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Category Archives: Detention: Law of

The United States’ Opposition to GTMO Detainee’s “End of War” Motion

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Monday, April 27, 2015 at 12:00 PM

The response was filed on Friday, in the habeas case of Al-Warafi v. Obama. Have a look:

Referred for Prosecution But Never Tried: The (Latest) Guantánamo Math Problem

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Thursday, April 23, 2015 at 11:47 AM

Everyone should read Bobby’s post from last night on the potential approach of an endgame for the 122 detainees still in custody at Guantánamo. As Bobby points out, even if the government (miraculously) is able to transfer the 57 detainees cleared for transfer, that still leaves two categories of detainees in need of a solution: those the government . . .
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Is the GTMO Endgame Approaching?

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Wednesday, April 22, 2015 at 8:21 PM

The Washington Post has the latest here. Key points: 1. Lightning Round for Transfers Anticipating NDAA language leveraging the power of the purse to further constrain the ability of the government to transfer GTMO detainees to third countries, “the Pentagon is racing” to complete the transfer 57 detainees who already have been approved for that . . .
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The Bergdahl Roadmap to Unilateral Presidential Closure of GTMO

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Wednesday, April 1, 2015 at 11:15 AM

We have not paid enough attention to the significance of the administration’s legal argument in support of the Bergdahl trade for President Obama’s goal of closing GTMO.  The Article II logic in the administration’s disregard of the congressional notice requirement in swapping the Taliban five for Bergdahl could be the basis for transferring the remaining . . .
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Was the Bergdahl Swap Lawful?

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Wednesday, March 25, 2015 at 9:19 PM

With Bowe Bergdahl back in the news, it is perhaps worth outlining the legally controversial circumstances of the Taliban swap.  I argued here and here that the transfer was inconsistent with three federal statutes: The thirty-day notice requirement before transfer of GTMO detainees in Section 1035 of the 2014 NDAA; the appropriation restrictions in Section 8111 . . .
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The End of the United States’ War in Afghanistan Requires Detainee’s Release From GTMO

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Friday, February 27, 2015 at 8:00 AM

Such is this gist of this quite important Motion to Grant Petition For Writ of Habeas Corpus, filed last night by attorneys for Guantanamo detainee Mukhtar Yahia Naji al Warafi.  His filing opens as follows: Under the Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2002) (“AUMF”), the Government . . .
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Why We Shouldn’t Import Guantánamo: A Holistic Perspective

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Tuesday, February 10, 2015 at 11:40 AM

It is with great reluctance that I wade into Gabor and Steve’s debate about how to close the U.S. prison at Guantánamo Bay. I’ve made no secret of my distaste for what I’ve described (okay, okay, flippantly described) as “the atmospheric punditry some have come to expect from this blog.” (Although, I must confess that, . . .
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The Meaningful Legal Differences Between Stateside and Guantánamo Detention

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Thursday, February 5, 2015 at 3:30 PM

Gabor’s post from this morning, which is styled as a response to Ben’s thoughtful analysis of what it will take to close Guantánamo (while ignoring some of the other responses), concludes that the only meaningful way to “close” Guantánamo is for President Obama “to either release all detainees or try them in our time-tested federal courts,” at least largely . . .
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Happening Now: SASC Hearing on GITMO

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Thursday, February 5, 2015 at 9:53 AM

The Senate Armed Services Committee is currently holding a hearing entitled “Guantanamo Detention Facility and the Future of US Detention Policy. Brian P. McKeon, Nicholas J. Rasmussen, and Rear Admiral Ross A. Myers are set to testify. You can watch the hearing live here at the SASC website.

