Robert Loeb is a partner in Orrick, Herrington and Sutcliffe's Supreme Court and Appellate Litigation practice. The former Acting Deputy Director of the Civil Division Appellate Staff at the U.S. Department of Justice, he has handled hundreds of cases before the court of appeals and the Supreme Court. While at DOJ, he served as Special Appellate Counsel for National Security and International Law matters. Posts here express the views of the author(s) and do not necessarily reflect the views of the firm, or its clients. This post is for general informational purposes and is not intended to be and should not be taken as legal advice.
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The latest appeal, one in a long line of many, raises again an interesting issue about whether the military commission convening authority is properly appointed under the U.S. Constitution.
In oral argument in United States v. Zubaydah, the court seemed to take seriously the government’s invocation of the state secrets privilege to protect information that seems very much in the public domain.
How have federal courts adjusted to navigate the COVID-19 outbreak?
On June 21, the U.S. Court of Appeals for the D.C. Circuit returned to the question of the constitutional rights possessed by the detainees remaining at the U.S. naval base at Guantanamo Bay, Cuba. In particular, Khalid Ahmed Qassim asserted a Fifth Amendment due process right to see the classified information that allegedly supports his detention.
In considering Judge Brett Kavanaugh’s Supreme Court nomination, there are many important unknowns, including how he would treat court precedents regarding such hot topics as same-sex marriage and abortion. In regard to national security and foreign affairs, however, there is little such ambiguity. Kavanaugh has a long, established track record on such matters—generally viewing them as issues for Congress and the executive, not the judiciary, to decide. A recurring theme across numerous Kavanaugh opinions is that a court cannot freelance on such matters.
The recent ruling by the Eastern District of Virginia in Al Shimari, et. al. v. CACI highlights the need for further guidance from the Supreme Court—or even better, Congress—regarding the scope and nature of the Alien Tort Statute (ATS).
“Regular” is not the first word that comes to mind when I think about the current president. The process that led to the travel ban is a perfect example of why. The original executive order was rushed out in fulfillment of then-candidate Trump’s promised “Muslim ban” (“Statement on Preventing Muslim Immigration,” Dec. 7, 2015), without the regular vetting for such policies.