Thursday, November 17, 2011
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 me — every prisoner has an intelligence report. Now the prisoner hasn’t just lost his judicial remedy to [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit
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Also tagged Bismullah, Boumediene, David Tatel, Gladys Kessler, Henry Kennedy, Kiyemba, Latif, Parhat, Sabin Willett
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Thursday, November 10, 2011
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 of it: The majority opinion in Latif, which accords a virtually irrebuttable presumption of “regularity” to an [...]
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: I agree with my colleague Richard Murphy (here) that for Guantánamo detainees, seeking habeas relief [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit
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Also tagged A. Raymond Randolph, Boumediene, David Remes, Esmail, Kiyemba III, Laurence Silberman, Lyle Denniston, Mahdwani, Richard Murphy, Uthman
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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 I want it repealed and will shed no tears if it gets struck down in the courts.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 Solicitor General Paul Clement and his now-ex-law firm, King & Spalding, has nothing whatsoever to [...]
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, sent in the following. I will let it speak for itself: Requiem for a [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit
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Also tagged A. Raymond Randolph, Abdulrazak, Abdulsabour, Al Bihani, Basardh, Boumediene, Esmail, Hammad, John Yoo, Khalid, Kiyemba, Kiyemba I, Laurence Silberman, Rasul, Ricardo Urbina, Sabin Willett, Sab’r
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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 on platter by Judges Brett Kavanaugh and Laurence Silberman. The decision granting him habeas corpus is [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit
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Also tagged Al Jadani, Almerfedi, Brett Kavanaugh, Hamdi, Judith Rogers, Laurence Silberman, Paul Friedman, Robert Loeb, Uthman, William Livingston
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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 habeas merits decision to date, a case in which he granted the writ. In Almerfedi’s case at the [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit
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Also tagged Almerfedi, Awad, Bensayah, Brett Kavanaugh, Gladys Kessler, Jama’at al-Tablighi, Judith Rogers, Laurence Silberman, Paul Friedman, Robert Loeb, S. William Livingston, Salahi
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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 first of his points I am honestly not sure I understand. The second is interesting and challenging, and [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Detention: Law of: Supreme Court Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit, Guantanamo: Litigation: Supreme Court
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Also tagged A. Raymond Randolph, Brett Kavanaugh, Department of Justice, Esmail, Karen LeCraft Henderson, Laurence Silberman
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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 several hard punches: at the government, at the Supreme Court, and at the preponderance of the evidence [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Detention: Law of: Supreme Court Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit, Guantanamo: Litigation: Supreme Court
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Also tagged Boumediene, Esmail, Hatim v. Gates, Kiyemba, Laurence Silberman
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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 pending at the Supreme Court this term. Both Al Odah and Awad had asked the [...]
Filed in Detention, Detention: Law of, Detention: Law of: Supreme Court Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: Supreme Court
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Also tagged Al Bihani, Al Odah, Ameziane, Awad, Elena Kagan, Khadr, Kiyemba III, Lyle Denniston, Mohammed
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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 of the one Sen. Graham wrote last year, S. 3707, on which Bobby and I consulted extensively. [...]
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 Judge Paul Friedman’s sole habeas merits opinion, in which he found the government had not proved [...]
Wednesday, February 16, 2011
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 D.C. Circuit dismissed the appeal,” one category for detainee wins and one for government wins. [...]
Tuesday, February 15, 2011
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 court granted Hatim’s petition for a writ of habeas corpus in December 2009. Hatim v. Obama, [...]
Friday, February 11, 2011
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 he emerges with his district court habeas win vacated and remanded–rather than reversed outright. If [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit
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Also tagged Anthony Phillips, Awad, Bensayah, Brett Kavanaugh, Dafna Linzer, Dana Kaersvang, Henry Kennedy, Merrick Garland, Propublica, Thomas Griffith, Uthman
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Thursday, February 10, 2011
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 appeal of the ruling by U.S. District Judge Henry Kennedy from last spring granting the writ to [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit
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Also tagged Brett Kavanaugh, Henry Kennedy, Merrick Garland, Salahi, Thomas Griffith, Uthman
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Thursday, January 27, 2011
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, it strikes me that your most recent post (“A Right Without a Remedy”), by focusing [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit
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Also tagged Al Abdah, Boumediene, Combatant Status Review Tribunal, Elena Kagan, Kiyemba II, Thomas Griffith
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Tuesday, January 18, 2011
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 believe the D.C. Circuit is thwarting the promise of Boumediene by making it ever easier for [...]
Tuesday, January 18, 2011
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 of note. The D.C. Circuit’s opinion in Al Adahi was an extremely active decision–one that [...]
Tuesday, January 18, 2011
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 by reversing Judge Gladys Kessler’s decision and holding that she had failed to “appreciate conditional [...]
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 is Judge Reggie Walton’s September 2010 decision denying Al Bihani’s petition. Below is the relevant text from [...]
Filed in AUMF, AUMF: Scope and Reach, Detention, Detention: Law of, Detention: Law of: District Court Development, Guantanamo, Guantanamo Litigation: District Court, Guantanamo: Litigation, Terrorism Trials, Terrorism Trials: Civilian Court
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Also tagged Al Bihani, Reggie Walton
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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 he granted the writ to Hussain Salem Mohammad Almerfedi. Judge Friedman found the government’s evidence did [...]
Tuesday, December 14, 2010
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 a writ of certiorari. The core issue in this case is the treatment of evidence by the [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Detention: Law of: District Court Development, Guantanamo, Guantanamo Litigation: District Court, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit, International Law, International Law: LOAC, International Law: LOAC: Detention, Terrorism Trials, Terrorism Trials: Civilian Court
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Also tagged Al Kidd, Bivens, Gladys Kessler, Lyle Denniston, SCOTUSblog
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Tuesday, November 9, 2010
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 as follows: The Lawfare blog is concerned with the forest of national security law. Justifiably so [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit, Terrorism Investigations
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Also tagged Awad, Bensayah, Human Rights Watch, James Robertson, Mark Erickson, Norwegian Shooter, Salahi
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Tuesday, November 9, 2010
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. Circuit affirms Judge Ricardo Urbina’s decision in Hatim v. Obama. After watching the brief public portion [...]
Filed in AUMF, AUMF: Scope and Reach, Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit, Terrorism Investigations, Terrorism Trials
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Also tagged A. Raymond Randolph, Al Bihani, Al Farouq, Awad, Bensayah, Brian Foster, Hatim, Hatim v. Obama, Ricardo Urbina, Salahi, Sharon Swingle, Stephen Williams, Uighurs
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