Al-Adahi v. Obama; Sharifulla v. Bush; forthcoming scholarship

February 11, 2009

1. Al-Adahi v. Obama (D.D.C. Feb. 10, 2009)

Judge Kessler has issued an opinion denying requests by two GTMO detainees for injunctive relief relating to the manner in which the military carries out forced feeding required by the petitioners’ hunger strikes.  In short, Judge Kessler determined that federal courts lack jurisdiction over conditions-of-confinement claims thanks to the Military Commissions Act, and that this aspect of the MCA was unaffected by Boumediene.  She also determined that use of a restraint chair in the feeding process most likely would not constitute “deliberate indifference” violating the Eighth Amendment (interestingly, the court appears to assume, at least for the sake of argument, that detainees have Eighth Amendment rights; perhaps in my quick skim I missed the discussion of this issue), and that a prohibition on use of restraints would expose medical personnel to danger. The full opinion appears here. Read the rest of this entry »

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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 »


forthcoming scholarship; more on the Senate Armed Services interrogation report

January 9, 2009

1. Forthcoming Scholarship

Our Nation Unhinged:  The Human Consequences of the War on Terror

University of California Press

Peter Jan Honigsberg

Professor of Law

University of San Francisco

honigsbergp@usfca.edu

Abstract: Jose Padilla short-shackled and wearing blackened goggles and earmuffs to block out all light and sound on his way to the dentist. Fifteen-year-old Omar Khadr crying out to an American soldier, “Kill me!” Hunger strikers at Guantánamo being restrained and force-fed through tubes up their nostrils. John Walker Lindh lying naked and blindfolded in a metal container, bound by his hands and feet, in the freezing Afghan winter night. This is the story of the Bush administration’s response to the attacks of September 11, 2001—and of how we have been led down a path of executive abuses, human tragedies, abandonment of the Constitution, and the erosion of due process and liberty. In this vitally important book, Peter Jan Honigsberg chronicles the black hole of the American judicial system from 2001 to the present, providing an incisive analysis of exactly what we have lost over the past seven years and where we are now headed. Read the rest of this entry »


US v. Odeh (2d Cir.);new scholarship on prosecuting terrorism cases; online symposia on Boumediene & preventive detention

November 24, 2008

1. In re Terrorist Bombings of U.S. Embassies in East Africa (United States v. Odeh, et al) (2d Cir. 2008)

The 2nd Circuit (Feinberg, Newman, and Cabranes) today issued three separate opinions largely rejecting appeals from defendants convicted several years ago for their roles in al Qaeda’s 1998 East African Embassy attacks.  The first two of them are must-read opinions for those who are interested in the capacity of the federal criminal justice system to handle terrorism-related cases, a topic of considerable current interest, as they deal at length with Fourth and Fifth Amendment questions that arise in connection with overseas investigations (including search, surveillance, and interviewing). Read the rest of this entry »


symposium: terrorism & the legal impact on business; forthcoming scholarship

November 21, 2008

1. Center for Terrorism Law (St. Mary’s), Symposium: Terrorism, Crime & Business: Understanding the Fundamental Legal and Security Issues for American Business (Houston, TX, March 5-6, 2009)

Details posted here: http://www.stmarytx.edu/ctl/content/events/Business_Symposium.html

2. Forthcoming Scholarship

“The Rise and Spread of the Special Advocate”

Public Law, pp. 717-741, 2008

JOHN IP, University of Auckland – Faculty of Law
Email: j.ip@auckland.ac.nz

This article critically examines the special advocate procedure, a means devised to reconcile the use of secret evidence with principles of due process or natural justice. The special advocate is a lawyer who is appointed to represent the interests of a person during proceedings in which the state relies on sensitive material that cannot be disclosed to that person. Read the rest of this entry »


written opinion in Boumediene v. Bush

November 20, 2008

* Judge Leon’s written opinion in Boumediene v. Bush (D.D.C. Nov. 20, 2008)

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1166-276

Here is a brief overview of the opinion:

Judge Leon framed the question as follows, citing the Case Management Order he previously had issued: had the government presented proof sufficient to establish by a preponderance of the evidence that the detainees were part of or supporting al Qaeda, the Taliban, or associated forces engaged in hostilities against the U.S. or its allies (including persons who committed belligerent acts or who “directly supported” hostilities).

The government argued that all 6 men planned to go to Afghanistan to fight against the US.  It also alleged that one of the men – Belkacem Bensayah – was an al Qaeda member who served a “facilitator” function (i.e., that he recruited fighters and assisted their transit to Afghanistan).  The government did not at this stage still contend that the men had plotted to attack the US embassy in Bosnia, nor that Bensayah was a financier as opposed to a “facilitator”. Read the rest of this entry »


Bahlul sentenced to life; forthcoming scholarship

November 3, 2008

1.  al Bahlul sentenced to life

From DoD’s press release:

Detainee Sentenced To Life In Prison

A military commission sentenced today Ali Hamza Ahmad Suliman al Bahlul of Yemen to confinement for life for conspiracy, solicitation and providing material support to terrorism in violation of the Military Commissions Act of 2006. Bahlul will immediately begin serving his sentence of confinement at Naval Station Guantanamo Bay, Cuba. Read the rest of this entry »