Tuesday, January 17, 2012
Against the al-Nashiri backdrop, the government has now filed its brief on the merits in United States v. Hamdan (the first post-conviction appeal under the Military Commissions Acts of 2006 and 2009), which is set to be argued to a D.C. Circuit panel (Chief Judge Sentelle and Judges Ginsburg and Kavanaugh) on May 3. The central [...]
Filed in Executive Power, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit, Guantanamo: Prosecutions, International Law, International Law: LOAC, Terrorism Trials, Terrorism Trials: Military Commissions
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Also tagged Al Nashiri, David Sentelle, Douglas Ginsburg, Ex parte Quirin, Harlan Fiske Stone, Material Support Law, United States v. Hamdan
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Tuesday, January 10, 2012
Here is Part II of Peter Margulies’s reporting from AALS: AALS Federal Courts Debate II: Military Commissions and Material Support The lively federal courts panel at the American Association of Law Schools conference also sparked disagreement on trials in military commissions. Marty Lederman recalled that the administration had advised Congress in 2009 that courts might [...]
Filed in Terrorism Trials, Terrorism Trials: Legislative Development, Terrorism Trials: Legislative Development: Military Commissions
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Also tagged 2006 Military Commissions Act, AALS, Alien Tort Statute, Court of Military Commission Review, Curt Bradley, Hamdan, Marty Lederman, Peter Margulies, Sosa v. Alvarez-Machain
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Tuesday, January 10, 2012
Peter Margulies of Roger Williams University School of Law has sent in two accounts of panel discussions at the annual meeting of the American Association of Law Schools. Here is the first: Federal Courts and National Security: A D.C. Circuit Judge and Scholars Find the Fault Lines In a provocative panel at the American Association of [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, International Law, Secrecy, Secrecy: State Secrets Privilege
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Also tagged Curt Bradly, Judith Resnik, Latif, Marty Lederman, Peter Margulies, Sarah Cleveland, Trevor Morrison, Vicki Jackson
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For our law professor readers, I thought I’d put together a quick post summarizing the national security-related panels at this week’s AALS Annual Meeting here in Washington, D.C. Four panels, in particular, seem to be oriented toward NSL-ish topics (including three in a row on Saturday). Details below the fold:
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 Al Bihani, 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 Al Bihani, Carl Levin, David Cole, Dianne Feinstein, Janice Rogers Brown, John Brennan, Lindsey Graham, Marty Lederman, Raha Wala
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The D.C. Circuit has decided the case of Fayiz Mohammed Ahmed Al Kandari, a Guantanamo habeas petitioner. The writing has been on the wall for Al Kandari since the court abruptly canceled oral arguments in his case. The unpublished per curiam judgment, by Judges Brett Kavanaugh, Laurence Silberman, and Douglas Ginsburg, reads as follows: The petitioner argues [...]
On Friday, the DC Circuit held, in a 2-1 panel decision in Doe v. ExxonMobil, that corporations may be held liable under the Alien Tort Statute, creating a decisive circuit split with the Second Circuit’s decision in Kiobel last September. The plaintiffs in Kiobel have filed for cert, and I had previously speculated that the [...]
The D.C. Circuit Court this morning handed down two opinions that may be of interest to Lawfare readers. In Ali v. Rumsfeld, Judge Karen LeCraft Henderson delivered the opinion which affirmed the district court’s dismissal. Her opinion was joined by Chief Justice Sentelle; Senior Circuit Judge Edwards dissented. The opinion opens: Four Afghan and five [...]
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 [...]
Almerfedi is a big deal–though perhaps subtly. Judge Laurence Silberman’s opinion continues a trend, begun by Judge Brett Kavanaugh in Uthman, of clarifying just how little the preponderance of the evidence standard really requires of the government. This question was a big theme of Silberman’s comments at oral arguments, and the opinion–while less flamboyant on [...]
The D.C. Circuit has handed down its decision in the case of Hussain Almerfedi, a Guantanamo habeas petitioner. The opinion is written by Judge Laurence Silberman for himself and Judge Brett Kavanaugh. Judge Judith Rogers concurred in part and in the judgment, which reverses a district court opinion granting Almerfedi the writ. In my oral [...]
