The D.C. Circuit Court has issued decision after decision in recent months, turning aside Guantanamo Bay detainees’ legal challenges, and each time it has relied mainly upon its ruling 17 months ago in what is known informally as “Kiyemba II.”  On Friday, however, at least some judges on that Court signaled an interest in pondering whether to reconsider it.  In a brief order, the Court asked the Obama Administration to offer its views on whether the full Circuit Court should grant en banc review of 31 cases on its docket — all seeking to test “Kiyemba II,” one of the Circuit Court’s most sweeping rejections of judges’ power to control the fate of detainees.

The Administration is to file a response by Sept. 25.  However, it has already made clear, in a filing in those 31 cases last Thursday, its view that “there is no substantial likelihood that this Court will grant initial en banc hearing in these cases.”  (The lead case among the 31 is Abdah v. Obama [Circuit docket 05-5224.]}  But the lawyers for the detainees have already indicated that, if the Circuit Court turns them down, they will attempt to take the case to the Supreme Court for a test of “Kiyemba II.”

The situation with “Kiyemba II” has gotten quite complicated, so, first, a bit of background.  The case has the title Kiyemba v. Obama, but is is not the same case as an earlier one with the same title.  In the first one, known informally as “Kiyemba I,’ the Circuit Court ruled that no judge may order a detainee transferred to the U.S., even though cleared to leave Guantanamo.

In Kiyemba II, issued in April 2009, the Circuit Court went further: it ruled that District judges have no authority to regulate the movement of detainees from Guantanamo, anywhere in the world.  Judges, it said, are not to second-guess the government’s decisions on resettlement or transfer of any detainee.  The Circuit Court denied rehearing en banc of that case in July of last year, and the Supreme Court denied review of a petition in that case (Supreme Court docket 09-581) this past March 22.

Since March, nothing has happened in Kiyemba II at the Circuit Court, except that various panels of that Court have relied upon it repeatedly as a precedent for further curbing District judges’ powers to restrict movement of detainees, even if judges have attempted to do that in order to retain authority to decide the merits of legal challenges to the detainees’ continued captivity.  Judges have been left with no option but to rely upon the government’s assurances that it will not send a detainee to a country where torture or abuse is likely to occur.

Because the Circuit Court has already declined to reconsider Kiyemba II directly, lawyers for the detainees in the Abdah group of cases have sought to accomplish that same full Court review by pressing for it in their cases.  Essentially the only issue they have raised is whether Kiyemba II should be overturned by the en banc Court.

The Circuit Court seldom grants initial en banc hearing of any case — that is, a hearing and decision before a three-judge panel has had a chance to rule on it first.  It thus would have been no surprise, especially given the history of Kiyemba II itself and the Circuit Court’s other actions relying on that ruling, if the Abdah plea had simply been denied.  But the Court instead will keep the plea alive at least until it hears from the Administration.  Depending upon what happens then, the case could be on its way to the Supreme Court in a matter of weeks.

If and when Supreme Court review is granted, it will be a test not only of the Circuit Court’s Kiyemba II decision, but also of the meaning — for Guantanamo detainees — of a Supreme Court decision in June 2008 in the case of Munaf v. Geren.  Although the Munaf decision involved transfer of two individuals held by the U.S. military in Iraq to the Iraqi government for prosecution on criminal charges made by that government,  the D.C. Circuit found in Munaf a sweeping rejection of federal judges’ authority to second-guess any transfer decision made by the U.S. government of a detainee, no matter where held, including Guantanamo.

Three Justices — Ruth Bader Ginsburg, joined by Stephen G. Breyer and Sonia Sotomayor — said in a statement in July in another case that there are unresolved issues about what the Munaf precedent is supposed to mean, especially for Guantanamo prisoners.

Posted in Cases in the Pipeline, Detainee Litigation, Featured