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Kiyemba II” plea advances

Six weeks after the Supreme Court passed up a second chance to rule on judges’ power over the fate of Guantanamo Bay detainees, the D.C. Circuit Court on Tuesday at least temporarily revived the case.  In a brief order, the Circuit Court ordered the Justice Department to offer its views on whether the full en banc appeals court should reconsider its ruling last April  in the case informally known as “Kiyemba II.

The order came in the case of Copeman v. Belbacha (Circuit docket 08-5350).  Lawyers for Ahmed Belbacha, an Algerian held at Guantanamo Bay for more than eight years, had asked the en banc Court to hear and decide that case.  The case is one of scores of detainee cases in which federal judges had blocked the transfer of prisoners away from Guantanamo without their having a chance to contest the moves.  In Belbacha’s case, he fears being returned to his homeland, where he argues that he faces persecution and perhaps even death from the government and from a terrorist organization there.

Belbacha’s counsel is seeking to turn the government appeal in his case, contesting one of those no-transfer orders, as the vehicle for the Circuit Court to reconsider its ruling in Kiyemba v. Obama a year ago.  In that decision, a Circuit Court panel concluded that federal judges have no power to “second-guess” the government’s decisions to transfer prisoners away from Guantanamo.  The Supreme Court denied review of that decision on March 22, and nothing has happened at the Circuit Court in the case since then.

In Tuesday’s order, the Circuit Court, on its own, ordered the government to file within 15 days a reply to Belbacha’s request for initial en banc review of his plea.  The Court is expected to make a decision soon after that response comes in; the order specified that Belbacha would not be allowed to file any reply to the government’s views, unless the court expressly asked for it.

The “Kiyemba II” case was separate from another case of the same name (known as “Kiyemba I“) that the Supeme Court had previously agreed to decide.  The Court, however, sent that case back to the Circuit Court to consider the effect, if any, of changed facts regarding re-settlement of the prisoners directly involved in the two Kiyemba cases.  The Circuit Court has not yet decided on a next step in Kiyemba I.

Both of the Kiyemba rulings by the Circuit Court raised fundamental questions about how lower courts were to apply the Supreme Court’s June 2008 ruling in Boumediene v. Bush, establishing a constitutional right for Guantanamo detainees to challenge their continued confinement.  The Court in that ruling did not settle any issues about the transfer of detainees out of Guantanamo.