Yesterday, pursuant to Judge Thomas Hogan’s recent order, lawyers for habeas petitioner Musa’ab Omar al-Madhwani filed a brief addressing the district court’s jurisdiction to hear al-Madhwani’s emergency challenge to the conditions of his confinement at Guantanamo.
The detainee—who is … Read more »
As the recent decisions by the Court of Military Commission Review (CMCR) in the Guantánamo military commission ACLU/media access cases suggests, there are a host of complicated and heretofore unresolved questions about the scope of appellate and collateral review of … Read more »
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 … Read more »
The United States has filed its appellate brief in the case of Al-Janko v. Gates et al., a damages action brought by a former Guantanamo detainee against former government officers in their individual capacities. (You can find more background … Read more »
Amidst all the hubbub earlier this week, we neglected to note the filing of a new cert. petition in a Guantánamo habeas case–in Obaydullah v. Obama, filed in the Supreme Court on Tuesday. Our coverage of the D.C. Circuit’s … Read more »
What, if anything, do developments in the military commission case of United States v. al-Nashiri portend for Al-Nashiri v. MacDonald, an ongoing, civil challenge to the accused’s war crimes prosecution? The question arises in letters filed in the civil … Read more »
Judge James Pohl apparently has rejected the defense’s bid, in the 9/11 case, to presume (subject to rebuttal) the Constitution’s application to military commission proceedings.
We don’t have the court’s order yet, but we do have this statement from James … Read more »
Andrew Kent writes in with the following guest post on his fascinating new article on Ex Parte Quirin. I asked Andrew to write up this piece, after reading an earlier draft of the underlying paper for a workshop last … Read more »
Andrew Kent (Fordham University School of Law) has posted a new paper to SSRN, “Judicial Review for Enemy Fighters: The Court’s Fateful Turn in Ex Parte Quirin, the Nazi Saboteur Case.” (66 Vanderbilt Law Review 101 (2013).) Professor Kent will … Read more »
On Thursday, lawyers for Abd Al Rahim Hussein Al-Nashiri filed their reply brief in Al-Nashiri v. MacDonald, a civil case now pending before the United States Court of Appeals for the Ninth Circuit.
Al-Nashiri, a defendant before the Guantanamo … Read more »
What’s a habeas petitioner to do, if 1) current and former U.S. military officials believe that he no longer poses a significant threat, and that his law of war detention is no longer necessary; but 2) a Periodic Review Board … Read more »
Vice Admiral (Retired) Bruce MacDonald, the Convening Authority for the military commissions at Guantanamo Bay, has filed his appellate brief in Al-Nashiri v. MacDonald. That’s the civilian court lawsuit brought by commission defendant Abd Al Rahim Hussein Al-Nashiri, and now … Read more »
While I am sure we differ in emphasis and details, I agree with the thrust of Trevor’s latest post. As I argued in my last two books, the early Bush administration approach to presidential power was, in reality and … Read more »
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. … Read more »
Back in June, I wrote a fairly lengthy post analyzing the ability of detainees in U.S. custody facing extradition or other involuntary transfer to a foreign sovereign to challenge their transfer pursuant to the federal statute implementing the United States’ … Read more »
Readers probably won’t be surprised that, as Professor Andrew Kent noted at the end of his guest post, I’ve already drafted a longer response to Andrew’s important and provocative new essay, “Do Boumediene Rights Expire?” — which … Read more »
[Update (11:41 a.m. EDT)]: The always reliable Josh Gerstein already had a story up on this late last night over @ Politico, which reports that an “administration official” suggested that “Friday’s filings were made in order to keep open … Read more »
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 … Read more »
Based on the voluminous media and blog coverage of last week’s decision in Hedges v. Obama, in which Judge Forrest permanently enjoined at least part of the detention provision of the FY2012 NDAA [section 1021(b)(2)], one of two things … Read more »
I will offer my own thoughts on the death of Adnan Latif later on, but several people have sent me comments on the subject that I am going to post first. Rather than do this in a string posts, I’m … Read more »
The motions hearing that begins tomorrow in the 9/11 military commissions case is far too sprawling to preview motion by motion. Instead, we’ve broken it up thematically. Nearly all of the 25 motions on which Military Judge James Pohl will … Read more »
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 … Read more »
David Remes, an attorney for Guantanamo habeas petitioners Uthman and Esmail, has sent in this overview of the ongoing Guantanamo counsel access dispute.
