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378 F.3d 426; 2004
U.S. App. LEXIS 16298 YASER ESAM HAMDI;
ESAM FOUAD HAMDI, as next friend of Yaser Esam Hamdi, Petitioners - Appellees,
versus DONALD RUMSFELD; W. R. PAULETTE, Commander, Respondents - Appellants. RUTH WEDGWOOD,
Professor of Law, Yale University Law School, and Edward B. Burling, Professor
of International Law and Diplomacy, Johns Hopkins University; SAMUEL
ESTREICHER, Professor of Law, New York University School of Law; RONALD
ROTUNDA, George Mason University Foundation Professor of Law, George Mason
University School of Law; DOUGLAS W. KNIEC, Dean & St. Thomas More
Professor of Law, Catholic University; DAVID B. RIVKIN, JR.; LEE A. CASEY;
DARIN R. BARTRAM; Amici Curiae in support of Appellants, CENTER FOR
CONSTITUTIONAL RIGHTS; RICHARD L. ABEL, Connell Professor of Law, University of
California at Los Angeles; WILLIAM J. ACEVES, Professor of Law, California
Western School of Law; BRUCE A. ACKERMAN, Sterling Professor of Law &
Political Science, Yale University; LEE A. ALBERT, Professor of Law, University
at Buffalo Law School, The State University of New York; BARBARA BADER ALDAVE,
Loran L. Stewart Professor of Corporate Law, University of Oregon School of
Law; ALICIA ALVAREZ, Clinical Associate Professor of Law, DePaul University
School of Law; DIANE MARIE AMANN, Professor of Law, University of California,
Davis, School of Law; MICHELLE J. ANDERSON, Associate Professor of Law,
Villanova University School of Law; FRAN ANSLEY, Professor of Law, University
of Tennessee College of Law; ELVIA R. ARRIOLA, Associate Professor of Law,
Northern Illinois University College of Law; FRANK ASKIN, Professor of Law and
Robert Knowlton Scholar, Rutgers School of Law at Newark; MILNER S. BALL,
Caldwell Professor of Constitutional Law, University of Georgia School of Law;
JON BAUER, Clinical Professor of Law and Director, Asylum & Human Rights
Clinic University of Connecticut School of Law; PAUL SCHIFF BERMAN, Associate
Professor, University of Connecticut School of Law; CYNTHIA BOWMAN, Professor
of Law, Northwestern University School of Law; MARK S. BRODIN, Professor of
Law, Boston College Law School; BARTRAM S. BROWN, Professor of Law,
Chicago-Kent College of Law, Illinois Institute of Technology; SUE BRYANT,
Director of Clinical Education and Associate Professor of Law, CUNY School of
Law; BURTON CAINE, Professor of Law, Temple University School of Law; EMILY
CALHOUN, Professor of Law, University of Colorado School of Law; ANUPAM
CHANDER, Acting Professor of Law, University of California, Davis, School of
Law; ERWIN CHEMERINSKY, Sydney M. Irmas Professor of Public Interest Law, Legal
Ethics and Political Science, University of Southern California Law School;
PAUL G. CHEVIGNY, Joel S. and Anne B. Ehrenkranz Professor of Law, New York
University Law School; PAUL CHILL, Clinical Professor of Law, University of
Connecticut School of Law; GABRIEL J. CHIN, Rufus King Professor of Law,
University of Cincinnati College of Law; CAROL CHOMSKY, Associate Professor of
Law, University of Minnesota Law School; MARGARET CHON, Associate Professor of
Law, Seattle University School of Law; MARJORIE COHN, Associate Professor of
Law, Thomas Jefferson School of Law, San Diego; ROBIN MORRIS COLLIN, Professor
of Law, University of Oregon School of Law; DENNIS E. CURTIS, Clinical
Professor of Law, Yale Law School; ERIN DALY, Associate Professor of Law,
Widener University; MICHAEL H. DAVIS, Professor of Law, Cleveland State
University; MICHAEL DEUTSCH, Adjunct Professor of Law, Northwestern University
School of Law; LAURA DICKINSON, Associate Professor, University of Connecticut
School of Law; ROBERT DINERSTEIN, Associate Dean and Professor of Law, American
University, Washington College of Law; JANE DOLKART, Associate Professor of
Law, Dedman School of Law, Southern Methodist University; SHARON DOLOVICH,
Acting Professor of Law, University of California at Los Angeles; DOUGLAS L.
