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 … Read more »
A procedural note from commissions-land: in documents signed on Monday, the Convening Authority, Retired Vice Admiral Bruce MacDonald, dismissed sworn charges—material support and standalone conspiracy—against GTMO detainees Sufyian Barhoumi, Jabran Said Bin Al Qahtani, and Ghassan Abdullah al … Read more »
You’ll find a copy here.
The Chief Prosecutor’s statement naturally overviews the week’s proceedings; one portion, however, addresses an issue not formally included on the docket but likely of interest to Lawfare readers:
Conspiracy as a Separate, Stand-Alone Offense
The New York Times has a news analysis piece by this morning the excellent Charlie Savage, which requires a moment’s reflection. Charlie is about as good a reporter as there is out there on Lawfare-related matters, and he has … Read more »
The Guantánamo military commissions yesterday released—after a security review—a pair of important filings by the Office of the Chief Prosecutor (OCP), regarding the ongoing controversy over the conspiracy charges against the five 9/11 defendants. (For background, see our prior coverage … 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 »
Fresh from a security scrub are these two items in United States v. Mohammed et. al.: first, an Amended Docketing order, wherein Judge James Pohl excises two previously scheduled defense motions to compel discovery from the agenda for … Read more »
We end the evening with this procedural nugget from Jess Bravin of the Wall Street Journal: in Hamdan II, the deadline for the United States to seek en banc review from the D.C. Circuit, or a writ of … Read more »
Remember the Chief Prosecutor’s tactical recommendation to pull standalone conspiracy charges in the 9/11 case—in light of the D.C. Circuit’s analysis in Hamdan II, and the strong likelihood that the same court (or the Supreme Court) would follow … Read more »
An informed observer in the executive branch writes in response to Bobby and my post of earlier today on Eric Holder’s decision to continue the appeal in Al Bahlul:
Let me offer for your consideration an alternative explanation for
Reported on Friday by the Miami Herald’s Carol Rosenberg: defense attorneys in United States v. Al-Nashiri filed a renewed motion to dismiss the conspiracy charge against their client. At the same time, the lawyers reactivated an earlier request to throw … Read more »
We refrained last week from expressing much opinion on the decisions by both Military Commissions Chief Prosecutor Mark Martins and by the Justice Department in the Al Bahlul case concerning how to handle stand-alone inchoate conspiracy charges after Hamdan II… Read more »
As I discuss in my forthcoming book, International Law in the U.S. Legal System, regardless of whether customary international law has the status of self-executing federal law, it can play an important role in U.S. litigation. The invocation of … Read more »
In this special episode of the Lawfare Podcast, Military Commission Chief Prosecutor Brigadier General Mark Martins discusses his decision to recommend dropping conspiracy charges against Khalid Sheikh Mohammed and the other 9/11 defendants. Martins announced yesterday that in light … Read more »
Apropos of Charlie Savage’s story (and Bobby’s follow-up) on the government’s litigation tactics in Hamdan and al-Bahlul: assuming the material support and conspiracy charges in those cases indeed are tossed out (through final invalidation by the courts, or through … 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 »
[UPDATED 3:18 p.m.] Lawyers for military commission accused Ali Hamza Suliman Ahmad Al-Bahlul have filed their supplemental, what-do-we-make-of-Hamdan brief with the D.C. Circuit. The government’s response is due on January 9 of next year; the accused’s reply is due … Read more »
In his response to Andrea Prasow, Ben suggests that, in continuing to object to military commissions that have been blessed by two Congresses and both the Bush and Obama Administrations, “Human Rights Watch sound[s] a bit like conservatives will … 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 »
Peter Margulies of Roger Williams School of Law writes in with the following comments on Hamdan II–following up on his post immediately after the decision:
Even if one agrees with the Hamdan II panel that material support isn’t
Cornell’s Jens David Ohlin has this interesting post over at his LieberCode blog, arguing that support offenses are far less necessary than Americans tend to think. It opens:
A pair of recent court decisions have thrown into stark relief the
Today, the U.S. Court of Appeals for the District of Columbia Circuit filed a per curiam order in the case of Bahlul v. United States, ordering the parties to file briefs addressing the implications of the court’s decision in … Read more »
Last week I asked whether per se opposition to military commissions was in the GTMO detainees best interests, where their “interests” were defined as “(a) maximizing [the detainees’] procedural rights, and (b) shortening their time in GTMO.” I had in … Read more »
I was out of the country last week and missed the opportunity to weigh in promptly on the Hamdan decision. In reading the reactions, I have noted that many human rights and civil liberties groups have insisted that the decision … Read more »
Jonathan Witmer-Rich of the Cleveland-Marshall College of Law writes in with these comments on Hamdan II:
