As Wells reported, the Supreme Court issued its opinion in Clapper v. Amnesty International USA this morning. By a 5–4 vote, it held that a group of human rights organizations, lawyers, activists, and journalists lacked standing to challenge the … Read more »
The Supreme Court recently agreed to hear an important case concerning the government’s foreign affairs powers, Bond v. United States. That case, which involves a criminal prosecution under the Chemical Weapons Convention Implementation Act, raises fundamental issues about the … Read more »
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 »
That’s the cyber news from Mashable.com. From the site’s report—which elsewhere says the attack was intended as retaliation for the prosecution of Aaron Swartz:
The hacktivist group Anonymous hacked the US federal sentencing website early Saturday, using the page to
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 »
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 »
As Wells noted, the Guantánamo Military Commission Convening Authority has declined to adopt Chief Prosecutor Brig. Gen. Mark Martins’s recommendation to withdraw the conspiracy charges against Khalid Sheikh Mohammed and the other 9/11 defendants. Withdrawal, which can be done … 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 »
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 »
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 »
Andrew Kent writes in with the following guest post on his fascinating new article on Ex Parte Quirin. I asked Andrew to write up this piece, after reading an earlier draft of the underlying paper for a workshop last … Read more »
Andrew Kent (Fordham University School of Law) has posted a new paper to SSRN, “Judicial Review for Enemy Fighters: The Court’s Fateful Turn in Ex Parte Quirin, the Nazi Saboteur Case.” (66 Vanderbilt Law Review 101 (2013).) Professor Kent will … Read more »
University of Pennsylvania law professor David Skeel has an important opinion piece in the December 28, 2012 Wall Street Journal on the role of religion in the US military, “The Military Balance of Faith and Freedom: A West Point cadet … Read more »
On Friday, a British court rejected a closely watched civil suit by the son of man killed in a 2011 drone strike in Pakistan that requests a judicial declaration that British intelligence officials may be liable for assisting acts of … Read more »
The U.S. Court of Appeals for the Fourth Circuit recently issued a decision that has the effect of both limiting political branch control over human rights suits against foreign officials while at the same time arguably increasing the need for … Read more »
According to a notation on the Supreme Court’s docket, Justice Ruth Bader Ginsburg has denied the plaintiffs’ motion to vacate the stay entered by the Second Circuit in Hedges v. Obama. Thus the Court of Appeals’ interim order—which blocked … Read more »
Yesterday, plaintiffs in Hedges v. Obama asked Justice Ruth Bader Ginsburg to vacate the stay entered by the Second Circuit. The district court permanently enjoined enforcement of Section 1021(b)(2) of the NDAA, but the Second Circuit quickly blocked that ruling… Read more »
I agree entirely with Ken that DOD General Counsel Jeh Johnson’s speech on the end-of-conflict with al Qaeda “makes a serious attempt to grapple with the conditions defining the endgame” and is “a significant articulation of the US government’s view … 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 »
At this hour, Pentagon General Counsel Jeh Johnson is giving the following speech at the Oxford Union in England:
“The Conflict Against Al Qaeda and its Affiliates: How Will It End?”
Jeh Charles Johnson
General Counsel of the U.S. Department
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 »
Over at the Volokh Conspiracy, my friend Orin Kerr has a fascinating post on the case of US v. Stanley. It isn’t strictly cybersecurity but the case itself is still worth reading. For those who want a quick summary:… Read more »
District Judge Paul L. Friedman has denied a motion for relief from judgment filed by habeas petitioner Hussain Salem Mohammad Almerfedi. (The court’s classified opinion is dated October 26; a redacted version was not released until yesterday.)
Almerfedi prevailed before … 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 »
The Supreme Court is not the only branch of government focused on FISA. As many Lawfare readers will recall, Congress is currently considering reauthorizing Title VII of FISA, which is scheduled to expire at the end of the … Read more »
Just about every player in connection with the President’s remarks about the Supreme Court seem to me to be acting oddly or imprudently.
