A sequel to Kiyemba II?
The Supreme Court is poised to act soon — perhaps as early as Monday — on the attempt by Guantanamo Bay detainees to keep open their option of challenging their transfers to countries where they fear torture, death, or further detention. As seems likely, the Court may well return the case of Kiyemba v. Obama (09-581) to lower courts for a new review, just as it did three weeks ago in a case bearing the same name, involving some of the same prisoners, and raising related legal issues (08-1234). It is a near-certainty, though, that other detainee transfer cases will advance toward the Court, perhaps as an emergency plea to stave off a transfer, or as a new, full-scale appeal. The form may depend upon whether the Court deals with “Kiyemba II” in the same way as with “Kiyemba I.”
One of the more likely cases to move along, because the prisoner may be close to a transfer he opposes, involves an Algerian national, Ahmed Belbacha. Last month, in a still-classified order, a federal judge in Washington, D.C., wiped out an earlier order that barred Belbacha’s transfer to Algeria until after his attorneys had a chance to pursue a challenge. Belbacha’s attorneys are now trying to get the order put back into effect, so that the prisoner stays at Guantanamo for the time being. (He was cleared for release by the Pentagon more than three years ago; he is now in his eighth year as a detainee.)
The Justices have the option, of course, of granting review of the new “Kiyemba II” case. It, like “Kiyemba I,” seeks to test the power of federal judges to decide on the legal fate of Guantanamo prisoners who have been cleared for release, as those judges implement the Supreme Court’s 2008 ruling in Boumediene v. Bush on detainees’ rights.
But the new Kiyemba case involves four of the seven Chinese Muslim Uighurs who were involved in “Kiyemba I,” and the Court decided on March 1 that lower courts should examine new factual developments involving the status of those seven, each of whom now has or previously had an offer to be re-settled somewhere other than in their homeland, China.
When the Court considered “Kiyemba II” at its private Conference last Friday, one of the documents it had before it was a friend-of-court brief filed by ten other Guantanamo prsioners, saying that their legal fate was linked to that of the Uighurs. Each of the ten is a national of a country that, their lawyers contended, has a “notorious human rights record,” so they do not want to be returned home. They are nationals of Algeria, Libya, Russia, Syria, Tajikstan and ‘Tunisia. Some of them, their brief told the Court, “are nationals of countries in which previously transferred detainees were in fact tortured and abused.”
One of the Algerians in that group of ten is Ahmed Belbacha. His lawyers have said in lower court filings that he has been threatened with death by an Islamic terrorist group in Algeria, and is considered by the Algerian government to be a deserter from its army. Moreover, in his absence, he has been tried in Algeria on what his lawyers call “spurious terrorism-related charges,” and has been sentenced to 20 years in prison. “Caught between domestic terror groups and a government that has already decreed a harsh sanction for him, Mr. Belbacha cannot safely return to Algeria,” his attorneys told a federal District judge in a filing March 7.
The Justice Department has been arguing in lower courts that Belbacha and other detainees have no right to advance warning before they are transferred. Moreover, it has repeatedly argued that it has a policy against sending any detainee to a country where torture or abuse is likely. The Department has filed a response to the attempt by Belbacha’s counsel to prevent his transfer, but that filing remains under seal. Similarly, the document or documents that led Senior District Judge Thomas F. Hogan in February to clear the way for Belbacha’s transfer also remain under seal, so it is not clear what legal arguments were made to justify his action. (The government does have an appeal pending at the D.C. Circuit Court on Belbacha’s status, but that is presently on hold.)
As of now, Guantanamo detainees have no right to be told (or have their lawyers told) in advance of any plan to transfer them, because that is barred by the D.C. Circuit Court ruling last April saying that federal judges have no power to “second-guess” the federal government’s decision when or where to transfer detainees that it is prepared to release from Guantanamo. That is the decision at issue now in the Supreme Court in “Kiyemba II.”
If the Supreme Court were now to decide to vacate that April decision by the Circuit Court (as it did in Kiyemba I with an earlier Circuit Court ruling barring judges from ordering the transfer of detainees to live in the U.S.), then it will be up to lower courts to decide in the first instance where next to go with detainee transfer issues. Lawyers for the four Uighurs involved in Kiyemba II have suggested that, if the Court is not prepared to hear their case now, it should vacate the Circuit Court ruling on transfer notices and return that case to lower courts “to determine whether further proceedings in the district courts are necessary and appropriate.”
Meanwhile, in Belbacha’s continuing legal saga in District Court, his lawyers and attorneys for the Justice Department have told Judge Hogan that they are both awaiting the Supreme Court’s action on Kiyemba II, and thus have asked for more time to file further legal papers on the question of Belbacha’s resistance to transfer.