Supreme Court (SCOTUS)
344 Articles
Justice Breyer’s intriguing suggestions in Hussain: A sign of habeas challenges to come?
Last month I predicted that one or more Justices would issue a separate opinion when the Court denied certiorari in Hussain, and that the likely topic of such an opinion would…
Quantum Mechanics, Big Data and the Right of Privacy
If it has done nothing else, the exposure of the NSA metadata collection program has caused both legal commentators and courts to rethink the doctrines that have long governed…
Another (Dubious) Guantánamo Precedent
As Wells Bennett flagged over at Lawfare, the D.C. Circuit’s latest foray into the Guantánamo detainee litigation came two weeks ago in Al-Janko v. Gates, in which a…
The Constitutional Case for Judicial Authority To Order the Transfer and Release of Guantánamo Detainees Cleared for Release
In the statement that he issued as he signed the 2014 National Defense Authorization Act (NDAA), President Obama, addressing the Act’s continuing restrictions on the transfer…
Prediction: Fourth Amendment Evolves in 2014
When should courts follow legal precedent and when should the law change? This is a debate that underlies this month’s contrary decisions about the constitutionality of government…
Two Quick Reflections on Why al Maqaleh III Matters
Over at Lawfare, Raffaela Wakeman already flagged today’s (unsurprising) D.C. Circuit decision in al Maqaleh v. Hagel, once again dismissing for lack of jurisdiction appeals…
The FISC’s Problematic Pen/Trap Opinion on Bulk Internet Metadata Collection
The latest round of Foreign Intelligence Surveillance Court opinions released under the Freedom of Information Act includes what, for many surveillance wonks, has been the white…
New FISC Pen Register Opinion: It’s Just a Matter of Time Before Somebody Gets Hurt
Once again, the NSA has conducted illegal spying. New documents reveal the National Security Agency’s (NSA) systemic violation of Foreign Intelligence Surveillance Court (FISC)…
The D.C. Circuit and Guantánamo, Post-Filibuster Edition
I’ve written a lot (too much!) before about both the D.C. Circuit’s jurisprudence in post-Boumediene Guantánamo cases and the Supreme Court’s passivity in…
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…
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…
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…