Published by The Lawfare Institute
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Given Donald Trump’s continuing fondness for Twitter over the course of his rise to power, it was perhaps inevitable that sooner or later, we would start seeing his tweets showing up in litigations. Turns out it happened sooner, in fact before he even took office. In the weeks before the inauguration, counsel in Guantanamo habeas cases filed what appear to be the first motion referring, implicitly, to Trump’s tweets—at least the first that we’re aware of in the national security context.
On January 13th, counsel for Soufyan Barhoumi and Abdullatif Nasser filed an emergency motion for the detainees’ release from Guantanamo Bay. Barhoumi, an Algerian detainee who has been held at Guantanamo since 2002, was cleared for transfer to his home country by a Periodic Review Board in August but had yet to receive the necessary certification from the Secretary of Defense approving his release. Nasser was also cleared by the Periodic Review Board for transfer to his native Morocco and awaiting the Secretary’s approval.
Under the NDAA, the Secretary of Defense’s certifications must be provided to Congress 30 days in advance of any detainee transfer, with one exception: a transfer may go forward without the 30-day waiting period if it takes place pursuant to a court order.
According to counsel for Barhoumi and Nasser, the 30-day period presented a serious problem for their clients’ prospects of release. Even if now-ex-Defense Secretary Ash Carter had signed the paperwork right on the 13th, it would take until February 11th for Barhoumi and Nasser to be transferred—at which point the Trump administration would be firmly in place. In Nasser’s case, the government of Morocco only provided the United States with the proper security assurances regarding Nasser’s transfer on December 28th, so the earliest that Nasser could possibly have been released would have been January 26th, a week into the new administration.
But it turns out that as President-elect, Trump had tweeted in early January:
There should be no further releases from Gitmo. These are extremely dangerous people and should not be allowed back onto the battlefield.— Donald J. Trump (@realDonaldTrump) January 3, 2017