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Al Alwi Files Reply In Cert Petition
Last week, we brought you the first sets of filings in Moath Hamza Ahmed Al Alwi's petition for a writ of certiorari.
Published by The Lawfare Institute
in Cooperation With
Last week, we brought you the first sets of filings in Moath Hamza Ahmed Al Alwi's petition for a writ of certiorari. Al Alwi has now filed his reply to the government's brief opposing his cert petition.
The reply advances four counters to the government's arguments:
- The lower courts are not offering petitioners a "meaningful opportunity" as mandated in Boumediene;
- The petitioner was not provided with sufficient time to prepare;
- The government's reliance on the 2012 NDAA does not "dispense[] with the need for a judicial finding" in the case that Al Alwi is a member of an associated force; and
- Al Alwi did preserve the preponderance of evidence issues in the Circuit Court.
However, that provision merely restates and codifies extant authority, without bolstering the court of appeals’ findings or the government’s sweeping contentions. Indeed the NDAA expressly does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” NDAA § 1021(d). See also Statement by President Barack Obama Upon Signing H.R. 1540, 2011 U.S.C.C.A.N. S11 (Dec. 31, 2011) (noting that section 1021 “breaks no new ground and is unnecessary”); National Defense Authorization Act for Fiscal Year 2012, H.R. Rep. No. 112-329, at 695 (2012) (Conf. Rep.) (affirming that section 1021 does not affect existing law or authorities). In any event, the provision in no way dispenses with the need for a judicial finding in this and other cases that a force is an associated force engaged in hostilities and that a petitioner was a member of that force or substantially supported it. Pet. 29-34. Furthermore, that a branch of government has endorsed a particular standard does not preclude the Supreme Court from deciding whether its application has been lawful and sufficient.
We covered this case in depth when it was being heard by the Circuit Court (Ben wrongly predicted that Al Alwi would prevail, covered the oral arguments in depth, and then was shocked when his crystal ball turned out to have a factory defect). Read the Circuit Court’s opinion here, Judge Leon’s district court opinion here, and an exchange between Thomas Joscelyn and Ramzi Kassem on the evidence in the case here, here, and here.
Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT.
Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.
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