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Action at Guantanamo?

Benjamin Wittes
Wednesday, April 27, 2016, 9:58 AM

Don't look now, but something's happening in the Guantanamo litigation.

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Don't look now, but something's happening in the Guantanamo litigation.

For the last few years, detainees at the military base have not pushed their merits habeas cases—the D.C. Circuit case law being just too favorable to the government for detainees to prevail. Instead, detainees have availed themselves of the administration's Periodic Review Board process, worked for transfer by other means, and sometimes pushed habeas claims based on theories other than their not being properly detained in the first instance. The courts have been asked to entertain arguments that the conflict is over, for example, or that detainees are very sick—anything but the notion that they are not, as the government alleges, unprivileged enemy belligerents subject to detention under the Authorization for the Use of Military Force.

All of sudden, however, long-dormant habeas cases are, like the walking dead, coming to life:

Now comes the Petitioner, Saifullah Paracha, and respectfully moves this Court to lift the stay of the instant case put in place on May 4, 2011. (Doc. 367). Per this Court’s May 4, 2011 Order, “either counsel for Petitioner or counsel for Respondents may lift the stay upon notice to counsel for the opposing party.” On March 8, 2016, undersigned counsel advised Respondents via electronic mail of their intention to seek to lift the stay – providing notice as required by this Court’s Order. Therefore, Mr. Paracha respectfully moves this Court to lift the previously imposed stay to allow the parties to proceed with litigation.

Paracha's case now has a status conference scheduled for May 5. He has also asked for arguments on a motion that "various Congressional enactments restricting the executive branch’s release or transfer of prisoners from Guantanamo Bay, Cuba, be declared void as bills of attainder."

Another habeas case, that of high value detainee Abu Zubaydah, has also sprung to life after three years of dormancy. Zubaydah has moved for a status conference and the government has responded—and Zubaydah has filed a subsequent document. Judge Emmett Sullivan has not yet scheduled a status conference but has indicated his intention "that a status conference will be scheduled in the near future."

I am not at all sure what's going on here. Detainees have no more reason to seek merits attention from the courts to their cases than they have in the years since Latif and the DC. Circuit's other redirections of the district court on Guantanamo matters. Nor do I know what other cases may be seeing action right now. My best guess, for what it's worth, is that we are seeing a push in the final months of the Obama administration from the detainee bar against impediments to transfer and to make the litigation status quo as uncomfortable for the government—and for Congress—as possible. If that's right, we'll see a raft of motions in dormant cases generally focused on things other than the merits of those cases.

It's worth keeping an eye on.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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