Detainees get new chance in court
on Mar 14, 2008 at 10:39 am
The D.C. Circuit Court ruled, in a 2-1 decision Friday, that federal trial judges still have the authority — for the time being, at least — to stop the government from transferring Guantanamo Bay detainees to countries where they fear torture. District Court judges may consider pleas to block such transfers, the Circuit Court said, at least until the Supreme Court decides two pending detainee cases that may spell out federal courts’ powers over detainees in general.  The decision can be downloaded here.
The case involves Ahmed Belbacha, an Algerian who fled his country eight years ago to seek asylum in Britain. He has since been captured and then transferred to Guantanamo Bay. The government has indicated that it is considering releasing him from Guantanamo, but only to be returned to his home country. Belbacha has been pursuing a legal challenge to that plan, arguing that he is likely to be tortured either by the government or by an extremist group that has threatened him in the past. Besides challenging a transfer, Belbacha also is contesting his designation as an “enemy combatant” — the status that determines that he must remain captive, at least until the government chooses to release him.
Those claims, the Circuit Court said Friday, are “colorable.” Thus, it concluded that the District Court has jurisdiction to consider whether to issue an order barring his transfer while his habeas case proceeds. That jurisdiction remains, the majority said, primarily because the Supreme Court has agreed to hear the cases of Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196).  The majority commented: “Should the Supreme Court hold in Boumediene that a detainee at Guantanamo Bay may petition for a writ of habeas corpus to challenge his detention, and should the district court conclude that Belbacha’s detention is unlawful, then the Executive might be without authority to transfer him to Algeria.”
Even though Congress has moved to bar all federal courts from hearing any detainee’s habeas claim, the Circuit Court said, that does not disturb the District Court’s authority to “grant Belbacha preliminary relief.” Congress’ action does not displace the “remedial powers” of federal judges in seeking to protect their jurisdiction while the Supreme Court ponders the Boumediene and Al Odah cases, it added.
The Circuit Court, of course, has ruled that Congress did not act unconstitutionally when it sought to strip federal courts of authority to hear detainees’ habeas challenges. But that is the ruling that the Supreme Court is considering in the cases that it heard on Dec. 5. A decision by the Justices is expected some time this spring or early summer.
“Our holding in Boumediene,” the Circuit Court said, “does not make Belbacha’s argument for the jurisdiction of the disricts court less than colorable.” It noted that it has not enforced its Boumediene ruling in other cases and that District Courts also have not acted on government requests to dismiss all habeas cases under that ruling and under the court-stripping provision enacted by Congress.
“A decision of this court,” the majority said, referring to its Boumediene ruling, “is binding upon a later panel and upon the district court. We hold, nonetheless, that when the Supreme Court grants certiorari to review this court’s determination that the district court lacks jurisdiction, a court can, pursuant to the All Writs Act,…and during the pendency of the Supreme Court’s review, act to preserve the status quo in other cases raising the same jurisdictional issue if a party satisfies the criteria for issuing a preliminary injunction.”
The Court did not rule that Belbacha’s lawyers had yet made the case that a District Court should issue such an injunction, but the ruing gives them the chance to try.
Circuit Judge Douglas H. Ginsburg wrote the opinion, joined by Circuit Judge Thomas B. Griffith.  Circuit Judge A. Raymond Randolph dissenting, saying the District Court in Belbacha’s case had already decided that it had to follow the Boumediene decision of the Circuit Court, so it makes no sense to send the case back “so that it may decide whether to issue a temporary injunction in aid of its jurisdiction to decide something it has already (correctly) decided.”
