The Solicitor General and the Shadow Docket
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1 UNITED STATES DISTRICT COURT DISTRICT of MARYLAND Rami Khaled El Ali, Et Al., Plaintiffs, V. Matthew Whitaker, Et Al., Defenda
Case 8:18-cv-02415-PX Document 67 Filed 06/11/20 Page 1 of 10 UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND ) Rami Khaled El Ali, et al., ) ) Plaintiffs, ) ) Case No. 8:18-cv-02415-PX v. ) ) JOINT STATUS REPORT Matthew Whitaker, et al., ) ) Defendants. ) ) ) The Parties respectfully provide this Joint Status Report, as ordered by the Court at the May 22, 2020 virtual hearing. At that hearing, the Court indicated that it may need to better “understand[] how . the Watch List Advisory Council [WLAC] works” in order to assess the question of Plaintiffs’ standing to sue some of the defendants.1 Hearing Tr. at 9:6-9. It consequently ordered the parties to meet and confer regarding the parties “respective positions for expedited targeted discovery on standing in advance of merits-based discovery. (Dkt. 66). The parties have now met and conferred with respect to their positions on holding an evidentiary hearing (whether virtually or in person), or targeted jurisdictional discovery. Finding themselves unable to reach agreement, the Parties set forth their respective positions as follows: Plaintiffs’ Position: Plaintiffs believe an evidentiary hearing would be illuminating for the Court, but given the federal government’s propensity to mislead the public and courts about their watchlisting system, a hearing would be most useful if it followed targeted, adversarial discovery. Without this discovery, Defendants may be able to avoid liability for their actions by using national security nondisclosure as both a sword and shield or otherwise misstate how their watchlisting system 1 Defendants do not contest Plaintiffs’ standing against many Defendants. -
Intelligence Legalism and the National Security Agency's Civil Liberties
112 Harvard National Security Journal / Vol. 6 ARTICLE Intelligence Legalism and the National Security Agency’s Civil Liberties Gap __________________________ Margo Schlanger* * Henry M. Butzel Professor of Law, University of Michigan. I have greatly benefited from conversations with John DeLong, Mort Halperin, Alex Joel, David Kris, Marty Lederman, Nancy Libin, Rick Perlstein, Becky Richards, and several officials who prefer not to be named, all of whom generously spent time with me, discussing the issues in this article, and many of whom also helped again after reading the piece in draft. I would also like to extend thanks to Sam Bagenstos, Rick Lempert, Daphna Renan, Alex Rossmiller, Adrian Vermeule, Steve Vladeck, Marcy Wheeler, Shirin Sinnar and other participants in the 7th Annual National Security Law Workshop, participants at the University of Iowa law faculty workshop, and my colleagues at the University of Michigan Legal Theory Workshop and governance group lunch, who offered me extremely helpful feedback. Jennifer Gitter and Lauren Dayton provided able research assistance. All errors are, of course, my responsibility. Copyright © 2015 by the Presidents and Fellows of Harvard College and Margo Schlanger. 2015 / Intelligence Legalism and the NSA’s Civil Liberties Gaps 113 Abstract Since June 2013, we have seen unprecedented security breaches and disclosures relating to American electronic surveillance. The nearly daily drip, and occasional gush, of once-secret policy and operational information makes it possible to analyze and understand National Security Agency activities, including the organizations and processes inside and outside the NSA that are supposed to safeguard American’s civil liberties as the agency goes about its intelligence gathering business. -
Case 1:18-Cv-02849-ELH Document 6 Filed 11/13/18 Page 1 of 4
