Saturday, January 21, 2012
The D.C. Circuit has batted back Mustafa Ahmed Al Hawsawi’s request for a preliminary injunction to stop the new mail search policy at Guantanamo Bay. A per curiam order by a panel consisting of Judges Merrick Garland, Janice Rogers Brown, and Judith Rogers says that: Petitioner has not satisfied the stringent requirements for an injunction pending court [...]
Wednesday, January 11, 2012
If Ben needs something to tear into, there’s also this–my guest post over at the ACSblog, which uses Judge Brown’s disturbing rhetoric in Latif as a foil through which to evaluate this “anniversary.” Reasonable people (including us) will disagree about the merits of detainee policy going forward, but the paragraph on which the post focuses seems [...]
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, Brett Kavanaugh, Carl Levin, David Cole, Dianne Feinstein, 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, Brett Kavanaugh, Carl Levin, David Cole, Dianne Feinstein, John Brennan, Lindsey Graham, Marty Lederman, Raha Wala
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Sunday, November 13, 2011
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 probably overcome the court’s allergy to en bancs. I don’t know whether Latif’s lawyers will ask [...]
Filed in Detention, Detention: Law of, Detention: Law of: District Court Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit, International Law
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Also tagged Al Latif, Boumediene, David Tatel, Hamdi, Merrick Garland, Supreme Court
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Saturday, November 12, 2011
The more I study the D.C. Circuit decision in Latif, the more important I think it is, and the more regrettable I think it probably is. I’m going to spread this out over two posts. In this one, which is going to be very long, I’m going to describe in some depth the arguments in [...]
Wednesday, November 9, 2011
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 matters central to the disposition of the case, and they thus make much of the dispute [...]
Wednesday, November 9, 2011
I have only just begun reading the D.C. Circuit’s decision in Latif, but it already clear to me that it is a very big deal. Judge Janice Rogers Brown, for the majority, expressly adopts a presumption in favor of the government’s evidence in Guantanamo habeas cases–something the lower courts had declined to do on which [...]
The D.C. Circuit appears to have ruled in the case of Adnan Farhan Abd Al Latif (which Larkin previewed here, the briefs from which she posted here, the argument in which she and I covered here). Latif was granted the writ by Judge Henry Kennedy back in July of last year. I don’t have a [...]
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 [...]
The D.C. Circuit also heard oral arguments today in El Falesteny v. Obama, some sort of Guantanamo case that is kept so tightly under seal that even the subject matter of the appeal seems to be a mystery. The same panel that heard Gul/Hamad–Judges Tatel, Ginsburg, and Brown–heard today’s oral argument, which was closed 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 David Tatel, Douglas Ginsburg, El Falesteny, Gul, Hamad, Reggie Walton
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Today the D.C. Circuit heard oral argument in Gul v. Obama and Hamad v. Obama, the consolidated appeals that ask whether a federal district court has jurisdiction to consider the claims of habeas petitioners Nazar Gul and Adel Hassan Hamad–both of whom are no longer at Guantanamo Bay. As we have previously covered the petitioners’ [...]
(By Benjamin Wittes and Larkin Reynolds) This summary is going to be short–short and obscure. The reason is that Judge Karen LeCraft Henderson opened today’s arguments by announcing that almost none of the case could be discussed in open session and that she would thus allow counsel to make only brief presentations in public session. [...]
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 [...]
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, Brett Kavanaugh, David Tatel, Douglas Ginsburg, Esmail, Laurence Silberman, Merrick Garland, Stephen Williams, Thomas Griffith, Uthman
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(By Robert Chesney and Benjamin Wittes) This morning the D.C. Circuit vacated and remanded a decision by former U.S. District Judge James Robertson, granting habeas relief to Mohammedou Salahi. The opinion, written by Judge Tatel and joined by Chief Judge Sentelle and Judge Brown, will not surprise anyone who read Ben’s account of the oral argument. Three [...]
