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Tag Archives: Brett Kavanaugh

Article III and the al Bahlul Remand: The New, New NIMJ Amicus Brief

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Monday, August 18, 2014 at 12:59 PM

On July 14, the en banc D.C. Circuit ruled in al Bahlul v. United States that “plain error” review applied to Bahlul’s ex post facto challenge to his military commission convictions for conspiracy, material support, and solicitation–and then upheld the first of those charges under such deferential review (while throwing out the latter two). One of the potentially unintended consequences of the Court . . .
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Judge Edwards’s Odd Concurrence in Ali

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Wednesday, December 4, 2013 at 9:44 AM

Both Raffaela and Steve have already noted the D.C. Circuit’s opinion yesterday in Abdul Razak Ali v. Obama, the latest Guantanamo habeas case. Both also took note of Senior Judge Harry Edwards’s brief opinion concurring in the judgment affirming the district court’s denial of habeas. Judge Edwards’s opinion will win notice because of its arresting conclusion . . .
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Judge Edwards and “Functionally Useless” Habeas

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Tuesday, December 3, 2013 at 11:39 AM

This morning’s D.C. Circuit decision in Ali v. Obama is not exactly a shocker, given the court’s ever-solidifying body of jurisprudence on the scope of the government’s power to detain non-citizen terrorism suspects at Guantánamo. In short, Judge Kavanaugh’s opinion for a (mostly) unanimous panel affirms the district court’s denial of habeas relief to Abdul Razak . . .
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Handicapping al Bahlul

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Sunday, September 29, 2013 at 10:54 PM

Raff already outlined the issues the en banc D.C. Circuit (minus Judge Srinivasan) will confront in tomorrow’s oral argument in al Bahlul v. United States, and I have very little of substance to add to Jen Daskal’s thorough analysis over at Just Security, or Marty Lederman’s addendum thereto. Instead, I thought I’d take a slightly different tack, . . .
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Oral Argument Preview: Al-Bahlul v. United States

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Sunday, September 29, 2013 at 1:19 PM

Monday morning, an en banc panel of the D.C. Circuit will hear oral arguments in the case Ali Hamza Ahmad Suliman al Bahlul v. United States. Lawfare has covered  extensively the ins and outs of this important case, in which a Guantanamo detainee appeals his 2009 conviction by military commission for providing material support to Al Qaeda, conspiracy, . . .
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The Two Fundamental Flaws in the New Bahlul Amicus Brief

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Friday, July 26, 2013 at 10:44 AM

Raff already flagged yesterday’s filing of an amicus brief in support of the government in the Al Bahlul military commission appeal before the en banc D.C. Circuit by “former government officials, former military lawyers, and scholars of national security law,” a group that includes Ben, Ken, and two of my casebook co-authors–among others. At the . . .
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Razak Ali v. Obama: A Case of Mistaken Identity, or “Guilty By Guesthouse”?

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Tuesday, July 23, 2013 at 6:30 PM

On March 8, 2011, Saeed Bakhouch, an Algerian GTMO detainee also known as Razak Ali, noted an appeal of the District Court’s January 2011 denial of his petition for a writ of habeas corpus.  Oral argument on the merits is scheduled for September 27, 2013 before D.C. Circuit Judges Brett Kavanaugh, Harry Edwards and Stephen Williams. Read Bakhouch’s . . .
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Article III Limits on Military Commissions, the (New) NIMJ Amicus Brief, and the En Banc D.C. Circuit

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Wednesday, June 12, 2013 at 10:30 AM

Wells already flagged yesterday’s news re: General Martins’ apparent skepticism about the availability of conspiracy and military commission charges in future military commission cases (at least those brought against the current Guantánamo detainees, all of whom could raise the same ex post facto argument as the one at the heart of Hamdan II). As Wells . . .
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An Explainer on Hamdan II, Al-Bahlul, and the Jurisdiction of the Guantánamo Military Commissions

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Friday, April 26, 2013 at 10:30 AM

