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U.S.: Read Munaf broadly

The Obama Administration, moving to shore up its power to shift detainees out of Guantanamo Bay, argued Monday in federal court that a year-old Supreme Court ruling means that federal courts have no power to interfere with such transfers.  The 2008 decision in Munaf v. Geren controls that issue, much more than the Court’s more sweeping decision the same day on detainees’ rights, Boumediene v. Bush, the government contended in a new brief in D.C. Circuit Court.

The filing came in the case of Kiyemba v. Obama (Circuit docket 05-5487), a case that detainees are planning to appeal soon to the Supreme Court.   The document was filed in response to a plea by detainees’ lawyers to put the decision in the case on hold until after the Supreme Court acts on their coming petition.

The Circuit Court ruled in Kiyemba that federal judges may not “second-guess” decisions by the Executive Branch to transfer prisoners out of Guantanamo, based on claims that the detainees might suffer torture or other abuse in the countries where they were resettled.  The detainees’ lawyers contend that it will undermine their right — recognized in Boumediene — to challenge their detentions if they can be put beyond a court’s reach without any advance notice.  In fact, those lawyers argue, it would be unconstitutional to allow such interference with prisoners’ habeas rights.

Countering that argument, the Administration’s new filing said that the Supreme Court’s Munaf decision has already made it clear that the Boumediene decision gives detainees no right to challenge transfers to other countries, and thus the Supreme Court is unlikely to reopen that issue when the detainees pursue a new appeal.  The Munaf ruling held that federal courts could not block the U.S. military in Iraq from transferring two prisoners to the Iraqi government to be tried on charges they committed crimes in that country.

But, according to the government brief Monday, the Munaf ruling was not restricted to that factual situation.  Whatever rights detainees may have as a result of Boumediene, it added, Munaf makes clear that they “did not include a right to an inujnction to prevent transfer to a foreign country.”

Directly at issue in the Kiyemba decision are federal judges’ orders requiring the government to give detainees’ lawyers, and federal judges, advance notice before a detainee is moved out of Guantanamo.  But the government contended in its new filing that those are not the only court orders at issue:  Some judges have simply barred transfers, the brief said, and it urged the CircuitCourt to rule summarily that all such court-impose restrictions on transfer powers must fall.  “Relief from those related orders is long overdue,” it contended.

President Obama plans to close Guantanamo altogether next January, the government filing noted, and the judges’ restricions on transfers are interfering with that plan, and intruding on the government’s dealings with other foreign governments in arranging resettlement of Guantanamo prisoners.

The Administration repeated the assurances it has given in court repeatedly, that it has a policy against transferred any detainee to a country where it deems it likely that torture would result.  It rejected the detainees’ lawyers’ argument that this is only present policy, subject to change.

It suggested that there is a prospect that the remaining Chinese Muslim detainees involved in the Kiyemba case may be close to transfer to other, friendly nations where there is no risk of torture.

With the government’s opposition to delay now on file, the Circuit Court is expected to move to a decision on that issue.  Even if it refuses to postpone its ruling, that would not prevent the detainees from going forward with their petition for review in the Supreme Court.

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