Boumediene’s continuing fallout
on Oct 11, 2007 at 2:01 pm
The Supreme Court’s agreement to rule on the legal rights of detainees — a decision that will not come for several months — continues to have a significant impact on Guantanamo Bay prisoners’ cases in lower courts. It now appears that any change in the legal circumstance of a detainee is likely to be put on hold until after the Supreme Court rules. That would include government attempts to get habeas challenges dismissed, to scuttle court orders that assure detainees’ access to their American lawyers, to wipe out court orders that require advance notice to attorneys before a detainee is transferred out of Guantanamo, to plan a specific transfer out of the military prison in Cuba, and — now — to go forward with a planned transfer of a detainee to another country.  One or more District judges in Washington, D.C., have thwarted each of those maneuvers, relying mainly upon the Supreme Court order to hear the cases of Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196).
The latest of these government efforts, a decision by the Defense and State Departments to send a Tunisian national now at Guantanamo to his home country, where he faces a prison sentence of 20 years for alleged terrorist activity and where he also claims he will face torture, was blocked on Oct. 2 by U.S. District Judge Gladys Kessler in Washington, D.C. (Originally issued under seal, her order was made public on Tuesday.) The case involves Mohammed Rahman, a habeas petitioner in District Court case 05-359 (Alhami, et al., v. Bush). The judge’s order can be found here.
This decision was not a surprise, since Judge Kessler on the same day that she wrote the sealed order involving Rahman also issued a public order requiring the government to provide 30 days’ advance notice before the U.S. military transferred Haji Rohullah from a detention facility at Bagram Air Forc e Base in Afghanistan to an Afghani prison.
In both the Rohullah and Rahman cases, the judge used the same rationale: the detainees would likely suffer harm if moved as the U.S. military planned, and also that the Supreme Court’s agreement to hear Boumediene and Al Odah cast a “deep shadow of uncertainty” over a D.C. Circuit Court ruling that detainees held by the U.S. military in the “war on terrorism” simply have no constitutional rights, and no right to pursue habeas challenges to their captivity.
The government, in each one of its gestures to keep control over the fate of detainees, has argued that the Circuit Court’s ruling — the one the Supreme Court will be reviewing — was still binding law in Washington, D.C., federal courts, so judges could not provide even interim legal relief for detainees in habeas cases. But Judge Kessler, like other judges in Washington, noted that the Circuit Court has withdrawn its mandate in the key case, and the Supreme Court, in a “highly unusual” action, has granted review of the case after previously declining review.
As Judge Kessler concluded in the Rahman order, “it is imperative that the [District] Court protect its jurisdiction until the Supreme Court issues a definitive ruling in Boumediene.” The coming decision by the Justices, she wrote, “is likely to directly affect the outcome of the instant case.”
