Latest in Guantanamo: Litigation: Supreme Court
Shortly before Christmas, counsel for Guantanamo detainee Mukhtar Yahia Naji Al Warafi filed a petition for a writ of certiorari in his habeas petition, having been denied earlier this year an en banc rehearing in the D.C. Circuit.
It's a big week at the Supreme Court, but Guantanamo habeas heads will not want to miss this development: the cert denial in Obaydullah on Monday. Steve wrote about this cert petition here, and coverage of the D.C. Circuit ruling is available here.
Five years ago today, the Supreme Court handed down its 5-4 decision in Boumediene v. Bush, holding that the Constitution's Suspension Clause "has full effect" at Guantánamo Bay, and that the review scheme provided by the Detainee Treatment Act of 2005 was an inadequate substitute for the judicial review thus required by the Constitution.
Controversy surrounding the DoJ White Paper on targeting Americans abroad has generated interest and debate about the meaning of "imminence" in the terrorism context, for purposes of self-defense and other legal doctrines. Similar debates have abounded in the context of WMD threats, especially after the Bush Administration's 2002 National Security Strategy document declared: "We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries."
Cyber-attacks raise their own complexities in translating the concept of imminence. Ellen Nakashima of t
Amidst all the hubbub earlier this week, we neglected to note the filing of a new cert. petition in a Guantánamo habeas case--in Obaydullah v. Obama, filed in the Supreme Court on Tuesday. Our coverage of the D.C.
Yesterday, we posted the government's supplemental brief in the Al Bahlul military commission appeal in the D.C.
...is available here. In a nutshell:
Hamdan II requires reversal of Bahlul’s convictions by military commission of providing material support for terrorism, conspiracy to commit war crimes, and solicitation to commit war crimes.
Back in June, I wrote a fairly lengthy post analyzing the ability of detainees in U.S. custody facing extradition or other involuntary transfer to a foreign sovereign to challenge their transfer pursuant to the federal statute implementing the United States' treaty obligations under the U.N. Convention Against Torture, the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA).
Remember Suleiman v. Obama? That's the habeas case in which the petitioner had claimed, among other things, that he could not be detained because he was merely a Taliban functionary who never took up arms against the United States. The district court rejected Suleiman's arguments, as did the court of appeals. Citing prior decisions, the latter concluded that Taliban membership alone could support detention. The D.C.
For those D.C.-area Lawfarers interested in continuing the conversation Ben, Bobby, and I had in June about Boumediene's legacy (or lack thereof), the Constitution Project is hosting what promises to be a lively discussion of the topic @ Covington & Burling on Tuesday, July 17, from 12-1:30 p.m.
The panel features former D.C. District Judge James Robertson, Brian Foster from Covington, me, and one more player to be named later.