This past week saw major developments in the Guantánamo military commissions. As Ben reported, on Friday, the DC Circuit published an opinion denying mandamus relief to Omar Khadr. Those paying attention to the military commissions will note the similarity between this opinion and last year’s DC Circuit decision in another detainee petition, that of Al-Nashiri.
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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Recently, the government unsealed a November ruling by the Foreign Intelligence Surveillance Court (FISC).
Last week, in Al Razak v. Obama, a D.C. district court (addressing the habeas petition of Guantanamo detainee Haji Hamdullah) weighed in on one of the big questions in law-of-war detention at Guantanamo Bay: how do we know when the war is over and law-of-war detention presumably no longer permissible, and, importantly, who gets to decide?
Don’t poke the bear! The Government plainly did not like Apple’s very public response to the magistrate judge’s order, and just filed this strongly worded motion to compel. Given that the prior order gave Apple five days to explain why it could not comply or why doing so would be too burdensome, this motion to compel is both unusual and quite aggressive.
In Al Nashiri v. Obama, a panel of the D.C. Circuit appeared to be leaning toward allowing the federal courts to address when hostilities began with al Qaeda. Al Nashiri is challenging the authority of the Guantánamo military commissions to try offenses that pre-dated the September 11 attacks. Specifically, Nashiri is charged with complicity in the bombing on the USS Cole in 2000, and an earlier attempted bombing, that year, of the USS The Sullivans.
Last month, the ACLU filed a civil action in the Eastern District of Washington on behalf of Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud and Gul Rahman. They assert that the CIA secretly detained them in Afghanistan and subjected them to torture. Two of the plaintiffs, Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud, survived their time in CIA detention, were eventually released and now reside in Libya and Tanzania. The third plaintiff, Gul Rahman, died in CIA custody in November 2002.
As memories of 9/11 continue to fade, courts are increasingly becoming bolder and more confident in asserting their oversight role over national security matters. Last week’s Sixth Circuit ruling in Mokdad v. Lynch is the most recent example. There the Court of Appeals determined that district courts have jurisdiction to hear a plaintiff’s challenge to suspected inclusion on the No Fly List.