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Category Archives: Terrorism Trials

Terrorism Trials

A Few Additional Thoughts on Daoud

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Tuesday, June 17, 2014 at 8:52 AM

I largely agree with Steve Vladeck’s excellent post on Judge Richard Posner’s decision yesterday in Daoud and Judge Ilana Rovner’s concurrence in that decision. In particular, I agree that Judge Posner’s language is too glib, his dismissal of the defense’s conundrum in cases—in which lack of access to the underlying FISA application frustrates a Franks motion—too cheerful, . . .
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Judge Posner v. Judge Rovner: On Daoud, FISA, and Franks

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Tuesday, June 17, 2014 at 7:56 AM

Paul already flagged yesterday’s Seventh Circuit decision in Daoud, in which the Court of Appeals reversed Judge Coleman’s headline-grabbing order—which had required the government to provide Daoud’s security-cleared defense counsel with access to all of the classified materials the government had submitted in support of its applications for FISA warrants in Daoud’s case. I have . . .
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9/11 Case Motions Hearing: June 16 Session

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Monday, June 16, 2014 at 8:57 AM

At 0900, the fun resumes at Fort Meade’s Smallwood Hall, where (as always) your correspondent will view, via CCTV, pre-trial proceedings in United States v. Mohammed et al.   On the agenda for our two-day mini-hearing: filings and argument bearing on the defense’s discovery, in April, that FBI investigators had questioned a member of Ramzi binalshibh’s . . .
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Statement From the Chief Prosecutor on This Week’s Hearing in the 9/11 Case

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Sunday, June 15, 2014 at 9:46 PM

You’ll find it here.  We’ll cover the two-day mini-hearing, which will commence tomorrow at 0900 down at Guantanamo. The statement opens: Good evening and Happy Father’s Day. I refer to Father’s Day with a heavy heart because I know it is a difficult reminder for the fathers who have lost children, and for the sons and . . .
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Military Commission Charges Approved Against Abd Al Hadi Al-Iraqi

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Tuesday, June 3, 2014 at 9:41 AM

The Convening Authority’s sign-off came yesterday, and now allows the Guantanamo case to proceed to arraignment.  There are five charges in all—including denying quarter, attacking protected property, using treachery or perfidy, and (importantly) conspiracy, lasting from 1996 to October 29, 2006, to commit those and other offenses.   As readers know well by now, the case tees up an important test within the commissions—both . . .
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Today in Al-Nashiri

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Friday, May 30, 2014 at 12:10 PM

No open session today, either; only an ex parte, in camera session between the court and prosecutors. Which is to say: this week’s hearing has come to a close, so far as Lawfare’s coverage is concerned. UPDATE [2:15 p.m.]: the Chief Prosecutor’s remarks on the hearing can be found here.  The opening paragraphs are below.

Today in Al-Nashiri: Closed Session

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Thursday, May 29, 2014 at 9:48 AM

Today promises only closed argument on the government’s motion to have the military judge reconsider his order for extensive discovery into the CIA’s RDI program.  (Open argument was held yesterday.)  We’ll thus pause our military commissions coverage.  It remains to be seen whether tomorrow will feature open proceedings, or any proceedings at all; stay tuned.

Al-Nashiri Motions Hearing: May 28 Session

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Wednesday, May 28, 2014 at 9:49 AM

Down at Guantanamo, pre-trial proceedings will resume this morning in the military commission case of United States v. Al-Nashiri.  As always, courtroom discussion will be piped to a closed-circuit viewing facility here at Maryland’s Fort Meade, in almost-real-time.  (There’s a forty-second delay in the audio and video.) We understand that a Rule 505 session—regarding the handling . . .
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Senators Feinstein and Levin on 9/11 Case Delay, RDI Declassification

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Friday, May 23, 2014 at 4:30 PM

Made available today: a letter from Senators Dianne Feinstein and Carl Levin, which was sent to President Obama in January of this year and urged him to speed things up in the 9/11 case—chiefly by declassifying additional information regarding the CIA’s long-since-discontinued program of rendition, detention and interrogation. (The Obama Administration’s response, from then-White House Counsel . . .
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New Trial Date Set for February 2015 in Al-Nashiri

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Thursday, May 22, 2014 at 1:30 PM

This marks the most significant among many dates set by the Second Amended Scheduling Order, in the military commission case of United States v. Al-Nashiri.  The ruling was issued on May 9 (and in response to defense requests), but only recently made its way through Guantanamo’s security morass. It remains to be seen whether this revised schedule will stick. . . .
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USG Filings in Al-Nashiri

