For the second time within the past year, the D.C. Circuit Court on Thursday refused to reconsider one of its broadest rulings against judges’ power to control how or when the government moves detainees out of the U.S. military prison at Guantanamo Bay, Cuba.  It did so this time without any noted dissent (see the order), thus rejecting a plea by an Algerian national, Ahmed Belbacha, who fears torture or even death if he is transferred back to his homeland.  The Circuit Court has yet to rule directly on a government plea to deny any legal relief to Belbacha by dismissing his case.

Technically, the Circuit Court’s new order did not resolve in a final way the case in which Belbacha is personally involved (Copeman, et al., v. Belbacha, Circuit docket 08-5350).  But Belbacha’s lawyers had urged the Circuit Court to use his case as a vehicle to reexamine its decision in April of last year in the case of Kiyemba v. Obama (05-5487), the one in which a Circuit Court panel had ruled that federal judges have no authority to block the transfer of any detainee out of Guantanamo.   That decision (informally known as “Kiyemba II”) was denied en banc review last July by the Circuit Court (three judges dissented), and then was denied review by the Supreme Court on March 22, and nothing has happened directly in the case since then.

Belbacha’s counsel had argued that, since all panels of the Circuit Court were bound by the Kiyemba II ruling curbing judges’ power over transfers (unless that were reconsidered by the en banc Court), his chances of being protected against an involuntary transfer to Algeria were remote, at best.  In U.S. District Court, Belbacha had previously won an order barring his transfer, and the government had then appealed that to the D.C. Circuit (in docket 08-5350).  In the meantime, a different federal District judge lifted that order on the basis of the Circuit Court decision in Kiyemba II.

While the Circuit Court has not yet scheduled an oral argument in the Belbacha case itself, the Justice Department has urged the panel to dismiss that case entirely, on the theory that it no longer presents a live controversy since the no-transfer order previously at issue has now been dissolved.   The Circuit Court may rule on that dismissal motion shortly; if it grants it, Belbacha is left with only one, unpromising option — pursuing a new appeal of his own to challenge the judge’s lifting of the order that had barred his transfer.

In any such appeal, the Circuit Court would still be bound by Kiyemba II, meaning that Belbacha’s fate may now be, as a practical matter, entirely up to the Justice Department, the Pentagon and the State Department.   Those agencies have said that it is the government’s policy not to transfer a detainee to a country where it is more likely than not that he would undergo torture or death.

The Thursday order refusing to put Belbacha’s case before the full Circuit Court for a reconsideration of “Kiyemba II” was the latest in a string of victories for the Justice Department, and defeats for the detainees, in the Circuit Court.  It has now been almost two full years since the Supreme Court, in Boumediene v. Bush, ruled that detainees at Guantanamo have a constitutional right to contest their continued confinement.  But, in a variety of rulings since then, the D.C. Circuit Court has interpreted the Boumediene decision in ways that significantly narrow its potential as a legal remedy for Guantanamo imprisonment.  The practical effect has been to diminish sharply the judicial oversight of the Executive Branch’s handling of detention policy.  That has been a basic goal of both the Bush Administration and Obama Administration in cases before all federal courts.

Whether the Supreme Court can now be drawn back into a role of oversight depends upon whether detainees’ counsel now decide to challenge the Circuit Court’s trend against judicial authority in this area of law, and whether the Justices would be willing to return to the fray.  Four times before, the Supreme Court has overturned Circuit Court rulings against detainees’ claims.

(EXPLANATORY NOTE: The Circuit Court decision in Kiyemba II is broader, in limiting judges’ power over detainees, than an earlier ruling in a case of the same name, known as “Kiyemba I,” in which the Circuit Court barred federal judges from ordering the transfer of any Guantanamo detainee to live even temporarily within the United States.  A different Circuit Court panel last Friday refused to reconsider the Kiyemba I decision [08-5424], but lawyers in that case still have the option of seeking en banc review.  The Supreme Court had agreed to review the Kiyemba I decision this Term, but then sent it back to the Circuit Court after the underlying facts changed for the five Chinese Muslim detainees involved in the case.  The Circuit Court panel then reinstated its earlier decision barring transfers to the U.S.)

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