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.

Bismullah v. Gates (D.C. Cir.)

* Bismullah v. Gates (D.C. Cir. Jan. 8, 2009)

The DC Circuit has determined that it no longer has jurisdiction to review Combatant Status Review Tribunal determinations pursuant to the Detainee Treatment Act, on the ground that this aspect of the DTA cannot be severed from the jurisdiction-stripping aspect of the DTA struck down by the Supreme Court in Boumediene.  The full opinion is here:

http://www.scotusblog.com/wp/wp-content/uploads/2009/01/06-1197-1158056.pdf