Latest in Guantanamo: Litigation: D.C. Circuit
Yesterday, in a short per curiam opinion, the U.S. Court of Appeals for the D.C. Circuit affirmed the ruling of the U.S. District Court for the District Columbia that the lower court had no jurisdiction over a motion by Guantanamo detainee Saifullah Paracha to hold certain statutory provisions unconstitutional as “bills of attainder.”
On Friday, a three-judge panel in the D.C. Court of Appeals rejected a request to release recordings of military personnel in Guantanamo Bay force-feeding a detainee who was on a hunger strike.
Counsel for Ali Hamza Suliman al Bahlul have filed a petition for a writ of certiorari with the Supreme Court appealing the October 2016 ruling by the U.S. Circuit Court of the District of Columbia.
Counsel for Abd al-Rahim al-Nashiri have filed a petition for a writ of certiorari with the Supreme Court.
With the end of the Obama administration and the beginning of the Trump administration, activity has picked up in Guantanamo litigation regarding the SSCI "torture report." Several weeks ago, I flagged that in the Nashiri habeas case in the U.S.
As Benjamin Wittes and I noted a few weeks ago, these past few weeks have produced some interesting litigation activity regarding the Senate Intelligence Committee’s interrogation report. In the last days of the Obama administration and the first few days of the Trump administration, things appear to have picked up even more.
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.
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.
Here it is. Judge Brett Kavanaugh's opinion for himself, Judge Thomas Griffith, and Senior Judge A. Raymond Randolph opens as follows:
Omar Ahmed Khadr was a member of al Qaeda. On July 27, 2002, at the age of 15, 2 Khadr took part in a firefight in Afghanistan against U.S. forces. During the battle, Khadr killed a U.S. Army soldier, Sergeant First Class Christopher Speer.
The D.C. Circuit will soon decide second major military commissions case.