Interesting New Habeas Argument in the D.C. Circuit

By Benjamin Wittes
Friday, July 11, 2014, 7:18 AM

This case has been kicking around the district court for a while, but has now made it to the D.C. Circuit. Ahmed Adnan Ajam is basically arguing that the executive branch wants to release him and the transfer restrictions on its doing so represent an unconstitutional infringement of presidential power. He lost in the district court on standing grounds and will, I think, face significant barriers at the D.C. Circuit too. But I bet there are a lot of people in the executive branch who would secretly love to lose this case. His brief opens:

In 2005, Appellant Ahmed Adnan Ajam, a prisoner at the Guantanamo Bay military prison, petitioned for a writ of habeas corpus. He alleged that because he is not an enemy belligerent, his imprisonment is illegal. The President contended that Ajam is properly detainable under the laws of war. This dispute became moot when the President determined, in the exercise of his discretion as Commander-in-Chief, that any military necessity for Ajam's continued detention had passed, and that Ajam, who poses no threat to U.S. security, should be transferred to a third nation. [REDACTED]

In 2013, Ajam amended his habeas writ, adding a prayer for declaratory relief, which seeks a declaration that NDAA provisions imposing upon the President prerequisites to Ajam's release or transfer from Guantanamo are unconstitutional. Because Ajam's detention was a use of military force against a discrete target, suspension of that force against that particular target is a power fundamental to the Constitutional authority of the Commander-in-Chief, and cannot, under Article II of the Constitution, be obstructed by Congress. The 2014 NDAA (and each prior iteration) has unconstitutionally obstructed that power. The same restrictions also constitute an unconstitutional bill of attainder. By impeding Ajam's release process, [REDACTED] The Court should direct the district court to issue a declaration that the law is void as unconstitutional.