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ABA urges Supreme Court to hear case of Gitmo detainee held more than 15 years

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The ABA filed an amicus brief on Wednesday that urges the U.S. Supreme Court to hear an appeal by a Guantanamo Bay detainee who has been held without trial for 15 years.

The ABA brief (PDF) says the court should review the claim by Abd al Rahim al-Nashiri that he isn’t properly classified as an enemy combatant, making his case ineligible for trial by a military commission, according to a press release.

Al-Nashiri had sought habeas review, but a federal district court and the U.S. Court of Appeals for the District of Columbia declined to hear his case. The appeals court held that Article III courts were not required in the first instance to determine whether the military system has jurisdiction.

The ABA argues the ruling affects all Guantanamo detainees seeking to challenge their enemy combatant status, and it should be promptly reviewed. “To hold that judicial review is unavailable here, despite the extraordinary pretrial delay present in this case, undermines the Constitution’s fundamental commitment to rendering justice in a timely manner,” the brief says.

Al-Nashiri, a Saudi being held in solitary confinement, claims he should be tried by a federal court because he is accused in bombings that took place before the Iraq war. His military trial likely won’t be held until at least 2019, and he won’t be in a position to challenge an adverse judgment until 2024, according to the ABA brief.

“The staggering delay presented by this case naturally follows from a military commission regime established by statute that imposes no obligation on the executive branch to act promptly or efficiently in the prosecution of its cases and carries no legal consequences or risk of dismissal for idle or otherwise unwarranted delay,” the brief says. “And solitary confinement, as Al-Nashiri endures, only compounds the impact of the delay.”

The brief was prepared on a pro bono basis for the ABA by DLA Piper lawyers Thiru Vignarajah, Adam Steene and Isha Mehmood.

Updated on June 5 to note DLA Piper’s role in preparing the brief.