Arguing that a wartime prisoner has been held at Guantanamo Bay three years longer than even the government believed he should be confined, and that Congress is directly responsible for that delay, lawyers for a detainee there have moved for a prompt federal court ruling on a host of constitutional arguments over who may leave Guantanamo.

The filing of a motion for a summary ruling by a district court judge in Washington, D.C., marks the next step in an escalating challenge to what the lawyers for prisoner Ahmed Adnan Ajam call a bold interference by Congress with presidential authority to move toward emptying and then closing the U.S. military prison on the island of Cuba.

Ajam, a Syrian national, was cleared for release from Guantanamo in 2010, and negotiations were under way to bring that about, but Congress kept it from happening by imposing a host of limitations on presidential authority over detainees, his lawyers said in the new filing.

Anticipating that the Justice Department may contend that Ajam is trying to insert himself into a conflict between Congress and the White House, his attorneys contended that he has a clear legal right — under a variety of Supreme Court and lower court rulings — to take personal advantage of a ruling that would restore clear-cut president power to decide who gets freed from Guantanamo, and when.

That he is “not a member of the Executive Branch does not bar him from challenging an unconstitutional invasion of the prerogatives of the Executive,” the motion asserted.   He has suffered, and continues to suffer, a direct personal injury as a result of the barriers Congress has erected to presidential release of him from Guantanamo, the filing said.

Since he has been cleared for release, the only lawful base for keeping him imprisoned has lapsed, if it ever existed, and Congress does not have the constitutional authority to set up a series of conditions on how the White House exercises the military commander-in-chief’s authority to stop detaining an individual no longer considered a terrorism threat, Ajam’s counsel argued.

In the lengthy motion, his attorneys sought to employ this list of constitutional claims: Congress cannot intrude on how the president makes purely military decisions under his commander-in-chief power, Congress violates the separation of powers by trying to control diplomatic negotiations over release of Guantanamo detainees, Congress’s list of conditions that the president must meet before a detainee may be set free intrudes on the constitutional right to release on habeas (a right declared by the Supreme Court five years ago), and Congress has imposed an unconstitutional form of legislative punishment (a “bill of attainder”) by requiring continued detention of people who are eligible for release.

The Justice Department will have an opportunity to react to the motion before U.S. District Judge Royce C. Lamberth rules on it.  The government response may be somewhat complicated by the fact that Ajam’s lawyers are relying upon a series of constitutional arguments that President Obama has made in his annual protests over the conditions Congress has imposed on his power to release detainees.

Posted in Cases in the Pipeline, Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, Escalating a detainee’s plea, SCOTUSblog (Aug. 16, 2013, 8:00 PM),