Filed in AUMF, AUMF: Scope and Reach, Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit, International Law, International Law: LOAC, International Law: LOAC: Detention
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Also tagged Al Adahi, Awad, Bensayah, David Sentelle, David Tatel, James Robertson, Salahi
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The D.C. Circuit just released its opinion in Salahi v. Obama, the first Guantánamo merits appeal of this term. The panel of Judges David Sentelle, David Tatel, and Janice Rogers Brown vacated the district court’s opinion granting habeas to Mohammedou Salahi and remanded the case for further proceedings. More on this opinion to come. Readers who recall Ben’s recap [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit, International Law, International Law: LOAC, International Law: LOAC: Detention
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Also tagged David Sentelle, David Tatel, Salahi, Uighurs
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Wednesday, October 20, 2010
One of the many headaches associated with the GTMO habeas litigation concerns the process of deciding which items of information used in the litigation should be treated as “protected information” that can be shared only with the detainee’s counsel and the court, but not more widely, according to the terms of the common case management [...]
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 American Civil Liberties Union, Ameziane, Bismullah, Douglas Ginsburg, Ellen Segal Huvelle, FOIA, Parhat v. Gates, Thomas Griffith, Washington Legal Foundation
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Kevin Heller claims that the D.C. Circuit in its al-Bihani panel opinion has reached the conclusion, with which he agrees, that “there [is] no justification for the government’s attempt . . . to import the concept of co-belligerency into non-international armed conflict.” He adds: “Given the D.C. Circuit’s conclusion in Al-Bihani, why is the government still [...]
Filed in AUMF, AUMF: Scope and Reach, Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit, International Law, International Law: LOAC, International Law: LOAC: Detention
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Also tagged Al Aulaqi, Al Bihani, Kevin Jon Heller
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Friday, September 17, 2010
I tried to take good notes at the Salahi oral argument this morning. The following is a crude summary of the argument, the transcript of which I will post when it becomes available. Bottom line: Expect a remand to the district court in light of three D.C. Circuit opinions–Al Adahi, Awad, and Bensayah—all of which [...]
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, August Flentje, Awad, Bensayah, David Sentelle, David Tatel, James Robertson, Salahi, Theresa M. Duncan
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Monday, September 13, 2010
Larkin Reynolds, a Brookings legal fellow who is working with Bobby and me on the next edition of our habeas report, offers a preview of the next big D.C. Circuit case: The first Guantánamo case scheduled for oral argument at the D.C. Circuit this fall is Salahi v. Obama, which is on the calendar for this [...]
Filed in AUMF, Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit, Terrorism Investigations, Terrorism Trials
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Also tagged Abu Zubaydah, Al Adahi, Al Bihani, Al Farouq, Awad, Barhoumi, David Sentelle, David Tatel, James Robertson, Salahi
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Tuesday, September 7, 2010
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 the merits – is to “muddy” the panel holding that international law “does [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, International Law, International Law: LOAC, International Law: LOAC: Detention
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Also tagged Al Bihani, Brett Kavanaugh, Hamdi, Stephen Williams
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Friday, September 3, 2010
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 that his acknowledged participation in a Taliban-affiliated paramilitary group justified his military detention pursuant to the [...]
Filed in Detention, Detention: Law of, Detention: Law of: D.C. Circuit Development, Guantanamo, Guantanamo: Litigation, Guantanamo: Litigation: D.C. Circuit, International Law, International Law: LOAC, International Law: LOAC: Detention
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Also tagged Al Bihani, Brett Kavanaugh, Hamdi, Stephen Williams
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Thursday, September 2, 2010
The D.C. Circuit’s 113-pages of non-opinion this week, in which it declined to rehear en banc an earlier panel decision in the Al Bihani case, warrants reflection at a number of levels. I will leave for Jack Goldsmith the very rich subject of the judges’ competing opinions on the relationship between international law and the AUMF–opinions for which Jack’s [...]