Case 1:18-cv-02849-ELH Document 6 Filed 11/13/18 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND STATE OF MARYLAND, * Plaintiff, * v. Case No.: 1:18-cv-02849-ELH * UNITED STATES OF AMERICA, et al., * Defendant. * * * * * * * * * * * * * PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION, TO SUBSTITUTE DEFENDANT, AND TO EXPEDITE CONSIDERATION OF THESE MATTERS Plaintiff, the State of Maryland, hereby moves for a preliminary injunction as set forth below and for the reasons set forth in the accompanying Memorandum of Law in Support of Plaintiff’s Motion for a Preliminary Injunction. Fed. R. Civ. P. 65(a). Plaintiff seeks to restrain and enjoin defendants from answering the complaint and proceeding in this case with former Chief of Staff to the Attorney General Matthew G. Whitaker appearing in the official capacity of the Acting Attorney General. Additionally, plaintiff seeks to substitute Deputy Attorney General Rod J. Rosenstein as Acting Attorney General in his official capacity in place of former Attorney General Jefferson B. Sessions III, under Federal Rule of Civil Procedure 25. 1. On November 7, 2018, Sessions submitted his resignation as Attorney General to President Trump. See Letter from Jefferson B. Sessions III to President Donald J. Trump (Nov. 7, 2018), available at https://cnn.it/2SVkdaQ (last accessed Nov. 12, 2018). Shortly thereafter, President Trump appointed Whitaker as the Acting Attorney General. See Donald J. Trump (@realDonaldTrump), Twitter (Nov. 7, 2018, 11:44AM), https://bit.ly/2STEopE. As demonstrated in the Memorandum, the appointment of Whitaker as Acting Attorney General instead of Deputy Attorney General Rosenstein violates the Attorney General Succession Act, 28 U.S.C. -
Latest from the Constitution Project
TCP Journal September 2011 On My Mind: Monthly Message from TCP President Virginia Sloan TCP’s fifth annual Constitution Day event is coming up, and I hope you will join The Constitution Project, Georgetown University Law Center and the Mid-Atlantic Innocence Project on September 15th to celebrate Constitution Day and to recognize three distinguished authors who will receive The Constitution Project’s annual Constitutional Commentary Award. Jim Petro, former Republican Attorney General of Ohio, and Nancy Petro, are being honored for their book, False Justice: Eight Myths that Convict the Innocent, as is Brandon Garrett, professor of law at the University of Virginia School of Law for his book Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Our Constitutional Commentary Award is given annually to the author or producer of an outstanding work that has improved the quality of public discourse through insightful, articulate analysis of a constitutional issue. Following the award presentation, Jeffrey Rosen, professor of law at George Washington University School of Law and legal editor at The New Republic (who wrote a glowing review of Convicting the Innocent in The New York Times Sunday Book Review), will host a discussion with the three authors. A reception will follow. The event will take place from 3:30 to 6:30 p.m. at the Gewirz Student Center at Georgetown University School of Law. Please RSVP today as space is limited. I hope to see you there. President Obama Urged to Nominate the Remaining Individuals to Crucial Privacy and Civil Liberties Oversight Board On August 25th, TCP, along with a coalition of 18 additional organizations and individuals, sent a letter to President Obama, Secretary of Homeland Security Janet Napolitano, Attorney General Eric Holder, and Director of National Intelligence James Clapper, urging the President to nominate individuals to the remaining three positions on the Privacy and Civil Liberties Oversight Board (PCLOB) without further delay. -
National Security Leaks and the Law Hearing Committee on the Judiciary House of Representatives
