El-Ganayni v. DOE; forthcoming scholarship

January 13, 2010

1. El-Ganayni v. Dep’t of Energy (3rd Cir. Jan. 11, 2010)

The Third Circuit on Monday upheld dismissal of a suit challenging DOE’s decision to revoke the security clearance of a nuclear scientist from Bettis Labs, a Muslim man who alleged that the revocation was in retaliation for his political views (the plaintiff had been critical of U.S. involvement in Iraq and critical of the FBI), and discriminatory.  Among other things, the court holds: Read the rest of this entry »

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United States v. Cannon (E.D. Va. Jan. 6, 2010)

January 11, 2010

* United States v. Cannon (E.D. Va. Jan. 6, 2010)

Federal prosecutors last week unsealed an indictment against two former Blackwater contractors who allegedly shot and killed two Afghan nationals (and wounded a third) in Kabul in May 2009.  The indictment asserts jurisdiction under the Military Extraterritorial Jurisdiction Act (the contract in question was a DOD contract to provide training to Afghan forces in the use and maintenance of weapons and weapons systems), and presents an array of murder, attempted murder, and firearms-related charges.  Details here:

http://www.justice.gov/opa/pr/2010/January/10-crm-011.html


forthcoming scholarship

January 10, 2010

“Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan”

Journal of Transnational Law & Policy, Vol. 19, 2010
U of Houston Law Center No. 2009-A-36

JORDAN J. PAUST, University of Houston Law Center
Email: jpaust@central.uh.edu

This article addresses the permissibility of use of force in self-defense in response to non-state actor armed attacks and the permissibility of U.S. use of drones in Pakistan for such purposes. Contrary to some writers, when directed merely against the non-state actors, responsive force is not engaged in against the foreign state as such or as an attack “on” or “against” its territory. Responsive measures of self-defense in a foreign state would not necessarily create a state of war between the responding state and the foreign state or between the responding state and the non-state actors, and whether or not an armed conflict exits to which the laws of war apply would be tested under normal criteria with respect to the existence of an international or non-international armed conflict. It is understandable, therefore, that a self-defense paradigm can be different than a war paradigm and both are different than a mere law enforcement paradigm. Permissibility of use of drones in Pakistan also depends on inquiry into many features of context and appropriate application of principles of reasonable necessity and proportionality. Read the rest of this entry »


Al Madhwani v. Obama (D.D.C.)

January 7, 2010

* Al Madhwani v. Obama (D.D.C. Jan. 6, 2010) (written opinion now available)
A while back I posted about Judge Hogan’s oral ruling in this case, which was an important opinion in many respects.  The written opinion is now out, and posted here.  I’ve not yet read it to see if it changes or adds anything significant in comparison to the oral ruling; if so, I’ll do a follow-up post, but if not, I’ll leave it at that.


United States v. Abdulmutallab (E.D. Mich. Jan. 6, 2010)

January 6, 2010

* United States v. Abdulmutallab (E.D. Mich. Jan. 6, 2010) (indictment)

The indictment against Abdulmutallab is now out, superseding the criminal complaint.  Nothing unexpected here.  Six counts, including an 18 USC 2332a WMD attempt count bearing a potential life sentence (recall that “WMD” in this statutory context more or less covers explosives generally, not just NRBC attacks) and a raft of aircraft, explosive, and attempted murder offenses with 20- and 30-year maximums.

Details posted in a press release here:

http://www.justice.gov/opa/pr/2010/January/10-nsd-004.html


Al Nadhi v. Obama (D.D.C. Jan. 6, 2010)

January 6, 2010

Judge Kessler has ordered supplemental briefing in this GTMO habeas case, concerning (i) the impact of the Circuit’s decision yesterday in Al Bihani; (ii) the recent (oral) opinion by Judge Hogan denying relief to Al Madhwani  (as you may recall from a prior post on that ruling, Judge Hogan holds among other things that Al Madhwani’s concessions during his CSRT and ARB proceedings were reliable (in contrast to his interrogation statements); and (iii) the specific rules governing what the government must prove Al Nadhi knew and intended about his alleged conduct.

This should be quite interesting, especially if the parties get into the weeds regarding the mens rea elements.  The briefs are due on the 20th of this month.  With luck they’ll be available to the public, and I will circulate them to the list if so.

The two-page order is here:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv0280-531


Salih v. Obama; Hatim v. Obama

January 5, 2010

1. Salih v. Obama (D.D.C. Dec. 30, 2009) (dismissing habeas petition)

Just before the new year, Judge Urbina issued an order dismissing (without prejudice) a GTMO habeas petition filed in the name of Abdul Salih, apparently on the ground that Salih has refused to authorize the attorneys involved to pursue such relief.  This is one of an increasing number of GTMO habeas cases that have quietly gone away because the detainee is unwilling, for whatever reason, to pursue it.  The brief order is posted here:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1234-33

2. Hatim v. Obama (D.D.C. Dec. 16, 2009) (granting habeas petition)

Back on December 16th, I noted that Judge Urbina had placed a notice on the docket memorializing the grant of a habeas petition on behalf of Saeed Hatim, and promised to follow up with the redacted opinion whenever it became available.  It is now available here:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1429-337

In brief, Judge Urbina holds that (i) the government’s substantive detention authority extends to those who are part of AQ, the Taliban, or associated forces engaged in hostilities against the United States or its coalition partners, but not also to persons who merely provide material or direct support without being part of the group (yes, this appears to conflict with today’s Circuit ruling in Al Bihany), and (ii) the government evidence was not sufficiently credible to support the allegations meant to establish such membership (in large part because of lingering taint from prior abusive interrogations of the detainee).  Note that the latter part of the ruling would require dismissal even if Judge Urbina had adopted the broader, Al Bihany standard for substantive scope of detention power.