Reflecting on Hamdan II, I wonder if the court really responded to the government’s opening argument (in Part I.A of its opening brief
Steve, Ben, Jack, and Bobby have already posted some excellent thoughts on the DC Circuit’s decision in Hamdan II. I agree with many of them. In particular, I think Jack is right to suggest that, wholly … Read more »
Peter Margulies of Roger Williams School of Law writes in with the following comments on the Hamdan decision:
The D.C. Circuit’s decision today in Hamdan reaches the right result, but employs an unduly stark test that misreads both international law
Five brief thoughts on yesterday’s Hamdan decision:
First, I am less confident than Steve and Ben that this opinion forecloses conspiracy claims in military commissions. The historical arguments for a conspiracy charge in military commissions under the laws of … Read more »
I largely agree with Steve’s excellent post on the D.C. Circuit’s Hamdan decision today. In particular, and most importantly, I agree that the logic of the opinion strongly indicates that military commissions will likely not be available to try allegations … Read more »
Here’s a timely new article as the D.C. Circuit considers the military commission appeals in Hamdan and Bahlul–both of which challenge convictions based on, among other charges, material support for terrorism. Peter Margulies of Roger Williams School of Law … Read more »
Judge James Pohl has denied two motions to dismiss for lack of personal jurisdiction in United States v. Al-Nashiri. Though handed down on June 19, Pohl’s two orders became available only more recently, after they each completed the Defense Department’s … Read more »
The government has filed its supplemental brief in Hamdan on the question of whether the case is moot. We shared a few weeks back Hamdan’s supplemental brief on the issue. As Wells explained in that post, the three-judge panel in … 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 »
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 … 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 »
Tomorrow morning, a panel of three judges from the United States Court of Appeals for the District of Columbia Circuit (Chief Judge Sentelle along with Circuit Judges Ginsburg and Kavanaugh) will hear argument in the case of Salim Hamdan v. … Read more »
Over at Opinio Juris, Kevin Jon Heller offers the following objection to Haridimos Thravalos’s guest post last night on Hamdan, conspiracy, and history:
There is, however, a basic problem with Thravalos’ argument. He claims that “[t]he Hamdan plurality
I received this evening a most extraordinary guest post. It isn’t every day that someone sends me a memo outlining how a four-justice plurality of the Supreme Court got a key historical point wrong in a major case–much less does … Read more »
I don’t believe, as Steve suggested in his good response to my Slate essay on military commissions, that Obama’s continuation of military commissions is “a validation of . . . the policies of the (later part of the) Bush Administration.” … Read more »
Some court documents came in over the weekend:
Salim Ahmed Hamdan has filed his reply brief in his appeal in the D.C. Circuit Court. You can read it in full here. The summary of the argument is excerpted here:… Read more »
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
Salim Hamdan has filed his initial brief in the D.C. Circuit, appealing his military commission conviction and the Court of Military Commission Review opinion affirming it. He raises the following issues for review:
1. Whether the CMCR erred in holding
Yesterday I asked whether there are any historical examples in which (i) a military commission prosecution occurred during an armed conflict rather than afterwards, (ii) the defendant was acquitted, and (iii) the defendant was nonetheless remanded back to military custody … Read more »
Kevin Heller (Melbourne) writes in with a response to last night’s post from Peter Margulies on the CMCR decision in Al-Bahlul:
Peter Margulies is absolutely right that I ignore the factual differences between Hamdan and al-Bahlul. But that
Peter Margulies (Roger Williams) takes up one of the central issues addressed in the CMCR’s decision last Friday in al-Bahlul:
Material support charges in military commissions illustrate the perils of painting with a broad brush. In United States v.
Steve Vladeck is a professor of law (and Associate Dean for Scholarship) at American University Washington College of Law. Steve is the author of many terrific articles relating to national security and the law, including “The New Habeas Revisionism… Read more »
While everyone has been focused on Libya war powers over the last few days, the DC Circuit issued an interesting opinion on Tuesday in an Alien Tort Statute suit (Ali Shafi v. Palestinian Authority) against the Palestinian Authority … Read more »
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 … Read more »
Yesterday I noted that I’d summarize the United States v. Hamdan oral argument in the Court of Military Commission Review separately from Al Bahlul. I’ll note the same caveats with respect to this summary as to those I mentioned … Read more »
Friday, May 17, 2013
The Department of Justice’s Inspector General released an interim report on the Department’s handling of “known or suspected” terrorists who have entered the government’s witness protection program. The report found, among other things, that information on some program participants had not been turned over to no-fly list authorities; and, that two such people could not be located—though one… Read more »