NATIONAL SECURITY LEAKS AND THE LAW HEARING BEFORE THE SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED TWELFTH CONGRESS SECOND SESSION JULY 11, 2012 Serial No. 112–139 Printed for the use of the Committee on the Judiciary ( Available via the World Wide Web: http://judiciary.house.gov U.S. GOVERNMENT PRINTING OFFICE 74–977 PDF WASHINGTON : 2012 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Aug 31 2005 17:36 Oct 24, 2012 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 H:\WORK\CRIME\071112\74977.000 HJUD PsN: 74977 COMMITTEE ON THE JUDICIARY LAMAR SMITH, Texas, Chairman F. JAMES SENSENBRENNER, JR., JOHN CONYERS, JR., Michigan Wisconsin HOWARD L. BERMAN, California HOWARD COBLE, North Carolina JERROLD NADLER, New York ELTON GALLEGLY, California ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia BOB GOODLATTE, Virginia MELVIN L. WATT, North Carolina DANIEL E. LUNGREN, California ZOE LOFGREN, California STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas DARRELL E. ISSA, California MAXINE WATERS, California MIKE PENCE, Indiana STEVE COHEN, Tennessee J. RANDY FORBES, Virginia HENRY C. ‘‘HANK’’ JOHNSON, JR., STEVE KING, Iowa Georgia TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas MIKE QUIGLEY, Illinois JIM JORDAN, Ohio JUDY CHU, California TED POE, Texas TED DEUTCH, Florida JASON CHAFFETZ, Utah LINDA T. SA´ NCHEZ, California TIM GRIFFIN, Arkansas JARED POLIS, Colorado TOM MARINO, Pennsylvania TREY GOWDY, South Carolina DENNIS ROSS, Florida SANDY ADAMS, Florida BEN QUAYLE, Arizona MARK AMODEI, Nevada RICHARD HERTLING, Staff Director and Chief Counsel PERRY APELBAUM, Minority Staff Director and Chief Counsel SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY F. -
Matthew Whitaker, a Trump Loyalist, Is Seen As Ascendant Amid Rosenstein Chaos
Matthew Whitaker, a Trump Loyalist, Is Seen as Ascendant Amid Rosenstein Chaos Matthew G. Whitaker, the chief of staff to Attorney General Jeff Sessions, has developed an amicable rapport with President Trump.CreditCharlie Neibergall/Associated Press Image Matthew G. Whitaker, the chief of staff to Attorney General Jeff Sessions, has developed an amicable rapport with President Trump.CreditCreditCharlie Neibergall/Associated Press By Katie Benner and Maggie Haberman Sept. 26, 2018 o o o o o Updated Nov. 7, 2018: President Trump forced out Attorney General Jeff Sessions on Wednesday and announced Matthew Whitaker, Mr. Sessions’s chief of staff, will take over as acting attorney general. Read the latest, here. WASHINGTON — Convinced that the deputy attorney general, Rod J. Rosenstein, was ready to resign after the revelation that he suggested President Trump was unfit for the job, senior White House aides got to work last weekend installing a replacement. Matthew G. Whitaker, the chief of staff to Attorney General Jeff Sessions, would become the acting No. 2 official at the Justice Department, his White House counterpart, John F. Kelly, told him over the phone on Saturday morning, according to two people briefed on the call. To the White House, he was an obvious choice: a confident former college football player and United States attorney whom Mr. Kelly has privately described as the West Wing’s “eyes and ears” in a department the president has long considered at war with him. By late Monday morning, the plan was moot. Mr. Rosenstein was no longer committed to resigning, at least without assurances he was doing so on amicable terms with the president. -
RESPONSE Targeted Killing and Judicial Review
RESPONSE Targeted Killing and Judicial Review Stephen I. Vladeck* ABSTRACT In Drones: The Power to Kill, former Attorney General Alberto Gonzales argues for increased oversight and accountability for targeted killing operations undertaken by the U.S. Government against its own citizens. Modeled on the procedures adopted by the government for the detention of terrorism suspects after, and in light of, the Supreme Court’s decision in Hamdi v. Rumsfeld, these mechanisms would include at least some form of limited ex ante judicial review. This Response offers a detailed series of critiques of the means by which Judge Gonzales proposes to achieve increased oversight and accountability. More fundamentally, though, it argues that the buried lede of Judge Gonzales’s article is the view that U.S. courts are not categorically incompetent to review the legality of uses of military force. Thus, Judge Gonzales has penned a defense of judicial review of targeted killings that is far more robust than it might appear at first blush, because it both underscores why the target’s citizenship is irrelevant to the underlying judicial competency question and clarifies that debates over the scope and timing of such judicial review should take place on policy—rather than constitutional—terms. To that end, the Response closes by offering an alternative proposal to maximize vigorous and efficient judicial oversight of targeted killing operations. INTRODUCTION Given his controversial role in shaping and defending U.S. counterterrorism policies during his tenure as White House Counsel and Attorney General under the George W. Bush Administration,1 there is more * Professor of Law and Associate Dean for Scholarship, American University Washington College of Law. -
