At the risk of boring readers who have long-since grown tired of this exchange, let me just offer three quick responses to Bobby’s thoughtful intervention in the back-and-forth between Ben and me on whether the D.C. Circuit really did actively … Read more »
Steve and Ben are having an interesting exchange about an important question: whether the DC Circuit’s caselaw in GTMO habeas proceedings has produced a set of substantive and procedural rules at variance with the positions established by the Supreme Court … Read more »
Ben asks: “What are the specific ‘requirements’ the Supreme Court laid out in Boumediene or Hamdi that the D.C. Circuit has refused to honor such that habeas review is not ‘meaningful’ within the meaning of Boumediene?”
I’ve answered … 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 »
I have now read the new Seton Hall report to which I linked earlier and I have to say: I am perplexed.
The report’s thesis, in a nutshell, seems to boil down to two propositions: that the D.C. Circuit’s Al … Read more »
I only just noticed this new report by Mark Denbeaux, Jonathan Hafetz, and an extensive list of others at the Seton Hall University School of Law, entitled “No Hearing Habeas: D.C. Circuit Restricts Meaningful Review. I have not yet read … Read more »
Sabin Willett, who represented the Guantanamo Uighurs in Parhat and Kiyemba, writes in with the following comments about Latif:
It is not hyperventilation to say, as so many have said, that Latif guts Boumediene, because — trust
Peter Margulies of Roger Williams Law School writes in with the following critique of the Latif decision and praise of Judge David Tatel’s dissent. While I don’t agree with every aspect of this analysis, I agree with a great deal … Read more »
Habeas lawyer David Remes sent in the following comments on recent developments in D.C. Circuit case law. He emphasizes that he has been counsel in several of the cases discussed below and that the following represents his own opinion only:… Read more »
For what it’s worth, I hate the Defense of Marriage Act and always have. I want it repealed and will shed no tears if it gets struck down in the courts. On its face, moreover, what happened today between former … Read more »
If a person can’t be troubled to agree with me, the very least he can do is to write good prose. Man, oh man, can Sabin Willett write good prose! Willett, who represented the Uighurs in their Supreme Court case, … Read more »
They say you can’t tell how a case is going to come out from an oral argument. Sometimes you can, and today is one of those days. Hussain Salem Mohammad Almerfedi is going to have his head handed to him … Read more »
Tomorrow morning, a panel of the D.C. Circuit Court of Appeals will hear arguments in another Guantanamo habeas case, that of Hussain Salem Mohammad Almerfedi (Case No. 10-5291). The case is a government appeal of Judge Paul Friedman’s sole Guantanamo … 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 »
The D.C. Circuit’s per curiam opinion today in Esmail is unremarkable–exactly what one would have suspected from the oral argument. Judge Laurence Silberman’s concurrence, by contrast, is altogether remarkable. At only two pages in the slip opinion, it packs … Read more »
The Supreme Court today denied three pending petitions for certiorari: Al Odah v. Obama (No. 10-439), Awad v. Obama (No. 10-736), and Al Bihani v. Obama (No. 10-7814). These denials mean that there are only two Guantanamo-related cert. petitions still … Read more »
In fulfillment of my promise last week to provide analysis of the various pieces of new Senate legislation, here are some thoughts on the new version of Senator Lindsey Graham’s habeas reform bill. The bill is largely a reintroduction … Read more »
The public merits briefing in Almerfedi v. Obama (No. 10-5291) is now complete. The government filed its reply brief earlier this week, adding to the petitioner’s response brief and the government’s opening brief.
In its appeal, the government contests … Read more »
We haven’t circulated an update on the Guantanamo habeas numbers in a while, and this new set includes updates in several categories, as well as a minor methodological change.
Previously we had separate categories for “district-court wins in which the … Read more »
The D.C. Circuit just issued its very brief decision to vacate and remand Hatim v. Gates (No. 10-5048). Text follows:
PER CURIAM: Saeed Mohammed Saleh Hatim, a Yemeni national, is a prisoner at the Guantanamo Bay Naval Base. The district
Uthman Abdul Rahim Mohammed Uthman is in trouble. Facing a relatively congenial D.C. Circuit panel for a Guantanamo detainee and represented by counsel who did an excellent job presenting his case, he made no headway. He will be lucky if … Read more »
Tomorrow morning, a panel of the D.C. Circuit Court of Appeals will hear arguments in another Guantanamo habeas case, that of Uthman Abdul Rahim Mohammed Uthman (Case No. 10-5235). The case, captioned under Abdah v. Obama, is a government … Read more »
Steve Vladeck just sent in the following thoughts in response to my suggestion that habeas is not quite a right without a remedy:
Without getting too deeply into the back-and-forth between you, David, and Sabin over the “Embrac[e] Guantanamo” idea,
Habeas lawyer David Remes sent in the following thoughts about the Supreme Court’s denial of certiorari in Al Adahi today–about which I commented here:
That the Court did not grant review is a disappointment to those of us who
The Supreme Court’s denial of cert in Al Adahi is not in any sense a surprise. To the contrary, I would have been shocked if the justices had agreed to hear the case. It is, however, an important development worthy … Read more »
This morning the Supreme Court denied cert. in Al Adahi v. Obama. Justice Kagan had unsurprisingly recused herself from the case.
