FURTHER UPDATE Friday a.m.  “Kiyemba II” has now been docketed as 09-581.

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UPDATE Thursday p.m.  A reader notes that the outcome of this case, besides affecting some 150 cases involving advance notice orders, also will affect a number of cases in which federal judges have issued binding orders against transfers from Guantanamo.  A ruling on the validity of notice orders presumably would settle the legality of such injunctions, too.

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Urging the Supreme Court to broaden its new review of government policy on transfers of detainees out of Guantanamo Bay, attorneys for four Chinese Muslim Uighurs filed a new case Tuesday evening.  If the Court were to grant review, it would focus the Justices’ attention on two layers of dispute between the Executive Branch and the courts, both perhaps affecting President Obama’s plans to close Guantanamo early next year.  The issues in the new case and in an earlier one, granted review by the Court on Oct. 20, “are distinct,” Tuesday’s petition said.  Moreover, the legal issue at stake in the new case is present in more than 150 pending detainee cases in lower courts.

 The Uighurs’ lawyers, though, suggested that the Court, as an alternative, may wish to hold the new case until it decides their first appeal.  “If the Court believes that it would benefit from a decision” in the first case, they said, it could defer action on the second one.  This first one “broadly relates to judicial authority under habeas jurisdiction and the Due Process Clause,” and the decision there thus may have some bearing on the second one, the petition noted.

Both cases bear the title, Kiyemba, et al., v. Obama, et al.  The granted case, now known informally as “Kiyemba I,” is docketed as 08-1234.  It is probably going to be heard in February or March.  The newly filed case — “Kiyemba II” — does not yet have a docket number.  (The D.C. Circuit Court ruling at issue in Kiyemba II can be found here.)

Kiyemba I” tests whether the federal courts, carrying out the Supreme Court’s 2008 ruling in Boumediene v. Bush giving Guantanamo detainees a constitutional right to challenge their captivity, have the authority to order the release of a prisoner no longer considered to be an enemy — especially, whether release into the U.S. is an option open to the courts.  The D.C. Circuit Court ruled out that option last February.

Kiyemba II,” decided separately in April by the D.C. Circuit, seeks to test the power of federal judges to require advance notice of any transfer in order to assure that the judge has the opportunity to rule on any legal challenges to transfer before the detainee gets beyond the court’s reach.  Some detainees claim that they are at risk of being tortured or otherwise abused if sent to their home countries, or to some countries where harsh regimes are in power.  Some also fear that they will be illegally detained if sent to other countries.  Again, the Circuit Court barred all such advance notice, saying courts may not intrude on Executive decisions on transfers.  The Circuit Court also noted that the government has a policy against transfers where it knows of the risk of torture or abuse.

The new petition argued: “Here, the D.C. Circuit granted the Executive unreviewable power in transferring detainees without notice out of Guantanamo, a location to which this Court has confirmed the reach of the Great Writ….  A crucial principle is at stake here: whether the judiciary in exercising habeas jurisdiction has any role in checking Executive action concerning individuals who have been detained at Guantanmo since 2002….  The Court has long recognized that notice and judicial inquiry into the legality of a prisoner’s transfer is a fndamental component of habeas review of Executive action.”

The Uighurs claim a right to advance notice of any transfer based on the courts’ “common law habeas powers,” on the federal habeas statute, on the Constitution’s Due Process Clause,  and on the All Writs Act. 

The Uighurs are members of a Muslim sect in a Chinese province, and for years have been the targets of repression by the Chinese government.  China’s government has protested the refusal to return the Uighurs to their homeland.  Four of the Uighurs who were at Guantanamo have been sent to Bermuda to live, and six to the Pacific island of Palau.   Seven remain at Guantanamo.

Jamal Kiyemba, who has given his name to both of the cases, is a former detainee no longer at the Cuba prison but is in the case acting as “next friend” of those still there.  The four detainees in the new case are Hammad Memet, Abdul Sabour, Khalid Ali and Sabir Osman.  They are also involved in Kiyemba I.  Others involved in Kiyemba I are detainees Abdul Razakh, Arkin Mahmud and Bahtiyar Mahnut.  All but Mahmud have been offered resettlement opportunities in other countries, but that has not yet occurred; no country has offered to accept Mahmud.

Now that Kiyemba I is pending before the Court, lawyers said in the new filing Tuesday, the Court’s Rules prevent the transfer of any of those involved in that case, unless advance notice is given and the Court or the Uighurs approve.

The new petition raises two questions: first, the power of the courts to issue 30-day notices of transfers in order to protect court jurisdiction and potentially prevent threatening transfers, and second, the standard to be issued by a federal court in deciding whether to issue a court order barring or requiring some action under the All Writs Act.  The second issue now divides the lower courts, the petition said.

Centrally at issue in the new case is the meaning and scope of the Supreme Court’s decision in Munaf v. Geren — announced on the same day in June 2008 as the Boumediene ruling.  In Munaf, the Court said U.S. courts had no authority to bar the U.S. military in Iraq from handing over two American citizens to Iraq’s government to face prosecution for crimes committed in that country.

Challenging reliance on that ruling by the Circuit Court, the Kiyemba II petition said that, in Munaf, the two individuals involved “knew in advance that the government intended to transfer them to Iraqi authorities and had the opportunity to demonstrate that such a transfer would be unlawful.”  Thus, the petition added, there was no need for the Supreme Court in that case to consider whether notice was required to prevent an illegal transfer.

Moreover, the petition commented, “Munaf left open the possibility that a federal court might enjoin a transfer in the ‘extreme case’ in which the transfer would more likely than not result in torture….  This possibility requires that an individual have notice of a proposed transfer in the first instance.”

The petition took note of the Obama Administration’s plan to close Guantanamo and transfer out all remaining detainees — numbering 213 — and added that this “demonstrates that the question of whether a federal court may require notice of a proposed transfer will continue to be a pressing one.”

While there is no split in the lower courts on the first issue raised in Kiyemba II, because all Guantanamo cases must go to the courts in Washington, there have been conflicting rulings on the second — that is, the standards for an injunction under the All Writs Act.

That Act gives federal courts the power to issue orders necessary to aid their jurisdiction.  The Circuit Court ruled in this case that the Act provides no independent basis for the advance notice orders, and that any such order would have to satisfy other requirements, including a showing that the detainee was likely to prevail in a future challenge to a transfer.

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