UPDATE Friday a.m.  The Justice Department on Thursday night filed its opposition to any judicial intervention in a Guantanamo Bay transfer of an Algerian detainee to his home country.  The opposition remains under seal.  A motion seeking to file under seal is here.  It was signed by Deputy Solicitor General Edwin S. Kneedler; it is unclear whether the Acting Solicitor General, Neal Katyal, is recused.  There is no indication when the Chief Justice or the Court will act, nor any indication when redacted versions of the filings will become available.

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The D.C. Circuit Court order (now under challenge before Chief Justice John G. Roberts, Jr.) overturning a federal judge’s decision to protect an Algerian national from being sent over his protest to his home country has been made public.  The two-page order, followed by a two-page partial dissent by Circuit Judge David S. Tatel, is here.  Although the document still bears  the notation “UNDER SEAL,” its public release was cleared by Circuit Court order earlier in the day Thursday.

The release showed for the first time that the Circuit Court was divided over whether the government had given adequate assurances that the detainee, Farhi Saeed Bin Mohammed, would not be subject to torture by a private terrorist group in Algeria, as Mohammed claims.  The majority of the panel, however, found that “the government’s representations” were sufficient to require that District Judge Gladys Kessler’s order barring Mohammed’s transfer to his homeland be summarily reversed.

Because so many of the filings in the case have been under seal in lower courts, the exact scope of what the Chief Justice is now considering had not been entirely clear.  But the Circuit Court’s action now makes it fully evident that the Circuit Court’s ruling on April 7, 2009, in a case now known informally as “Kiyemba II,” poses a major test of whether federal judges have lost virtually all of their power to block, even temporarily, the transfer of detainees out of Guantanamo Bay.  And that, in turn, puts in question just how far the Supreme Court meant to go in a ruling it had issued in 2008 in a non-Guantanamo case — Munaf v. Geren.    The Circuit Court order relies on both Munaf and its own Kiyemba II.

The scope of the Circuit Court’s order makes it obvious that, when the Obama Administration on Friday files its response in the Supreme Court to Mohammed’s plea for temporary protection from transfer until he can appeal, it will defend its sweeping victory in the Circuit Court.   Mohammed’s fate will then depend on how the Chief Justice — or the full Court, if he refers the issue to his colleagues — reacts to the controversy.

One of several ironies in the case is that the Supreme Court, apparently considering that no significant legal issue was at stake, had simply denied review on March 26 of the Circuit Court’s “Kiyemba II” decision.  That case involved the second of two rulings by the Circuit Court in lawsuits entitled Kiyemba v. Obama, involving a group of Chinese Muslim Uighurs who had been cleared for release from Guantanamo, but were not going to be sent to their homeland in China because of fears of repression or death.  The Supreme Court had agreed to hear the first of the Kiyemba cases (08-1234), but then returned it to the Circuit Court to consider a change in the factual situation.  The denial of Kiyemba II (09-581) some three weeks later apparently was routine.

In the Circuit Court order in Mohammed (Circuit docket 10-5218) released Thursday, the majority wrote that under “Kiyemba II,” Judge Kessler “may not prevent the transfer of a Guantanamo detainee when the government has determined that it is more likely than not that the detainee will not be tortured in the recipient country….The government’s representations in this case satisfy that standard.”

Citing to still-secret declarations by a special Administration official working on detainee release matters, Daniel Fried, the majority noted that “the government avers that it evaluated ‘all information that is in any way relevant to whether a detainee is more likely than not to be tortured in the receiving country,’..and has determined that, in the face of the allegations made by Mohammed, his transfer complies with ‘the policy that the U.S. Government will not transfer individuals to countries where it has determined that they are more likely than not to be tortured.’ ”

Incidentially, the order clarified for the first time — although this was commonly assumed — that Judge Kessler’s still-secret order issued June 29 had barred Mohammed’s transfer to Algeria “in light of his allegations that he would be tortured there by the Algerian government and by non-state actors.”   The order ”dissolved” Judge Kessler’s injunction.  The majority was made up of Circuit Judges Thomas B. Griffith and Brett M. Kavanaugh.

Judge Tatel’s partial dissent indicated that, in fact, the government does now intend to send Mohammed to Algeria at some point.  The judge remarked that the “Kiyemba II” ruling by the Circuit Court — binding on this, as on all, panels and judges in D.C. — “precludes the district court or this court from second-guessing the Executive’s determination that Mohammed faces no harm in Algeria, where the government intends to release him.”

Thus, Tatel went on, Judge Kessler’s order “cannot stand to the extent that it rests on Mohammed’s fear of torture from the Algerian government” or on Kessler’s attempt to compel Ambassador Fried to come into court to defend his secret filings regarding transfers.

However, the dissenting judge noted that Judge Kessler had also “credited” a separate claim by Mohammed: that “he will be targeted by non-governmental actors — armed Islamic militants unaffiliated with the Algerian government” — if he is sent to Algeria.  While “the logic of Kiyemba II” required the court to defer to the government’s evluation of threats like that, Tatel said, “that decision still requires evidence of a governmental policy not to transfer a detainee where such harm is likely.”

In several rounds of briefing, Tatel added, “the government has never said in its declarations whether, as a matter of policy, it even considers threats from non-governmental entitities — or whether it receives assurances from the recipient government regarding its ability to protect the detainee from such threats — when making transfer decisions.”  The Fried declarations, Tatel said, quoting from them, focused exclusively on whether the Algerian government would harm Mohammed.

“In my view,” Tatel summed up, “the declarations fail to show that the government has specifically considered the likelihood of torture at the hands of non-governmental actors.  If the government has in fact done so, all it needs to do is clearly say so in its declaration….Nothing in Kiyemba II requires courts to guess as to what the government’s policy is.”  He said he would return the case to Judge Kessler to give the government a chance to file new declarations about how it assesses torture threats by non-government entities.

The Griffith-Kavanaugh majority, it is clear, concluded that what the government already had supplied to the court was enough to show that it had considered all angles of potential torture.

Among other ironies in the Mohammed case is that the Supreme Court’s Munaf decision was issued by the Court on the same day in June 2008 that it released its ruling in Boumediene v. Bush, considered then and, for most of the time since, to be the more significant ruling of the two.  While District judges have generally applied Boumediene in favor of detainees challenging their confinement, the Circuit Court’s interpretation of Munaf has sharply curtailed what ultimate actions a District judge may take to control actual release of a Guantanamo captive.

Posted in Detainee Litigation