What a terrible idea for the President to charge the Supreme Court with an “unprecedented, extraordinary step” … 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 »
The Supreme Court has granted cert in the Kiobel case, in which the Second Circuit held last fall that corporations may not be held liable for violations of the “law of nations” under the Alien Tort Statute. As I have … 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 »
A federal court in Washington ruled on Thursday that former Colombian President Alvaro Uribe enjoys residual immunity from being forced to testify as a witness in an Alien Tort Statute/Torture Victims Protection Act suit against Drummond Company. (Uribe had been … Read more »
The Supreme Court has reversed the Ninth Circuit in al-Kidd v. Ashcroft, a Bivens action in which the plaintiff alleges (among other things) that then-Attorney General John Ashcroft violated the Fourth Amendment by directing prosecutors to use the material … Read more »
For the record, the Buchanan Amendment is a bad idea, and I hope that it dies in conference. In addition to being constitutionally vulnerable in at least some applications (Milligan anyone?), and hamhanded in its effort to deny discretion … Read more »
Over the dissent of Justices Breyer and Sotomayor (no separate opinions), the Supreme Court today denied cert. in Khadr v. Obama. The cert petition (discussed by me here) raised the questions whether a judge should be able to second-guess … Read more »
The Supreme Court today issued a unanimous opinion in General Dynamics Corp. v. United States, bringing to a close (for now) a long-running dispute between GD and the US Government concerning a contract to build stealth aircraft for the … Read more »
The Supreme Court denied cert this morning in Mohamed v. Jeppesen Dataplan, leaving in place the Ninth Circuit’s en banc opinion affirming dismissal of a civil suit (relating to rendition) on state secrets privilege grounds.
Last Wednesday counsel for Toffiq Al Bihani filed a petition for certiorari in the Supreme Court. Readers may recall that the D.C. Circuit summarily affirmed Judge Reggie Walton’s 2010 decision denying Toffiq Nasser Awad Al Bihani the writ.
The petition … Read more »
The Supreme Court recently granted review in a case, Zivotofsky v. Secretary of State, that concerns the scope of the President’s power to recognize foreign governments. This case is the latest iteration of a recurring dispute between Congress and … 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 »
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 … Read more »
The recent decision from the D.C. Circuit (the Esmail affirmance), and Supreme Court’s recent cert. denials in several cases, warrant an update to our habeas numbers. Before we get to that, however, it seemed appropriate to correct a … Read more »
Over the last week, the Department of Justice has been busy filing responses to several of the Guantánamo detainees’ cert. petitions: It has submitted four briefs to the Supreme Court in the span of just a few business days.
Last … Read more »
Yesterday the government filed its opposition to the Kiyemba III petition for certiorari.
We mentioned Kiyemba III in this post a few months back, and discussed briefly the question in what was then a newly filed petition: whether the Supreme … Read more »
The respondent’s merits brief recently became available in Ashcroft v. Al-Kidd, the case challenging whether John Ashcroft can be sued in his personal capacity for misuse of the material witness statute (18 U.S.C. § 3144). In December the government–the … Read more »
Briefing on certiorari is now complete in Al Odah v. United States.
In his cert. petition, Fawzi Khalid Abdullah Fahad Al Odah urged the Supreme Court to review the D.C. Circuit’s ruling that the preponderance of the evidence standard … Read more »
The responses to my “Embrace Guantanamo” post from Sabin Willett, David Remes, and Gabor Rona have a common argumentative thread that strikes me as warranting a response. Not that it’s wrong, exactly, but the reader might … Read more »
Not to be outdone by Ben in terms of posting to other outlets, I have a short piece up at Foreign Policy’s website concerning the prospect that military commissions will soon begin moving forward with new cases. If you’ve read … Read more »
Habeas lawyer David Remes sent in the following thoughts about the Supreme Court’s denial of certiorari in Al Adahi today–about which I commented here:
That the Court did not grant review is a disappointment to those of us who
Having now read the transcript of today’s oral argument in General Dynamics v. United States/Boeing v. United States, I hold strong to my opinion that this is an important case for government contracting law but not an important case … Read more »
Back in September I noted that the Supreme Court granted cert. in a pair of state-secrets privilege (“SSP”) cases, General Dynamics v. United States and Boeing v. United States. I wrote then that the cases raise an important … Read more »
Tuesday, May 21, 2013
William P. Barr (former Attorney General), Jamie S. Gorelick (former Deputy AG), and Kenneth L. Wainstein (former Assistant AG for National Security) have this Times op-ed on the AP subpoena controversy. They write:
While neither we nor the critics know the circumstances behind the prosecutors’ decision to issue this subpoena, we do know from the government’s public disclosures that the prosecutors were right to investigate this leak
