protected information” that can be shared only with the detainee’s counsel and … Read more »
. . . can be found here.
In my initial post on the ACLU/CCR brief in Al Aulaqi, I promised to return to several of the themes I sketched out. In this post, I want to focus on the first: The total absence of press coverage … Read more »
The ACLU and CCR have filed their response to the government’s motion to the dismiss Al Aulaqi case. I haven’t had a chance to read these yet, but thought I would link to them. Here is the groups’ Reply Memorandum … Read more »
[The following post is written by Phillip Carter, a former Army officer and Deputy Assistant Secretary of Defense for detainee policy, who practices law at McKenna Long & Aldridge LLP, and who co-authored the VFW amicus brief described below … Read more »
In response to my call the other day for readers to poke holes in what seems to me an interesting state secrets argument, Peter Margulies wrote in with the following (I have edited his note slightly to get rid of … Read more »
This morning, I had a bit of correspondence with an administration lawyer in response to my critique of the New York Times’s state secrets editorial. This lawyer agreed with my argument, but made an additional one concerning the integrity … Read more »
Here’s a suggestion for the New York Times editorial page: Hire Adam Serwer. He’s a liberal blogger over at the American Prospect who is everything the New York Times editorial page is not: consistently thoughtful and open to engagement, respectful … Read more »
As a former editorial writer of almost a decade, I find my sense of craft offended by this editorial on the state secrets privilege in the New York Times the other day. Put simply, it bugs me that the paper … Read more »
Over at Concurring Opinions, Gerard Magliocca notes the Supreme Court’s cert. grant in the General Dynamics/Boeing state secrets case (arising out of the cancellation of the A-12 contract). With all respect, I think he is mistaken about two points in … Read more »
Further to my earlier post on the FY2010 Intelligence Authorization Act, the full text of the bill and the precise details of the compromise among the White House, Senate, and House can be found here (FAS has posted an excerpt … Read more »
The first Chapter of Bob Woodward’s Obama’s Wars describes Barack Obama’s first post-election intelligence briefing from Director of National Intelligence Mike McConnell, on November 6, 2008. The chapter shows McConnell, at the direction of President Bush, excluding many Obama aides … Read more »
The Supreme Court granted cert. today in General Dynamics v. United States and Boeing v. United States, both arising out of the massive, long-running contract dispute associated with the cancellation of the A-12 Avenger II program. The question … Read more »
Wednesday, May 22, 2013
In one of the strangest stories I’ve come across in a long time—and there have been many—news reports say an FBI agent shot and killed an Orlando man with ties to deceased Boston bombing suspect Tamerlan Tsarnaev. Ibragim Todashev was not suspected of playing a role in the bombings, but, during questioning, confessed nevertheless to playing a role in a triple homicide in the Boston area. After his confession, Todashev allegedly… Read more »
