Saturday, December 31, 2011
By Marty Lederman and Steve Vladeck* [Cross-posted at OpinioJuris] Section 1021 of the NDAA and the Laws of War In our companion post, we explained that section 1021 of the NDAA will not have the dramatic effects that many critics have predicted–in particular, that it will not affect the unresolved question of whether the 2001 Authorization [...]
Filed in AUMF, AUMF: Legislative Reaffirmation, AUMF: Scope and Reach, Detention, Detention: Law of, Detention: Law of: Legislative Development, Detention: Operations in Afghanistan, Detention: Operations in Iraq, Executive Power, Guantanamo, Guantanamo: Legislation, Guantanamo: Transfers and Resettlement, International Law, International Law: LOAC, International Law: LOAC: Detention, NDAA
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Also tagged Brett Kavanaugh, Carl Levin, David Cole, Dianne Feinstein, Janice Rogers Brown, John Brennan, Lindsey Graham, Marty Lederman, Raha Wala
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Saturday, December 31, 2011
By Marty Lederman and Steve Vladeck* [Cross-posted at OpinioJuris] Editorial pages and blogs have been overrun in the past couple of weeks with analyses and speculation about the detainee provisions in the National Defense Authorization Act, which the President has just signed into law. One of the major disputes concerns whether and howi the NDAA [...]
Filed in AUMF, AUMF: Legislative Reaffirmation, AUMF: Scope and Reach, Detention, Detention: Law of, Detention: Law of: Legislative Development, Detention: Operations in Afghanistan, Detention: Operations in Iraq, Executive Power, Guantanamo, Guantanamo: Legislation, Guantanamo: Litigation, Guantanamo: Transfers and Resettlement, International Law, International Law: LOAC, International Law: LOAC: Detention, NDAA
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Also tagged Brett Kavanaugh, Carl Levin, David Cole, Dianne Feinstein, Janice Rogers Brown, John Brennan, Lindsey Graham, Marty Lederman, Raha Wala
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Wednesday, September 14, 2011
The next episode in the D.C. Circuit’s Guantanamo detention saga: Suleiman v. Obama (Case No. 10-5292), an appeal set for oral argument this Friday before the D.C. Circuit. UPDATE: the oral argument is set for 2 p.m. The case likely will not radically steer detention law in one direction or another. In that way, Suleiman [...]
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 David Tatel, John Drennan, Khan, Merrick Garland, Reggie Walton, Suleiman, Thomas Griffith, Thomas Sullivan
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Memo to the D.C. Circuit: Staying at a guesthouse is not the same as taking military training. Ever since the D.C. Circuit’s decision in Al Bihani last year, its opinions have repeated some language that was originally buried in a footnote in Judge Janice Rogers Brown’s opinion in that case concerning how the courts should [...]
Two Guantanamo detainees, Fahmi Al-Assani and Suleiman Al-Nahdi, have moved the D.C. Circuit to dismiss their habeas appeals (Al-Assani’s motion is here, Al-Nahdi’s is here). Both men lost their district court habeas cases in decisions by Judge Gladys Kessler; the Al Assani decision is here, the Al-Nahdi decision is here. Both men appealed, and today, [...]
A few comments on Toffiq al-Bihani’s cert. petition, which Larkin just posted. First, I am surprised by al-Bihani’s first argument. He contends that the D.C. Circuit’s January 2010 decision in al-Bihani (involving Toffiq’s brother) erred in stating that the laws of war are irrelevant in determining the substantive scope of detention authority conferred by the [...]
Last Wednesday counsel for Toffiq Al Bihani filed a petition for certiorari in the Supreme Court. Readers may recall that the D.C. Circuit summarily affirmed Judge Reggie Walton’s 2010 decision denying Toffiq Nasser Awad Al Bihani the writ. The petition presents the question for the court as follows: Whether the laws of armed conflict apply [...]
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 Adahi, Basardh, Boumediene, Esmail, Hammad, John Yoo, Khalid, Kiyemba, Kiyemba I, Laurence Silberman, Rasul, Ricardo Urbina, Sabin Willett, Sab’r
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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 Adahi, Al Odah, Ameziane, Awad, Elena Kagan, Khadr, Kiyemba III, Lyle Denniston, Mohammed
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Wednesday, March 30, 2011
As Ben mentioned yesterday, the D.C. Circuit’s new Uthman decision signaled a notable clarification in how lower courts should consider evidence in habeas cases: When considering whether a detainee is “part of” Al Qaeda or the Taliban, Judge Kavanaugh wrote, the test courts should apply is a functional one. The court then reversed Judge Kennedy’s [...]
