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 »
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 »
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.
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 »
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
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 »
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 »
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 »
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 »
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 »
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 »
Adam Serwer of the American Prospect has a typically thoughtful post on the government’s Al Aulaqi brief, notable for his taking the government’s arguments seriously even in dismissing them. His rather nuanced bottom line is the following:
I think it’s
Jack has already pointed out that the government’s invocation of the states secrets privilege in its Aulaqi brief is reluctant, even grudging. If anything, he is understating the point. Some press coverage of the brief reads as though the administration … Read more »
The USG’s brief in Al-Aulaqi, the targeted killing case, reveals a great deal about the Obama administration’s thinking about its legal authorities.
1. Perhaps most noteworthy is the brief’s reliance on the president’s exclusive Commander-in-Chief authorities. The thrust of … Read more »
Jack has already posted the government’s brief in opposition to the ACLU’s and CCR’s request for a preliminary injunction and in support of its motion to dismiss. The government, however, filed some other interesting documents along with this lengthy brief. … Read more »
Here is the U.S. Government’s brief in support of its motion to dismiss the ACLU targeting killing case, Al-Aulaqi v. Obama. The government’s general comment on the case is as follows:
The injunction plaintiff seeks would be unprecedented, improper,
Don’t miss this very interesting story from Charlie Savage on the argument going on within the administration concerning how to respond to the Al Aulaqi lawsuit. The story, which quotes both of my co-bloggers, suggests several possible lines of response … Read more »
Post-game analysis of the Ninth Circuit’s en banc decision in Mohamed v. Jeppessen Dataplan continues. I’ve had my say already, but do want to respond to the suggestion by a couple of widely-read commentators that the government asserted the privilege … Read more »
The blogosphere and op-ed pages are abuzz with reaction to yesterday’s big Ninth Circuit decision concerning the state secrets privilege in Mohamed v. Jeppessen Dataplan (if you want an overview of the holding and dissent, see here and here). … Read more »
I posted earlier today about the two opinions controlling the outcome in Jeppesen Dataplan, today’s big Ninth Circuit case, and am now writing with an overview of the five-vote dissent in that case by Judge Hawkins (starting at p. … Read more »
A closely-divided en banc 9th Circuit has reversed an earlier panel decision that had in turn reversed a district court decision dismissing this civil suit relating to the CIA’s rendition program. The majority opinion by Judge Fisher was joined … 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
