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Steve Vladeck
@steve_vladeck
, 3 tweets, 1 min read Read on Twitter
A remarkable (and remarkably important) ruling from Judge Brinkema in the Abu Ghraib #torture case, holding (as a matter of first impression) that the US does not have sovereign immunity from claims for violations of jus cogens norms of international law:

justsecurity.org/wp-content/upl…
"Jus cogens" norms are those norms of such a universal character that no country may lawfully derogate them. And Judge Brinkema's opinion concludes that no country may likewise immunize itself for violations of those norms by those acting under its authority. This is a big deal.
The US nevertheless prevails here because Judge Brinkema holds that the contractor plaintiffs waived their right to pursue these claims when they settled Abu Ghraib-related issues with the government in 2007. But the sovereign immunity holding could matter a lot in the future.
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Steve Vladeck
@steve_vladeck
Despite taking supplemental briefing from the parties on Article III standing in Frank v. Gaos, #SCOTUS ducks and remands the case to the Ninth Circuit to resolve the standing issue in the first instance:

supremecourt.gov/opinions/18pdf…
To me, this is the right result procedurally. It would've been problematic for the Justices to reach a potentially major question of Article III standing that was only addressed in post-argument, supplemental briefs by the parties.

Now, this issue can be properly litigated...
At the same time, as @dispositive points out, this is now the _third_ time that the Court has considered (and punted on) this exact standing question, including First American Financial v. Edwards (2012) and Spokeo, Inc. v. Robins (2016).
Read 3 tweets
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Steve Vladeck
@steve_vladeck
When the government tries a defendant twice for the same offenses, can anything cure the double jeopardy violation _other_ than dismissing the second prosecution? That's the issue presented in our new petition to the Court of Appeals for the Armed Forces:

justsecurity.org/wp-content/upl…
In a nutshell, after our client was tried and convicted in federal district court, he pleaded guilty in, and was sentenced by, a court-martial for overlapping offenses (after rejection of his double-jeopardy-based motion to dismiss), and _then_ was sentenced in district court.
At that point, and without objection from the AUSA, the district court refused to sentence our client on the overlapping conviction (dismissing that count instead), since that would have been a _second_ double jeopardy violation (multiple punishments for the same offense).
Read 6 tweets
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Steve Vladeck
@steve_vladeck
In tomorrow's Federal Courts class, I'm teaching #SCOTUS's 1988 decision in Boyle—which holds that federal judges can displace state tort law in suits against government contractors even without an applicable federal statute or constitutional provision:

supreme.justia.com/cases/federal/…
Justice Scalia routinely invoked his majority opinion in Boyle as one of his biggest mistakes on the Court.

(See, e.g., repository.law.umich.edu/cgi/viewconten…)

But what's especially vexing is how lower courts have subsequently _extended_ it, like the DC Cir. in Saleh:

pacer.cadc.uscourts.gov/internet/opini…
As I explained last July, these cases are a powerful illustration that _all_ judges, liberal or conservative, have areas in which they're more comfortable engaging in "judicial lawmaking":



The more interesting question is which areas, and why.

/end
Read 3 tweets

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Steven Mazie
@stevenmazie
Judge Furman's 277-pp. opinion in the challenge to the citizenship-question-on the-census-case is thorough and measured. 1/7
documentcloud.org/documents/5684…
Furman finds that Commerce Secretary Wilbur Ross's decision to add the question to the 2020 census was an "egregious" violation of the Administrative Procedures Act. 2/7
But he does not find sufficient evidence to bear out the plaintiffs' claim that Ross violated the Constitution by discriminating against minorities 3/7
Read 7 tweets
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Andy Schwarz
@andyhre
Judge Wilken states she thinks an antitrust violation occurred. Says it comes down to balancing question.
She’s asking how to balance if there isn’t evidence of the dollar balance. I wish I could testify in answer to that!
Jeffrey Kessler address the balancing question. He explains ninth circuit requires balancing. Walks through the balancing argument and then says the question is how to do the balancing.
Read 99 tweets
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Seth Abramson
@SethAbramson
Here's what I'm waiting for: the pushback from law enforcement. I'm waiting for cops from around the country who are generally conservative in their politics to speak up and say we don't want criminals in the White House any more than we do on the streets of our towns and cities.
2/ If you're related to or friends with a cop and that cop didn't have Trump pegged as a criminal two seconds after he announced his run for president, with all due respect you're not related to or friends with a very competent cop. I don't think many cops would disagree with me.
3/ I worked in the justice system for years. I came across hundreds of cops. Nearly all seemed especially proud of their ability to spot a troublemaker anywhere on their beat. They saw it as part of their job and what made them good at it. Trump reeks of trouble and they know it.
Read 8 tweets
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Adam
@Khanoisseur
Oh stop with the "demeaning American values," nonsense, Richard.

Saudis copying US playbook on how to handle Khashoggi narrative. Don't you remember? "Rogue soldiers" were blamed for Abu Ghraib torture scandal.

No senior US military or government official was ever prosecuted.
2. Revelations and documentation of torture at Abu Ghraib led to nothing. Bush was decisively reelected sixth months after the first stories broke. The shadow of torture seemed not to harm him and had done nothing to deter his claim to the presidency. Saudis noted all that.
3. It wouldn't be surprising if the Trump admin coached the Saudis to go with the "rogue killers" narrative. After all, claiming ignorance or blaming "bad apples" allowed Bush, Cheney and Rumsfeld to inoculate themselves against Abu Ghraib and CIA tactics. nytimes.com/2014/12/10/wor…
Read 4 tweets
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Adam Cohen
@axidentaliberal
Torture and Perjury:

Imagine if a sitting Supreme Court Justice was involved in discussions about whether the US can imprison people

Without a trial

Without lawyers

And torture them-

And then lied about it

During his own confirmation hearing

<Thread>
When Brett Kavanaugh was nominated to become a judge in 2006, he was asked about his work in the Bush administration. Specifically he was questioned about the treatment of prisoners at Guantanamo Bay. He said he was “not involved in the questions about..detention of combatants.”
Problem is, a year later it came out that he WAS involved in some of these arguments.

How did we get here?

chicagotribune.com/news/nationwor…
Read 18 tweets
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Elijah J. Magnier
@ejmalrai
#Important:
Yesterday late afternoon #Russia/n forces took 3 positions in Qusseyr and Juseh and established checkpoints. #Hezbollah, not informed of the Russian presence, came close to these forces and asked their immediate pull out+
Following the direct intervention of President Bashar al-Assad, the Russian force pulled out this morning and avoided any clash with #Hezbollah in the area.

hezbollah maantin and kept all positions. The #Russia/n move was not coordinated.+

#Hezbollah did not...I repeat, did not pull out one single element from the area.

I spoke to people on the ground: The Russian decision was unclear and considered unwelcome by the forces on the ground. Still, many elements of this move are unclear.

Read 6 tweets

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