In this petition the detainee argued that the D.C. Circuit had improperly altered the “clearly erroneous” standard of review … Read more »
This is interesting. Today in one of the more recent Guantanamo merits appeals, that of Toffiq Nasser Awad Al Bihani, the government and petitioner jointly filed for summary affirmance of the district court’s ruling. The ruling they seek to affirm … Read more »
Today the government filed the public version of its appellant’s brief in Almerfedi v. Obama (No. 10-5291), a habeas merits case. In this appeal the government appeals Judge Paul Friedman’s sole habeas merits opinion to date, a case in which … Read more »
It was a big day for the war-on-terror cases at the Supreme Court yesterday–at least if you are into government briefs. The government filed two important ones. They are:
1) Its brief in opposition to Mohammed Al Adahi’s petition for … Read more »
Mark Erickson, author of the Norwegian Shooter blog sent me a thoughtful note objecting to Bobby and my discussion of the D.C. Circuit’s Salahi decision. I invited him to write up his thoughts as a guest post. He writes … Read more »
They say you can’t tell where an appeals panel is headed based on the oral argument. Sometimes you can. I will go out on a limb on the one I attended today: I will eat my computer if the D.C. … Read more »
(by Larkin Reynolds and Benjamin Wittes)
Tomorrow, D.C. Circuit Judges Karen LeCraft Henderson, A. Raymond Randolph, and Stephen Williams will hear oral argument in Hatim v. Obama, a habeas merits appeal of some potential importance.
The case is a
(By Robert Chesney and Benjamin Wittes)
This morning the D.C. Circuit vacated and remanded a decision by former U.S. District Judge James Robertson, granting habeas relief to Mohammedou Salahi. The opinion, written by Judge Tatel and joined by Chief Judge … Read more »
Judge A. Raymond Randolph, in his speech the other day at the Heritage Foundation, addressed two intertwined but ultimately distinct issues: Whether the Supreme Court’s Boumediene decision is historically and jurisprudentially sound, and the “mess” it has created in … Read more »
Brookings Legal Fellow Larkin Reynolds, who has been working with Bobby and me on a second edition of our monograph on “The Emerging Law of Detention,” recently handed me a chart she had constructed that attempted to quantify … Read more »
Lawyers for Guantanamo detainee Mohammed Al Adahi have filed a cert petition, which raises the following question:
Question Presented
In a civil case in which different inferences can be drawn from a trial record containing live testimony, whether the
I have now read Judge Reggie Walton’s opinion affirming the detention of Guantanamo detainee Toffiq Nasser Awad Al-Bihani. In keeping with my usual practice, I will leave it to others to discuss the case’s effect on the “scorecard.” The case, … Read more »
The Al Kandari opinion declassified yesterday does not present a particularly interesting fact pattern. The case, however, is deeply interesting in one respect, which is that it shows methodological movement in the district court on the question of the burden … Read more »
I tried to take good notes at the Salahi oral argument this morning. The following is a crude summary of the argument, the transcript of which I will post when it becomes available. Bottom line: Expect a remand to the … Read more »
I posted earlier a summary by Larkin Reynolds of the coming argument in Salahi v. Obama–which the D.C. Circuit is hearing on Friday. I also posted the briefs. I think this case is a big deal, one that … Read more »
Larkin Reynolds, a Brookings legal fellow who is working with Bobby and me on the next edition of our habeas report, offers a preview of the next big D.C. Circuit case:
The first Guantánamo case scheduled for oral argument
As I discussed earlier, there is a common misapprehension in the debate over the Guantánamo habeas cases—and detention law more broadly—that equates legislative approaches to detention with harsher policy and treats common law adjudication as more favorable to detainees. … Read more »
The D.C. Circuit’s 113-pages of non-opinion this week, in which it declined to rehear en banc an earlier panel decision in the Al Bihani case, warrants reflection at a number of levels. I will leave for Jack Goldsmith the … Read more »
Thursday, May 23, 2013
Leading the news: President Obama speaks today at the National Defense University on counterterrorism policy. Many are previewing the speech, including John. According to the New York Times’s Charlie Savage and Peter Baker, Obama will announce more stringent targeting criteria for non-battlefield strikes. This approach will govern the use of force against both citizens and non-citizens.
Here are the Washington … Read more »
