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Munaf test now in open

Government security officers have now cleared a public version of what is shaping up as the next test case in the Supreme Court on federal judges’ review of detention policy at Guantanamo Bay.  The document is a petition by an Algerian detainee, urging the Justices to restore some of the power of federal judges to weigh transfers of prisoners to other countries over their objection.  The redacted document in Mohammed, et al., v. Obama, et al. can be read here.  The appendices are here and here.

The case involves Farhi Saeed Bin Mohammed, who is one of six Algerians at Guantanamo who fear torture or perhaps even death if they are returned to their home country.  The D.C. Circuit Court, however, has ruled that federal judges hearing their habeas cases may not “second-guess” the decisions of U.S. government officials to make transfers when those officials are persuaded that no harm will occur after such a transfer.

Mohammed’s petition asks the Court to clarify the reach of two of its rulings on detainee matters, both decided on the same day in 2008:  Munaf v. Geren, a decision about prisoners held by the U.S.  military forces in Iraq, and Boumediene v. Bush, the foundation decision on the habeas rights of detainees at Guantanamo Bay.   The Circuit Court has given a broad interpretation of Munaf, and in the process has significantly curtailed the authority of federal habeas judges in overseeing the movement of Guantanamo prisoners.  (A post outlining in full the background of the Mohammed petition can be read here.)

The new appeal to the Justices argues that the Circuit Court has “treated Munaf as settling issues that Munaf, in fact, did not settle, and which this Court should settle.” The effect of the Circuit Court’s rulings, the petition asserted, “is to surrender to the Executive authority that this Court emphasized in Boumediene is part of the judicial power that the Suspension Clause was intended to preserve.”

The petition poses this question: “Whether, in a habeas corpus action brought by an individual held in United States territory, including Guantanamo, (a) Munaf v. Geren…requires, and (b) Boumediene v. Bush,…the Suspension Clause, and the Due Process Clause permit, the district court to give conclusive effect to the government’s assertion that the individual is unlikely to be tortured if transferred to a particular country, disabling the individual from challenging his transfer on the ground that he will likely be tortured, and the court from fashioning an equitable remedy.”

Farhi Mohammed’s case is in a somewhat complex procedural posture at this point.  The Court has not yet accepted his petition for docketing, because it is weighing a motion to file it under seal because it contains information that the government does not want made public.  The Court may act on that motion early in December.  In addition, a group of Guantanamo prisoners are asking the D.C. Circuit Court to grant en banc review of its treatment of Munaf, but the Circuit Court has not ruled on that plea.  (It is pending in a group of 23 cases, under the lead case, Obama v. Abdah, Circuit docket 05-5244.)

Thus, Mohammed’s counsel suggested to the Supreme Court that, because of the Abdah proceeding, the Mohammed petition should be held pending action by the Circuit Court.

Recommended Citation: Lyle Denniston, Munaf test now in open, SCOTUSblog (Nov. 23, 2010, 6:10 PM),