Counsel for Abd al-Rahim al-Nashiri have filed a petition for a writ of certiorari with the Supreme Court.
Latest in Guantanamo: Litigation: D.C. Circuit
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.
My friend Charlie Dunlap takes me to task for some of my comments in last week's Lawfare podcast with regard to the D.C. Circuit's June 12 decision in al Bahlul--and what it portends for the Guantánamo military commissions. Unfortunately, Charlie's response misses both the text and context of what I was saying. And because I imagine most readers won't actually listen to last week's podcast (I can't say I blame you), let me lay out, as precisely as I possibly can, five reasons why I don't trust the military commissions to prosecute domestic offenses such as conspiracy and material support--and why you (and Charlie) shouldn't, either.
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.