DONOHO, Professor of Law, Nova Southeastern University, Shepard Broad Law
Center; DOLORES DONOVAN, Professor of Law, University of San Francisco School
of Law; MARY L. DUDZIAK, Judge Edward J. and Ruey L. Guirado Professor of Law
and History, University of Southern California Law School; Visiting Research
Scholar, Woodrow Wilson School of Public and International Affairs, Princeton
University; PAMELA EDWARDS, Assistant Professor of Law, CUNY School of Law;
NANCY ERRENREICH, Associate Professor of Law, University of Denver College of
Law; ROSA EHRENREICH BROOKS, Associate Professor of Law, University of Virginia
School of Law; J. SOFFIYAH ELIJAH, Clinical Instructor, Criminal Justice
Institute, Harvard Law School; SUSAN J. FEATHERS, Esq., Director, Public
Service Program, University of Pennsylvania Law School; MARVIN FEIN, Associate
Professor, University of Pittsburgh School of Law; TODD D. FERNOW, Professor of
Law, Director, Criminal Clinic, University of Connecticut School of Law; SALLY
FRANK, Professor of Law, Drake University School of Law; KATHERINE FRANKE,
Professor of Law, Columbia University; ERIC M. FREEDMAN, Professor of Law,
Hofstra University School of Law; NIELS W. FRENZEN, Clinical Assistant
Professor of Law, University of Southern California; CRAIG B. FUTTERMAN,
Assistant Clinical Professor of Law, University of Chicago Law School; KRISTIN
BOOTH GLEN, Dean and Professor of Law, CUNY School of Law; BRIAN GLICK,
Associate Clinical Professor of Law, Fordham Law School; HOWARD A. GLICKSTEIN,
Dean and Professor of Law, Touro Law School; PHYLLIS GOLDFARB, Professor of
Law, Boston College Law School; BOB GOLTEN, Director, International Human Rights
Advocacy Center, University of Denver; CARLOS E. GONZALEZ, Associate Professor
of Law, Rutgers School of Law - Newark; Visiting Associate Professor of Law,
Santa Clara University School of Law; KENNETH W. GRAHAM, JR., Professor of Law,
University of California at Los Angeles; ARIELA GROSS, Professor of Law &
History, The Law School, University of Southern California; LOUISE HALPER,
Professor of Law, Washington & Lee University School of Law; JOEL F.
HANDLER, Richard C. Maxwell Professor of Law and Professor of Policy Studies,
School of Public Policy and Social Research, University of California at Los
Angeles; SIDNEY L. HARRING, Professor of Law, CUNY Law School; VIRGINIA HENCH,
Associate Professor of Criminal Law & Procedure & Civil Rights, University
of Hawaii - Manoa; KATHY HESSLER, Professor, Case Western Reserve University
School of Law; JUDITH L. HOLMES, Assistant Professor of Legal Studies,
University of Massachusetts - Amherst; WYTHE W. HOLT, JR., University Research
Professor of Law, University of Alabama School of Law; JOAN HOWARTH, Professor
of Law, University of Nevada, Las Vegas; MARSHA HUIE, Professor of Law, The
University of Tulsa College of Law; ERIC S. JANUS, Professor of Law, William
Mitchell College of Law; PAULA C. JOHNSON, Associate Professor of Law, Syracuse
University College of Law; JOSE R. JUAREZ, JR., Professor of Law, St. Mary's
University School of Law; DAVID KAIRYS, James E. Beasley Professor of Law,
Beasley School of Law, Temple University; YALE KAMISAR, Clarence Darrow Distinguished
University Professor of Law, University of Michigan; JERRY KANG, Professor of
Law, University of California at Los Angeles; LEWIS R. KATZ, John C. Hutchins
Professor of Law, Case Western Reserve University Law School; EILEEN KAUFMAN,
Professor of Law, Touro Law School; MICHAEL J. KELLY, Assistant Professor,
Creighton University School of Law; RANETA LAWSON MACK, Professor of Law,
Creighton University School of Law; DAVID P. LEONARD, Professor of Law and
William M. Rains Fellow, Loyola Law School, Los Angeles; JOHN LEUBSDORF,
Professor of Law, Rutgers Law School-Newark; MARTIN L. LEVY, Professor,
Thurgood Marshall School of Law, Texas Southern University; JULES LOBEL,
Professor of Law, University of Pittsburgh Law School; DAVID LUBAN, Frederick
Haas Professor of Law and Philosophy, Georgetown University Law Center; BETH
LYON, Assistant Professor of Law, Villanova University School of Law; HOLLY
MAGUIGAN, Professor of Clinical Law, New York University School of Law; SAMUEL
A. MARCOSSON, Associate Professor, Louis D. Brandeis School of Law, University
of Louisville; GARY M. MAVEAL, Associate Professor of Law, University of
Detroit Mercy School of Law; ROBERT F. MEAGHER, Emeritus Professor, Fletcher
School of Law and Diplomacy, Tufts University; CARLIN MEYER, Professor of Law,
New York Law School; JONATHAN M. MILLER, Professor of Law, Southwestern
University School of Law; MARGARET E. MONTOYA, Professor of Law, University of
New Mexico School of Law; BEVERLY MORAN, Professor of Law, Professor of
Sociology, Vanderbilt University School of Law; DAVID A. MORAN, Assistant
Professor of Law, Wayne State University Law School; MARY-BETH MOYLAN,
Instructor of Law, University of the Pacific, McGeorge School of Law; MILLARD
A. MURPHY, Esq., Clinical Instructor, Prison Law Clinic, University of
California, Davis, School of Law; KENNETH B. NUNN, Professor of Law, Fredric G.
