<thread>

In a brief to DC Circuit, Biden admin had a choice to make: Whether to recognize due process rights apply to detainees at #Guantanamo.

The answer:

Defense Dept:✅
State Dept:✅
Intelligence agencies:✅

Justice Dept:❌

@charlie_savage reports:
nytimes.com/2021/07/09/us/…
2. I just published this analysis

"Had the Justice Department wanted to recognize that the Constitution’s due process clause applies to detainees held at Guantanamo, the brief would have essentially written itself."

The Supreme Court has already spoken.
justsecurity.org/77386/what-the…
3. My analysis is largely doctrinal but I do make a couple policy points:

The Justice Department's position undercuts @JoeBiden and @SecDef's stated goal of closing the prison.

@SenatorDurbin, Chair of Senate Judiciary, letter to Justice Department pointed this out. 👇
4. The legacy effects of the Justice Department's position are also significant.

It risks leaving Guantanamo as a "legal black hole" for future Presidents to transfer and indefinitely detain people beyond the reach of law.
5. In 2008, the Supreme Court held that the Suspension Clause applies to Guantanamo (Boumediene).

The American Bar Association (@ABAesq):

"Under a straightfoward application of Boumediene, Guantanamo detainees are entitled to claim the protections of the Due Process Clause.”
6/6 Oral argument is set for Sept 30.

I anticipate judges asking the gov't a version of this question:

“Counselor, does the government dispute the petitioners’ claim that the Due Process Clause applies at Guantanamo?”

There's one right answer as matter of law (and good policy)

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More from @rgoodlaw

9 Jul
<thread>

@KaraScannell @eorden interviewed attorneys about #Weisselberg.

Very consistent with @AWeissmann_'s analysis @just_security

— pressures Weisselberg to flip to protect his family
— signals to potential cooperators
— indicting org now makes sense
cnn.com/2021/07/09/pol…
2. Former U.S. tax prosecutor @AGOSTINOLAW:

Vance "sent a message that this is an exit ramp for Weisselberg that he should have taken already and, if he doesn't, everything he knows and loves in this world is fair game."
3. Criminal defense attorney @brianeklein:

"Prosecutors don't directly threaten to charge a family member, but it's not uncommon that that implicit threat hangs out there .... It can't be lost on Allen Weisselberg ... ... that family members might ...come under investigation."
Read 4 tweets
9 Jul
<thread>

After first waves of commentary on #Weisselberg indictment, I sat down with @AWeissmann_.

Several important insights by him:

1. Prosecutors have another option to obtain Weisselberg testimony if he does not cooperate.

justsecurity.org/77369/how-to-r…
2. Weissmann: "After Weisselberg is prosecuted...the prosecution can put him in the grand jury and compel him to testify."

That option is also discussed in #SistersInLaw podcast (@KimberlyEAtkins @JillWineBanks @JoyceWhiteVance @BarbMcQuade)

politicon.com/podcasts/trump…
3. Weissmann details why he thinks (a) the content of the indictment, (b) the prosecutors' requests in the arraignment hearing, and (c) the press conference by defense attorneys points toward a criminal investigation with much more to come.
Read 7 tweets
6 Jul
Been warning Kremlin bad news for Republicans too. Including interference in 2016 primary.

Now this: “Russian government hackers breached the computer systems of the Republican National Committee last week”

@WilliamTurton⁩ ⁦@JenniferJJacobsbloomberg.com/news/articles/…
2. @selectedwisdom Senate testimony in 2017:

Russia’s influence operation was “in full swing during both the [2015-16] Republican and Democratic primary season that may have helped sink the hopes of candidates more hostile to Russian interests long before the field narrowed.”
3. The Intelligence Community assessment in 2017 and Mueller documents also pointed to Kremlin involvement at time GOP primary was in full swing.
Read 4 tweets
6 Jul
In letter to @SecDef, @SenWarren and @RepRoKhanna ask for review of civilian casualties from U.S. operations.

Letter raises key issue: DoD's standard for assessing #CivCas is artificially high, and DoD report "appears to DEFY the congressional requirement" to use lower standard.
2. I wrote about the wrong-headedness of the Pentagon's standard for assessing civilian casualties in this @nytopinion piece in April 2018.

nytimes.com/2018/04/26/opi…
3. In June 2021, @annieshiel (@CivCenter) and @chrisjwoods (@airwars) wrote again about the DoD standard and how its use in reporting to Congress appears to (a) defy Congress' statutory requirements and (b) potentially vastly undercount civilian deaths.

justsecurity.org/76788/a-legacy…
Read 5 tweets
4 Jul
Exquisitely analyzed piece.

Trump lawyers laid false claim #Weisselberg-#TrumpIndictments were "fringe benefits" case.

Since then, DJT, Eric and Don Jr. have maintained that frame. So has much of the media!

Top #TaxLaw expert demolishes that framing.

justsecurity.org/77331/the-weis…
2. Paying a senior executive their income in wads of cash to avoid paying taxes is ... not a fringe benefit case.
3. Professor @DanielShaviro (the very top tax law expert who authored the article) also provides a list.

"The following items that the company paid for, on Weisselberg’s behalf, most emphatically do not fit the profile of potentially excludable fringe benefits":
Read 6 tweets
2 Jul
Will Weisselberg flip?

A lot bearing down on him if he doesn't.

Read this sober analysis by former IRS Criminal Investigation supervisory special agent.

Plus includes a valuable comment by former Chief Assistant in Manhattan DA Office @DanielRAlonso.

justsecurity.org/77312/allen-we…
2. Key: How much jail time does #Weisselberg face if

A. pleads and cooperates
vs.
B. convicted after trial

I asked the oracle, @DanielRAlonso, who said:

for A: "excellent chance of a probationary sentence"
for B: "very likely a term of 1-3 but more likely 2-6 years or higher" Image
3. Former IRS special agent, Sheil, put it this way:

(1) fight charges and risk conviction after trial (most likely 2-6 years or higher)

(2) plead guilty but don't cooperate (likely as much as a year)

(3) plead guilty and cooperate (likely probation and payment of civil fines) Image
Read 6 tweets

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