Detention: Law of: D.C. Circuit Development

Obaydullah Oral Argument Summary

By Benjamin Wittes
Tuesday, April 24, 2012, 12:54 PM

This is going to be the shortest oral argument summary ever. In fact, I can do it in five sentences:

(1) Chief Judge David Sentelle opens the hearing by announcing that it can't be held in open session so he's closing the court, though Judge Merrick Garland reminds him that the court had agreed to do that portion of the argument in public that does not involve classified material.

(2) Judge Sentelle thanks Judge Garland and agrees that the jurisdictional portion of the argument (I hadn't known there was one) could take place in open session.

(3) Arguing for Obaydullah, Lisa R. Jaskol (for maybe two minutes) denies that there is any jurisdictional bar to the court's hearing the case, insists the government has waived whatever problem there may be, and--when Judge Sentelle points out that you can't waive a jurisdictional barrier--cites case law that, she contends, gets her around the issue.

(4) Arguing for the government (for about 10 secords), Benjamin M. Shultz agrees that there's no dispute between the parties on this point and that the government "attempted to waive" any issue here.

(5) Judge Sentelle closes the courtroom.

Memo to the D.C. Circuit: Grrrrrr.