Levin College of Law, University of Florida; JAMES P. OGILVY, Associate
Professor of Law, Columbus School of Law, The Catholic University of America; NANCY
K. OTA, Professor of Law, Albany Law School; MARC R. POIRIER, Professor of Law,
Seton Hall Law School; JAMES POPE, Professor of Law and Sidney Reitman Scholar,
Rutgers University School of Law; DEBORAH W. POST, Professor of Law, Touro Law
School; WILLIAM QUIGLEY, Professor of Law and Director of the Loyola Law Clinic
& the Gillis Long Poverty Law Center, Loyola Law School; MARGARET JANE
RADIN, Win. Benjamin Scott and Luna M. Scott Professor of Law, Stanford Law
School; MARTHA RAYNER, Associate Clinical Professor of Law, Fordham University
School of Law; JUDITH RESNICK, Arthur Liman Professor of Law, Yale Law School;
PAULA R. RHODES, American and Comparative Law Program, University of Denver
College of Law; HENRY J. RICHARDSON, III, Peter J. Liacouras Professor of Law,
Temple Law School; ANNELISE RILES, Professor of Law and Professor of
Anthropology, Cornell University; TONI ROBINSON, Professor of Law, Quinnipiac
School of Law; FLORENCE WAGMAN ROISMAN, Professor of Law and Paul Beam Fellow,
Indiana University School of Law-Indianapolis; KERMIT ROOSEVELT, Assistant
Professor, University of Pennsylvania Law School; TANINA ROSTAIN, Associate
Professor, New York Law School; JED RUBENFELD, Robert R. S laughter Professor
of Law, Yale University; DAVID RUDOVSKY, Senior Fellow, University of
Pennsylvania Law School; LEILA. NADYA SADAT, Professor of Law, Washington
University in St. Louis; NATSU TAYLOR SAITO, Professor of Law, Georgia State
University College of Law; ROBERT F. SEIBEL, Professor of Law, CUNY Law School;
FRANKLIN SIEGEL, City University of New York School of Law; ROBERT A. SEDLER,
Distinguished Professor of Law and Gibbs Chair in Civil Rights and Civil
Liberties, Wayne State University; MARCI SEVILLE, Associate Professor of Law
and Director, Women's Employment Rights. Clinic, Golden Gate University School
of Law; MARJORIE SILVER, Professor, Touro Law Center; EILEEN SILVERSTEIN,
Zephaniah Swift Professor of Law, University of Connecticut; DAVID SLOSS,
Assistant 'Professor of Law, Saint Louis University School of Law; RONALD C.
SLYE, Associate Professor, Seattle University School of Law; LLOYD B. SNYDER,
Professor of Law, Cleveland. State University; ANDREJ THOMAS STARKIS, Assistant
Professor of Law, Massachusetts School of Law; NORMAN STEIN, Douglas Arant
Professor of Law, University of Alabama School of Law; JOAN STEINMAN,
Distinguished Professor of' Law, Chicago-Kent College of Law; ROBERT N.
