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Tag Archives: United States v. Hamdan

Three Questions for Peter Margulies on the New Bahlul Amicus Brief

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Monday, July 29, 2013 at 12:15 PM

There’s a lot to say about Peter Margulies’ reply to my and Kevin Heller’s criticisms of the “former government officials’” amicus brief in al Bahlul–the military commission appeal currently pending before the en banc D.C. Circuit, where the central question is whether the commission lawfully had jurisdiction to try and convict Bahlul of “conspiracy.” To put . . .
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A Response to Steve Vladeck and Kevin Jon Heller

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Saturday, July 27, 2013 at 8:40 AM

In recent posts both on Lawfare and at Opinio Juris, Steve and Kevin Jon Heller (here and here) sharply critiqued the brief that Jim Schoettler and I filed on Thursday for Former Government Officials, Former Military Lawyers and Scholars of National Security Law asking the en banc D.C. Circuit to uphold the military commission conviction . . .
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The Two Fundamental Flaws in the New Bahlul Amicus Brief

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Friday, July 26, 2013 at 10:44 AM

Raff already flagged yesterday’s filing of an amicus brief in support of the government in the Al Bahlul military commission appeal before the en banc D.C. Circuit by “former government officials, former military lawyers, and scholars of national security law,” a group that includes Ben, Ken, and two of my casebook co-authors–among others. At the . . .
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Breaking News: D.C. Circuit Grants En Banc Rehearing in Al-Bahlul

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Tuesday, April 23, 2013 at 11:54 AM

Whoa.  This is very big news—though what it means is far less clear. The D.C. Circuit has granted the government’s petition for rehearing en banc in the military commission case of U.S. v. Al-Bahlul.  It thus appears that a majority of the court’s seven active judges wish to explore the rulings of two three-judge panels, one in Al-Bahlul and . . .
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DOJ Seeks Rehearing En Banc in Bahlul to Overturn Hamdan II

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Tuesday, March 5, 2013 at 6:34 PM

Back in January, we devoted a fair amount of attention to the DOJ Supplemental Brief in the al-Bahlul military commission appeal–and the rather significant internal debate within the Administration about whether to accept the D.C. Circuit’s ruling in Hamdan II, or to seek to overturn it either by pursuing rehearing en banc in Bahlul (which is arguably a better . . .
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An Amended Hearing Agenda, and More Conspiracy Charge News in the 9/11 Case

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Tuesday, January 22, 2013 at 12:14 PM

Fresh from a security scrub are these two items in United States v. Mohammed et. al.: first, an Amended Docketing order, wherein Judge James Pohl excises two previously scheduled defense motions to compel discovery from the agenda for next week’s hearing, and adds in five other defense requests—including one to compel discovery related to “White . . .
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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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The Government’s Supplemental Brief in Al-Bahlul

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Wednesday, January 9, 2013 at 3:33 PM

…is available here.  In a nutshell: Hamdan II requires reversal of Bahlul’s convictions by military commission of providing material support for terrorism, conspiracy to commit war crimes, and solicitation to commit war crimes. Because the Court is bound by Hamdan II, the government respectfully submits that it would be appropriate for the court to dispense with holding oral argument and proceed . . .
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Conspiracy and Military Commissions After Hamdan II

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Wednesday, October 17, 2012 at 8:42 PM

In his post on yesterday’s decision in (what I think we should all call) Hamdan II, Jack writes “The historical arguments for a conspiracy charge in military commissions under the laws of war, while not slam dunks, are . . . more powerful than similar arguments for material support.” Thus,  he “think[s] the strong suggestions . . .
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Three (Early) Observations on Judge Kavanaugh’s Analysis in Hamdan

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Tuesday, October 16, 2012 at 11:57 AM

Raff already shared the news re: this morning’s D.C. Circuit decision reversing Salim Hamdan’s military commission conviction for providing material support to terrorism (MST), holding that MST wasn’t a recognized violation of the laws of war prior to 2006 (when it was codified as part of the Military Commissions Act of 2006), and so the MCA . . .
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Whither Hamdan?

