Analysis: The meaning of Munaf
on Aug 26, 2008 at 12:54 pm
Analysis
When the Supreme Court on June 12 found a new constitutional right for Guantanamo Bay detainees, another decision on the same day had little chance of being widely noticed even though it, too, involved detainees’ rights. That ruling, in a pair of consolidated cases, focused on prisoners the U.S. military holds in Iraq, not at the U.S. Navy prison compound on the island of Cuba.
Another factor tended to take away — at the time — from the seeming signifidance of the ruling in Munaf v. Geren (06-1666, along with Geren v. Omar, 07-394): the decision was unanimous, suggesting it was not all that hard to decide and thus may not have decided much — in contrast to the labored efforts a deeply divided Court has put forth in a string of major decisions involving government claims to added “wartime” powers.
But the Munaf ruling, like the constitutional decision that same day in Boumediene v. Bush (06-1195), is taking on new meaning and raising new questions in the lower federal courts. And, just as it can be asked just what was decided in Boumediene (see this post), it seems to be an open question just what Munaf resolved.
The point is well illustrated by two legal briefs, both filed last Thursday in the D.C. Circuit Court, in a series of cases (led by Kiyemba, et al., v. Bush, et al., Circuit docket 05-5487). These cases involve nine Guantanamo detainees — all members of a Chinese Muslim minority (the Uighurs) that has for years suffered persecution in China; these nine were captured elsewhere after they had relocated. (The brief for the Uighur detainees is here; the government brief is here.)
The government has 167 appeals in the Circuit Court in other cases awaiting the outcome of the Kiyemba litigation, and detainees have three other such appeals now pending. All of them turn primarily upon a single issue: do federal judges have any authority to issue orders of any kind to limit or delay the Defense and State Departments from sending a detainee to another country, after the Pentagon decides not to keep an individual confined at Guantanamo? It is a question that could touch on major constitutional issues, as well as on the meaning of federal laws.
The Munaf decision could figure prominently in the Circuit Court’s review of that question. The detainees’ lawyers, among other arguments, have told the Circuit Court that Munaf in no way disturbs — and even confirms — the power of federal judges to assure detainees that, before they are subjected to detention somewhere beyond Guantanamo or have to face the prospect of torture in another country, they get a chance to object in court, with some chance of protection. And government lawyers have argued that Munaf makes clear that decisions about transfers of detainees out of Guantanamo are a matter for Executive Branch decision, without any “second-guessing” by the courts.
It seems unlikely, at a minimum, that the Supreme Court, in deciding Munaf, thought it was choosing up sides in that broad argument. In fact, there were indications that, within the Court, there had been lively discussion over how to keep the ruling within narrow bounds.
There were two distinct parts to Chief Justice John G. Roberts, Jr.’s opinion for the unanimous Court in Munaf: first, the federal courts do have jurisdiction to hear the habeas claims of U.S. citizens beng held captive overseas by U.S. military forces (it is unclear whether U.S. citizenship was crucial to that part of the ruling), but, second, those courts can provide no relief when what the citizens are asking is not to be turned over to another nation’s government for prosecution for crimes allegedly committed inside that nation.
It has become clear, in detainee cases unfolding since Munaf in lower courts, that Justice Department lawyers read the decision expensively, while detainees’ lawyers argue that it is irrelevant to most issues involving detainees but – if it bears on them at all — it provides support for federal courts’ authority to assure that habeas claims get a fair hearing.
While this dispute is playing out in a number of contexts, the Kiyemba group of cases — and the other 170 appeals depending on it — is providing a forum for an early answer by the lower courts.
These cases go back almost three years, to September 2005, when two federal District judges issued orders to bar the transfer of detainees from Guantanamo to another country unless the government gives 30 days’ advance notice of its transfer plans. The judges did so to assure that they would not lose jurisdiction over the detainees’ challenges to their captivity.
The government appealed to the Circuit Court, contending that the judges had no authority to issue such orders in habeas cases and that such restrictions intruded upon Executive Branch powers and actually would impede efforts to release or transfer detaines.
The Circuit Court heard the cases, but then ordered them dismissed, relying on its decision in Boumediene v. Bush that Congress had scuttled the detainees’ habeas rights. But the dismissal was put on hold while the Supreme Court reviewed Boumediene. After the Supreme Court in Boumediene overturned the Circuit Court on the habeas question, the Circuit Court called for new briefs on the transfer notice issue. After answering briefs are filed on Sept. 4, a Circuit Court panel will hold oral argument, now set for Sept. 25.
The briefs filed last week cover a range of issues tied to the transfer authority dispute. The detainees, for example, say the cases only involve a narrow question of whether courts may issue transfer-notice orders to protect their jurisdiction to decide the underlying habeas challenges. The advance notice requirement, their brief contends, does not bar any transfer at all. If any transfer notice is filed by the government, the brief suggested, it will be time enough to decide whether the detainees have any objection; they may even readily agree, if the transfer would be to a “safe” country. The detainees, according to the brief, “seek only the opportunity to obtain judicial review of their habeas claims. It is this basic right, and only this right, that the [transfer notice] orders preserve.” That basic right, the brief contended, was upheld in Boumediene.
While that brief seeks to keep the Circuit Court’s focus narrow, it does argue more widely that federal courts definitely do have authority to prevent a new form of detention — overseas — for individuals the Pentagon decides to hold no longer at Guantanamo, and do have authority to head off any risk that a detainee will suffer torture or abuse in another country.
The government, in its new brief, contends that Congress has taken away the federal courts’ authority in habeas to issue any orders having to do with transfer of detainees away from Guantanamo. It argues that Boumediene did not undermine that restriction on habeas. It also asserts that major separation-of-powers problems are looming if the courts seek to limit how the Executive Branch deals diplomatically with the choice of countries to accept transferred detainees.
The judges’ orders requiring transfer notice, the brief said, “impermissibly encroach upon the President’s powers as Commander-in-Chief and the political branches’ responsibility over foreign policy….By interfering with sensitive negotiations with foreign governments and preventing the Executive Branch from releasing [detainees] as soon as it determines is appropriate, the injunctions harm third parties and the public interest.”
The two sides move beyond those arguments to advance their competing, and directly conflicting views, of what the Supreme Court decided in Munaf.
