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Tag Archives: Al Bihani

Political Branch Determinations and Conflict Pre-9/11: Motion to Dismiss Denied in Al-Nashiri

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Wednesday, January 16, 2013 at 11:56 AM

This is interesting. Judge James Pohl yesterday denied—without prejudice—a key motion to dismiss (AE 104) brought by lawyers for Abd al Rahim Hussayn Muhammad al-Nashiri. In summary, the defense had claimed, first, that al-Nashiri was charged with offenses that were not committed in the context of and associated with “hostilities,” as they had to be . . .
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Obama v. Bush on Counterterrorism Policy

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Sunday, November 11, 2012 at 1:18 AM

I agree with much of what Jack says in his recent post about the counterterrorism issues likely to face President Obama in his second term.  But there’s one aspect of how Jack frames the discussion that I disagree with somewhat.  Because a number of other commentators seem to use the same basic framing, I thought I’d . . .
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Raha Wala on Hedges—And My Response

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Friday, September 14, 2012 at 8:39 AM

Raha Wala of Human Rights First writes in with the following response to my comments on Hedges. My thoughts follow his critique and very-cautious defense of Judge Forrest: Ben’s post on Judge Forrest’s opinion in Hedges I think provided a lot more heat than light, so I wanted to try to address what I think . . .
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Correspondence on Hedges

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Thursday, September 13, 2012 at 1:51 PM

An attorney who was deeply involved in the Al Bihani litigation sent me the following note about my post on the Hedges decision: I’ve no doubt you’ll be inundated with correspondence regarding Judge Forrest’s Hedges opinion from scholars and practitioners far more qualified than I.  But for the simple reason that I lived the Al . . .
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Initial Thoughts on Hedges

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Thursday, September 13, 2012 at 9:04 AM

I have now read through Judge Forrest’s opinion in Hedges—all 112 pages of it. I have done so only briskly, and I have surely missed things in my haste. But here are some initial thoughts. The opinion is shockingly bad. As a matter of simple judicial craftsmanship, it is among the worst pieces of recent district . . .
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Final Thoughts on DC Circuit Fidelity to Hamdi/Boumediene

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Tuesday, June 12, 2012 at 6:09 PM

A few final thoughts on the topic of DC Circuit fidelity to Hamdi and Boumediene, for the three people still paying attention to us (hi Mom!). Steve’s reply to my intervention helps me better understand his position, and I’m swayed in part by what he has to say. On the question of material support as . . .
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My Last Word (for Now) on the D.C. Circuit and Boumediene

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Tuesday, June 12, 2012 at 5:33 PM

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 subvert Hamdi and Boumediene:

Is DC Circuit Habeas Caselaw Inconsistent with Hamdi and Boumediene?

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Tuesday, June 12, 2012 at 1:41 PM

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 in 2004 (Hamdi) and 2008 (Boumediene).  Steve’s most recent reply lists a number of points . . .
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A Reply for Ben…

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Tuesday, June 12, 2012 at 7:56 AM

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 this question in more detail elsewhere (and am running out on another matter), but here’s a quick list of D.C. Circuit conclusions . . .
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D.C. Circuit 1, Guantanamo Bar 0?

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Monday, June 11, 2012 at 11:33 AM

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 its case to hold the detainee in question in military detention at Guantanamo). No doubt, the headline that will . . .
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SCOTUS Denies Cert in Seven GTMO Habeas Cases, and Lebron Too

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Monday, June 11, 2012 at 10:50 AM

That’s the outcome of orders from the Supreme Court today, an across-the-board denial of review in seven Guantanamo habeas cases: Latif, Al-Bihani, Uthman, Almerfedi, Al-Kandari, Al-Madhwani, and Al-Alwi.  For good measure, the Court also voted not to take up Lebron v. Rumsfeld, in which the Fourth Circuit had rejected a Bivens action by Jose Padilla.  No dissents from these denials were noted in today’s order.  There . . .
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Thoughts on the Brennan Speech : Scope of the AUMF, CCF, JSOC, and Other Issues

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Wednesday, May 2, 2012 at 1:28 PM

Over at Opinio Juris, Gabor Rona of Human Rights First offers an extended critique of John Brennan’s speech on the use of lethal force.  It is an interesting and provocative post, leading me to share a few thoughts in response.  The Scope of Domestic Authority to Engage in Drone Strikes Rona’s critique opens by arguing . . .
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Lyle Denniston on Guantanamo Cert Petitions

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Wednesday, March 14, 2012 at 4:29 PM

Raffaela linked to this the other day, but I only now just got around to reading it. Lyle Denniston at SCOTUSblog has an interesting piece on the various cert petitions in Guantanamo cases now pending before the Supreme Court. While Lyle’s working assumptions about these cases differ in some respects from my own, he does a . . .
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The NDAA: The Good, the Bad, and the Laws of War–Part II

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Saturday, December 31, 2011 at 4:48 PM

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 . . .
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The NDAA: The Good, the Bad, and the Laws of War–Part I

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Saturday, December 31, 2011 at 4:43 PM

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 . . .
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Oral Argument Preview in Suleiman v. Obama

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Wednesday, September 14, 2011 at 2:53 PM

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 . . .
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The Significance of Guesthouses and Training

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Saturday, June 11, 2011 at 12:39 PM

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 . . .
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Two Guantanamo Detainees Drop Appeals

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Thursday, June 2, 2011 at 4:08 PM

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, . . .
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Do the Laws of War Speak Clearly Enough on “Continuous Combat Function” To Justify a Narrow Reading of the AUMF?

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Monday, May 16, 2011 at 12:36 PM

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 . . .
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Cert. Petition filed in Toffiq Al Bihani

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Monday, May 16, 2011 at 11:55 AM

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 . . .
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