The D.C. Circuit's refusal to reach the merits of Al-Nashiri's pre-trial challenge to the jurisdiction of the Guantánamo military commissions may seem like a hypertechnical application of a hypertechnical doctrine, but it's premised on a far deeper—and more problematic—normative assessment of the commissions' legitimacy.
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The Nashiri saga has picked up steadily in recent weeks.
Recent developments in the Guantánamo military commissions invites reflection on the role of the DC Circuit and a normative point on judicial restraint in the context of a mixed military-civilian, Executive-judicial system. Just as we get one wheel turning anew, another may have fallen off.
Oral argument in the case of Guantánamo detainee, Abd al-Rahim al-Nashiri, indicate that the critical issue of Councilman abstention may come down to a swing vote.
Nashiri’s Reply Brief responds to the government’s contention that Nashiri’s petition does not sound in habeas at all, and is therefore barred by 28 U.S.C. § 2241(e)(2).
The government responds to the National Institute of Military Justice amicus on Councilman abstention in Nashiri.
The D.C. Circuit will soon decide second major military commissions case.
The D.C. Circuit's ruling rejecting a mandamus petition by Guantánamo military commission defendant Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri, not only sustained the D.C. Circuit's mandamus jurisdiction over the commissions in appropriate future cases, but was also at pains to suggest to Congress and the President that they revisit the means by which military judges are appointed to the intermediate Court of Military Commisison Review in order to moot al-Nashiri's serious constitutional objections under the Appointments Clause.