Has the statutory foundation for detention of enemy combatants quietly collapsed thanks to changing circumstances in Afghanistan? Justice Stephen Breyer is urging his colleagues to take up that question. Today they passed on the opportunity, but what if they had not?
Latest in Guantanamo: Litigation: Supreme Court
It had to happen sooner or later: an actual slow week for national security law! Ugh! Well, time to make lemonade from the lemons. A slow week in NSL news means that we can take a run at a format that we originally expected to be a mainstay for the show: a deep-dive into a single significant development.
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 sitting en banc.
Counsel for Abd al-Rahim al-Nashiri in the Guantanamo detainee's habeas case have filed a petition for a writ of certiorari with the Supreme Court appealing the decision made by the U.S. Court of Appeals last August, which denied Nashiri's petition for a writ of mandamus to dissolve the military commission convened to try him. The declassified petition and and appendix contain new information on Nashiri's treatment while in CIA custody and are both available below.
As I explained on Sunday, one way to understand the diffference between the majority and dissenting opinions in last Friday's D.C. Circuit decision in al Bahlul v. United States is as reflecting two different methodological approaches to the question of whether Congress can empower non-Article III military commissions to try "domestic" offenses like inchoate conspiracy.
At their simplest, both Judge Henderson's 85-page dissent from the D.C. Circuit's decision in al Bahlul v.
Ben asks “What Would it Take to Close Guantanamo?” and he provides a thoughtful response weighted toward the political landscape. But there’s another not-so-merely-philosophical question that underlies his question: what does it mean to “close Guantanamo?”
For purposes of rapprochement with Cuba it may have to mean U.S. out of Guantanamo altogether.
Here's a novelty: Guantanamo detainee Abdul Razak Ali---whose case we have written about a fair bit---has filed a reply brief in response to his own cert petition.
Very interesting and thoughtful comments over at Just Security by Marty Lederman on Justice Breyer's brief opinion in the Hussain cert denial the other day. Marty writes:
As Justice Breyer notes . .
The D.C. Circuit has just handed down a 12-page decision in Abdullah v. Obama, affirming the district court's denial of Abdullah's motion to enjoin the U.S. government from detaining him. Hani Saleh Rashid Abdullah, a Yemeni national, claimed his detention at Guantanamo violates a 1946 executive agreement between the U.S.