With his usual zeal, my friend Steve Vladeck energetically defends his support for the D.C. Circuit court’s decision mandating Judge Scott Silliman’s recusal in the military commission case involving Khalid Sheikh Mohammed (KSM) against my critique of that decision (which I outlined in an essay titled, “Is it in the nation’s best interests for the courts to chill the protected speech of law professors?”)

What Steve’s response doesn’t counter is the simple fact that the prohibitions the D.C.…   continue »

As promised, this post surveys several Foreign Sovereign Immunity Act (FSIA) opinions penned by Judge Garland while on the D.C. Circuit. Judge Garland has had occasion to consider several of the statutory exceptions to foreign sovereign immunity. This post concludes with some general observations of Judge Garland as a jurist gleaned from his FSIA cases.…   continue »

After a very long delay, and a couple of new presidential appointments of military judges to the court (resolving one of the two serious structural problems Steve has described elsewhere), the Court of Military Commission Review has finally issued its decision in the government’s interlocutory appeal on the MV Limburg aspect of the case against Abd al-Rahim Hussain al-Nashiri.…   continue »

As one of those who spends parts of his Tuesday and Friday mornings trolling PACER for new D.C. Circuit rulings (which appear there before they’re posted on the Court of Appeals’ public website), two of the decisions for which I’m especially keeping an eye out are the en banc D.C.…   continue »

Not surprisingly, folks looking for interesting things to say about Chief Judge (and Supreme Court nominee) Merrick Garland’s jurisprudence during his 19-year tenure on the D.C. Circuit have quickly gravitated toward his role in Guantánamo cases, at least 16 of which he has heard as a member of a three-judge panel (along with the numerous petitions for en banc rehearing in cases in which he was not on the panel). …   continue »

A panel of the DC Circuit recently held oral arguments in the case of Abd al Rahim al-Nashiri — a Saudi man accused of involvement in numerous terrorist plots and attacks against western ships, including the American destroyer USS Cole. Much of the discussion turned on the question of whether the United States and al-Qaeda were engaged in an armed conflict during al-Nashiri’s alleged conduct: the January 2000 attempted bombing of the USS The Sullivans; the October 2000 bombing of the USS Cole, most notably; and the 2002 bombing of the M/V Limburg.…   continue »

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. …   continue »

On Wednesday, the DC Circuit is scheduled to hear oral arguments on a request to halt the military commission prosecution of Guantánamo detainee Abd al-Rahim Hussein al-Nashiri. The 51-year-old Saudi national is accused of, among other things, plotting the bombing of a US Navy ship docked in the port of Yemen in 2000 that killed 17 American sailors.…   continue »

On Friday, January 8, the Supreme Court will consider a petition for certiorari in EPIC v. DHS, a lawsuit by the Electronic Privacy and Information Center (EPIC) under the Freedom of Information Act (FOIA), seeking information about “Standard Operating Procedure 303,” the protocol that codifies a “shutdown and restoration process for use by commercial and private wireless networks during national crisis.” (Colloquially, SOP 303 is known as the “wireless kill-switch.”) Lurking behind the interesting subject-matter of EPIC’s FOIA request, though, is a very important (but little noticed) circuit split over the scope of FOIA’s “Exemption 7(F),” which allows the government to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information … could reasonably be expected to endanger the life or physical safety of any individual.”

The central question raised by Exemption 7(F) is whether the government has to be able to identify with any specificity the “individual” whose life or physical safety might be endangered by disclosure of the requested law enforcement records.…   continue »

I have nothing of substance to add to Marty’s excellent recap of this morning’s en banc D.C. Circuit oral argument in “Al Bahlul IV,” and agree with him entirely that “Several of the judges on the court, perhaps a majority, are uneasy about the prospect of issuing a broad decision, one way or the other — for example, to hold that Congress cannot authorize any domestic-law offenses to be tried in a military commission, or to hold that Congress can authorize any and all such offenses to be tried in a commission, as long as they are committed by an enemy belligerent in connection with hostilities.”

But because I’m less polite than Marty, I thought I’d make plain what is implicit in his post: …   continue »