Seeking his own release from Guantanamo Bay but also fully defending presidential power to decide detention policy without interference from Congress, a Syrian man who has been cleared by the Obama Administration to leave the military prison on the island of Cuba has filed a sweeping new constitutional challenge in federal court to congressional restrictions on his release. In papers publicly released on Friday, with some details deleted, lawyers for Ahmed Adnan Ajam asked a federal judge to rule that his eleven-year captivity must end.

Captured in Afghanistan in 2002, Ajam has been at Guantanamo since then. While the U.S. military at one time contended that he was a member of a Syrian terrorist “cell,” and that was why it held him captive, he has never been charged with a crime and a Pentagon task force ruled more than three years ago that he was eligible for release. His lawyers’ legal filing apparently contains some details about negotiations for his release in 2010, but those have been blacked-out by court security monitors.

Technically, the filing in Ajam v. Obama (U.S. District Court docket 09-745) is a request for permission to file a new petition seeking release — a habeas petition — by court order. The Obama administration apparently does not oppose his opportunity to file the new plea. However, most of the court filings in the case remain under seal, so it is not clear exactly what legal stance the Justice Department will take.

U.S. District Judge Royce C. Lamberth has issued an order in the case calling for briefs on the new challenge, but that order, too, is under seal.

In a highly unusual aspect of his lawyers’ new maneuver, they are making constitutional arguments that follow closely those that President Obama himself has made in recent years, even as he signed into law a variety of restrictions that Congress has imposed on the President’s authority to release people from Guantanamo Bay and transfer them to foreign countries.

Although the President had said in “signing statements” that those restrictions intruded on his powers, he did not veto any of the measures because, he said, they contained vital spending authority for U.S. defense operations. The restraints have been imposed annually in the so-called National Defense Authorization Bill.

While those restrictions do not impose a flat ban on presidential decisions to release prisoners from Guantanamo, they do restrict that power because government officials must make a series of findings to justify each such release.

In the new filing in Ajam’s case, his lawyers contended that what is at stake in Guantanamo release decisions is the same presidential power that was used in ordering his detention — that is, the power to use military “force” against him. Just as the President claims the power to invoke that authority to require detention, the document argued, the President has the authority to decide when not to apply that power any longer.

Ajam does claim that he should never have been detained for any reason, and does insist that his continued detention is illegal even if it were once justified based on “decades-old” information, his lawyers contended that “that dispute becomes academic” when the nation’s Commander in Chief “wishes to desist from detaining him.”

Here is the core of the new constitutional argument his lawyers make: “From the proposition that only the President can direct the use of military force against a specific target within the broad scope of a congressional authorization to use military force, it follows that only the President can determine whether and when to desist from the use of that force against a specific target.” (italics in the original)

Citing the example of tactical decisions made when U.S. military forces were operating in Iraq, and a retreat that was ordered from the city of Fallujah, the document said that a presidential or military commander decision to order a retreat is the corollary of deciding no longer to act against Ajam. “Like other acts of desisting, a decision to transfer or release a detainee reflects tactical judgment uniquely for the Commander-in-Chief, and subject entirely to his risk-benefit analysis as commanding general,” the filing contended.

Quoting from a Civil War-era Supreme Court decision, the document said that “Congress may not ‘interfere with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief.’ ”

Although other Guantanamo detainees have attempted unsuccessfully to challenge restrictions on the President’s authority to release a detainee into the U.S., no other prisoner there has sought to challenge the current restraints on transferring a prisoner from the island military prison to a foreign country. That power has been challenged by civil rights organizations, but their challenges have been thwarted in federal courts.

 

Posted in Cases in the Pipeline, Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, Broad new challenge to detention, SCOTUSblog (Aug. 2, 2013, 5:54 PM), http://www.scotusblog.com/2013/08/broad-new-challenge-to-detention/