Detainee litigation continues to put pressure on the administration to make detention

* Detainee litigation continues to put pressure on the administration to make detention policy decisions now rather than in 6 months

First, an update on the # of GTMO detainees.  It appears the correct current count is 242.  See here, thanks to the most up-to-date data developed by Ben Wittes and the folks at Brookings.

Second, a flurry of opinions and orders by district judges dealing with detainee litigation suggests that the Task Force(s) created by yesterday’s executive orders had better work much faster than their 6-month schedule would otherwise allow.  The litigation docket will force hard decisions soon in these and related cases, barring a willingness by these judges (or the detainees) to let the habeas process pause for half a year while the issues are sorted out:

Hamlily v. Obama (D.D.C.) (GTMO); Maqalah v. Gates (D.D.C.) (Bagram)

Notwithstanding yesterday’s executive orders, and notwithstanding the fact that the Obama administration has moved successfully to stay GTMO habeas proceedings at least momentarily before one of the judges handling GTMO habeas petitions, other proceedings continue forward, and in doing so they pressure the administration to make tough decisions now regarding the scope of the military detention authority it may wish to defend, rather than waiting for the completion of the “task force” reviews contemplated in yesterday’s orders.

United States v. Ahmed (N.D. Ohio.)

* United States v. Ahmed (N.D. Ohio)

Another very interesting material support/conspiracy prosecution, resulting in two guilty pleas yesterday.

http://www.usdoj.gov/opa/pr/2009/January/09-nsd-041.html

The defendants were cousins from Chicago who between 2004 and 2007 were involved in a plot to attack US troops in Iraq and Afghanistan.  The interesting aspect of the case is its prevention-oriented, early-intervention nature.  It appears from the press release that the men did not have a particular plot in mind and were not involved with a specific terrorist organization, but rather that they were attempting on their own initiative to receive firearms training and other training that they might then put to use against US forces overseas in some unspecified way in the future.

The charge of conviction, was conspiracy to provide material support—including themselves as personnel—knowing or intending that the support would be used (by themselves, presumably) to commit a predicate crime of attacking US troops overseas.  This charge (18 USC 2339A) was used in a similar manner in the Hayat prosecution (Lodi, California), in which the defendant was convicted of providing himself as material support in connection with an unspecified attack that might take place in the future (in that case against civilians in the US, rather than troops abroad).