Government Shutdown? Guantanamo Detainee Seeks Oral Argument, Anyway
An intriguing development in a Guantanamo-related case ongoing during the government shutdown: detainee Ahmed Adnan Ajam, who challenges Guantanamo transfer restrictions as incompatible with the Constitution's Commander in Chief Clause (a unique twist, as Ben's pointed out), this week
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An intriguing development in a Guantanamo-related case ongoing during the government shutdown: detainee Ahmed Adnan Ajam, who challenges Guantanamo transfer restrictions as incompatible with the Constitution's Commander in Chief Clause (a unique twist, as Ben's pointed out), this week asked District Court Judge Royce Lamberth to schedule oral argument on his motion for partial summary judgment. That is, Ajam asks the court to conduct proceedings, notwithstanding the so-called "lapse in appropriations." From Ajam's scheduling request:
In light of Congress's inaction and the contingency plan, Petitioner expects Respondents to seek a continuance. However, an order setting forth a hearing date will grant the Department of Justice legal authorization to address Petitioner's case during the lapse in appropriations.
Counsel goes on to argue that the DoJ's Contingency Plan supports Ajam's proposal, and reminds the court that the detainee, too, has suffered government inaction of a different sort, and for quite some time:
Petitioner need not repeat here the long delay in his own release; the Court is familiar with it. But his challenge to the validity of Section 1028 of the National Defense Authorization Act for Fiscal Year 2013 is a matter of great urgency for other detainees and for the broader problem of the persistence of indefinite detention at Guantanamo. Resolution of Petitioner's motion would eliminate a serious unconstitutional intrusion into the President's ability to carry out military, national security, and foreign relations powers necessary to closing the base.
The government promptly filed a consolidated opposition and a cross-motion, seeking a stay in the briefing schedule. In the filing, the government says there's no prejudice in pausing things until Congress gets its act together, and further, that Ajam's arguments on the merits do not comprise a matter of "great urgency." Indeed, the government claims, resolution of the issue under argument would not even result in the detainee's release:
Rather, Petitioner seeks to litigate an ancillary matter related to a discretionary transfer decision to be made by the Executive Branch. To conclude that a delay in briefing would concretely affect Petitioner, therefore, would require speculation not only about the likelihood of success of Petitioner’s motion, but, more importantly, about how the Executive Branch might exercise its discretionary transfer authority in the future.
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.
