Thread by @rgoodlaw

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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)