Why Military Commissions Warrant Exemption from Abstention Doctrine
Case Western Reserve Journal of International Law Volume 51 Issue 1 Article 22 2019 Time's Up, Councilman: Why Military Commissions Warrant Exemption from Abstention Doctrine Alex W.S. Lilly Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Alex W.S. Lilly, Time's Up, Councilman: Why Military Commissions Warrant Exemption from Abstention Doctrine, 51 Case W. Res. J. Int'l L. 359 (2019) Available at: https://scholarlycommons.law.case.edu/jil/vol51/iss1/22 This Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Case Western Reserve Journal of International Law 51 (2019) Time’s Up, Councilman: Why Military Commissions Warrant Exemption from Abstention Doctrine Alex W. S. Lilly* In 2017, two Guantánamo Bay detainees filed writs of certiorari with the Supreme Court of the United States. Through different claims, both men argued that the military commissions convened to prosecute them lacked subject matter jurisdiction to do so. The first man, Ali Hamza Ahmad Suliman al Bahlul, challenged his conspiracy conviction on the basis that it is unconstitutional to try purely domestic offenses in a non-Article III tribunal. The second, Abd al Rahim al-Nashiri, has not yet been tried. As such, he raised pretrial objections to his military commission’s competence to try him for crimes committed pre- 9/11. -
Twitter and the #So-Calledjudge
SMU Law Review Volume 71 Issue 1 Article 17 2018 Twitter and the #So-CalledJudge Elizabeth G. Thornburg Southern Methodist University, Dedman School of Law, [email protected] Follow this and additional works at: https://scholar.smu.edu/smulr Part of the Courts Commons, Judges Commons, Law and Politics Commons, Law and Society Commons, Legal Ethics and Professional Responsibility Commons, Legal Profession Commons, and the President/Executive Department Commons Recommended Citation Elizabeth G. Thornburg, Twitter and the #So-CalledJudge, 71 SMU L. REV. 249 (2018) https://scholar.smu.edu/smulr/vol71/iss1/17 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. TWITTER AND THE #SO-CALLEDJUDGE Elizabeth Thornburg* ABSTRACT Two-hundred-eighty characters may be insufficient to deliver a treatise on the judiciary, but it is more than enough to deliver criticism of the third branch of government. Today, these tweeted critiques sometimes come not from the general public but from the President himself. Attacks such as these come at a challenging time for court systems. We live in a highly politicized, polarized society. This polarization is reflected in attitudes to- ward the courts, particularly the federal courts. Unfortunately, public doubts about the court system come at a time when public understanding of the structure of government, and especially the court system, is abys- mally low. All of this context raises a number of related questions. -
Military Commissions: a Place Outside the Law’S Reach
MILITARY COMMISSIONS: A PLACE OUTSIDE THE LAW’S REACH JANET COOPER ALEXANDER* “We have turned our backs on the law and created what we believed was a place outside the law’s reach.” Colonel Morris D. Davis, former chief prosecutor of the Guantánamo military commissions1 Ten years after 9/11, it is hard to remember that the decision to treat the attacks as the trigger for taking the country to a state of war was not inevitable. Previous acts of terrorism had been investigated and prosecuted as crimes, even when they were carried out or planned by al Qaeda.2 But on September 12, 2001, President Bush pronounced the attacks “acts of war,”3 and he repeatedly defined himself as a “war president.”4 The war * Frederick I. Richman Professor of Law, Stanford Law School. I would like to thank participants at the 2011 Childress Lecture at Saint Louis University School of Law and a Stanford Law School faculty workshop for their comments, and Nicolas Martinez for invaluable research assistance. 