Advancing a Free Society

Esmail Oral Argument Summary

Thursday, February 17, 2011

Rising before the D.C. Circuit this morning on behalf of Yasein Khasem Mohammad Esmail, Danielle Barbour faces some non-trivial problems. She has bad facts, a hostile panel, a relatively solid-seeming lower-court opinion to attack, a client who–the lower court found–is more likely than not to be part of Al Qaeda, and a clear error standard of review to overcome regarding facts that are, well, just not that clearly wrong.

Oh, and one other thing: She’s never done an appellate argument before.

My hat is off to her–or, rather, it would be off if I wore a hat. Like her Covington colleague Anthony Phillips in the Uthman case last week, Barbour does a nice job with a bad hand. She’s going to lose this case, but that’s not her fault. The case is unwinnable given the state of the law and the found facts about her client. As I described the case in some detail yesterday, I will assume reader familiarity with it here.

Continue reading Benjamin Wittes at Lawfare