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Tag Archives: Hamdi

Habeas, Due Process, and… Extradition?

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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 . . .
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Andrew Kent on the White Paper as a Plus for Civil Liberties

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Friday, February 8, 2013 at 8:14 AM

Here’s a counter-intuitive view of the White Paper–from the always-interesting Andrew Kent: Although many critics with a strong civil liberties and human rights bent deplore the DOJ White Paper for various reasons, there is actually something in there they should be pleased about.  The White Paper fleshes out a bit the Obama Administration’s relatively rights-protective . . .
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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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Appellees’ Brief Filed in Hedges

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Monday, December 10, 2012 at 7:23 PM

To the day’s tally of important national security law filings, add this: the appellees’ brief in Hedges v. Obama.   The below comes from the brief’s argument section: Comparing the text of the two enactments shows that the NDAA §1021(b)(2) and the AUMF are not co-extensive, as the district court concluded.  Decision at 34-35.  The AUMF states: The President . . .
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Domestic Military Detention After the (New) Feinstein Amendment

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Friday, November 30, 2012 at 6:57 PM

Wells is exactly right–and Senators Levin and Graham are exactly wrong–about the implications of last night’s Senate vote approving Senator Feinstein’s amendment to the FY2013 National Defense Authorization Act. Wells linked to the amendment, but here is the relevant language of what would be new 18 U.S.C. § 4001(b): (1) An authorization to use military . . .
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Can Congress be Express Without Being Explicit? Senate Debate on the NDAA’s Domestic Detention Provision

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Friday, November 30, 2012 at 12:09 PM

[Updated 3:08 p.m] Last night, the Senate approved Senator Dianne Feinstein’s amendment (No. 3018) to the pending NDAA bill, regarding the military detention of citizens and lawful permanent residents.  The vote was 67-29. As Lawfarers well know by now, the amendment says that authorizations to use force and like statutes will not authorize the military detention of . . .
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District Court Rejects Interim Release of GTMO Detainee

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Wednesday, November 28, 2012 at 10:52 AM

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 (“PRB”) hearing—at which the petitioner could make his case for immediate release—has not yet been . . .
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Amicus Brief Filed in Hedges by Senators McCain, Graham, and Ayotte

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Wednesday, November 14, 2012 at 3:23 PM

Attorneys for Senators John McCain, Lindsey Graham, and Kelly Ayotte—all members of the Senate Committee on Armed Services—have filed an amicus brief in support of the government in Hedges v. Obama.  (Background here.) From the brief’s “Introduction and Summary of Argument” section: Because “detention to prevent a combatant’s return to the battlefield is a fundamental incident . . .
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What Hedges Could Have Said…

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Tuesday, September 18, 2012 at 1:38 PM

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 is true: Either Judge Forrest was exactly right, or she was utterly, if not egregiously, wrong (or both). Now . . .
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Final Thoughts on DC Circuit Fidelity to Hamdi/Boumediene

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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 . . .
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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:

Is DC Circuit Habeas Caselaw Inconsistent with Hamdi and Boumediene?

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Tuesday, June 12, 2012 at 1:41 PM

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 in 2004 (Hamdi) and 2008 (Boumediene).  Steve’s most recent reply lists a number of points . . .
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A Reply for Ben…

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Tuesday, June 12, 2012 at 7:56 AM

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 this question in more detail elsewhere (and am running out on another matter), but here’s a quick list of D.C. Circuit conclusions . . .
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A Question for Steve

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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 . . .
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Why “Meaningful” Review Isn’t an Abstraction…

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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, . . .
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Oral Argument Yesterday in Doe v. Rumsfeld [Updated]

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Tuesday, March 20, 2012 at 12:05 AM

The D.C. Circuit heard oral argument yesterday in Doe v. Rumsfeld (11-5209), a Bivens case brought by a U.S. citizen working as a military contractor in Iraq who alleged detention and interrogation abuses by the U.S. government. The case is similar to Lebron v. Rumsfeld and Vance v. Rumsfeld, two recent Bivens cases brought by U.S.-citizen plaintiffs. In Lebron, . . .
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Covering NSL Issues in First-Year Constitutional Law

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Thursday, December 22, 2011 at 4:55 PM

With the next semester quickly approaching, I’m going through the annual struggle to decide just how much I want to cover current (national security) events in my first-year Constitutional Law course. This is always difficult for me for several reasons, including (1) how jam-packed my syllabus already tends to be (I’m charged with covering virtually . . .
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Raha Wala Writes His Own FAQ

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Tuesday, December 20, 2011 at 10:01 PM

Raha Wala of Human Rights First has rewritten Bobby and my NDAA FAQ. Here is his very commendable effort: While I agree that much of he public discussion of the NDAA provisions has been hyperbolic, I also think there’s much to be worried about in this bill and, therefore, I’m glad the debate has escaped . . .
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The Problematic NDAA: On Clear Statements and Non-Battlefield Detention

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Tuesday, December 13, 2011 at 12:06 PM

For reasons I plan to elaborate upon in this and subsequent posts, I’m not at all convinced that the conference version of the NDAA is substantially better than the House or Senate version (or that either is better than nothing)… In this post, I’ll start with the question of non-battlefield detention authority. Bobby has already . . .
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The NDAA and US Citizen Detention

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Wednesday, December 7, 2011 at 10:07 AM

[UPDATE (12/9/11): See here for my updated assessment as to US citizens captured abroad.] On the day that the Senate passed its version of the NDAA, I wrote a post in the morning addressing whether the bill could be read to affirm that detention authority extends to US citizens.  Reading the existing language of section . . .
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