UPDATE 5:30 p.m.   The Chief Justice has asked the federal government to respond to this plea by 3 p.m. this Friday, July 16.

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An Algerian national, seeking to avoid being sent from Guantanamo Bay to his home country, on Tuesday asked Chief Justice John G. Roberts, Jr., to temporarily delay any transfer until after the detainee’s appeal is pursued.   The case of Farhi Saeed bin Mohammed, proceeding largely in secret in lower courts, poses a major test of federal judges’ power to assert control over the legal fate of Guantanamo prisoners.

At its core, the case could test how the Supreme Court reconciles two opinions on detainee rights that it issued on the same day, June 12, 2008 — Boumediene v. Bush, and Munaf v. Geren.   At the time they were decided by the Justices, Boumediene appeared to be far more significant.  But, at the D.C. Circuit Court, the Munaf ruling has taken on broad significance when applied as a strict limitation on the authority of federal judges handling the detainee habeas challenges that Boumediene had authorized.

As of Tuesday afternoon, the only document in the appeal by Mohammed’s lawyers that was publicly available was a motion to file under seal the emergency request to the Chief Justice for a stay of the Circuit Court decision last Thursday.  (The case is Mohammed, et al., v. Obama, et al., 10A52).  A three-judge Circuit Court panel summarily overturned an order by a District judge temporarily barring Mohammed’s transfer to Algeria, where he fears persecution or death by a terrorist group or the government there.  The Circuit Court’s opinion in the case remains under seal, and is not due for release in a redacted version until later this week, at the earliest.  (A Circuit Court order regarding preparation of that version is here.)

Mohammed’s lawyers said in a footnote to their motion that they would work with government attorneys to prepare a public version of the application for a temporary stay.  (A post on this blog discussing the Circuit Court’s latest ruling against Mohammed can be found here; it includes a link to an earlier, more extensive post on the case.)

The challenge to potential transfer to Algeria was filed one day after the Circuit Court panel refused his request to postpone the issuance of its mandate.  (The order denying that motion is here.)   At the Circuit Court, the case is filed under docket 10-5812.  Only a few orders in the case, and none of the written pleadings by the two sides, are publicly available. For example, when the government opposed Mohammed’s plea to delay the mandate’s issuance, it filed a classified brief in support.   The order by District Judge Gladys Kessler, issued June 29, temporarily barring Mohammed’s transfer also remains under seal.  (The District Court docket is 05-1347.)

The government pursued an emergency appeal of that order, as it did an earlier temporary order by Kessler. Each time, the Circuit Court summarily reversed the judge — that is, it acted without full briefing and oral argument.  On the most recent reversal, Circuit Judge David S. Tatel filed a partial dissent to the order, which had the full support of Circuit Judges Thomas B. Griffith and Brett M. Kavanaugh.

In the Supreme Court’s Boumediene ruling, the Justices, by a 5-4 vote, recognized for the first time a constitutional right for Guantanamo detainees to challenge their confinement in habeas cases in District Court in Washington.  The Munaf ruling, decided unanimously, held that a U.S. habeas court could not prevent the transfer of two U.S. citizens who were being held legally by the U.S. military in Iraq, when officials sought to hand them over to the Iraqi government to face charges of crimes committed in Iraq.

The Circuit Court panel, in striking down Judge Kessler’s no-transfer order of Mohammed, relied upon the Munaf decision by the Supreme Court, as well as a Circuit Court ruling interpreting Munaf expansively, to bar federal judges from “second-guessing” government actions on transfers of detainees from Guantanamo.

Mohammed’s plea to postpone any transfer while he appeals was filed with the Chief Justice, who is the Circuit Justice for D.C. Circuit matters.  He has the authority to act on the application on his own, or to share it with his colleagues.  Because Justice John Paul Stevens’ retirement has taken effect, the Court has only eight Justices to act on the case, should it be referred by the Chief Justice.

Two of the five Justices who supported detainee rights in Guantanamo — Justices Stevens and David H. Souter — have now left the Court.   Souter has been replaced by Justice Sonia Sotomayor, who has yet to cast a final vote in the Court on any detainee matter.   The four dissenting Justices in Boumediene remain on the Court: the Chief Justice, and Justices Samuel A. Alito, Jr., Antonin Scalia, and Clarence Thomas.

Since Justice Stevens’ nominated replacement, Solicitor General Elena Kagan, is not likely to join the Court in the next few weeks, the possibility arises that any final action on Mohammed’s transfer could divide the Court 4-4.  That would leave in place the Circuit Court ruling overturning Judge Kessler.

Posted in Detainee Litigation