United States v. Al-Nashiri; Al-Marri v. Spagone

1. United States v. Al-Nashiri (Mil. Com.) (Hat tip to Neal Sonnett for this document)

In yet another example of the way in which ongoing litigation is pressing the Obama administration to develop its detention policies more quickly than it would like, a military commission judge has rejected a request for a stay of the scheduled February 9th arraignment of a GTMO detainee facing charges in connection with the bombing of the USS Cole.  The opinion is attached.

2. Al-Marri v. Spagone (S.Ct.)

Amicus briefs have now been filed in Al-Marri.  The briefs supporting the petitioner are collected here.  I’m not sure if there are other amicus briefs, but will circulate links if so.

Today’s executive orders on GTMO, interrogation, detention, and Al-Marri

* Today’s executive orders on GTMO, CIA detention and interrogation, and the Al-Marri case

Attached are copies of the four new executive orders.  A brief overview of each follows below.  The long and short of it is that a variation of the NSC principals’ committee will have 6 months to come up with new policies on detention, interrogation, and transfer; GTMO must be shuttered within one year, one way or another; CIA detention is over; and the government will do its best to resolve Al-Marri’s status before it must file a merits brief in that case.

The GTMO closure order

This order appears to track the draft version about which I posted earlier.  Please see that earlier post.  Short version: all the expected options are to be used to effect closure in 1 year.

Al Marri v. Spagone

* Al Marri v. Spagone (S. Ct. No. 08-368) (Petitioner’s Brief)

SCOTUSBLOG’s Lyle Denniston, has an overview has the details as well as a link that will get you to al-Marri’s brief.  One of the interesting questions here is whether the Obama administration will move to moot this case, either by repatriating Al Marri to Qatar or by shifting him into the civilian criminal justice system (ala Jose Padilla).  At the moment, they have till late February to decide, at which point the respondent’s brief will be due.

SCT grants cert in Al-Marri

* Al Marri v. Pucciarelli (08-368) – cert granted

The Supreme Court has granted cert in connection with the Fourth Circuit’s splintered en banc decision in Al-Marri, and thus is set to engage the questions whether the 9/18/01 AUMF authorizes—and if so whether the Constitution allows—military detention of a noncitizen seized in the U.S. in connection with allegations of being an al Qaeda agent.

One wonders whether the Court will reach the merits, however.  It is not difficult to imagine the Obama administration deciding to shift Al-Marri back to the civilian criminal justice system to face material support or other charges (to be followed by deportation upon completion of any sentence).  That assumes, of course, that there is sufficient admissible evidence to support that course, which may or may not be the case.

symposium: terrorism & the legal impact on business; forthcoming scholarship

1. Center for Terrorism Law (St. Mary’s), Symposium: Terrorism, Crime & Business: Understanding the Fundamental Legal and Security Issues for American Business (Houston, TX, March 5-6, 2009)

Details posted here: http://www.stmarytx.edu/ctl/content/events/Business_Symposium.html

2. Forthcoming Scholarship

“The Rise and Spread of the Special Advocate”

Public Law, pp. 717-741, 2008

JOHN IP, University of Auckland – Faculty of Law
Email: j.ip@auckland.ac.nz

This article critically examines the special advocate procedure, a means devised to reconcile the use of secret evidence with principles of due process or natural justice. The special advocate is a lawyer who is appointed to represent the interests of a person during proceedings in which the state relies on sensitive material that cannot be disclosed to that person.