1 Ed Vulliamy, Ten Years On, Former Chief Prosecutor at Guantanamo Slams ‘Camp of Torture,’ OBSERVER, Oct. 30, 2011, at 29. 2 Previous al Qaeda attacks that were prosecuted as crimes include the 1993 bombing of the World Trade Center, the Manila Air (or Bojinka) plot to blow up a dozen jumbo jets, and the 1998 embassy bombings in East Africa. Mary Jo White, Prosecuting Terrorism in New York, MIDDLE E.Q., Spring 2001, at 11, 11–14; see also Christopher S. Wren, U.S. Jury Convicts 3 in a Conspiracy to Bomb Airliners, N.Y. -
Gene Hamilton Emails
Hamilton, Gene (OAG) From: Hamilton, Gene (OAG) Sent: Monday, December 18, 2017 2:45 PM To: Ted Hesson Subject: RE: DOJ Hi Ted, Hope all is well. Please reach out to Devin in OPA, who c an probably assist. Thanks! Gene P. Hamilton Counselor to the Attorney General C S. Department of Jnstice From: Ted Hesson [mailto:[email protected]) Sent: Monday, December 18, 2017 2:38 PM To: Hamilton, Gene (0AG) <[email protected]> Subject: Re: DOJ Hi Gene - I'm following up on this request. I' m hoping to get some feedback related to a story I'm working on. From: Ted Hesson <[email protected]> Date: Friday, December 1, 2017 at 2:33 PM To: "gene.hamil [email protected]" <[email protected]> Subject: DOJ Hi Gene - do you have time to touch base later today or early next week? This isn't about a particular story, I'd justlike to hear what's happening at DOJ on the immigration front. I'm at U)IB Best , Ted Ted Hesson Employment and Immigration Reporter POLITICO Pro 703-672-2806 (w} l~(c) [email protected] 0017 Document ID: 0.7.22911 .5025 Hamilton, Gene (OAG) From: Hamilton, Gene (OAG) Sent: Wednesday, January 3, 2018 4:50 PM To: Nancy Cook Cc: O'Malley, Devin (OPA) Subject: Re: DACA negotiations out of WH Hi Nancy, Thanks very much for the note, and happy New Year! I am copying Devin from OPA. Thanks, Gene P. Hamilton Counselor to the Attorney General U.S. Department of Justice On Jan 3, 2018, at 2:11 PM, Nancy Cook <[email protected]> wrote: Hi Gene, I'm a White House reporter at Politico, covering policy out of the administration. -
DAMIEN GUEDES, Et Al., Applican
App. No. ___ -------------------- In The Supreme Court of the United States -------------------- DAMIEN GUEDES, et al., Applicants-Appellants, v. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, et al., Respondents-Appellees. -------------------- APPLICATION FOR EXTENSION OF TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI -------------------- To the Honorable Chief Justice John G. Roberts, Jr., as Circuit Justice for the United States Court of Appeals for the District of Columbia Circuit: Applicants (Plaintiffs-Appellants below) Damien Guedes, Shane Roden, Firearms Policy Foundation, Madison Society Foundation, Inc., Florida Carry, Inc., David Codrea, Scott Heuman, and Owen Monroe respectfully request that the time to file a petition for a writ of certiorari be extended by sixty (60) days, to and including August 29, 2019. The court of appeals issued its Opinion and Judgment (over dissent) on April 1, 2019. See App. A & B, infra. Absent an extension of time, the petition therefore would be due on June 30, 2017. Petitioner is filing this Application at least ten (10) days before that date. See S. Ct. R. 13.5. This case involves a challenge to the Final Rule adopted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, reinterpreting the definition of a 1 “machinegun” for the purpose of various criminal and administrative provisions. It has been the subject of two applications for a stay of the rule, both of which were denied. See Applications 18A964 & 18A1019. The Final Rule is currently in effect and petitioners’ bump-stocks have been surrendered under protest or destroyed per the requirements of the rule. Respondents to this Application (Defendants-Appellees below) are: the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”); William P.