U.S. wins Munaf test
In a still-secret order, the D.C. Circuit Court on Thursday summarily overturned a federal judge’s order that would have barred the transfer of an Algerian national detained at Guantanamo Bay to his home country, where he fears torture or even death from terrorist groups or from the government there. Because the order remains under seal, and will not be disclosed for at least a week, the reasons for the reversal are not yet known. One of the three judges on the panel has filed a partial dissent, but that, too, remains under seal. The case had shaped up as a major test of whether the Supreme Court’s 2008 decision in Munaf v. Geren had removed all authority from federal judges in Guantanamo cases to control the transfer or release of captives there.
The Justice Department was given until July 15 to examine the new order and the dissenting statement to determine if any of it needs to be removed for security reasons. Presumably, when that is done, some or all of the panel’s action will be released publicly. The case (Circuit docket 10-5218) involves Farhi Saeed Bin Mohammed, who has won a release ruling from a federal District judge but has said he would prefer to remain at Guantanamo if that is the only alternative to being sent to Algeria. The case has recently had a complex recent history, made even less clear by the fact that most of the filings and the orders of courts remain sealed. A post discussing that background can be read here.
Thursday’s order by the Circuit Court was the second of its kind to overturn, without full briefing or oral argument, an order by U.S. District Judge Gladys Kessler preventing Mohammed’s transfer to Algeria. The Circuit Court panel includes Judges Thomas B. Griffith and Brett M. Kavanaugh, who apparently fully supported the new order, and Judge David S. Tatel, who dissented in part.
The order continues a seldom-interrupted string of rulings by the Circuit Court against detainees challenging their confinement or transfer. That pattern contrasts with a majority of rulings by District Court judges upholding detainees’ challenges under federal habeas law. At some point, it seems likely that the Supreme Court will have to get involved again, to decide which pattern follows the Court’s own rulings mainly favorable to detainee rights. During the Justices’ last Term, completed last week, they had agreed to start sorting out some of the issues over judges’ powers in Guantanamo cases, by granting review of Kiyemba v. Obama (08-1234), but that case was returned to the Circuit Court without a ruling. On the case’s return to the Circuit Court, the detainees lost another round. The Circuit Court’s follow-up ruling in that case is on hold pending the possibility of a plea for en banc review.
(Note to readers: The brevity of this post is accounted for in part because of the secrecy of the filings in the Mohammed case, and in part because the post is being composed aboard an Amtrak train returning from Philadelphia, with limits on technology.)