How Not to Close Guantanamo: Bring It Here

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Thursday, February 5, 2015 at 9:46 AM

Ben asks “What Would it Take to Close Guantanamo?” and he provides a thoughtful response weighted toward the political landscape. But there’s another not-so-merely-philosophical question that underlies his question: what does it mean to “close Guantanamo?” For purposes of rapprochement with Cuba it may have to mean U.S. out of Guantanamo altogether. That’s not going . . .
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A Reply to Steve Vladeck and Raha Wala

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Monday, January 26, 2015 at 6:13 PM

Both Steve Vladeck and Raha Wala have penned responses to my post of last week complaining of the quality of the “Close Guantanamo” debate. I will react very briefly to each. I am, I confess, not sure how to respond to Steve’s post, since it seems to be responding to something I did not write. Says Steve, The fundamental problem with Ben’s . . .
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What the Detention Policy Debate Really Is About

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Monday, January 26, 2015 at 2:16 PM

Ben bemoans the state our nation’s current debate over Guantanamo as “terrible,” observing that “the arguments about Guantanamo are nearly all wrong, disingenuous, irrelevant, or just plain dumb.”  It’s true that Guantanamo—like most political issues—sometimes takes on a special kind of inside-the-beltway rhetorical flavor that can really annoy the wonks, who would much rather focus . . .
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Text of Senator Ayotte’s GTMO Transfers Bill

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Tuesday, January 13, 2015 at 2:20 PM

As promised, here it is. The rather unfortunate-seeming proposal provides, in full: 114TH CONGRESS 1ST SESSION S.__ To extend and enhance prohibitions and limitations with respect to the transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba, and for other purposes. IN THE SENATE OF THE UNITED STATES Ms. AYOTTE (for herself, Mr. GRAHAM, . . .
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A New Bid to Restrict GTMO Transfers

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Tuesday, January 13, 2015 at 12:58 PM

The  proposal, put forth today by Senator Kelly Ayotte and others, comes as no real surprise. The Hill reports: Republican senators unveiled a new bill Tuesday to stop President Obama from releasing more detainees from Guantanamo Bay. “Now is not the time to be emptying Guantanamo,” said Sen. Kelly Ayotte (R-N.H.), who introduced the bill. The president is . . .
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Law Enforcement as a Counterterrorism Tool

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Monday, January 12, 2015 at 10:39 AM

As I read the exchange between Bryan, Wells and Jack about law enforcement versus military methods of dealing with terrorism, I was reminded of a speech I gave at the Brookings Institution in 2010, which was later turned into an article.  And, perhaps not surprisingly, I found that I continue largely to agree with myself, . . .
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On War and Crime

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Saturday, January 10, 2015 at 12:00 PM

Yesterday at Lawfare, Bryan Cunningham sought to breathe new life into the “military versus law enforcement” debate over terrorism, along the way deeming the horrific assaults in Paris to be “consequences” of France’s police-centric strategy. He thus finds fault with the current counterterrorism regime generally, and invites others to join in a broader discussion about . . .
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Cliff Sloan on Closing Guantanamo

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Tuesday, January 6, 2015 at 12:12 PM

Worth flagging: yesterday’s New York Times opinion piece, which was published in the wake of Sloan’s departure from the State Department last month.  The op-ed begins: WASHINGTON — WHEN I began as the State Department’s envoy for closing the detention facility at Guantánamo Bay, many people advised me that progress was impossible. They were wrong. In the . . .
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Senator Feinstein on Anti-Torture Reforms

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Monday, January 5, 2015 at 2:43 PM

On December 30, the outgoing Chairman of the Senate Select Committee on Intelligence, Senator Dianne Feinstein, sent a letter to the White House. The document—which was released earlier today—overviews a number of proposed reforms to U.S. interrogation, detention and other practices, the idea being to give effect to recommendations made in the SSCI’s torture report. . . .
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DDC Won’t Halt Al-Nashiri’s Military Commission at GTMO

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Tuesday, December 30, 2014 at 3:18 PM

Such is the gist of Judge Richard Roberts’ order, issued yesterday in the context of the high-value Guantanamo detainee’s habeas case in D.C. district court. The opinion opens: Guantánamo detainee Abd Al Rahim Hussayn Muhammad Al Nashiri submitted an amended petition seeking a writ of habeas corpus, arguing that the respondents’ attempts to try him by . . .
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Cliff Sloan Stepping Down as State Department GTMO Envoy

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Monday, December 22, 2014 at 9:58 PM

The New York Times reports: WASHINGTON — The State Department envoy who negotiates detainee transfers from the military prison at Guantánamo Bay, Cuba, is resigning, dealing another blow to President Obama’s efforts to close a facility that top administration officials say is a blight on the country’s international standing. The resignation of Cliff Sloan, a close confidant . . .
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