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Tag Archives: Laurence Silberman

Why a “Drone Court” Won’t Work–But (Nominal) Damages Might…

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Sunday, February 10, 2013 at 5:12 PM

There’s been a fair amount of buzz over the past few days centered around the idea of a statutory “drone court”–a tribunal modeled after the Foreign Intelligence Surveillance Court (FISC) that would (presumably) provide at least some modicum of due process before the government engages in targeted killing operations, but that, like the FISC, would . . .
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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:

D.C. Circuit Decides Al Kandari

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Friday, December 9, 2011 at 9:34 AM

The D.C. Circuit has decided the case of Fayiz Mohammed Ahmed Al Kandari, a Guantanamo habeas petitioner. The writing has been on the wall for Al Kandari since the court abruptly canceled oral arguments in his case. The unpublished per curiam judgment, by Judges Brett Kavanaugh, Laurence Silberman, and Douglas Ginsburg, reads as follows: The petitioner argues . . .
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The Significance of Guesthouses and Training

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Saturday, June 11, 2011 at 12:39 PM

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 . . .
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Thoughts on Almerfedi

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Friday, June 10, 2011 at 12:12 PM

Almerfedi is a big deal–though perhaps subtly. Judge Laurence Silberman’s opinion continues a trend, begun by Judge Brett Kavanaugh in Uthman, of clarifying just how little the preponderance of the evidence standard really requires of the government. This question was a big theme of Silberman’s comments at oral arguments, and the opinion–while less flamboyant on . . .
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D.C. Circuit Opinion in Almerfedi

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Friday, June 10, 2011 at 10:58 AM

The D.C. Circuit has handed down its decision in the case of Hussain Almerfedi, a Guantanamo habeas petitioner. The opinion is written by Judge Laurence Silberman for himself and Judge Brett Kavanaugh. Judge Judith Rogers concurred in part and in the judgment, which reverses a district court opinion granting Almerfedi the writ. In my oral . . .
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David Remes on the D.C. Circuit

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Wednesday, June 8, 2011 at 6:21 PM

Habeas lawyer David Remes sent in the following comments on recent developments in D.C. Circuit case law. He emphasizes that he has been counsel in several of the cases discussed below and that the following represents his own opinion only: I agree with my colleague Richard Murphy (here) that for Guantánamo detainees, seeking habeas relief . . .
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Sabin Willett on the Kiyemba Cert Denial

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Thursday, April 21, 2011 at 2:26 PM

If a person can’t be troubled to agree with me, the very least he can do is to write good prose. Man, oh man, can Sabin Willett write good prose! Willett, who represented the Uighurs in their Supreme Court case, sent in the following. I will let it speak for itself:   Requiem for a . . .
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Of Justice Breyer, Uighurs, the Left, and Judge Silberman

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Wednesday, April 20, 2011 at 11:46 AM

The other day, I expressed bewilderment at the intellectual convergence between the political Left and Judge Laurence Silberman over whether post-Boumediene litigation has left habeas an empty shell. I’ve been mostly out of pocket for the last two days, but I wanted to highlight how Justice Breyer’s statement in the Kiyemba cert denial this week . . .
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Parties Debate How Esmail Concurrence Supports the Kiyemba Cert. Petition

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Wednesday, April 13, 2011 at 4:39 PM

Today counsel for the five Kiyemba v. Obama petitioners who are seeking cert. in the Supreme Court submitted a supplemental brief to augment some of the arguments they made in their petition and reply brief. I’ve previously explained the question presented in the Kiyemba petition and some of the background, so I assume some reader . . .
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Almerfedi Oral Argument Summary

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Monday, April 11, 2011 at 4:57 PM

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 on platter by Judges Brett Kavanaugh and Laurence Silberman. The decision granting him habeas corpus is . . .
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Almerfedi Oral Argument Preview

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Sunday, April 10, 2011 at 11:06 PM

Tomorrow morning, a panel of the D.C. Circuit Court of Appeals will hear arguments in another Guantanamo habeas case, that of Hussain Salem Mohammad Almerfedi (Case No. 10-5291). The case is a government appeal of Judge Paul Friedman’s sole Guantanamo habeas merits decision to date, a case in which he granted the writ. In Almerfedi’s case at the . . .
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Thoughts on Judge Silberman’s Opinion

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Friday, April 8, 2011 at 4:55 PM

Judge Laurence Silberman’s concurring opinion today in Esmail makes three points, each of them warranting comment. I have enormous regard for Judge Silberman, and I critique his opinion with caution. But I confess myself a little perplexed by it. The first of his points I am honestly not sure I understand. The second is interesting and challenging, and . . .
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Ouch!

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Friday, April 8, 2011 at 10:44 AM

The D.C. Circuit’s per curiam opinion today in Esmail is unremarkable–exactly what one would have suspected from the oral argument. Judge Laurence Silberman’s concurrence, by contrast, is altogether remarkable. At only two pages in the slip opinion, it packs several  hard punches: at the government, at the Supreme Court, and at the preponderance of the evidence . . .
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D.C. Circuit Affirms Esmail

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Friday, April 8, 2011 at 10:32 AM

Today the D.C. Circuit, in a per curiam decision accompanied by a concurrence from Judge Laurence Silberman, affirmed Judge Henry Kennedy’s denial of habeas to petitioner Yasein Khasem Mohammad Esmail (Case No. 10-5282). We’ll post additional thoughts soon.

D.C. Circuit Issues Stay in Almerfedi

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Friday, March 11, 2011 at 11:32 AM

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 . . .
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D.C. Circuit Grants Temporary Stay in Almerfedi

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Monday, March 7, 2011 at 10:09 PM

This afternoon the D.C. Circuit responded to the government’s request for a temporary stay in Almerfedi v. Obama by granting the motion. This means that the detainee, habeas petitioner Hussain Salem Mohammed Almerfedi, will remain in custody at Guantanamo Bay while the appellate panel of Judges Rogers, Kavanaugh, and Silberman considers in full the government’s motion to stay the . . .
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Esmail Oral Argument Summary

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Wednesday, February 16, 2011 at 3:33 PM

Rising before the D.C. Circuit this morning on behalf of Yasein Khasem Mohammad Esmail, Danielle Barbour faces some non-trivial problems. She has bad facts, a hostile panel, a relatively solid-seeming lower-court opinion to attack, a client who–the lower court found–is more likely than not to be part of Al Qaeda, and a clear error standard of . . .
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D.C. Circuit Decision in ACLU v. Dep’t of Defense

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Tuesday, January 18, 2011 at 8:39 PM

The D.C. Circuit today announced its decision in ACLU v. Dep’t of Defense, a Freedom of Information Act (“FOIA”) case in which the ACLU challenged the government’s withholding of documents relating to the capture, detention, and interrogation of several “high-value” detainees.

Upcoming Oral Arguments in Habeas Cases

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Monday, December 20, 2010 at 10:27 AM

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 . . .
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