As Wells noted on Tuesday, the D.C. Circuit granted the government’s petition for rehearing en banc in Al-Bahlul v. United States. This is a very important development, as the full appeals court will now determine whether military commissions may try defendants for pre-2006 instances of “standalone” conspiracy and providing material support for terrorism. Al-Bahlul has . . .
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DOJ Seeks Rehearing En Banc in Bahlul to Overturn Hamdan II

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Tuesday, March 5, 2013 at 6:34 PM

Back in January, we devoted a fair amount of attention to the DOJ Supplemental Brief in the al-Bahlul military commission appeal–and the rather significant internal debate within the Administration about whether to accept the D.C. Circuit’s ruling in Hamdan II, or to seek to overturn it either by pursuing rehearing en banc in Bahlul (which is arguably a better . . .
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The Merits of DOJ’s Supplemental Brief in Al Bahlul

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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 . . .
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Audio of Recent ABA Standing Committee Conference

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Thursday, December 13, 2012 at 5:53 AM

The American Bar Association’s Standing Committee on Law and National Security has released audio recordings of its recent conference in Washington. Here they all are: Day 1 – Thursday, November 29, 2012 Conference Overview and Welcome Harvey Rishikof Laurel Bellows Panel I – Role of the Courts in National Security Law: Past, Present and Future . . .
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Conspiracy and Military Commissions After Hamdan II

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Wednesday, October 17, 2012 at 8:42 PM

In his post on yesterday’s decision in (what I think we should all call) Hamdan II, Jack writes “The historical arguments for a conspiracy charge in military commissions under the laws of war, while not slam dunks, are . . . more powerful than similar arguments for material support.” Thus,  he “think[s] the strong suggestions . . .
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Three (Early) Observations on Judge Kavanaugh’s Analysis in Hamdan

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Tuesday, October 16, 2012 at 11:57 AM

Raff already shared the news re: this morning’s D.C. Circuit decision reversing Salim Hamdan’s military commission conviction for providing material support to terrorism (MST), holding that MST wasn’t a recognized violation of the laws of war prior to 2006 (when it was codified as part of the Military Commissions Act of 2006), and so the MCA . . .
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D.C. Circuit Opinion in Hamdan

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Tuesday, October 16, 2012 at 10:47 AM

The D.C. Circuit Court’s opinion that we’ve all been waiting for has come down. The D.C. Circuit has vacated Hamdan’s conviction for material support for terrorism in the Military Commission and reversed the Court of Military Commission Review’s judgment. The opinion was written by Judge Brett Kavanaugh, and is available here (the case was also . . .
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Warafi Oral Argument Summary

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Friday, September 21, 2012 at 2:50 PM

I had to restrain myself this morning at the D.C. Circuit from interrupting proceedings with an emergency request for an on-the-spot ruling in Wittes v. FAA—a case which has admittedly does not exist—that the agency’s action with respect to the Lawfare Drone Smackdown is arbitrary and capricious. Restrain myself I did, for the issue of . . .
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D.C. Circuit Upholds Narcoterrorism Conviction in United States v. Mohammed

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Wednesday, September 5, 2012 at 10:40 AM

Yesterday the D.C. Circuit issued its decision in United States v. Mohammed, in which the defendant, Afghan citizen Khan Mohammed, appealed his conviction on narcoterrorism charges stemming from his involvement in a plot to attack a NATO base in Afghanistan. Of particular relevance to Lawfare readers is the court’s broad interpretation of 21 U.S.C. § 960a, which criminalizes drug . . .
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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:

Why the “Munaf Sequels” Matter: A Primer on FARRA, REAL ID, and the Role of the Courts in Transfer/Extradition Cases

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Tuesday, June 12, 2012 at 9:00 AM

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 v. Thomas, a complicated extradition-related habeas case raising the question whether courts may inquire into Executive Branch . . .
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Transcript in Hamdan Available

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Thursday, May 17, 2012 at 9:07 AM

The unofficial transcript from May 3rd’s oral argument in Hamdan v. USA in the D.C. Circuit Court of Appeals before Chief Circuit Judge David Sentelle and Circuit Judges Douglas Ginsburg and Brett Kavanaugh,  is now available. You can read it here.