Published by The Lawfare Institute
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- The lower courts are not offering petitioners a "meaningful opportunity" as mandated in Boumediene;
- The petitioner was not provided with sufficient time to prepare;
- The government's reliance on the 2012 NDAA does not "dispense with the need for a judicial finding" in the case that Al Alwi is a member of an associated force; and
- Al Alwi did preserve the preponderance of evidence issues in the Circuit Court.
However, that provision merely restates and codifies extant authority, without bolstering the court of appeals’ findings or the government’s sweeping contentions. Indeed the NDAA expressly does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” NDAA § 1021(d). See also Statement by President Barack Obama Upon Signing H.R. 1540, 2011 U.S.C.C.A.N. S11 (Dec. 31, 2011) (noting that section 1021 “breaks no new ground and is unnecessary”); National Defense Authorization Act for Fiscal Year 2012, H.R. Rep. No. 112-329, at 695 (2012) (Conf. Rep.) (affirming that section 1021 does not affect existing law or authorities). In any event, the provision in no way dispenses with the need for a judicial finding in this and other cases that a force is an associated force engaged in hostilities and that a petitioner was a member of that force or substantially supported it. Pet. 29-34. Furthermore, that a branch of government has endorsed a particular standard does not preclude the Supreme Court from deciding whether its application has been lawful and sufficient.
We covered this case in depth when it was being heard by the Circuit Court (Ben wrongly predicted that Al Alwi would prevail, covered the oral arguments in depth, and then was shocked when his crystal ball turned out to have a factory defect). Read the Circuit Court’s opinion here, Judge Leon’s district court opinion here, and an exchange between Thomas Joscelyn and Ramzi Kassem on the evidence in the case here, here, and here.