United States v. Al-Nashiri; Al-Marri v. Spagone

January 30, 2009

1. United States v. Al-Nashiri (Mil. Com.) (Hat tip to Neal Sonnett for this document)

In yet another example of the way in which ongoing litigation is pressing the Obama administration to develop its detention policies more quickly than it would like, a military commission judge has rejected a request for a stay of the scheduled February 9th arraignment of a GTMO detainee facing charges in connection with the bombing of the USS Cole.  The opinion is attached.

2. Al-Marri v. Spagone (S.Ct.)

Amicus briefs have now been filed in Al-Marri.  The briefs supporting the petitioner are collected here.  I’m not sure if there are other amicus briefs, but will circulate links if so.

handy link for OLC memos; forthcoming scholarship

January 28, 2009

1. Handy resource for keeping track of OLC and other legal memos from 2001-2008 relating to national security, including links to those that are public and descriptions of those that are not

This is pretty useful.  From ProPublica:


2. Forthcoming Scholarship

“‘De Facto Sovereignty’: Boumediene and Beyond”

George Washington Law Review, Forthcoming
SMU Dedman School of Law Legal Studies Research Paper No. 00-29

ANTHONY J. COLANGELO, Southern Methodist University – Dedman School of Law
Email: colangelo@smu.edu

In Boumediene v. Bush, which grants non-citizens detained at Guantanamo Bay, Cuba, constitutional habeas corpus privileges the Supreme Court took notice that the United States maintains “de facto sovereignty” over that territory. As its sole precedential support, the Court cited a case that never mentions the term de facto sovereignty. What is this concept? How important is it to the Court’s holding? Did the Court get the concept right given its longstanding usage and meaning in Supreme Court precedent? And what can de facto sovereignty tell us about when the Court will find habeas to extend to other situations involving extraterritorial detention of non-citizens in the war on terror? Read the rest of this entry »

upcoming events: GTMO panel; data privacy conference

January 27, 2009

* Upcoming Events

* Strauss Center for International Security and Law, University of Texas: “The Post-Guantanamo Era: A Dialogue on the Law and Policy of Detention and Counterterrorism” (TOMORROW)

A Panel Discussion with John Bellinger, Benjamin Wittes, and Steven Vladeck, moderated by Bobby Chesney
January 28, 2009 @ 5:30 pm – 7:00 pm, Eidman Courtroom, Connally Center for Justice Read the rest of this entry »

forthcoming scholarship

January 27, 2009

Symmetry and Selectivity: What Happens in International Law When the World Changes

Chicago Journal of International Law, (forthcoming)

Paul B. Stephan (Univ. of Virginia – Law)

This article has a simple hypothesis: Selectivity in international law increases as international relations become more symmetrical. Conversely, international law becomes more universal as asymmetry grows. This relation holds true during the modern period. Its existence in turn supports the theoretical claim that the content of international law reflects the rational interests of those actors that make it. Read the rest of this entry »

GTMO’s future; Bostan v. Obama (D.D.C.)

January 25, 2009

Two related items on the pending policy change relating to GTMO

1. Draft executive order on GTMO closure

A number of sources are reporting that a draft executive order is in circulation, one that would provide for closure of GTMO as a detention facility within the year.  It is not clear whether the draft also specifies what will become of the detainees, thought it sounds as if the draft is likely silent on that point for now.

2. Bostan v. Obama (D.D.C. Jan. 20, 2009)

No doubt you have heard by now that military commission proceedings have been stayed for the next 120 days while the new administration sorts out its plans for that process.  But what about the ongoing habeas review process for the GTMO detainees?  Bostan v. Obama (was v. Bush, of course) is one of the many pending petitions, and as it happened there was a hearing in that case set for this afternoon.  Shortly after the inauguration, however, DOJ moved for a two-week continuance (with consent from the detainees), and Judge Walton granted it.  The motion explained:

3. The Government is now assessing how it will proceed in the above-captioned Guantanamo Bay detainee habeas corpus cases. Time is needed to make that assessment and determination. Accordingly, the Government requests a short, two-week continuance of tomorrow’s hearing to permit the assessment to move forward without an intervening argument on the first full day of the new Administration as to the Government’s legal and other merits related positions in these cases.

