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New move to keep control on detainees

Faced with the prospect of losing control — even temporarily — over the fate of detainees at Guantanamo Bay, the Justice Department on Friday started the process on a new appeal to the D.C. Circuit Court — its second appeal in the detainee cases in the past two weeks. While most of the activity in the detainee cases since the Supreme Court’s June 12 ruling on detainees’ rights has come in District Courts, the two appeals seek an early resolution of the power of District Court judges to issue any orders that relate to the potential transfer of prisoners out of Guantanamo.  The government contends that the judges have no such power and, in fact, that Congress has explicitly denied them that authority.

The first appeal, filed on July 25, aimed at an order on July 10 by Senior District Judge Thomas F. Hogan affecting 117 detainees’ cases, requiring the government to give 30 days’ notice to a detainee’s lawyer before that individual is moved from Guantanamo, if the lawyer seeks it. It is unclear whether notice orders have yet been issued in every one of those cases.

In the government’s second appeal, filed Friday, it focused on a June 13 order by District Judge Rosemary M. Collyer temporarily barring any transfer of an individual detainee, Ahmed Belbacha, to his home country of Algeria, where he fears torture. Judge Collyer said the order would remain in effect while lawyers brief and argue his habeas challenge to detention at Guantanamo.  She first barred any transfer on June 10, before the Supreme Court’s June 12 ruling requiring courts to hear detainees’ habeas claims.  She issued a further bar a day after that ruling.

In a number of disputes now in the lower courts, the Justice Department has been strongly resisting any judicial intervention on the transfer question — whether a judge acts specifically for or against a transfer, or simple acts on a requirement of advanced notice of a transfer.

It has made two basic arguments.

First, it has contended that Congress in 2006 took away the courts’ power to interfere with detainee transfers in any situation, and that the Supreme Court did not disturb that part of the 2006 law in its June 12 ruling in Boumediene v. Bush.

Second, it has argued that, even without that law, courts have no authority to intrude on the power of the President and other Executive Branch officials to control the conduct of detainee affairs other than examining the basis for original detention.

Although the two new appeals have just been started, the D.C. Circuit Court already has two groups of cases pending before it testing judges’ power to issue the 30-day transfer notice orders.  A three-judge panel is scheduled to hear the first of those cases (Kiyemba, et al., v. Bush, docket 05-5487) on Sept. 25.