Another legal setback for detainees
on Apr 7, 2009 at 3:12 pm
The D.C. Circuit Court, in a compromise decision that opens the courts somewhat further to detainees being held at Guantanamo Bay but limits what courts can do in response, ruled on Tuesday that the government has broad authority to transfer prisoners to other countries. The Executive Branch can do so, the Circuit Court indicated, without “second-guessing” by the courts, and without advance notice to detainees’ lawyers who wanted a chance to try to block a transfer they feared would lead to torture in another country.
The decision spoke in sweeping terms, but its practical impact may be limited to a situation where, because of conditions in the country where a transferee would go, torture was in prospect. The Circuit Court in essence said that detainees need not worry about that, because it is government policy — which it said the courts are obliged to respect — that it will not approve a transfer to any country where torture was a likelihood.
The decision left open a possible judicial check against a transfer if the government knew that a specific country was likely to torture a detainee, yet planned to send him there anyway. The Circuit Court did not make that a binding exception to its decision, simply saying it was not faced with that circumstance as of now so it did not decide it.
The Court also declared that courts are not to interfere with a decision by the Executive Branch to transfer a detainee to a country where the individual could again be detained, or could be prosecuted for some crime, when confinement or prosecution would be based only on that country’s laws. It said, though, that it was not passing upon the government’s power to transfer a detainee to another country for confinement just to put him beyond the reach of U.S. courts.
The ruling came in a case titled Kiyemba v. Obama (05-5487). The decision is not to be confused with another one by the same name, issued by the Circuit Court in February, that was challenged Monday in an appeal to the Supreme Court. Both, however, involve Chinese Muslim (or Uighur) detainees who remain at Guantanamo even though cleared of terrorism suspicion. Thus, these detainees could seek to put Tuesday’s ruling on hold while their other, more basic challenge to their continuing captivity and their plea for actual release remain before the Supreme Court.
The ruling wiped out orders issued by a federal judge seeking to assure the Uighurs that they would not be shifted to another country before their lawyer could object. Because their religious sect has been persecuted in their home country, China, they did not want to risk being sent back.
The orders required 30 days’ advance notice to the Uighurs’ counsel. The lawyers had argued that they needed notice in order to try to take steps to keep the detainees’ habeas challenge alive, rather than have it thwarted by a transfer before the court could rule.
The detainees, the Circuit Court said in an opinion written by Circuit Judge Douglas H. Ginsburg, are not entitled to notice of transfer because they ultimately could not obtain a court order that would stop their transfer to a country where they would face torture or further detention.
The case, Ginsburg wrote, is governed by the Supreme Court’s ruling last June in the case of Munaf v. Geren. There, the Justices ruled that two U.S. citizens, being held by the U.S. military in Iraq, could file a habeas challenge but that a U.S. court could not bar their transfer to the Iraqi government for prosecution for crimes allegedly committed in that country.
The Munaf decision, Judge Ginsburg wrote, established that courts may not judge a planned transfer of a detainee to another country in the face of “the policy of the United States not to transfer a detainee to a country where he is likely to be tortured.”
Because of that policy, the opinion went on, “detainees are not liable to be cast abroad willy-nilly without regard to their likely treatment in any country that will take them.” Thus, U.S. courts “may not question” the government’s assurance that “a potential recipient country is not likely to torture a detainee.
The Circuit Court also relied on the Munaf decision for the conclusion that a federal judge may not “issue a writ of habeas corpus to shield a detainee from prosecution or detention at the hands of another sovereign on its soil and under its authority.”
Before reaching these ultimate parts of the ruling, the Circuit Court did provide the detainees with a measure of legal victory. It rejected the Justice Department argument that Congress had taken away any right by detainees to go to court to challenge their possible transfer out of Guantanamo.
The Justice Department had contended that the Supreme Court, in its decision in Boumediene v. Bush last June recognizing a constitutional right to habeas, had only approved a habeas challenge to detention, and not to any other aspect of a detainee’s situation, including transfer. Anything other than a “core” habeas right, the Department had argued, was wiped out by Congress in the Military Commission Act of 2006.
The Boumediene ruling was not limited in that way, Judge Ginsburg wrote. The Supreme Court, he said, did not draw a line between “core” claims in habeas, and any other claims. “We read Boumediene to invalidate [the congressional limit on habeas rights] with respect to all habeas claims brought by Guantanamo detainees.” As a result, Ginsburg added, the Supreme Court has now restored full habeas rights under the long-standing federal habeas statute.
Thus, the opinion concluded, the Circuit Court retained jurisdiction to decide the detainees’ challenge to transfer. From that point on, however, the Circuit Court ruled that the prisoners could not prevail on that challenge on its merits.
Circuit Judge Brett M. Kavanaugh joined the Ginsburg opinion, but wrote separately. Among other separate comments, Kavanaugh said that Congress could, if it wished, put limits on the Executive’s transfer of detainees to other nations. If Congress wanted to expand the courts’ power to second-guess such transfer decisions, it has the power to do so, Kavanaugh said.
Circuit Judge Thomas B. Griffith agreed that federal judges have authority to hear the challenge to transfer, but dissented on the majority’s rejection of the detainees’ plea for notice and a chance to object to transfer. “I do not believe,” Griffith wrote, that “Munaf compels absolute deference to the government on this matter, and I believe the promise of Boumediene requires that the detainees have notice of their transfers and some opportunity to challenge the government’s assurances.”
Griffith also commented: “The stakes of unlawful custody, which led the [Supreme] Court in Boumediene to extend habeas protections to the detainees in the first place, are no higher than the stakes of unlawful transfer. Indeed, because an unlawful transfer will deny the deainees any prospect of judicial relief, protecting their habeas rights in this context is vital.”
