Al-Hela v. Biden and Due Process at Guantanamo
A photo of the E. Barrett Prettyman United States Court House, which houses the U.S. Court of Appeals for the District of Columbia Circuit. (NCinDC, https://flic.kr/p/gcj6HV; CC BY-ND 2.0, https://creativecommons.org/licenses/by-nd/2.0/)
On April 23, the U.S. Court of Appeals for the District of Columbia granted Guantanamo Bay detainee Abdulsalam Ali Abdulrahman Al-Hela’s petition for a rehearing en banc to consider his claim for habeas corpus relief under the Due Process Clause of the Fifth Amendment. This vacated a 2020 panel opinion that had rejected al-Hela’s claims on the grounds that, as a nonresident alien without presence or property in the United States, he possessed no constitutional due process rights. Granting rehearing positions the en banc D.C. Circuit to potentially confront the question of whether the Due Process Clause reaches the detainees at Guantanamo Bay, an issue that it has thus far avoided deciding even as a
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A House push to repeal the 2002 Authorization for Use of Military Force (AUMF) has picked up support across the political spectrum as President Joe Biden begins taking significant steps to extract the U.S. from Middle East conflicts that date back to his time in the Senate, leaving some legislators concerned that a full repeal could open the U.S. and its assets to future attacks.
Last month, the House Foreign Affairs Committee voted to advance a bill that would fully repeal the 2002 AUMF, originally passed to allow the U.S. to wage war on Saddam Hussein’s regime. The legislation was introduced by Rep. Barbara Lee (D-CA), the only lawmaker at the time to vote against the post-9/11 2001 AUMF targeting terror groups and the 2002 AUMF. The current bill is cosponsored by 114 members reflecting a rainbow of ideological viewpoints, from House Freedom Caucus Chair Rep. Andy Biggs (R-AZ) to progressive “Squad” members such as Rep. Rashida Tlaib (D-MI) and Democratic moderate Re
Following Joe Bidenâs retaliatory air strikes in Syria last month, Democrat members of Congress put forward legislation to repeal the existing Authorization for Use of Military Force (AUMF) resolutions of 2001 and 2002. More than that, however, they propose to rewrite the War Powers Act of 1973, which would effectively take away authority from the president to engage in military action to protect Armed Forces personnel and interests abroad.
If Biden, who appears to agree with congressional Democrats, were to go along with this misguided and unnecessary effort, all under the guise of ending Americaâs ânever-ending wars,â it would be a profound break with our nationâs long-running history while also severely handicapping the ability of the executive branch to act both quickly and covertly against terrorists and other foreign enemies.
Thomas Gallatin
Joe Biden is expected to reveal his planned executive actions on firearms today. According to reports ahead of his announcement, Biden will specifically take aim at requiring background checks for the sale of a new bogeyman â so-called âghost guns,â or firearms without serial numbers that are often homemade. Is this just tinkering around the edges, or is he getting a foot in the door for something bigger?
The so-called âghost gunsâ category is intentionally vague terminology that creates an impression of illegality, similar to the erroneous âassault rifleâ designation. Bidenâs order would classify 80% lowers, components sold separately without serial numbers, as firearms. By classifying them as such, a buyer would be subject to a background check. But Biden hopes for an essential ban on the sale of these âghost guns.â
As President Biden faces the challenges posed by China, Iran, North Korea and Russia, it is worth examining the “war powers” wielded by the executive pursuant to both Article II and related legislation and whether the current limitations on the executive make us genuinely safer.
They do not.
Under Article II of the Constitution, the president is identified as “Commander in Chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.” This clause has remained perpetually at odds with Congress’ Article I power to “declare war” and with legislation known as the War Powers Resolution.