The full motion is here: http://www.scotusblog.com/wp/wp-content/uploads/2009/01/doj-motion-bostan-1-20-09.rtf.

Detainee litigation continues to put pressure on the administration to make detention

January 23, 2009

* Detainee litigation continues to put pressure on the administration to make detention policy decisions now rather than in 6 months

First, an update on the # of GTMO detainees.  It appears the correct current count is 242.  See here, thanks to the most up-to-date data developed by Ben Wittes and the folks at Brookings.

Second, a flurry of opinions and orders by district judges dealing with detainee litigation suggests that the Task Force(s) created by yesterday’s executive orders had better work much faster than their 6-month schedule would otherwise allow.  The litigation docket will force hard decisions soon in these and related cases, barring a willingness by these judges (or the detainees) to let the habeas process pause for half a year while the issues are sorted out:

Hamlily v. Obama (D.D.C.) (GTMO); Maqalah v. Gates (D.D.C.) (Bagram)

Notwithstanding yesterday’s executive orders, and notwithstanding the fact that the Obama administration has moved successfully to stay GTMO habeas proceedings at least momentarily before one of the judges handling GTMO habeas petitions, other proceedings continue forward, and in doing so they pressure the administration to make tough decisions now regarding the scope of the military detention authority it may wish to defend, rather than waiting for the completion of the “task force” reviews contemplated in yesterday’s orders. Read the rest of this entry »

Today’s executive orders on GTMO, interrogation, detention, and Al-Marri

January 22, 2009

* Today’s executive orders on GTMO, CIA detention and interrogation, and the Al-Marri case

Attached are copies of the four new executive orders.  A brief overview of each follows below.  The long and short of it is that a variation of the NSC principals’ committee will have 6 months to come up with new policies on detention, interrogation, and transfer; GTMO must be shuttered within one year, one way or another; CIA detention is over; and the government will do its best to resolve Al-Marri’s status before it must file a merits brief in that case.

The GTMO closure order

This order appears to track the draft version about which I posted earlier.  Please see that earlier post.  Short version: all the expected options are to be used to effect closure in 1 year. Read the rest of this entry »

draft of today’s forthcoming executive order re:GTMO

January 22, 2009

* draft of today’s forthcoming GTMO executive order

The ACLU has posted what appears to be the draft executive order, to be issued formally later today, regarding GTMO and the CIA.  See it here.

I reprint and summarize the key passages below.  Note that the draft order holds the door open to prosecution options other than federal criminal prosecution, and in fact appears to leave the door open to non-criminal detention methods. Read the rest of this entry »

Al Marri v. Spagone

January 21, 2009

* Al Marri v. Spagone (S. Ct. No. 08-368) (Petitioner’s Brief)

SCOTUSBLOG’s Lyle Denniston, has an overview has the details as well as a link that will get you to al-Marri’s brief.  One of the interesting questions here is whether the Obama administration will move to moot this case, either by repatriating Al Marri to Qatar or by shifting him into the civilian criminal justice system (ala Jose Padilla).  At the moment, they have till late February to decide, at which point the respondent’s brief will be due. Read the rest of this entry »

United States v. Ahmed (N.D. Ohio.)

January 16, 2009

* United States v. Ahmed (N.D. Ohio)

Another very interesting material support/conspiracy prosecution, resulting in two guilty pleas yesterday.


The defendants were cousins from Chicago who between 2004 and 2007 were involved in a plot to attack US troops in Iraq and Afghanistan.  The interesting aspect of the case is its prevention-oriented, early-intervention nature.  It appears from the press release that the men did not have a particular plot in mind and were not involved with a specific terrorist organization, but rather that they were attempting on their own initiative to receive firearms training and other training that they might then put to use against US forces overseas in some unspecified way in the future.

The charge of conviction, was conspiracy to provide material support—including themselves as personnel—knowing or intending that the support would be used (by themselves, presumably) to commit a predicate crime of attacking US troops overseas.  This charge (18 USC 2339A) was used in a similar manner in the Hayat prosecution (Lodi, California), in which the defendant was convicted of providing himself as material support in connection with an unspecified attack that might take place in the future (in that case against civilians in the US, rather than troops abroad).