Chief Justice John G. Roberts, Jr., on Friday cleared the way for the filing in November of a new Guantanamo Bay detainee case, further testing the power of federal judges to weigh or limit transfers of prisoners from that U.S. military prison. The new case is now due to be filed by Nov. 10 in the case of Kiyemba v. Obama — the same title, though with somewhat different issues, as the case the Court on Oct. 20 agreed to hear in docket 08-1234.
Both cases bearing that title are sequels to the Supreme Court’s June 2008 decision in Boumediene v. Bush, esablishing a constitutional right for Guantanamo prisoners to challenge their continued detention. In each, the detainees’ counsel are seeking to curb or control what the Pentagon and U.S. diplomats may do about the release of detainees from Guantanamo.  After the Court granted review is what is now known informally as “Kiyemba I,” detainees’ counsel asked for more time to plan their new appeal in “Kiyemba II.” The Court’s docket sheet entry, here, reflects the Chief Justice’s grant of added time to file, until Nov. 10. The petition otherwise would have been due next Monday.
“Kiyemba I,”  just granted review, tests whether federal judges may grant release of Guantanamo detainees to live in the U.S. “Kiyemba II,” the next case, will ask whether judges may bar transfer out of the prison in Cuba to countries where they fear torture or abuse.  The D.C. Circuit Court found no power in the courts to take either action as a remedy in a habeas case.
The lawyers will use the added time to file Kiyemba II to decide whether to ask the Court to delay any action on it until after Kiyemba I is decided, or to take other action on it.
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