In brief: Remes and others recently objected to the Department of Justice’s proposed “Memorandum of Understanding,” or … Read more »
I received the following response from Richard Klingler to my ACSblog post on Monday re: the Al-Aulaqi suit and Bivens, and thought I’d post it in its entirety (below the fold) before replying (also below the fold):
Here is a transcript of a July 17 event jointly sponsored by the Constitution Project and the law firm of Covington & Burling on “Boumediene’s Legacy and the Fate of Guantanamo Detainees.” I haven’t read it yet, but speakers include … Read more »
As I noted yesterday, the highest court in the U.S. military justice system—the Article I Court of Appeals for the Armed Forces (“CAAF”), a circuit-level court with mostly discretionary jurisdiction over each of the service branch courts of criminal … Read more »
Ben already posted last week about the new battle a-brewing over the “Memorandum of Understanding” (MOU) that the Department of Justice is apparently requiring counsel in the Guantanamo habeas cases to sign in order to continue meeting with … Read more »
Here’s your off-the-cuff read-out of this morning’s hearing before U.S. District Judge John Bates in Al-Maqaleh v. Gates and Hamidullah v. Obama, better known as the “can we get a little GTMO-style habeas review over U.S. detentions at Bagram” cases… Read more »
As Ben noted last month, Judge Bates recently has shown some interest in possibly moving the Boumediene-at-Bagram case, Al Maqaleh v. Rumsfeld, along toward a resolution. After several very quiet months seemingly mulling over the pleadings before him, … Read more »
Over at SCOTUSBlog, Lyle Denniston has a piece on the Esmail access to counsel issue I wrote about Wednesday. It opens:
For years, the federal government — in two administrations — has taken the view that the detainees being
I received the following email from human rights lawyer David Remes about a filing he and his colleagues just made on Monday on behalf of his Guantanamo client Yasein Khasem Mohammad Esmail. Esmail lost his habeas case, and according to … Read more »
For those D.C.-area Lawfarers interested in continuing the conversation Ben, Bobby, and I had in June about Boumediene‘s legacy (or lack thereof), the Constitution Project is hosting what promises to be a lively discussion of the topic @ Covington … Read more »
This is rich.
An English-language Saudi newspaper, the Saudi Gazette, has an editorial entitled “Close Guantanamo” bashing President Obama for failing to keep his campaign pledge to close the detention facility. Leave aside for a moment the … Read more »
Just a quick follow-up on my post of this morning. A correspondent points out to me that on David Remes’s definition of “prevailing,” Boumediene itself should be counted as a government win. After all, the Supreme Court in that … Read more »
Your Lawfare day is winding down at long last. You’ve just savored a scholarly exchange on the D.C. Circuit’s fidelity to Boumediene. The table is cleared, and you’ve just settled into your comfy, oversized armchair. It’s time for a … Read more »
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 … Read more »
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 »
Yesterday’s news out of the Supreme Court may well have obscured another significant detainee-related legal development: As Lyle Denniston has noted over at SCOTUSblog, on Friday, the en banc Ninth Circuit handed down a thoroughly fractured decision in Garcia … 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 »
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. … Read more »
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 … Read more »
Being in a time zone very far from home, I am late to the discussion of the cert denials in the Guantanamo cases. I have only one thought to offer beyond what Steve said earlier–with which I almost entirely … 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 »
Below is a recap of yesterday’s oral argument before the D.C. Circuit in Hamdan v. United States. As for key takeaways, you’ll find Steve’s breakdown here, and my two cents’ worth here.
Again, it is anyone’s guess how … Read more »
Rumor has it that sometime this week (perhaps as early as tomorrow), Congressmen Scott Rigell (R-VA) and Jeff Landry (R-LA) will introduce a bill titled the “Right to Habeas Corpus Act.” In short, the bill would “firmly state that … Read more »
Peter Margulies responds to Jameel Jaffer’s response:
I appreciate Jameel’s response to my earlier post, as I appreciate the work that he and the ACLU have done in promoting transparency. However, Jameel’s response largely reinforces my argument. First, Jameel
Last week, we brought you the first sets of filings in Moath Hamza Ahmed Al Alwi’s petition for a writ of certiorari. Al Alwi has now filed his reply to the government’s brief opposing his cert petition.
The reply advances … Read more »
Comparing the role of the Supreme Court in the health care debate and the national security debate, Orin Kerr writes at Volokh Conspiracy:
If the Court does end up striking down the mandate, this will be the second consecutive
For those interested in the ongoing academic debate over the rationale and implications of the Supreme Court’s decision in Boumediene, I have a new (short) piece in the Iowa Law Review Bulletin responding to Professor Andrew Kent’s November 2011 … Read more »
Friday, May 24, 2013
Coverage of President Obama’s speech yesterday is plentiful: Here are Peter Baker of the New York Times, Karen DeYoung and Greg Miller of the Washington Post, and Mark Mazzetti of the Times with an analysis of the key points of the speech. Scott Wilson of the Post also provides a rundown of the speech, and cites Ben. The Associated Press reports on lifting the transfer ban on Yemeni detainees, and Colleen McCain Nelson, Adam Entous, and Julia E. Barnes… Read more »
