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Kiyemba II,” back again?

In a legal move that very likely is a prelude to a Supreme Court appeal, an Algerian who has been imprisoned at Guantanamo Bay for more than eight years has begun a new challenge to a major ruling against detainees’ rights by the D.C. Circuit Court — a ruling that was left intact by the Supreme Court last month.  That decision brought a sweeping rejection of federal judges’ power to review government decisions on the fate of Guantanamo detainees.

The Algerian, Ahmed Belbacha, has pursued a variety of legal efforts to avoid being returned to his homeland, where he says he fears persecution not only by the government, but also death threats by a terrorist organization operating there.  On Tuesday night, his lawyers made their new move, asking the full, en banc D.C. Circuit Court to reopen the case of Kiyemba v. Obama (informally known as “Kiyemba II“) on the premise that he is directly affected by that ruling and that the decision sharply deviates from the Supreme Court’s 2008 decision adding to the legal rights of those held at Guantanamo Bay.

The fact that the Supreme Court refused to hear the Kiyemba case, turning it aside on March 22, does not mean that the decision in that case could not be tested anew.

The Kiyemba II case, like an earlier one of the same title but known as “Kiyemba I,” involves a group of five detainees who are members of a Chinese Muslim sect, the Uighurs, who have been ordered freed from Guantanamo but still remain there amid diplomatic and legal maneuvering over resettling them to another country.  The Algerian, Belbacha, was not directly involved in either of those cases, but both government lawyers and Belbacha’s own counsel now say that his legal fate depends upon the Circuit Court’s year-old decision in Kiyemba II.  So, in Belbacha’s own case at the Circuit Court (Circuit docket 08-5330), his lawyers have mounted their new challenge to “Kiyemba II.”  The new filings in Belbacha v. Obama can be found here.

Although the Supreme Court gave no reason last month for refusing to hear “Kiyemba II” on a Uighurs appeal, the chances are that it did so because it had previously avoided a ruling on the Uighurs due to changing factual developments in the government’s resettlement efforts for them, and thus saw no need to take on another case involving them.  Thus, the Justices sent no signals at that time on whether the Circuit Court had been wrong last April in barring the federal courts from “second-guessing” government decisions on moving Guantanamo prisoners.

Belbacha’s lawyers have been attempting to challenge his detention since December 2005.  Like others at Guantanamo, he won a constitutional right to pursue that challenge when the Supreme Court decided Boumediene v. Bush in June two years ago.  His challenge had been on hold in the meantime.  After Boumediene, Belbacha soon won an order from a federal judge barring transfer to his home country as his case moved forward.  The Obama Administration then appealed that order to the Circuit Court, and the case has been on hold there since, in a state of legal “abeyance.”

The Administration has argued that the “Kiyemba II” decision took away the judge’s power to issue the no-transfer order for Belbacha.  The Circuit Court has taken no action on that, and has not set any new briefing schedule or hearing on the government’s appeal.  With his lawyers growing concerned that he might be sent to Algeria at any time, they decided recently to attempt to put the case before the full Circuit Court bench.  (If the case were heard by a three-judge panel, it would be bound by the “Kiyemba II” ruling; one panel cannot overturn another’s ruling.)

In the new filing, his attorneys argued: “The proper resolution of this case requires that Kiyemba II be overruled, which only this Court en banc or the Supreme Court can do.”  Nothing has happened in the Circuit Court in the Kiyemba II case itself since the Supreme Court denied review.  But that would not prevent the Circuit Court, Belbacha’s lawyers are arguing, from deciding on its own to reconsider Kiyemba II as the appeals court takes up the government’s appeal in Belbacha’s case.  The Circuit Court has the authority to grant en banc review of a case, ahead of any decision on it by a three-judge panel.

In making the new move, Belbacha’s counsel said the case now raises three questions “of exceptional importance.”

First is whether U.S. immigration law bars a federal judge from blocking a detainee’s transfer to another country if that would violate a U.S. treaty, the Convention Against Torture, and, if it does, whether that is an unconstitutional suspension of a detainee’s habeas rights “in contravention of Boumediene” and whether it would violate constitutional guarantees of legal equality.  The Supreme Court has not ruled on that issue.

Second, the filing said, the case tests whether the Supreme Court’s 2008 ruling in Munaf v. Geren blocks a federal judge from barring a detainee’s transfer to a country where torture is likely, either from a foreign government or from a terrorist group.  (Munaf, decided by the Justices on the same day as Boumediene, allowed the U.S. military in Iraq to transfer to the Iraqi government for criminal prosecution two prisoners who allegedly had committed crimes in Iraq.)  The Supreme Court has not said whether its Munaf ruling has any bearing on the rights of Guantanamo detainees, accused of no crimes.

And, third, Belbacha’s lawyers said, the case tests whether the U.S. government can transfer a detainee to another country where he has reason to believe he will be tortured, before the detainee has a real chance to challenge such a transfer.

Three judges of the nine judges on the full D.C. Circuit bench had voted to rehear the Kiyemba II case itself after it was decided by a three-judge panel, but that would have required the votes of five judges to succeed.  That tally, however, would not be binding on the Circuit Court when it confronts Belbacha’s plea to hear his case en banc, especially since Belbacha’s situation is factually quite different from that of the Uighurs involved in the Kiyemba case.

The government is likely to oppose the new Belbacha request, if the Circuit Court requests a response.   Under Court rules for en banc procedures, such a response is allowed only upon the Court’s request.