Once more signaling that it will not back down on its rulings curtailing federal judges’ power to review government orders on the fate of Guantanamo Bay detainees, the D.C. Circuit Court on Thursday refused, over two judges’ dissents, to reconsider its decision last May in Kiyemba v. Obama. That decision, known informally as “Kiyemba I” (Circuit docket 09-5424), has been challenged repeatedly — but each time unsuccessfully — in the Circuit Court. Lawyers for detainees, though, are still maneuvering to try to get some of the same basic issues in that case to the Supreme Court in a sequel case.

The en banc Circuit Court offered no explanation as it turned down a rehearing plea by lawyers for five Chinese Muslim (Uighur) detainees who have been cleared for release from Guantanamo, but remain there amid an ongoing dispute about whether they are to be resettled in some country other than their native China, where they fear persecution because of their faith.  (Circuit Judges Judith W. Rogers and David S. Tatel voted to rehear the case, but it would take the votes of five judges to bring that about.)

In the more than two years since the Supreme Court, in Boumediene v. Bush, gave Guantanamo prisoners a constitutional right to challenge their captivity, the Circuit Court has repeatedly issued rulings that — for the most part — pared back sharply the authority of federal District judges to provide much significant relief for the detainees.  The most sweeping of those decisions — in July 2009 — went the furthest.  That is the case that is informally known as “Kiyemba II,” and it is the one that detainees’ counsel want to take to the Supreme Court at some point soon.

Kiyemba I” — the ruling left intact on Thursday — was a decision by the Circuit Court after the case had been returned to it by the Supreme Court.  The latest version of the ruling refused to order a new round of fact-finding on the status of the five Uighurs.  Earlier, the Circuit Court had ruled that a federal judge has no power to order the transfer of Guantanamo detainees to the U.S.  mainland.  A followup case, also titled Kiyemba v. Obama, is known informally as “Kiyemba II.”  In that ruling, the Circuit Court took away almost all of the power of federal judges to regulate transfers of Guantanamo detainees anywhere in the world.

As a result, the Supreme Court’s Boumediene decision has turned out to mean, in the main, that judges can only invite the Executive Branch to try its best to place cleared detainees in a country where they will not undergo torture or persecution.  The Circuit Court has cautioned those judges not to try themselves to regulate what government officials decided to do for or against transfers of the prisoners.  And, in Congress, bills have been passed repeatedly to make sure that none of the detainees is shipped to the U.S. mainland, even to be held in detention.

Detainees’ counsel have been hoping that, sooner or later, they would be able to persuade the Circuit Court to see the legal fate of Guantanamo prisoners in a larger constitutional context, as a fundamentally important test of separation of powers — that is, a test of whether federal judges will be able to act to check government authority over detainees’ ultimate fate.  So far, they have not been able to turn around the votes of enough judges on the full nine-judge Circuit Court to get a rehearing.

Thursday’s order in Kiyemba I itself probably telegraphed a decision by the Circuit Court to deny another plea by detainees’ counsel to get the sequel, Kiyemba II, overturned by the en banc tribunal.  In the pending case of Abdah v. Obama (Circuit docket 05-5224), lawyers in 31 cases asked the Circuit Court in August to assemble en banc, and overturn Kiyemba II.  If that is not done, the attorneys suggested, they would then attempt to put the issue before the Supreme Court.  The Circuit Court has not yet acted on that maneuver.

On Thursday, the Justice Department filed its response in the Abdah case, urging the Circuit Court to continue to turn aside any challenge to Kiyemba II.   That decision, the Department argued, made clear that District judges have no authority to block government plans to transfer any detainee out of Guantanamo, even over a detainee’s objection.  Given the Circuit Court’s repeated refusal to revisit Kiyemba II, the Department said, there is now “no substantial likelihood that this Court will grant” en banc review in the 31 cases led by Abdah.

The Department argued that “Kiyemba II is settled precedent, and as this Court’s recent rulings…suggest, further delay in implementing Kiyemba II to resolve these cases is unwarranted.”

The Department also moved to counter an argument by detainees’ lawyers that the government may opt to send detainees from Guantanamo to a prison run by the U.S. military at Bagram air base in Afghanistan, in order to put those prisoners beyond the reach of any U.S. court.  “The Government has no plan to send petitioners [in any of the 31 cases] to any U.S. base in a foreign country, including the military base in Bagram,” its filing said.  Once again, the Department cited U.S. officials’ sworn statements to the courts that no detainee will be sent to a country where it is “more likely than not” that the prisoner would be subjected to torture or abuse.

Thus, it said, the Circuit Court should wipe out any orders issued by District judges in the 31 cases restricting the government’s discretion about transfers of Guantanamo detainees.

Posted in Detainee Litigation, Featured