Court allows detainee transfer to Libya
on May 1, 2007 at 5:50 pm
UPDATE 5:50 p.m. The Supreme Court late Monday afternoon cleared the way for the government to transfer a Guantanamo Bay detainee, Abu Abdul Rauf Zalita, to Libya; he has claimed that he fears being tortured if returned to his home country after the U.S. military said he was affiliated with a terrorist group that opposes the Libyan regime. Zalita had asked Chief Justice Roberts to bar his transfer until he could appeal to the Supreme Court under various international treaties, including the one that forbids torture. Roberts referred the application to the full Court, resulting in the denial. There was only a brief order, with no comment and no noted dissents. That appears to have been the last obstacle to his transfer, since his lawyer had told Roberts that there was no lower court order forbidding it.
The Bush Administration has argued in a new filing in the Supreme Court that U.S. courts have no role to play in monitoring the release of detainees from Guantanamo Bay, Cuba — including no power to second-guess whether the captives will face torture after being sent abroad.
Responding on Monday to a request by Chief Justice John G. Roberts, Jr., for the government’s views, U.S. Solicitor General Paul D. Clement said that the courts lost any role they may have had in judging detainee transfers when Congress passed the court-stripping provisions of the Military Commissions Act of 2006. Clement challenged the courts’ power to hear a plea by a Libiyan about to be sent to that country, asserting that “applicant has no judicially enforceable rights to support the extraordinary relief he seeks.” (The response can be found here.)
Clement sought to reassure the Chief Justice, however, that no detainee will be transferred if the U.S. government “believes it is more likely than not that the individual will be tortured.” That is for the government to decide, he added.
Attached to the government response was a sworn statement by the State Department’s ambassador-at-large for war crimes, Pierre-Richard Prosper, who argued: “Any judicial review [of detainee transfer orders] and the resulting delays could undermine a foreign government’s ability to prosecute and so harm United States’ efforts to press other countries to act more expeditiously in bringing terrorists and their supporters to justice.” In a second sworn statement, Matthew C. Waxman, the Pentagon’s deputy assistant secretary for detainee affairs, repeated much the same point, and went a bit further, saying that judicial review “could negatively affect our ability to succeed in the war on terrorism.” (The exhibits attached to the government response are available here.)
The filings were in response to an application (Zalita v. Bush, 06A1005) by Abu Abdul Rauf Zalita asking the Chief Justice to bar his imminent transfer from Guantanamo to Libya. “The United States,” the application says, “has made clear its intention to transfer immediately [Mr. Zalita] to the custody of the Libyan government, where he faces a grave risk of arbitrary detention, torture, persecution and extrajudicial assassination at the hands of the dictatorship of Colonel Muammar Al-Qadhafi.”
His lawyer wants the case put on hold until the Court can act on a coming appeal that will test whether Guatnanamo detainees have any constitutional rights, whether they have rights under international treaties against torture and on protection of refugees, and whether Congress acted unconstitutionally in the MCA in barring the courts from hearing such claims.
The Pentagon has declared Zalita to be an “enemy combatant,” after concluding that he was a member of a known terrorist organization, and received weapons training by that group abroad. He has been challenging his detention in U.S. courts since June 2005; both a federal judge and the D.C.Circuit Court have refused to block his transfer to Libya.
In his application to the Chief Justice, Zalita contends that he “has no history of terrorist activity and adamantly denies the United States’ allegations that he is a member of any terrorist organization, including the Libyan Islamic Fighting Group, a political organization opposed to the Qadhafi regime.” He contended that the Libyan regime has a long history of persecuting, torturing and killing members of political opposition groups. If his transfer is not blocked, the application asserted, the Supreme Court would lose any opportunity to rule on his challenge.
In the government’s response, the Solicitor General contended that there is no chance the Supreme Court will hear Zalita’s planned appeal, and that, in any event, the MCA has stripped the Supreme Court and all other federal courts of any jurisdiction to hear challenges to the transfer of any “enemy combatant.”
While other detainees have sought to challenge their continued confinement at Guantanamo Bay, Clement said, Zalita is trying to block his release from U.S. custody. That release has been arranged, the response said, through “an elaborate, inter-agency process to govern the transfer of an enemy combatant from the Guantanamo Bay Naval Base in Cuba to the control of another country, typically the enemy combatant’s home country….For every transfer, a key concern is whether the foreign government will treat the detainee humanlel and in a manner consistent with its international obligations.”
