Last summer, three Justices said the Supreme Court should consider important but undecided issues left over from a 2008 ruling on the rights of individuals detained by the U.S. military — the unanimous ruling in Munaf v. Geren.  On Friday night, lawyers for an Algerian national at Guantanamo Bay sought to put some of those issues before the Court in a new appeal in the case of Mohammed, et al., v. Obama.  The case has been filed under seal, and thus is not yet available publicly.  (A motion to file under seal, however, is public and can be read here.)

The new petition is also potentially a major sequel to another 2008 decision, the 5-4 ruling in Boumediene v. Bush that, for the first time, gave Guantanamo prisoners a constitutional right to challenge their continued detention.  Federal judges have been carrying out Boumediene since then, but the Munaf ruling (decided the same day as Boumediene) has turned out to be a major limitation on the judges’ authority as a result primarily of the way the D.C. Circuit Court has applied Munaf.

The prisoner in the new case, Farhi Saeed Bin Mohammed, is one of five Algerians at Guantanamo seeking to head off being returned to their home country because each fears torture or death, either from the Algerian government or from a terrorist group operating there.  The federal government has told the courts repeatedly that it will not transfer any detainee to a country where the government has decided that torture is not likely, and the D.C. Circuit has repeatedly accepted those assurances and has told federal habeas judges not to “second-guess” the government.  Detainees’ lawyers have been attempting to get the courts to require the government to offer more proof than the assurances it has given that torture or death does not await transfer to some countries.

The most important precedent from the Circuit Court so far against “second-guessing” the government is Kiyemba v. Obama, an April 2009 decision (informally known as “Kiyemba II“) that the Supreme Court refused without comment to review last March.  In Kiyemba II, the Circuit Court had relied on its broad interpretation of Munaf to sharply restrict the options that federal habeas judges have to control who stays at or leaves Guantanamo, even after a detainee has been cleared by the courts for release.

Since that ruling came down, lawyers for detainees have been attempting — so far unsuccessfully — to get the Circuit Court to reconsider it en banc.   The Circuit Court has been pondering the latest of those requests in the case of Abdah v. Obama (Circuit docket 05-5224, together with 22 other consolidated cases).  The briefing on that issue has been completed, so a decision is awaited.

The Circuit Court relied on its own ruling in “Kiyemba II” and on the Supreme Court’s decision in Munaf when, on July 8, it overturned a federal judge’s order barring the government from transferring Farhi Mohammed to Algeria.

Mohammed’s lawyers sought a stay of that ruling, asking the Supreme Court to delay it until he could appeal.  On July 16, however, the Supreme Court appeared to have cleared the way for his transfer to Algeria  when it turned down by a 5-3 vote his stay application (10A52).  It was in dissent to that order that Justice Ruth Bader Ginsburg, joined by Justices Stephen G. Breyer and Sonia Sotomayor, argued that the Court should consider unresolved issues about the Munaf decision. (Justice Elena Kagan was not yet on the Court at that time.)

Mohammed remains at Guantanamo, and his lawyers had until Friday to file a petition to review the Circuit Court’s July 8 summary ruling against him.  Once the petition, or a redacted version of it, becomes public, it appears likely that it will once more pursue a plea to clarify Munaf, and to review the limitations on habeas judges’ power that the Circuit Court’s Kiyemba II decision laid down.  It may also seek further clarification of the habeas right that the Justices spelled out in Boumediene.

Because the Circuit Court is still pondering whether to review en banc the Kiyemba II precedent, it seems likely that the Supreme Court would not act on Mohammed’s new petition until after that question is resolved; a ruling there conceivably could make the Mohammed plea moot.

The Munaf decision did not, in fact, involve anyone held at Guantanamo.  It involved a plea by two U.S. citizens, being held by the U.S. military in Iraq, to prevent their transfer to the government of Iraq to face criminal charges for acts allegedly committed in that country, in violation of Iraqi law.  The Court unanimously rejected their plea, ruling that a U.S. judge could not prevent their transfer, since it was necessary for U.S. courts to show respect for another country’s power to enforce its own laws.

The scope of that precedent has grown considerably wider in subsequent D.C. Circuit rulings.  If the Supreme Court were to grant review of Mohammed’s new case, it could re-open the whole question of what the Court meant in Boumediene as well as in Munaf.

The Court has granted review of only one Guantanamo habeas case since its 2008 decisions, but that case ended without a decision when the Justices returned it to lower courts and the detainees’ challenge was again turned aside.  (That case was known as “Kiyemba I,” involving the same Chinese Muslim detainees who were involved in “Kiyemba II.”)

The Justice Department’s response to Mohammed’s new petition would be due, unless the time is extended by the Court, in mid-December.  There might not remain time for the Court, should it grant review, to decide it in the current Term.  It also is not clear, at this point, whether Justice Kagan, a former U.S. Solicitor General, would take part.

Posted in Detainee Litigation, Cases in the Pipeline

Recommended Citation: Lyle Denniston, New test of Munaf filed, SCOTUSblog (Nov. 6, 2010, 3:49 PM),