Skip to content

Tag Archives: Anthony Kennedy

The Clapper Fix: Congress and Standing to Challenge Secret Surveillance

By
Thursday, June 20, 2013 at 12:48 PM

As the Supreme Court’s October 2012 Term enters its climactic closing week, I’ve been thinking a lot about the most important national security decision of the Term–the 5-4 February 26 decision in Clapper v. Amnesty International, holding that the Plaintiffs lacked standing to challenge section 702 of the FISA Amendments Act of 2008 (FAA) because they . . .
Read more »

Boumediene‘s Fifth Anniversary

By
Wednesday, June 12, 2013 at 12:59 AM

Five years ago today, the Supreme Court handed down its 5-4 decision in Boumediene v. Bush, holding that the Constitution’s Suspension Clause “has full effect” at Guantánamo Bay, and that the review scheme provided by the Detainee Treatment Act of 2005 was an inadequate substitute for the judicial review thus required by the Constitution. Boumediene thereby ushered in . . .
Read more »

Breaking: SCOTUS Decides Kiobel, Affirms CA2

By
Wednesday, April 17, 2013 at 10:30 AM

This morning’s opinion in Kiobel v. Royal Dutch Petroleum concludes that the presumption against extraterritoriality applies to claims brought under the Alien Tort Statute (“ATS”), and that nothing in the statute rebuts that presumption.  The Court thus affirms the decision of the Second Circuit—which had dismissed the plaintiffs’ ATS-based suit against multinational corporations.    Plaintiffs were all . . .
Read more »

Habeas, Due Process, and… Extradition?

By
Monday, March 4, 2013 at 6:48 PM

One of the more interesting structural constitutional questions to emerge from the post-9/11 detention litigation has been the previously under-explored relationship between the Constitution’s Suspension and Due Process Clauses–and the extent to which they might do separate work with regard to the scope of judicial review in executive detention cases. Thus, for example, in Boumediene, Justice Kennedy . . .
Read more »

The Merits of DOJ’s Supplemental Brief in Al Bahlul

By
Thursday, January 10, 2013 at 9:06 AM

Yesterday, we posted the government’s supplemental brief in the Al Bahlul military commission appeal in the D.C. Circuit, the headline of which was the government’s concession that Judge Kavanaugh’s opinion for the Court of Appeals in Hamdan II requires reversal of Bahlul’s conviction, as well. Without question, though, the far more interesting part of the brief is the . . .
Read more »

Al-Maqaleh II: Formalizing Boumediene’s Functional Approach to Habeas Jurisdiction

By
Tuesday, October 30, 2012 at 1:12 AM

Thanks to an unexpected pair of days off, I’ve finally had the chance to review Judge Bates’s October 19 rulings in Al-Maqaleh v. Gates ["Al-Maqaleh II"] and Hamidullah v. Obama. As readers know, these are the habeas petitions seeking to extend Boumediene v. Bush to at least some detainees at Bagram Air Base in Afghanistan. Back in 2009, Judge Bates had ruled in . . .
Read more »

Justice Kennedy, Alex Bickel, and the Separation of Powers

By
Tuesday, August 21, 2012 at 2:43 PM

Over at SCOTUSblog, there’s a terrific symposium underway to celebrate the fiftieth anniversary of The Least Dangerous Branch, Alex Bickel’s seminal work on the Supreme Court and judicial review. My own contribution thereto–”The Passive Virtues as Means, Not Ends“–picks up where some of my prior writing has left off, and uses the past decade’s detainee litigation . . .
Read more »

Kiobel: Supplemental Briefs on Extraterritoriality are In…

By
Tuesday, August 14, 2012 at 10:52 PM

Lawfare readers will recall that in March the Supreme Court ordered the case of Kiobel v Royal Dutch Petroleum to be re-briefed and reargued to address the additional question of whether the Alien Tort Statute applies to violations of international law occurring in the sovereign territory of other countries.  The final supplemental briefs were filed . . .
Read more »

Final Thoughts on DC Circuit Fidelity to Hamdi/Boumediene

By
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 . . .
Read more »

A Question for Steve

By
Tuesday, June 12, 2012 at 6:53 AM

I almost wrote into my post earlier today that while I agreed with Steve’s point that Boumediene remained consequential, I suspected he would not agree with the one I was making. I refrained, but it turned out I was right. Steve quickly responds that he “vehemently disagree[s]” and that “one has to read Boumediene with a particularly skewed . . .
Read more »

Why “Meaningful” Review Isn’t an Abstraction…

By
Tuesday, June 12, 2012 at 5:21 AM

I’m pleased to see that Ben largely agrees with my reaction to the Guantanamo cert. denials. But Ben goes on to rehash a point he has made before about the meaning of “meaningful” habeas review–and with which I rather vehemently disagree: I cannot say that the system the D.C. Circuit has created, warts and all, . . .
Read more »

Supreme Court Rejects Fourth Amendment Challenge to Material Witness Detention in Al-Kidd v. Ashcroft

By
Tuesday, May 31, 2011 at 3:08 PM

The Supreme Court has reversed the Ninth Circuit in al-Kidd v. Ashcroft, a Bivens action in which the plaintiff alleges (among other things) that then-Attorney General John Ashcroft violated the Fourth Amendment by directing prosecutors to use the material witness detention statute pretextually in order to incarcerate terrorism-related suspects.  The statute in question, 18 USC 3144, . . .
Read more »

Supreme Court Denies Cert. in Kiyemba

By
Monday, April 18, 2011 at 10:45 AM

Today the Supreme Court denied cert. to the five Uighur detainees held at Guantanamo. The Uighurs had asked the Court to determine that a federal judge who has granted a detainee’s habeas petition also has the judicial power to direct the detainee ’s release into the United States. Justice Breyer issued the following statement, and . . .
Read more »

The Graham Habeas Bill–A Brief Analysis

By
Tuesday, March 15, 2011 at 9:54 AM

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. . . .
Read more »

An Important New Article By Aziz Huq

By
Tuesday, September 21, 2010 at 11:14 AM

More than two years ago, in my book Law and the Long War: The Future of Justice in the Age of Terror, I wrote the following paragraph about the value of habeas review to innocent detainees: Indeed, [my] critique points to one other reason for skepticism of habeas review as a promising strategy for protecting . . .
Read more »

More on S. 3707 from Peter Margulies

By
Monday, September 13, 2010 at 9:00 PM

Peter Margulies, author of Law’s Detour: Justice Displaced in the Bush Administration, who previously offered these comments on S. 3707 and future dangerousness weighs in on the bill’s transfer provisions as well. He largely defends the provision but suggests clarifying language to make sure it is not read to preclude bringing detainees cleared in habeas cases to . . .
Read more »