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Biden's litigation posture in pending legal proceedings commenced during Trump's term has been much more progressive than Obama's when he took office (see Fitch, Feb. 24, 2009). Obama accepted and pursued Bush arguments that suited him (e.g, for the accumulation of executive powers), but Biden has altered the government's position in many pending cases. Some major lawsuits remain to be sorted.
Biden's administration has nevertheless availed itself of some harmful rules and regs from the Trump era, and needlessly appealed the Julian Assange extradition that was denied in Britain.
The Pentagon has announced new military commission charges, against Hambali, a terrorist with no connection to any war, or the US, other than American Bali-bombing victims - far fewer than the Australians affected.
Biden's Guantánamo litigation strategy complicates senior senators' efforts to close the prison; their arguments, however, assume the continuance of military prosecutions, only one of which truly involves a war-time war crime: that of Abd Al Hadi.
In theory, the promised official end to the war in Afghanistan should bar US claims that the men are detained as "war prisoners". Much depends on Guantánamo appeals headed for (likely unsympathetic) supreme court review.
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