The D.C. Circuit Court’s deeply-set refusal to let  federal judges oversee government decisions on which detainees may or may not leave Guantanamo Bay has now reached the longest-running effort to keep a detainee from being sent to another country over his protest.   In a one-page order released late Thursday, the Circuit Court dismissed outright the case of an Algerian national, Ahmed Belbacha, who has been trying for more than two years to head off his involuntary return to his home country, where he fears torture or even death.

The new order was multi-faceted, but the end result was that the three-judge panel accepted the Justice Department’s view that the case should simply be brought to an end, without any further review of Belbacha’s claims against transfer.  The panel, however, did not put its ruling into immediate effect, saying it would be held up to see whether Belbacha’s lawyers would seek en banc review before the full Circuit bench.  The en banc Court, however, has already refused once to consider the case.

Belbacha was cleared for release from Guantanamo more than two years ago, but he has remained there as the case moved back and forth between the Circuit Court and the District Court.  The Justice Department had actually taken the Belbacha case to the Circuit Court (docket 08-5350) after the District judge had ruled he could be released, but a variety of developments since led to yesterday’s order of dismissal.

The number of legal options left to Belbacha’s counsel is clearly dwindling, with the result that a case that had once loomed as a potentially major test of the Circuit Court’s curbs on District judges’ power to regulate transfers out of Guantanamo is now close to being scuttled altogether.  The Algerian’s lawyers have tried a variety of different approaches, and now each has ultimately foundered on the lengthening string of Circuit Court rulings against judges’ “second-guessing” of decisions by the Obama Administration or who is to leave Guantanamo, and where they may go.

In Belbacha’s case, the Circuit Court’s most recent action relied in part on its July 8 ruling summarily reversing a federal judge’s order barring the transfer of another Algerian, Farhi Saeed bin Mohammed, to that country.  It also relied on the fact that the Supreme Court, in a March 22 order, had refused to review the Circuit Court’s most important ruling so far against judges’ interference with Guantanamo transfer policy — Kiyemba v. Obama (in the Supreme Court, that case was docket 09-581).    Ordinarily, denials of review by the Supreme Court do not set precedents, but the Circuit Court has now begun treating that denial order as an authoritative action.

The Supreme Court itself has also refused in recent weeks to interfere with government decisions to decide on transfers for two Algerians — Mohammed, and Abdul Aziz Naji.  So far, it appears that only Naji has actually been sent home.  In clearing those transfers, however, the Supreme Court has expressed no view on the validity of the Circuit Court’s rulings curtailing judges’ power to regulate transfers of detainees.   Three Justices, however, have said those issues should be reviewed at some point.  It would take the votes of four Justices to grant such a review.

Posted in Detainee Litigation