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 Adahi, Al Jadani, Almerfedi, 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 Al Adahi, Almerfedi, Awad, Bensayah, 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, Al Adahi, Department of Justice, Esmail, Karen LeCraft Henderson, Laurence Silberman
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The D.C. Circuit continued this morning its broad-based, cross-ideological conspiracy to mess up my schedule. I was returning this morning from a perfectly delightful trip to Saratoga Springs, NY to teach some classes and give a lecture at Skidmore College, and was not planning to do any more blogging today than a short shout-out to [...]
Today a D.C. Circuit panel of judges Garland, Griffith, and Kavanaugh reversed and remanded, with instructions to deny, Uthman v. Obama (Case No. 10-5235). Uthman is the merits appeal concerning habeas petitioner Uthman Abdul Rahim Mohammed Uthman. The government had appealed Judge Henry Kennedy’s April 2010 decision granting Uthman’s habeas petition. The panel heard oral [...]
Yesterday the D.C. Circuit resolved this interesting question in Almerfedi v. Obama. The panel of Judges Brown, Kavanaugh, and Silberman ruled in the government’s favor, granting the (non-temporary) stay that will prevent petitioner Almerfedi from being transferred out of U.S. custody pending the court’s resolution of his merits appeal. In its brief per curiam order, the [...]
This afternoon the D.C. Circuit responded to the government’s request for a temporary stay in Almerfedi v. Obama by granting the motion. This means that the detainee, habeas petitioner Hussain Salem Mohammed Almerfedi, will remain in custody at Guantanamo Bay while the appellate panel of Judges Rogers, Kavanaugh, and Silberman considers in full the government’s motion to stay the [...]
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 Al Adahi, Anthony Phillips, Awad, Bensayah, 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 Al Adahi, Henry Kennedy, Merrick Garland, Salahi, Thomas Griffith, Uthman
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Thursday, January 6, 2011
Readers interested in my post from yesterday will find this document useful; prepared by OLC veterans from the Clinton administration in response to the controversy over the Bush administration’s use of signing statements, it makes many of the same points I do in my post and contains a good deal of source material. A 2009 memo [...]
Monday, December 20, 2010
A few of the habeas merits appeals before the D.C. Circuit were just scheduled for oral argument. Here are the dates and panel assignments: Al Warafi v. Obama: Oral argument will be held February 7, 2010 before judges Ginsburg, Garland, and Williams. Public briefs can be found here. Abdah v. Obama (Uthman): Oral argument will be February [...]
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, Al Warafi, David Tatel, Douglas Ginsburg, Esmail, Janice Rogers Brown, Laurence Silberman, Merrick Garland, Stephen Williams, Thomas Griffith, Uthman
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Saturday, October 30, 2010
Last week I wrote that Barhoumi v. Obama, one of the government’s D.C. Circuit wins, had an outcome that was tentative because of underlying material the government had failed to produce in the district court. Here are the documents that underlie that controversy. Barhoumi lost his district-court case before Judge Rosemary Collyer. He then lost again [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit, Secrecy, Secrecy: State Secrets Privilege, State Secrets Privilege: Litigation
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Also tagged Barhoumi, David Tatel, Douglas Ginsburg, Rosemary Collyer
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Tuesday, September 14, 2010
It is now well known that the Obama administration has embraced almost all of the Bush administration’s counterterrorism policies without substantial modification. One such policy is military detention without trial. The Obama administration has argued, however, that its legal rationale for military detention is different than the Bush administration legal rationale. State Department Legal Advisor Harold Koh described [...]
Filed in AUMF, AUMF: Scope and Reach, Detention, Detention: Law of, Detention: Operations in Afghanistan, Guantanamo, International Law, International Law: LOAC, International Law: LOAC: Detention
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Also tagged Al Bihani, Al Marri, Ali Saleh Kahlah al-Marri, Bagram, Detainee Treatment Act, Harold Koh, Ingrid Detter, New York Times, Padilla, Quirin, Reggie Walton, Stephen Williams, Uighurs, Yasser Hamdi, Youngstown Sheet & Tube Co. v. Sawyer
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