STRASSFELD, Professor of Law, Case Western Reserve University School of Law;
ROBERT L. TSAI, Assistant Professor of Law, University of Oregon School of Law;
BETH VAN SCHAACK, Assistant Professor, Santa' Clara. University School of Law;
DEBORAH M. WEISSMAN, Associate Professor of Law and Director of Clinical
Associate Professor of Law, Director, LLM in Programs, University of North
Carolina School of Law; CHARLES E. WILSON, Associate Professor of Law,' The
Ohio State University College of Law; RICHARD J. WILSON, Professor, Washington
College of Law, American University; ADAM WINKLER, Acting Professor of Law,
University of California at Los Angeles; STEPHEN WIZNER, William 0. Douglas
Clinical Professor of Law and Supervising Attorney, Yale Law School; MARK E.
WOJCIK, Associate Professor of Law, The John Marshall Law School, Chicago;
FRANK H. WU, Professor of Law, Howard University; CLIFF ZIMMERMAN, Clinical
Associate Professor of Law, Northwestern University; NATIONAL LAWYERS' GUILD,
Heidi Boghosian, Executive Director; NATIONAL IMMIGRATION PROJECT OF THE
NATIONAL LAWYERS GUILD, Dan Kesselbrenner, Executive Director; NATIONAL LAWYERS
GUILD NEW YORK CHAPTER, Dana Biberman, President; HUMAN RIGHTS WATCH, James
Ross, Senior Legal Counsel; SOUTHERN POVERTY LAW CENTER, Rhonda Brownstein,
Legal Director; UNITARIAN UNIVERSALIST SERVICE COMMITTEE, Denise Moorehead,
Deputy Director of Program; PUERTO RICO LEGAL DEFENSE AND EDUCATION FUND,
INCORPORATED, Foster Maer, Acting Legal Director; NATIONAL COALITION TO PROTECT
POLITICAL FREEDOM, Kit Gage, President; FIRST AMENDMENT FOUNDATION, Kit Gage,
Director; NATIONAL LAWYER'S GUILD/MAURICE & JANE SUGAR LAW CENTER FOR
ECONOMIC & SOCIAL JUSTICE, Julie Hurwitz, Executive Director; CIVIL
LIBERTIES MONITORING PROJECT, Jared Rossman, President; ASSOCIATION OF LEGAL
AID ATTORNEYS, U.A.W. LOCAL 2325, Michael Letwin, Esq., President; PARTNERSHIP
FOR CIVIL JUSTICE, Mara Verheyden-Hilliard, co-founder; TRIAL LAWYERS FOR
PUBLIC JUSTICE, Rebecca Epstein, Staff Attorney; FREEDOM SOCIALIST PARTY, Val
Carlson; JEWISH ALLIANCE FOR LAW AND SOCIAL ACTION, Andrew M. Fischer; THE
INNOCENCE PROJECT AT THE BENJAMIN N. CARDOZO SCHOOL OF LAW, Nina Morrison,
Esq., Executive Director; ELLA BAKER CENTER FOR HUMAN RIGHTS, Van Jones,
National Executive Director; AMERICAN FRIENDS SERVICE COMMITTEE, Mary Ellen
McNish, General Secretary; REBER BOULT, Esq., Albuquerque, New Mexico; HUNTER
GRAY; JOHN MAGE, Esq., New York, New York; DOUGLAS N. MASTERS, Esq., Chicago,
Illinois; LAURA BETH NIELSEN, Research Fellow, American Bar Foundation; LEONARD
WEINGLASS, Esq., New York, New York; CAMILLE WHITWORTH, Esq., Austin, Texas;
MITCHELL ZIMMERMAN, Esq., Co-Coordinator, Law Professors for the Rule of Law;
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; AMERICAN CIVIL LIBERTIES
UNION FOUNDATION; AMERICAN CIVIL LIBERTIES FOUNDATION OF VIRGINIA; Amici Curiae
in support of Appellees. No. 02-7338 UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT August 6, 2004, Filed PRIOR HISTORY: Hamdi v. Rumsfeld, 542 U.S. 507, 159 L. Ed.
2d 578, 124 S. Ct. 2633, 2004 U.S. LEXIS 4761 (U.S., 2004) OPINION: [*1] ORDER The United States Supreme Court has vacated the judgment and
remanded this case. In obedience to the mandate of the Supreme Court we hereby
remand the case to the Eastern District of Virginia for further proceedings
consistent with the Supreme Court's decision. In light of the Court's holding
in Rumsfeld v. Padilla, 542
U.S. 426, 159 L. Ed. 2d 513, 124. S. Ct. 2711 (2004), we note that any
motion with respect to the issue of venue may be addressed to the district
court. Entered at the direction of Chief Judge Wilkins, with the
concurrence of Judge Wilkinson and Judge Traxler. For the Court |