UPDATE Saturday 5:50 a.m.   Late Friday night, the Court, without noted dissent, refused to delay the transfer of a second Algerian, Abdul Aziz Naji.  The order is here.

——————–

In the first indication that the Supreme Court will not allow federal judges to interfere with government controls on who leaves or stays at Guantanamo Bay, the Court Friday evening cleared the way for the transfer of an Algerian detainee to his home country over his protest.  The action divided the Court 5-3; the dissenters noted that the case involved “important questions” the Court has yet to answer.  The Court’s action was not a final ruling on those questions; rather, it was a refusal to block a lower court order letting the government, not a judge, decide the transfer issue.

While the order would not prevent lawyers for the Algerian, Farhi Saeed Bin Mohammed, from going ahead with an appeal seeking to challenge his transfer, such an appeal very likely would lose all of its significance if the government opts to send him to Algeria promptly. Nothing in the order prevents that result, which probably would moot the controversy.

Mohammed is one of six Algerians now at Guantanamo, each of whom is trying to head off being sent to their homeland because each fears that he faces torture or death, either from the Algerian government or from a terrorist group operating in that country — a fear the U.S. government says is not well-founded.  While Friday’s order (in Mohammed v. Obama, 10A52) applies only to Mohammed, another of the Algerians — Abdul Aziz Naji — is also asking the Supreme Court to prevent his transfer.  His  new application, Naji v. Obama, 10A70, was filed Friday afternoon and, as of evening, was still pending, although the Mohammed order probably telegraphs the same result for him.

The denial of a stay for Mohammed was supported by Chief Justice John G. Roberts, Jr., with whom it was initially filed, and by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.   Justice Ruth Bader Ginsburg, joined by Justices Stephen G. Breyer and Sonia Sotomayor, dissented.  In a brief statement which the other two dissenters joined, Ginsbug said she “would grant the stay to afford the Court time to consider, in the ordinary course, important questions raised in this case and not resolved in Munaf v. Geren, 553 U.S. 674 (2008).”   (The vote was 5-3 because there is one vacancy, retired Justice John Paul Stevens’ seat.)

The Munaf decision did not deal at all with Guantanamo detainees, but rather focused on an attempt by two U.S. citizens seeking to prevent the U.S. military from handing them over to the government of Iraq to face criminal charges for acts allegedly committed in that country, in violation of Iraqi law.  The Court ruled that a U.S. judge could not prevent that transfer, since it was necessary to show respect for another county’s power to enforce its own laws.

But, since the Munaf decision was issued by the Court on June 12 two years ago, the D.C. Circuit Court has given it a wide interpretation, ruling that it bars any federal judge from “second-guessing” a decision by the Pentagon and State Departments that controls the ultimate fate of detainees who have been cleared by judges for release.  In Mohammed’s case, for example, the Circuit Court relied upon only one Supreme Court precedent — Munaf – as it overturned a federal judge’s order barring his transfer to Algeria.

The Friday evening order from the Court marked the first time the Court had given any indication that any of its members would support an action in a lower court based upon the Circuit Court’s broad interpretation of the Munaf ruling.

Perhaps the only unexpected aspect of the new order was that it was joined by Justice Kennedy.  He was the author of the Court’s most important ruling so far on the rights of Guantanamo detainees — Boumediene v. Bush.  Decided the same day as the Munaf case, Boumediene recognized for the first time a constitutional right for detainees at Guantanamo to challenge their continued confinement, and assured that such a review would be “meaningful,” including the possibility of release.   (The four members of the Court supporting the Mohammed order along with Kennedy were dissenters in the Boumediene case.  Munaf was decided unanimously)

The Court has not taken any action on the merits of a detainee case since its Boumediene ruling.   It had agreed, last Term, to decide a post-Boumediene case — Kiyemba v. Obama — that did seek to test just how much power District Court judges would have to implement Boumediene and to control the ultimate legal fate of Guantanamo detainees.  The Kiyemba case, however, was sent back to a lower court without a ruling by the Justices, for further consideration in the light of changed facts.   When that case was decided a second time by the Circuit Court, it resulted in a new and even stricter rein on the power of District judges in Guantanamo cases.  (Lawyers for the detainees in the Kiyemba case are seeking en banc rehearing by the Circuit Court, in case 08-5424; on Friday afternoon, the Circuit Court ordered the Justice Department to respond to that plea within 15 days.  After that is filed, the Circuit Court will decide for or against further review.)

District judges handling habeas cases from Guasntanamo prisoners are left, for the time being, with only one option if they decide that a detainee is not being held legally: they can urge the government to use its best efforts to try to find a place to relocate that prisoner.  That, in fact, is the way most release orders have been worded in the wake of the Circuit Court’s interpretation of the Munaf precedent.  The Circuit Court’s orders in the Mohammed case were actually summary reversals of an order of District Judge Gladys Kessler going beyond a plea for diplomatic efforts, and actually preventing the prisoner’s transfer to Algeria.

If none of the six Algerians seeking to prevent transfer to their home country is able to prevent that from happening, it is unclear when another detainee case might reach the Supreme Court to test the “important questions” about Munaf that Justice Ginsburg noted on Friday.   She did not say what those questions are, but Judge Kessler had indicated some uncertainty about the legality of a transfer of a detainee who professes a fear of torture or death from a terrorist organization abroad.

A potential question associated with that is what proof the government must offer to support its assurances that, if transferred to a particular country, a detainee is not likely to be mistreated or killed.   That was an issue for one of the Circuit Court judges, David S. Tatel, who filed a partial dissent in the Mohammed case.

The ruling that the Supreme Court refused to stay, pending its challenge on appeal, accepted the government’s word that it was more likely than not that a transferred detainee would not be subjected to torture, or worse.   Different panels of the Circuit Court have made it clear that the government’s word on that issue is not to be subjected to rigorous testing by District judges in habeas cases.

In Mohammed’s case, District Judge Kessler at one point ordered a high government official, Daniel Fried, to appear in her courtroom and, under oath, submit to questioning about his assurances that detainees would not be mistreated in countries to which they were sent.  That part of her order, too, was summarily reversed by the Circuit Court.

————————

(NOTE TO READERS: There is another notable aspect of the Court’s Friday order: the Justices acted without the public ever having access to most of the significant filings in that case — in the Supreme Court, in the Circuit Court, and in the District Court.  Except for the Circuit Court’s most recent ruling, which was made public on Thursday, every other document of importance remains under seal.  As a consequence, the full range of the legal issues that the courts have been exploring remains unknown.  Moreover, no one outside the group of judges, lawyers and law clerks involved has any idea when any of those materials will be made public, even in redacted form.

( Moreover, most of the information that is in the documents is not formally classified as secret: it fits into an unusual category of what the courts call “protected information.”  As a brief Justice Department motion, filed with the Supreme Court in the Mohammed case, put it, this is information that must be withheld “because public disclosure of that information may cause diplomatic and potential security harm.”  A special court rule was written in 2008 to govern the protection of such information in Guantanamo habeas cases.  In the second Algerian detainee’s case that was filed at the Supreme Court Friday (docket 10A70), a brief motion asserted that his application “includes little if any information properly designated as ‘protected’ under the protective order.” It nevertheless had to be filed under seal.)

Posted in Detainee Litigation