On Dec. 5, counsel for Guantanamo detainee Moath Hamza Ahmed al-Alwi filed a petition for a writ of certiorari with the United States Supreme Court. Al-Alwi is a Yemeni citizen who was captured in Pakistan in 2001 and has been detained at Guantanamo Bay since 2002.
Latest in Guantanamo: Litigation
The government has filed a brief in opposition before the Supreme Court regarding Saifullah Paracha's petition for a writ of certiorari over whether certain statutory restrictions regarding the release or transfer of Guantanamo detainees constitute bills of attainder. Paracha, a Pakistani national who has been detained at Guantanamo Bay since 2004, initially filed his petition on Sept. 26, 2017 after the U.S. Court of Appeals for the D.C.
Don't look now but the long dormant world of Guantanamo habeas litigation is getting at least a little bit less sleepy.
Last November, a detainee named Guled Hassan Duran, an alum of the CIA's RDI program, filed a new habeas petition.
Last Friday's D.C. Circuit ruling in the Khadr case provides yet another striking illustration of how misbegotten an experiment the Court of Military Commission Review has turned out to be. As this post explains, not only does the CMCR suffer from inherent structural flaws that the political branches seem uninterested in fixing, but its substantive role in the military commission process has turned out to be not only woefully inefficient, but affirmatively counter-productive from both the government's and the defendants' perspectives. Simply put, the CMCR has become an object lesson in how not to create new non-Article III federal courts — and an expensive one, at that.
Don't look now, but something's happening in the Guantanamo litigation.
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.
In part, the majority and dissenting opinions in al Bahlul v. United States reflect two different methodological approaches to the central question, formal or functional. But al Bahlul doesn't simply turn on whether one applies one or the other approach. So even as the majority correctly resorted to formalism in resolving al Bahlul's Article III challenge to his conspiracy conviction, properly applied, the Supreme Court's more functional approach ought to have produced the same result.
The Guantanamo detainee, as readers likely know, argued in a February motion that the end of the United States' war in Afghanistan, as recognized by President Obama, requires his release from Guantanamo. On Wednesday, Al-Warafi filed his reply brief on that issue. It opens as follows:
I've long been a huge fan of (Retired) Supreme Court Justice John Paul Stevens, not least because his prized possessions include a scorecard from Game 3 of the 1932 World Series--better known to baseball history as the "called shot" game--which he attended, in person, at the age of 12(!).
The response was filed on Friday, in the habeas case of Al-Warafi v. Obama. Have a look: