Most recently the government argued that “the dog ate the homework” and today the DC Circuit decided to duck and run by accepting that argument….they ruled that the Department of defense should just reconvene the Combat Status Review Tribunal (CSRT) in every case where the government failed to maintain sufficient records to justify the initial tribunal that found a detainee an enemy combatant…(In Mr. Al-Ghizzawi’s case “tribunalS) In essence the court was begging the Defense department to “please conduct new CSRT’s” so that the court does not have to deal with the fact that the defense department has no records to support its initial findings…
How long will this new process take – another year? Maybe two…. Depends on how quickly the Defense department can concoct new records….Then I guess we can all file new petitions and maybe the court can review those a year or two from now. I guess what this really means is that we will have a never-ending circle of do-overs (Mr. Al-Ghizzawi and 30+ other detainees have already had one do-over... and at least one detainee has already had two do-overs) with no opportunity for the court to engage in any meaningful review – and what is “meaningful,” a ruling where the government might actually be ordered to release someone it is illegally detaining.
In my Original Habeas Corpus petition before the Supreme Court (which the Court is considering right now) I asked that Court to take Mr. Al-Ghizzawi’s case because the lower courts cannot figure out how habeas works. What is happening in the courts is more than sad… men are dying while the lower courts fumble around… afraid to challenge the executive branch. The question the lower courts face is whether to follow the Constitution or follow congress…. When I went to school there was no question that the Constitution was the law of the land… but, as they say, that was yesterday…. And yesterday’s gone.
Oh and by the way the new nominee for Attorney General just gave special recognition to the attorneys in the office who have been handling the Guantanamo litigation.... good job boys and girls... you have followed the party line and have done your part to shred the constitution....
Don’t kid yourselves that things are getting better…. It gets worse just about every day.
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