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New challenge to Kiyemba II

In the latest effort to salvage authority for federal judges to control the legal fate of Guantanamo Bay detainees, lawyers for 31 of those prisoners have told the D.C. Circuit Court that they will seek to return to the Supreme Court if lower courts move to scuttle that new effort.  In two filings on Monday, applying to all 31 of their cases now pending in the Circuit Court, the detainees’ counsel took new aim at a 2009 decision by a Circuit Court panel that took away almost all of the authority of District judges to supervise when and where detainees are moved out of Guantanamo, over their protest.   That ruling came in the case of Kiyemba v. Obama (informally known as “Kiyemba II“).   Detainees’ counsel have made repeated legal assaults on that ruling, but, so far, it remains intact.

Behind the continuing challenges to “Kiyemba II” lies another goal of detainees’ lawyers: to persuade the Supreme Court to pare down a 2008 ruling by the Justices, in the case of Munaf v. Geren, that has been interpreted very broadly by the D.C. Circuit in curtailing what federal judges can do about Guantanamo prisoners’ fear of being sent to countries where they would be at risk of torture or death.  In July, three Justices indicated that there are “important questions” about judges’ powers that did not get resolved in Munaf.  Those questions are what detainees’ attorneys want to get back before the Supreme Court at some point.  The Munaf case, dealing with prisoners held by the U.S. military in Iraq, had nothing directly to do with Guantanamo detainees — until the D.C. Circuit started applying it to them last year.

What prompted the new challenge to Kiyemba II — and thus to Munaf, too — was an order on July 23 by the Circuit Court indicating that it is considering throwing out a series of orders by District judges in 31 cases, barring transfer of Guantanamo detainees until 30 days after the prisoners’ lawyers are notified of a possible transfer.   Those orders were designed to keep the prisoners at Guantanamo to assure that the judges would have time to consider their challenges to continued detention or to review potential transfers before they occurred.  Transfers out of Guantanamo, of course, would end those challenges, making them moot.

The Circuit Court asked lawyers in the 31 cases to respond to a Justice Department plea to vacate all of those transfer-notice orders because judges’ authority to issue them had been nullified by the Kiyemba II ruling in April of last year.   In reply on Monday, the lawyers made two requests.  First, they filed a plea for the full Circuit Court, sitting en banc, to overrule Kiyemba II.  The text of that filing is here.  Second, they asked the Circuit Court not to vacate any of the transfer-notice orders until after the plea for en banc review had been resolved. That filing can be read here.  It was in this second document that detainees’ lawyers said that, if the panel decides to scuttle the cases, the court should not put that decision into effect while the lawyers “seek review in the Supreme Court.”

Those documents were filed in Abdah v. Obama (Circuit docket 05-5224), and applied to that as well as the other 30 cases.  The plea for en banc review of that case contended that the Kiyemba II decision was wrong and should now be overruled, because it misapplied the Munaf precedent, because it rejected detainees’ pleas for protection under a treaty against torture, because it may be unconstitutional in denying due process to detainees, and because it misapplied federal immigration law to Guantanamo .(UPDATE: A similar plea to avoid vacating a transfer notice was filed Monday in a separate case pending in the Circuit Court, Abdulayev v.Thomas, 08-5149.  That document can be found here.)

The Supreme Court itself had denied review of Kiyemba II last March, without any evaluation of how the Circuit Court has used the Munaf precedent or how Kiyemba II could be reconciled with judges’ duty under the Constitution to review Guantanamo detainees’ challenges to their captivity.  At the time the Justices denied review, it appeared that the five Chinese Muslim detainees directly involved in that case might be resettled, and that may well explain why their appeal was denied.

Aside from the prospect for a coming appeal to the Supreme Court in the Abdah case in which the filings were made on Monday, there is also another potential appeal to the Supreme Court to test both Kiyemba II and its expansion of the Munaf precedent.  That is the case of an Algerian, Farhi Saeed Bin Mohammed, who is resisting being sent to his home country for fear of torture there.   The Supreme Court on July 16 refused to block his transfer, thus leaving intact for the time being another Circuit Court decision curbing judges’ powers over detainees under the Kiyemba II precedent (Mohammed v. Obama, application 10A52).  Justice Ruth Bader Ginsburg, joined by Justices Stephen G. Breyer and Sonia Sotomayor, filed a dissent, saying the case raised key issues on the scope of the Munaf precedent.

But lawyers for Farhi Mohammed have until early October to file a petition for review of his case by the Justices.  The denial of temporary relief last month did not bar the lawyers from seeking review on the merits.   Thus, either the Mohammed case or the Abdah case could be a vehicle for the Supreme Court to return to review of core issues about detainees’ fate — something in which the Justices have shown an active interest for the past six years.