With uncertainty hanging over a pending Supreme Court appeal on federal judges’ power to shape government policy on transfers of detainees out of Guantanamo Bay, the D.C. Circuit Court on Tuesday put into effect a ruling that clears the way for movingÂ scores of detainees to other countries, over the prisoners’Â objections.Â Detainees’ lawyers, however, began moving promptlyÂ to put new cases on the transfer issueÂ on hold until the Supreme Court acts.Â As many as 150 cases may be affected.
In a one-line order in Kiyemba, et al., v. Obama, et al. (Circuit docket 05-5487), the Circuit Court issued its mandate implementing an April ruling giving the government sweeping authority — without “second-guessing” by the courts — to move detainees out of the military prison on the island of Cuba (the facility that President Obama expects to close next January).Â That ruling appeared to scuttle a judge’s order delaying any transfer of those prisoners away from Guantanamo, until after giving 30 days’ advance notice.Â Other judges have issued similar orders, or orders barring outright any transfer, in other Guantanamo cases.Â The Justice Department is challenging all such orders in pehaps 150 cases.
Lawyers for the Chinese Muslim Uighurs involved in that April decision by the Circuit Court are expected to file, in coming weeks, an appeal to the Supreme Court.Â That would be the second case to go to the Justices involving the Uighurs and theÂ question of judicial power to impose any controls on detainee transfers.Â Pending for months at the Court, without action, is a petition in another case with the same title, Kyemba, et al., v. Obama, et al. (Supreme Court docket 08-1234).Â The Court has given no indication when it will act on that first case.
The detainees object to transfers either because they fear that would put them beyond the reach of U.S. courts, and thus end their chance to challenge continued detention, or because they fear torture if sent to specific countries — in some cases, their home countries.
In the meantime, in what is expected to be the first of a flood of new challenges by lawyers for detainees, counsel for an Algerian national, Ahmed Belbacha, asked the Circuit Court to hold in abeyance two cases involving his potential transfer to his home country, where he fears he will be tortured either by the government for past political activity, or by a terrorist organization that he says has threatend him in the past.Â (The motions in the two cases are nearly identical; here is the text of the motion in Obama, et al., v. Belbach (Circuit docket 08-5350) — one of the cases in which the government is appealing an order against transfer.
The Circuit Court has interpreted a 2008 Supreme Court ruling, Munaf v. Geren, as taking away the authority of federal judges to put limits on the movement of individuals being held captive by the U.S. military in overseas sites.Â That case involved two individuals facing criminal prosecution in Iraq, but being held by the U.S. military.Â The Court ruled that federal judges could not bar the turnover to Iraq for prosecution.
Whether Munaf extends to Guantanamo detainees is the key issue that will be pressed by the Chinese Muslims’ lawyers when they file their second petition in the Supreme Court.Â If that case does not go forward, because the government succeeds in diplomatic efforts to shift all of the Uighurs out of Guantanamo, then lawyers for other detainees — like the Algerian, Belbacha — are expected to test the issue in their own petitions later.
In the meantime, Belbacha’s counsel urged the Circuit Court to leave his case — and, by implications, the cases of scores of others — unresolved until the Supreme Court takes some action on transfer challenges.Â His lawyers said that Belbacha’s cause has gained support fromÂ international human rights groups.Â Â If, however, the Circuit Court goes ahead and rules for the government in his case, Belbacha’s attorneys said he would seek to block that order while he pursued his own appeal to the Supreme Court.
The first Kiyemba case already at the Court involves the question ofÂ federal judges’ power to order that detainees be transferred to live inside the U.S., if theyÂ cannot safely be resettled elsewhere.Â The second case, now due at the Court by Oct.26, tests whether federal judges have any authority whatsoever to impose any restrictions on transfers from Guantanamo.
In the second Kiyemba case — now informally known as “Kiyemba II“Â — the Circuit Court refused on Aug. 20 to delay its implementation of its April ruling.Â The ruling, however, could not go into full effect until the mandate was issued on Tuesday.