Over the last week, the Department of Justice has been busy filing responses to several of the Guantánamo detainees’ cert. petitions: It has submitted four briefs to the Supreme Court in the span of just a few business days. Last week, the government filed its oppositions in Al Bihani v. Obama (No. 10-7814) as well [...]
Monday, February 28, 2011
Ever since the D.C. Circuit last week handed down its per curiam opinionlet in Al Warafi, I have been puzzling over this brief, unpublished order. I have begun to think it may be more important that I initially understood—and, specifically, that it may constitute a significant development in the D.C. Circuit’s consideration of the relationship [...]
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 Warafi, Douglas Ginsburg, Merrick Garland, Military Commissions Act, Royce Lamberth, Stephen Williams
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Monday, February 21, 2011
As Ben notes below, Steve Vladeck objects to the Circuit’s recent ruling in Hatim insofar as that decision suggests that the Circuit has held that detention may be predicated on provision of material support to an AUMF-covered group, as opposed to predicating it on membership in such a group. Steve’s argument is that the Circuit’s [...]
Monday, February 21, 2011
* Alsabri v. Obama (D.D.C. Feb. 3, 2011) (GTMO habeas petition denied) In a 60-page opinion issued earlier this month but released in unclassified form last Friday, Judge Urbina has denied habeas relief to Mashour Abudllah Muqbel Alsabri, a GTMO detainee from Yemen. Highlights from the opinion: Substantive Scope of Detention Authority – Judge Urbina [...]
Saturday, February 19, 2011
Steve Vladeck has this very interesting take on last week’s Hatim decision. Put simply, Steve thinks this case is a way bigger deal than we have suggested, for the following reason: Buried in the three-page order, however, is a critically important–and dangerously wrong–holding that will likely prejudice Hatim’s case on remand (and any number of [...]
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
After receiving both parties’ responses to its order from last week to show cause why a certain district court order from the Hatim case should not be unsealed, today the D.C. Circuit ordered that document be released. In response, the District Court promptly unsealed its May 17, 2010 order, which did not–as I had surmised–turn out to concern [...]
Thursday, February 10, 2011
Today the D.C. Circuit issued its disposition of (Tofiq) Al Bihani v. Obama (Case No. 10-5352) with an order granting the parties’ joint motion for summary affirmance. The parties had agreed in their motion that “to pursue [the] appeal would be futile,” and the D.C. Circuit reiterated their positions in its order (citations removed): [...]
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 Adahi, Reggie Walton
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Saturday, December 4, 2010
This past week two detainees who lost their habeas merits appeals before the D.C. Circuit filed petitions for certiorari—Ghaleb Nassar Al Bihani and Adham Mohammed Ali Awad. Broadly speaking, Al Bihani’s challenge involves several arguments about the substantive and temporal scope of the government’s detention authority, while Awad’s petition raises procedural arguments focusing on 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, Guantanamo: Prosecutions, International Law, International Law: LOAC, International Law: LOAC: Detention
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Also tagged Al Kandari, Awad, Boumediene, Colleen Kollar-Kotelly, Uighurs
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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 Adahi, Al Farouq, Awad, Bensayah, Brian Foster, Hatim, Hatim v. Obama, Ricardo Urbina, Salahi, Sharon Swingle, Stephen Williams, Uighurs
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(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 government appeal from Judge Ricardo Urbina’s district court decision granting the writ to Saleh Hatim, a Yemeni national. [...]
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, International Law, International Law: LOAC, International Law: LOAC: Detention
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Also tagged A. Raymond Randolph, Al Adahi, Al Farouq, Al Odah, Anam, Awad, Karen LeCraft Henderson, Ricardo Urbina, Salahi, Saleh Hatim, Stephen Williams
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Tuesday, October 19, 2010
In a recent article in the Miami Herald, Carol Rosenberg noted that the government has prevailed on the merits in three straight GTMO habeas proceedings and offered perspectives on what this might signify. Could it be a change in the substantive grounds for detention? Could it be a change in the procedural or evidentiary rules? [...]
Kevin Heller claims that the D.C. Circuit in its al-Bihani panel opinion has reached the conclusion, with which he agrees, that “there [is] no justification for the government’s attempt . . . to import the concept of co-belligerency into non-international armed conflict.” He adds: “Given the D.C. Circuit’s conclusion in Al-Bihani, why is the government still [...]
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, International Law, International Law: LOAC, International Law: LOAC: Detention
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Also tagged Al Aulaqi, Janice Rogers Brown, Kevin Jon Heller
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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, like the one I wrote about the other day that Judge John Bates decided, is not [...]
