Highlights from Jonathan Hafetz on Concurring Opinions

Jonathan Hafetz, author of Habeas Corpus after 9/11 and co-editor of The Guantanamo Lawyers (now in paperback!), spent the month of March live-blogging on Concurring Opinions, a leading blog for constitutional law. Here are some highlights of the fascinating and fundamental thoughts Jonathan posted.

The Pentagon Likens Native Americans to al Qaeda
In a recent brief to the Court of Military Commissions Review (CMCR), the Pentagon cited an 1818 military commission convened by General Andrew Jackson to execute two British men, Robert Ambrister and Alexander George Arbuthnot, for assisting the Seminole Indians after U.S. forces had invaded then-Spanish Florida to prevent black slaves from escaping. The prosecution’s brief elaborated: “Not only was the Seminole belligerency unlawful, but, much like modern-day al Qaeda, the very way in which the Seminoles waged war against U.S. targets itself violate the customs and usages of war. Because Ambrister and Arbuthnot aided the Seminoles both to carry on an unlawful belligerency and to violate the laws of war, their conduct was wrongful and punishable.” (emphasis added). Bad lawyering? Very. Offensive? Deeply. Revealing? Highly.

The Administration Pushes Back on Guantanamo–Sort of.
President Obama’s counter-terrorism adviser John O. Brennan has delivered the most forceful defense in recent memory of the Obama administration’s national security policies.It was encouraging to see someone from the administration debunk–forcefully and publicly–legislative efforts to prevent the president from using Article III courts to prosecute suspected terrorists. Congress has already blocked the Obama administration from using Defense Department funds to transfer Guantanamo detainees to the U.S., even for criminal prosecution. Newly proposed legislation goes further. House and Senate bills would each require the president to detain suspected terrorists in military custody, absent a waiver from the Secretary of Defense.

A Tale of Two Writs
But it is Randolph’s evisceration of the judiciary’s remedial power that presents the most direct conflict with Boumediene. In Kiyemba v. Obama, Randolph held that district judges have no authority to order the release of a prisoner from Guantanamo even when there is no basis for the detention, no evidence he presents a danger to the U.S., and no other country to which he might go. Randolph thus reversed the district judge’s ruling ordering the release of the petitioners—seventeen Uighur refugees from China—into the United States when the government failed to justify their detention or resettle them elsewhere.

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