Another detainee appeal to Court
on Aug 13, 2009 at 4:31 pm
A group of Chinese Muslims still detained at Guantanamo Bay although cleared for release will be filing a new appeal — their second this yearÂ — to the Supreme Court to further test the power of courts to provideÂ remedies in detainee cases.Â Five of the Uighurs have notified the D.C. Circuit Court that they will file a petition with the Justices, challenging an April ruling by the Circuit Court. That decision upholds broad power for the government to shift detainees out of Guantanamo Bay without “second-guessing” byÂ the courts, as the Circuit Court put it.
In aÂ motion filed last week, the Uighrus’ lawyers asked the Circuit Court to put that decision on hold until the Supreme Court can take final action on the coming appeal.Â The Justice Department’s response to the motion is due next Monday.
At issue in the case are several orders issued by District Court judges, temporarily limitingÂ the government’s power to transfer individuals out of Guantanamo.Â The detainees’ lawyers sought those limits to give them a chance to challenge any possible transfer to another country where the prisoners were likely to be tortured, or detained further.Â Some of the orders require a 30-day notice before a detainee could be sent elsewhere.
The issue gains in importance as the Obama Administration moves toward some final policy decisions on what to do with Guantanamo detainees, in preparation for President Obama’s planned closing of the detention facility next January.
The Circuit Court refused in July to rehear en banc its April ruling.Â The vote was 6-3.Â If the Circuit Court now puts theÂ decision into effect without delay, the government would then be free to shift individuals out of Guantanamo with federal judges having no power to intervene. (Under Supreme Court rules, the detainees’ counsel have 90 days from the July 27 denial of Circuit Court rehearing to file the appeal to the Supreme Court.)
The Circuit Court, in its 2-1 decision overturning transfer-limiting orders, said it was required to do so by the Supreme Court’s 2008 ruling in Munaf v. Geren — a decision the Justices issued on the same day they ruled in Boumediene v. Bush that Guantanamo detainees have a constitutional right to challenge their continued captivity.Â In the Munaf ruling, the Court overturned a judge’s order barring the U.S., military in Iraq from transferring two captives there to Iraqi authorities for prosecution for crimes allegedly committed in that country.
The Uighur detainees’ other case at the Supreme Court — Kiyemba v. Obama, docket 08-1234 — tests whether federal judges have any power to order the release into the U.S. itself of Guantanamo prisoners who are no longer considered to be enemies. The Circuit Court ruled against that claim last February.
That case was considered by the Supreme Court near the end of last Term, but theÂ Justices opted then to take no action.Â Thus, they are expectedÂ to examineÂ that appeal sometime fairly early in the new Term that starts Oct. 5,Â if all of the Uighurs still remain at Guantanamo then.Â Four who were involved in the transfer orders case have been resettled in Bermuda, but efforts to resettle the other five have failed so far.Â The UighursÂ are natives of China, but do not want to return there because they fear torture or death; they are part of a persecuted religious minority.
The Uighurs’ lawyers, in asking the Circuit Court to put its new decision against them on hold while they appeal to the Justices, said the outcome of the case could affect “scores of detainees” at Guantanamo.Â The government had appealed in more than 150 cases in which federal judges had issues orders restricting transfers.
The motion for delay said they now fear that the Administration “will do whatever it takes to be rid of them — even if that requires a change in U.S. policy,” a policy that now bars transfer of detainees to countries where they face abuse.Â TheÂ motion said that there is “enormous political pressure” to close Guantanamo by the deadline next January.Â The Uighurs, the document added, “are understandably unwilling to stake their lives on mere policy.”
“Should Guantanamo be closed before [the Uighurs] are released, there is a real risk that they could be transferred to a location where they will remain unlawfully and indefinitely imprisoned by, in coordination with or at the behest of the United States government, and where, unlike Guantanamo, the reach of the Great Writ may be unsettled,” the motion asserted.
The filing noted that Congress in June passed a new law requiring the President to notify Congress about anyÂ planned release of a Guantanamo prisoner. Thus, the issue of transfers, the motion said, is now one to be decided only by the political branches: “The Judiciary [under the Circuit Court ruling] is the only branch denied any role in the determination of whether a proposed transfer of [the Uighurs] — or any other persons imprisoned in Guantanamo — is lawful.”
In their coming petition to the Supreme Court, the detainees’ counsel said, they will raise four questions, which they said they expect the Justices to agree to hear.Â Here is the way the motion phrased those questions:
“1. Whether Munaf requires transfer-based habeas claims to be effectively carved out from the scope of the constitutional habeas rights articulated by the Supreme Court in Boumediene;
“2. Whether a district court may protect against divestiture of its jurisdiction pursuant to the All Writs Act independent from whether a party has established the four criteria used for determining whether the party is entitled to a Rule 65 preliminary injunction;
“3. Whether the REAL ID Act can be interpreted to strip the district courts of jurisdiction to hear a habeas petitioner’s Convention Against Torture claims even where such an interpretation would leave the petitioner with no alternative means to raise those claims; and
“4. Whether, pursuant to Boumediene, the Guantanmo detainees possess due process rights requiring notice and a hearing to determine whether a specific transfer would result in torture or continued detention.”
Some of those questions clearly test whether the Court will recognize constitutional rights for the detainees beyond the simple right to file a habeas challenge to the government decision to hold them prisoner indefinitely without charges, even when they are not considered dangerous.