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 »
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
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 … Read more »
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)
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 … Read more »
[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 … 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 »
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 … 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 »
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 »
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 »
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 … Read more »
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, … Read more »
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
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)… … Read more »
[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 … Read more »
[THIRD UPDATE (12/9/11): See here for my updated assessment as to US citizens captured abroad.]
[SECOND UPDATE (12/7/11): Thanks to a flood of emails and calls, I am aware that a great many readers remain unaware that the Senate bill … Read more »
The D.C. Circuit strongly disfavors en banc review. For longstanding cultural reasons, the court avoids en bancs whenever possible. This is generally a good thing. En bancs can be ugly; they stress a court’s collegiality. The Latif case, however, should … Read more »
I have now read the entirety of Latif, and I am–quite honestly–not entirely sure what to make of it. For one thing, the redactions are extensive, far more so than in the normal D.C. Circuit habeas case. They involve … Read more »
Oral arguments in Lebron v. Rumsfeld took place before the Fourth Circuit on Wednesday. The oral argument audio recording is available here, and my argument preview, with background on the case as well as links to the lower court … Read more »
The functional arguments in support of the killing of Al-Awlaki — that he posed substantial, verified threats to the United States and could not reasonably be apprehended and placed on trial — seem fairly strong. There is a different sort … Read more »
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 »
The debate regarding AUMF renewal via section 1034 of the NDAA FY12 is about much more than detention authority, but of course it does impact detention authority in various ways. As to that issue, Deborah Pearlstein frames the issue nicely … Read more »
In a recent post, Bobby raised the question of what impact, if any, Bin Laden’s death would have on the legal effect of the Authorization for Use of Military Force, or “AUMF.” As I noted in a post… Read more »
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 … Read more »
Over at SCOTUSblog, Lyle Denniston takes note of the fact that the Supreme Court during last Friday’s conference had before it the cert. petitions for several GTMO-related cases. The cases are all relatively important in their own way, to be … Read more »
Daphne Eviatar and I have an interesting exchange underway, one that I think nicely illustrates some of the key points of legal disagreement that underly the detention debate (such as whether the ICCPR applies abroad, or whether the laws of … Read more »
Tomorrow morning the D.C. Circuit will hear oral argument in Al Warafi v. Obama, a Guantánamo merits appeal that challenges Judge Lamberth’s March 2010 decision denying habeas relief to petitioner Mukhtar Yahia Naji Al Warafi. In addition to fairly … Read more »
Bobby is quite right to link yesterday’s New York Times editorial to the one about which I complained back in October. But Bobby is a more generous soul than I am, and I am disinclined to give the Times’ editorial … Read more »
I was amused, in reading Judge Bates’ Khan opinion just now, to run across the judge’s account of the scope of the government’s detention authority–amused because the New York Times this morning editorialized that holding people in prolonged military detention … Read more »
More than two years ago, in my book Law and the Long War: The Future of Justice in the Age of Terror, I wrote the following paragraph about the value of habeas review to innocent detainees:
Indeed, [my] critique
[A jointly-written post by Bobby Chesney and Benjamin Wittes]
Does the substantive scope of detention authority conferred by the Graham bill (S. 3037) “dramatically expand existing law,” as Steve Vladeck alleges here? No, it does not. It adds nothing … Read more »
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 … Read more »
We are in the midst of a protracted round of merits litigation involving the habeas corpus petitions of Guantanamo detainees. The government has lost more often than it has won thusfar, but let’s not forget that it has indeed won … Read more »
Judge Brown’s statement in the Al-Bihani rehearing denial sparks three thoughts:
1. Judge Brown complains that the effect of the rehearing denial – especially the non-panel judges’ statement that the panel’s law-of-war analysis was “not necessary to the disposition of … Read more »
Thanks to Kevin Jon Heller for his thoughtful post taking issue with my hostage-taking analogy. Readers will be shocked to learn that I disagree with him. Let me briefly respond to both of Heller’s major points. Heller argues, first, … Read more »
Denials of petitions for rehearing en banc are usually dull affairs, but not so the 113-page denial the D.C. Circuit issued two days ago in Al-Bihani v. Obama. The original panel opinion rejected Al-Bihani’s habeas petition on the ground … Read more »
Wednesday, May 22, 2013
In one of the strangest stories I’ve come across in a long time—and there have been many—news reports say an FBI agent shot and killed an Orlando man with ties to deceased Boston bombing suspect Tamerlan Tsarnaev. Ibragim Todashev was not suspected of playing a role in the bombings, but, during questioning, confessed nevertheless to playing a role in a triple homicide in the Boston area. After his confession, Todashev allegedly… Read more »
