New test for detainees
In a new legal maneuver that may soon reach the Supreme Court, lawyers for an Algerian national on Monday asked for an emergency court order to keep the government from transferring the Guantanamo Bay prisoner to his home country, where he fears abuse and prosecution The request ultimately could put back before the Justices the lingering question over whether federal judges retain any power to monitor releases from Guantanamo. And the request also amounted to a strong protest against one federal judge’s authority to nullify another judge’s order protecting a detainee from transfer.
From the Supreme Court’s perspective, the case of Ahmed Belbacha is looming as a sequel to the Court’s two recent actions bypassing test cases on detainees’ rights once they have been found eligible for release. Belbacha was cleared for release more than three years ago, but he has resisted a return to Algeria because of threats to his life and a criminal prosecution. Although a government lawyer insisted over the weekend that Belbacha’s transfer is not “imminent,” the government is opposed to any court order second-guessing its transfer decisions.
From the perspective of the District Court in Washington, where all Guantanamo legal cases are handled, Belbacha’s case is shaping up as a challenge to a senior District Court judge who was named by his colleagues in 2008 to coordinate those cases so they were easier to handle, but has assumed increasing authority to issue final decisions that resolve basic legal questions about detainees’ rights. That judge, Thomas F. Hogan, has taken over the Belbacha case from another judge, and in February cleared the way for the detainee’s return to Algeria over his lawyers’ continuing protest.
On Monday, the Algerian’s counsel asked Judge Hogan to temporarily block that February ruling, at least until Hogan or a higher court decides Belbacha’s legal fate. The D.C. Circuit Court also has a case pending on Belbacha’s status. The new emergency motion to Judge Hogan is here, together with three exhibits, found here, here, and here. Over the weekend, the Algerian’s lawyers informed the Justice Department that they would go to Hogan, then to the D.C. Circuit Court, and ultimately to the Supreme Court “if need be” in an attempt to prevent his transfer to Algeria.
Although Belbacha has been trying for months to avoid transfer to his homeland, the new motion was prompted by Attorney General Eric Holder’s just-announced plan to visit Algeria this week to talk over “cooperation in combating terrorism.” Belbacha’s lawyers said they feared that Holder, in that meeting, will take steps to arrange Belbacha’s actual transfer. Although U.S. District Judge Rosemary Collyer nearly two years ago barred Belbacha’s transfer (the order now under review in the D.C. Circuit), Judge Hogan in February granted the government’s request to set aside Collyer’s order. The Algerian’s lawyers argued in their new filing that “there is substantial question” as to Hogan’s authority to take that step, espcially since the dispute is pending in the Circuit Court, too.
After the Supreme Court ruled in June 2008, in Boumediene v. Bush, that Guantanamo detainees have a constitutional right to go to District Court to challenge their continued imprisonment, the District Court was immediately confronted with more than 200 detainee challenges. Most of the judges who sit on the District Court in Washington concurred in a plan to let Judge Hogan act as coordinator, to sort out common legal issues and work out administrative arrangements for processing the cases. Once Hogan finished that chore, each detainee’s case was to go back to a “merits” judge to decide the prisoner’s legal challenge. In ensuing decisions, the judges have ruled in three-fourths of the cases that the prisoners were entitled to be released from Guantanamo.
However, the D.C. Circuit has twice ruled that federal judges may not issue final orders controlling transfers from Guantanamo. The Supreme Court had agreed to rule on one of those decisions — involving an order to transfer prisoners to live temporarily in the U.S. — but wound up returning that case to lower courts to explore new factual developments. Then, on March 22, the Supreme Court simply denied review of the other Circuit Court ruling, barring judges from “second-guessing” government transfer decisions. (It was apparently on the basis of this second Circuit Court ruling that Judge Hogan lifted Judge Collyer’s order banning Belbacha’s transfer to Algeria.)
Just last week, Judge Hogan, in a sweeping order involving 105 individuals who had left Guantanamo, agreed with the Justice Department that the District Courts have no authority to examine any of those former detainees’ claims that they still face legal obstacles even though they are no longer at Guantanamo. Among the consequences of their having been at that military prison, the detainees argued, is that they have been put on the U.S. government’s “No Fly List” that keeps them from traveling to the U.S. The judge said none of the potential obstacles is sufficient to justify a continuing role for U.S. courts. “A federal court cannot remedy the collateral consequences of their prior detention at Guantanamo,” the judge wrote. He said he had authority to make that decision “as the coordinator and manager of habeas cases involving Guantanamo detainees.”