The Justice Department on Thursday moved to put an end to one of the most significant cases seeking to preserve federal judges’ authority to impose some limits on transfers of detainees out of Guantanamo Bay, over their objection.  Some eight weeks after the Supreme Court refused to hear the latest of the Guantanamo cases to reach it, the Department urged the D.C. Circuit Court not to reopen that case, and, in fact, argued that the attempt to do so should be dismissed outright. If that happens, it will add significantly to the government’s power to decide the fate of Guantanamo detainees without court supervision.

This new development involves a key sequel to the Supreme Court’s ruling two years ago in Boumediene v. Bush, creating a constitutional right for Guantanamo prisoners to challenge their continued confinement.  The Boumediene decision left to lower courts many of the decisions on how to implement that ruling; in response, the D.C. Circuit has cut back significantly on the power of federal judges to rule on what happens to prisoners who are deemed no longer dangerous and thus are, potentially, eligible for release.  As a result, Pentagon and Justice and State Department officials decide when and where to make transfers.  The Circuit Court decision that went the furthest to pare down courts’ authority is now known as “Kiyemba II” (formally, Kiyemba v. Obama); that is the ruling that the Supreme Court simply declined to hear on March 22.

An Algerian national now held at Guantanamo, Ahmed Belbacha, has expressed fears that, if sent home, he will be tortured and may even risk death, by the Algerian government or by a terrorist group there that has threatened him.   Belbacha’s case is separate from Kiyemba II, but Belbacha’s lawyers are attempting to turn his case into a direct challenge to the Kiyemba II decision, which held that federal judges could not “second-guess” government decisions on transfers of Guantanamo prisoners.  So, Belbacha’s counsel have asked the Circuit Court to reconsider Kiyemba II before the full, en banc Court of nine judges, to hear his claim that the ruling undermines the right that all detainees won from the Supreme Court in Boumediene.

The Justice Department responded to that request with two new filings: the motion to dismiss Belbacha’s separate case as moot (that was filed Thursday), and a brief opposing the plea for en banc review of Kiyemba II in Belbacha’s case (first filed Wednesday in a sealed form and then released Thursday in an edited version removing what the government considers to be sensitive information).  Belbacha’s lawyers promptly filed an opposition to the motion to dismiss.  The government’s dismissal motion is here, Belbacha’s response to that is here, and the government opposition to en banc review is available here.

The issues that Belbacha’s counsel now seek to raise, the Justice Department argued, “have already been thoroughly considered” by both the Circuit Court and by the Supreme Court. It was only a year ago, it noted, that the Circuit Court had denied en banc review of Kiyemba II, before the Supreme Court chose to pass up review.  Moreover, it contended, the Circuit Court made a “legally sound” decision in that ruling, which took away most of the authority of federal District judges to issue orders regulating detainee movements out of Guantanamo.

After the Supreme Court’s Boumediene decision in June 2008, a federal judge promptly barred any transfer of Belbacha to Algeria until the judge, along with other district judges, could resolve issues left undecided by the Supreme Court.  But, after the Circuit Court’s Kiyemba II decision, a different federal judge lifted the order barring Belbacha’s transfer.  Belbacha’s lawyers plan to challenge that second order in their own new appeal, but for now are pursuing the attempt to get en banc review of Kiyemba II in Belbacha’s case.  His lawyers have said they will use all possible legal moves, including going to the Supreme Court, to try to prevent his return to Algeria.

In urging the Circuit Court to simply dismiss Belbacha’s case, the Department argued that the original judge’s order barring his transfer has now expired, and is no longer in force.  The judge who lifted that order had the authority to do so, the new motion contended, even though the validity of that order remained a pending issue in the Circuit Court. The second judge simply used his discretion to wipe out the no-transfer order, the Department asserted.

In defending the Kiyemba II decision as correct, the Department’s new filing argued that any inquiry by the courts into whether Belbacha or another detainee is likely to be tortured after transfer “would interfere with the government’s ability to accomplish the goal of closing Guantanamo Bay” by transferring detainees out of the prison facility in Cuba.  In any event, the Department added, Belbacha’s fears of being tortured if sent to Algeria are unfounded.  Government officials have given sworn statements, it noted, that it is the policy of the U.S. government not to send any detainee to a country where torture is more likely than not.

While Belbacha’s counsel have opposed the government’s plea to dismiss his case as “moot,” they are not entitled to respond to the government’s opposition to his plea for en banc review, unless the Circuit Court asks for it.

There is no timetable for the Circuit Court to act on either of the pending pleas.

Posted in Detainee Litigation, Uncategorized