A limit on Boumediene order’s impact
on Aug 2, 2007 at 5:30 pm
The Supreme Court’s order granting review of Guantanamo Bay detainees’ challenges to their continued confinement has stalled scores of similar habeas cases in lower federal courts, but there is one category of pending cases not yet affected.. The D.C. Circuit Court, for the second time in recent weeks, refused on Thursday to block the transfer of a detainee to another country. That prisoner, Ahmed Belbacha, an Algerian national, apparently has been cleared by military officials for transfer, but his lawyers have said he fears torture or abuse if he is sent home. His lawyers now appear likely to take the case promptly to the Supreme Court, to seek temporary help from Chief Justice John G. Roberts, Jr.
Filings in the Circuit Court by Belbacha’s lawyers and by government counsel have not yet been cleared for public release, but from other court filings and news accounts, it appears that he has been at Guantanamo Bay for five years, after being rounded up in Pakistan in early 2002. Military officials have said he had ties to al-Qaeda leader Osama bin Laden, a claim his lawyers dispute. Earlier this year, U.S. officials sought to transfer Belbacha to Britain, where he had lived temporarily, but Britain refused to accept him. U.S. officials apparently have since been negotiating with Algerian officials for his return there.
The Circuit Court appears to be of two views on the impact of the Supreme Court’s order agreeing to hear the two detainee cases, Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), on other pending cases. While the Circuit Court has cited the Court’s grant as a reason for putting on hold cases that involve Guantanamo detainees who are contesting continued confinement, it is not doing so where government officials have decided to transfer captives from Guantanamo. Some District Court judges appear to draw the same distinction.
In Thursday’s order (found here) in the Belbacha case (Circuit docket 07-5258), the Circuit Court lifted a temporary stay on his impending transfer to Algeria and denied a motion to keep the case on hold while an appeal proceeds, but did order that appeal to proceed “on an expedited basis.” The order does not make clear what is to happen to Belbacha in the meantime.
In mid-July, the Circuit Court refused to require the government to give a detainee’s lawyer a month’s advance notice before transferring another Algerian to his home country — Mustafa Ahmed Hamlily (Circuit docket 07-1127). He, too, has been at Guantanamo Bay for five years. He and Belbacha are among some 80 detainees who apparently have been eligible for transfer or release, with their fate now being negotiated between the U.S. and foreign governments.
In the Hamlily case, the Circuit Court denied relief on July 16, saying it “lacks jurisdiction” to do so. It cited two similar orders it had issued in other cases in June — before the Supreme Court agreed to hear Boumediene and Al Odah.
On Thursday, in Belacha’s case, the Circuit Court cited its ruling against detainees in the Boumediene and Al Odah cases (the ones the Supreme Court will be reviewing), then added: “This court is bound to follow circuit precedent until it is overruled by an en banc court or the Supreme Court.” U.S. District Judge Rosemary M. Collyer had made much the same argument on July 27 in refusing to delay Belbacha’s transfer. Collyer wrote: “The Supreme Court’s recent decision to grant certiorari in Boumediene notwithstanding, this Court cannot ignore the plain language of the [Military Commission Act’s court-stripping provisions] and the D.C. Circuit’s holding that the MCA is constitutional.”
(In late April, before the Supreme Court had stepped into the detainee cases, the Circuit Court had refused to block the transfer of a Libyan national, Abu Abdul Rauf Zalita, to his home country [docket 07-5129]. In doing so, the Circuit Court said it had no jurisdiction, citing its Boumediene/Al Odah decision. The Supreme Court on May 1 declined to block Zalita’s transfer. Zalita’s counsel, however, intends to file a petition for review in the Supreme Court; the deadline is Sept. 21. They are also seeking rehearing in the Circuit Court.)
