Justia Aerospace/Defense Opinion Summaries

Articles Posted in US Court of Appeals for the District of Columbia Circuit
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The district court denied a habeas petition by Al Hela, a Yemeni sheik, challenging his detention at the U.S. Naval Station at Guantanamo Bay. Al Hela claims that the President lacked authority to detain him under the Authorization for Use of Military Force, 115 Stat. 224, for substantially supporting Al Qaeda and its associated forces; that he is entitled to release for due process violations; and that the discovery procedures failed to provide him with a “meaningful opportunity” to challenge his detention. The District Court for the District of Columbia has a standing case management order used in many Guantanamo habeas cases to manage discovery and to protect classified information from unwarranted disclosure. The D.C. Circuit affirmed, finding that the President has authority to detain Al Hela, who “substantially supported” enemy forces irrespective of whether he also directly supported those forces or participated in hostilities. Al Hela’s supportive conduct was not “vitiated by the passage of time.” The proceedings below complied with the requirements of the Suspension Clause, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Guantanamo detainees are entitled to a “meaningful opportunity” to challenge the basis for their detention, not a perfect one. The Due Process Clause may not be invoked by aliens without property or presence in the sovereign territory of the United States. View "Al-Hela v. Trump" on Justia Law

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Al Bahlul, a Yemeni national, was Osama bin Laden’s head of propaganda at the time of the September 11 attacks. After he was captured in Pakistan, Al Bahlul was convicted by a military commission in Guantanamo Bay of conspiracy to commit war crimes, providing material support for terrorism, and soliciting others to commit war crimes. The D.C. Circuit vacated two of his three convictions on ex post facto grounds. On remand, the Court of Military Commission Review, without remanding to the military commission, reaffirmed Al Bahlul's life sentence for the conspiracy conviction.The D.C. Circuit reversed and remanded. The CMCR failed to apply the correct harmless error standard, In reevaluating Al Bahlul’s sentence, the CMCR should have asked whether it was beyond a reasonable doubt that the military commission would have imposed the same sentence for conspiracy alone. The court rejected Al Bahlul’s remaining arguments. The appointment of the Convening Authority was lawful; there is no reason to unsettle Al Bahlul I’s ex post facto ruling, and the court lacked jurisdiction in an appeal from the CMCR to entertain challenges to the conditions of Al Bahlul’s ongoing confinement. View "Al Bahlul v. United States" on Justia Law

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Kaspersky, a Russian-based cybersecurity company, provides products and services to customers around the world. In 2017, based on concerns that the Russian government could exploit Kaspersky’s access to federal computers, the Secretary of Homeland Security directed federal agencies to remove the company’s products from government information systems. Congress later broadened and codified (131 Stat. 1283) that prohibition in the National Defense Authorization Act. Kaspersky sued, arguing that the prohibition constituted an impermissible legislative punishment, a bill of attainder prohibited by the Constitution, Article I, Section 9. The D.C. Circuit affirmed the dismissal of the suit. Kaspersky failed to adequately allege that Congress enacted a bill of attainder. The court noted the nonpunitive interest at stake: the security of the federal government’s information systems. The law is prophylactic, not punitive. While Kaspersky is not the only possible gap in the federal computer system’s defenses, Congress had ample evidence that Kaspersky posed the most urgent potential threat and Congress has “sufficient latitude to choose among competing policy alternatives.” Though costly to Kaspersky, the decision falls far short of “the historical meaning of legislative punishment.” Relying just on the legislative record, Kaspersky’s complaint fails to plausibly allege that the motivation behind the law was punitive. View "Kaspersky Lab, Inc.v. United States Department of Homeland Security" on Justia Law