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Wednesday, October 3, 2012 at 9:37 AM

Today marks the five-month anniversary of the oral arguments before the D.C. Circuit in United States v. Hamdan, the first post-conviction appeal to reach the Court of Appeals under the Military Commissions Acts of 2006 and 2009 (and about which we had just a couple of posts). Five months have elapsed, and, surprisingly, there’s no . . .
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Bahlul D.C. Circuit Argument Postponed; Is Hamdan Nigh?

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Wednesday, August 22, 2012 at 11:41 AM

Ben beat me to it, but this morning, the D.C Circuit issued a terse order removing United States v. al Bahlul (the “other” military commission appeal) from its argument calendar (it was scheduled to be argued before Judges Henderson, Rogers, and Tatel on Monday, September 10), and ordering “that oral argument be postponed until further order of the . . .
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Analysis of U.S. v. Ali: A Flawed Majority, Conflicting Concurrences, and the Future of Military Jurisdiction

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Thursday, July 19, 2012 at 8:09 PM

As I noted yesterday, the highest court in the U.S. military justice system—the Article I Court of Appeals for the Armed Forces (“CAAF”), a circuit-level court with mostly discretionary jurisdiction over each of the service branch courts of criminal appeals—issued the most significant ruling on the scope of U.S. military jurisdiction in the past 25 . . .
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July 19 D.C. Bar Panel on Military Commissions, Present and Future

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Thursday, June 28, 2012 at 7:51 AM

For D.C.-area readers, I’ll be participating in what should be a lively discussion of the current and future legal and policy issues surrounding military commissions (I suspect it will be that much livelier if Hamdan comes down in the interim) on Thursday, July 19, from 5-7 p.m., at Arnold & Porter. The panel, which includes Jen . . .
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D.C. Circuit 1, Guantanamo Bar 0?

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Monday, June 11, 2012 at 11:33 AM

As Wells already noted, the Supreme Court denied certiorari today without notation or dissent in all of the seven pending Guantanamo “merits” habeas cases (i.e., cases where the central issue goes to whether the government has proven its case to hold the detainee in question in military detention at Guantanamo). No doubt, the headline that will . . .
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Defendant’s Mootness Brief Available in Hamdan

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Tuesday, June 5, 2012 at 2:41 PM

You’ll recall that the three-judge panel in Hamdan v. United States - or, gauging by the questions at oral argument, really only Judge Douglas Ginsburg – was interested in whether the defendant’s release from custody had mooted his appeal.  During argument, the government had agreed with the defendant’s lawyers that the case was not moot, and thus could proceed; nevertheless, and perhaps out . . .
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D.C. Circuit Denies Petition for Initial En Banc Hearing in Al-Bahlul

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Tuesday, May 15, 2012 at 4:10 PM

We’ve blogged before about the “other” pending D.C. Circuit military commission case–al-Bahlul v. United States–including the petitioner’s request for initial en banc hearing. That request has now been summarily denied by the D.C. Circuit in this order, which notes that none of the eight active judges requested a vote on the question. I can’t say . . .
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Oral Argument Recap in Hamdan

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Friday, May 4, 2012 at 1:21 PM

Below is a recap of yesterday’s oral argument before the D.C. Circuit in Hamdan v. United States.  As for key takeaways, you’ll find Steve’s breakdown here, and my two cents’ worth here. Again, it is anyone’s guess how the case will be resolved.  The back-and-forth between the judges and the lawyers did not point obviously . . .
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My Three Takeaways from the Hamdan Argument

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Thursday, May 3, 2012 at 4:39 PM

Both because of my own biases and because Wells is going to be posting more of a blow-by-blow at some point (on top of his initial reaction, which I basically share), I’ll spare readers from a comprehensive account of this morning’s 59-minute-long oral argument in Hamdan v. United States before a standing room crowd in the . . .
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Oral Argument Recap in Hamdan – Stay Tuned

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Thursday, May 3, 2012 at 3:55 PM

We’ll have a full recap of today’s oral argument in Hamdan v. United States up shortly.   In the meantime, here’s one observation – which I reckon Steve will supplement with some remarks of his own. Suffice it to say that this appeal’s outcome is not obvious.  The inquiry regarding its possible mootness seems to . . .
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