D.C. Circuit Quietly Set to Hear Major National Security Appeals

Given the rather significant legal news of the past four days, it’s easy to forget that a three-judge panel of the D.C. Circuit (Tatel, Griffith, & Sentelle, JJ.) is set to hear oral argument tomorrow morning in two major national security cases: ACLU v. DOJ (a FOIA case related to the CIA’s use of drones for targeted killings) and Al-Nashiri v. Obama (a pre-trial challenge to the authority of the Guantánamo military commissions to try offenses that pre-dated the September 11 attacks, such as the 2000 bombing of the USS Cole).

Jameel Jaffer (who will argue the ACLU case on behalf of the Appellants) has already surveyed the issues in that case here. And Marty Lederman, Daphne Eviatar, and I have posted in detail about the merits (here and here) and the abstention issues in Al-Nashiri previously. I won’t rehash those posts here, especially because I think they serve as pretty effective previews of tomorrow’s arguments. Instead, I’ll just note that both of these cases are (1) underappreciated in their potential significance; (2) further evidence of how commonplace major national security litigation has become in contemporary federal courts; and (3) serious potential candidates for Supreme Court review, depending upon how they are decided. Thus, for all of the stories about how Justice Scalia’s successor will tackle hot-button social issues from abortion to affirmative action and immigration to public-sector unions, it’s also worth thinking about how the “next Justice” will approach these kinds of cases — both of which go, at their core, to the role of the federal courts in providing oversight of, and accountability for, our government’s national security programs and policies. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).