David Marshall Challenges Constitutionality of Guantanamo Transfer Restrictions

David Marshall has filed a court challenge to the constitutionality of the law restricting transfer of prisoners from Guantanamo.

The court papers have been filed under seal because they contain secret information. The legal argument, though, is not secret. It is that Congress violated the separation of powers when it enacted the transfer restrictions. The constitution makes the President commander in chief of the armed forces. That gives him, David argues, power to release whenever he chooses any person held as an enemy belligerent.

David’s client at Guantanamo,Ahmed Adnan Ajam of Syria, has always denied being an enemy belligerent. The newly-filed motion says that question never need be decided because the President wants to transfer Mr. Ajam to freedom and, but for the transfer restrictions, would already have done so. (The Guantanamo Review Task Force examined all the government’s information about Mr. Ajam in 2009 and decided it was safe to release him.)

The motion also attacks the transfer restrictions as a bill of attainder. A bill of attainder is punishment imposed by a legislative body rather than by a court. This, too, the motion argues, makes the restrictions unconstitutional.

In preparing the motion, David received generous help from lawyers in Boston and New York, especially those at the Bingham firm.

David was recently interviewed about Guantanamo on KUOW Radio’s Weekday.