Latest in Guantanamo: Litigation

Detention & Guantanamo

Documents: Saifullah Paracha v. Donald J. Trump

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.

Guantanamo

The Misbegotten Court of Military Commission Review

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.

Military Commissions

The D.C. Circuit's Thoroughly Convincing Decision in al-Nashiri

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. 

Military Commissions

The Functional Case Against Military Commission Trials of "Domestic" Offenses

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.

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