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Friday, May 16, 2014 at 1:00 PM

There are two: a cross-motion to hold Al-Nashiri’s habeas case in abeyance, pending resolution of his military commission trial at Guantanamo; and a legal memorandum setting forth the government’s arguments, both in support of its motion and in opposition to Al-Nashiri’s bid to have the habeas court preliminarily enjoin the commission.   You’ll find both here, . . .
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Tsarnaev and the Inspectors General: a Reply to Michael German

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Tuesday, May 13, 2014 at 6:00 AM

In his response to my earlier Lawfare post on the FBI’s investigation of Tamerlan Tsarnaev and a later review of that investigation by various Inspectors General, Michael German misconceives my argument.  Put as concisely and clearly as possible, my argument has four points: 1. A formal tip from a nation that wants our cooperation should be taken . . .
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On Tsarnaev and the Inspectors General Review: a Response to Philip Heymann

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Friday, May 9, 2014 at 2:47 PM

I was troubled by Philip Heymann’s Lawfare critique of the joint Inspectors General review of the government’s pre-Boston Marathon bombing investigation of Tamerlan Tsarnaev. There is much to commend in Heymann’s thinking, as I note below. But, like the review itself, Heymann’s analysis nevertheless is flawed by his unexplained omission of crucial facts—not least Tsarnaev’s . . .
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More on Al-Nashiri’s D.C. Habeas Petition

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Friday, May 9, 2014 at 10:45 AM

Come and get it: a new trove of recently filed and/or unsealed pleadings in the closely watched and vigorously debated case of Al-Nashiri v. Hagel et al.    There you’ll find Al-Nashiri’s motion to supplement his long-running habeas petition, along with the supplemental petition itself and an amicus filing by Professor David Glazier to boot.  (There’s a . . .
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Confusing Jurisdiction, Abstention, and Substance: A Reply to Peter Margulies

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Tuesday, May 6, 2014 at 3:00 PM

It’s clear from his post this morning that my friend Peter Margulies believes that Al-Nashiri’s new habeas challenge to his trial by military commission, which rests on the claim that the United States was not involved in an armed conflict with al Qaeda at the time of his alleged crimes, is without merit. Unfortunately, Peter’s . . .
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Al-Nashiri, the Cole Bombing, and the Start of the Conflict with Al-Qaeda

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Tuesday, May 6, 2014 at 10:00 AM

The habeas challenge to military commissions recently filed by Abd Al Rahim Al-Nashiri is a loser on both procedure and substance.  Al-Nashiri, the alleged mastermind of the 2000 bombing of the USS Cole, argues that a federal court can, and should, enjoin his pending commission trial because the charges against him concern acts that occurred . . .
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Filings from Al-Nashiri’s Habeas Challenge in the D.C. District Court

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Friday, May 2, 2014 at 11:25 AM

You’ve likely heard: Abd al-Rahim al-Nashiri, a Guantanamo detainee facing capital military commission charges, last month mounted a new habeas challenge in the district court for D.C.  A few key documents in that litigation were made available yesterday, including Al-Nashiri’s motion for a preliminary injunction, which aims to stop his military trial pending resolution of . . .
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Al-Nashiri Motions Hearing: April 27 Session

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Monday, April 28, 2014 at 4:26 PM

Yesterday, and in a somewhat unusual turn, court and counsel at Guantanamo met for the last day of a pre-trial motions hearing in United States v. Al-Nashiri.  I’ve got my hands on the transcripts, and will post summaries of yesterday’s big-ticket arguments in our “Events Coverage” section. As per usual, I’ll update this post with . . .
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Eight Ways to Improve the Military Commissions

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Monday, April 28, 2014 at 2:00 PM

Can the military commissions be improved?  Recent events squarely raise the question.  A New York jury recently convicted Osama Bin Laden’s son-in-law of conspiracy to kill Americans and other terrorism-related charges. Afterwards, Attorney General Eric Holder lauded the success of civil courts in resolving “hundreds of other cases involving terrorism defendants,” and said “it would . . .
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Statement of the Chief Prosecutor on Last Week’s Hearing in Al-Nashiri

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Monday, April 28, 2014 at 9:00 AM

Here it is.  The remarks of Brig. Gen. Mark Martins, the Chief Prosecutor at the military commissions, open thusly: In my remarks two weeks ago, I highlighted one woman’s bewilderment at how the open military commission trial encompassing the attack that killed her brother was being portrayed by certain private advocacy groups and members of the . . .
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