Litigation
855 Articles
Equating Terrorism and Bubonic Plague: Bad for Counterterrorism, Bad for the Constitution
If I were Al Qaeda’s director of propaganda and managed to infiltrate an agent into the American judiciary, I’d want him to exaggerate the terrorist threat and then leverage…
Supreme Court Denies EPIC Petition for Mandamus on the Telephony Metadata Program
Without comment or dissent. No surprise. As expected, then, the action turns to the several cases that have been filed in district court, two of which are being argued this…
Hearing in Another Surveillance Challenge Today
In previous posts I’ve discussed filings in the two most prominent challenges to the government’s “Telephony Records Program.” Things are moving along…
Avoidance of the First Amendment Questions in the Mehanna Case
In contrast with several other wartime eras in our Nation’s history, it is striking that the government’s counterterrorism efforts during the past twelve years have…
The Coming Hicks and Khadr Appeals: Yet Another Military Commission Headache
As various media outlets reported earlier this week, Australian David Hicks–one of the first detainees charged and convicted (via plea) under the Military Commissions Act…
My New Paper on Standing and Secret Surveillance
Our good friend (and separation-of-powers maven) Peter Shane from (the) Ohio State University’s Moritz College of Law is hosting a “virtual” symposium on NSA…
The Basis for the NSA’s Call-Tracking Program Has Disappeared, If It Ever Existed [Updated]
There’s a significant discrepancy, one that deserves more attention, between what the NSA told the Foreign Intelligence Surveillance Court five years ago about the call-tracking…
Bond v. United States and a Plain Statement Rule
The old adage, “bad facts make bad law,” threatens to reassert itself in an especially damaging fashion in Bond v. United States, a case now before the Supreme Court in which…
Observations on the Oral Argument in Bond
In light of the current efforts of the United States to ensure that even Syria, a nonparty to the treaty, strictly complies with the prohibitions of the Chemical Weapons Convention–and…
Latest Round of Briefing in ACLU v. Clapper “Telephony Records Program” Case
The ACLU and the Government filed their reply briefs today on their respective motions in the Section 215 “Telephony Records Program” litigation in the Southern District…
The Charles Taylor Appeal & The Scope of Accomplice Liability
I earlier flagged the release of the Charles Taylor appeals judgment. This post deconstructs the opinion more closely in light of the Perišić precedent and also addresses the…
The Solicitor General Should Correct the Record in Clapper
In yesterday’s New York Times, Charlie Savage confirmed something we’ve suspected for some time—that until very recently the Justice Department was failing to provide statutorily…