Analysis: Major fight brews on Munaf
on Jul 1, 2010 at 8:23 pm
Analysis
The Supreme Court finished a Term this week without deciding another case on detainees’ rights, but there very likely is another Guantanamo Bay case in its future — perhaps its near future. A test of wills is unfolding (though, so far, mostly in secret documents) between a no-nonsense trial court judge and an appeals court panel, which is treating the judge as if she needed to be reined in. The fight is not over how to interpret the Supreme Court’s most imporant ruling so far on detainees’ rights — Boumediene v. Bush — but on “that other” detention case decided on the same day two years ago, Munaf v. Geren. A showdown could be imminent, perhaps drawing in the Supreme Court.
The two decisions by the Justices in 2008, in Boumediene and Munaf, have taken on new lives and been given new meanings as the lower federal courts in Washington, D.C., applied those rulings to Guantanamo Bay detainees on a case-by-case basis. Boumediene, declaring a constitutional right for detainees to challenge their imprisonment, has resulted in a majority of detainees winning their challenges, at least in significant part. Judges in District Court have filled in the gaps the Supreme Court left in the scope of the habeas right granted to the detainees, and the result has been a string of rulings ordering that those prisoners are entitled to release from the U.S. military prison on the island of Cuba.
But whether any more detainees actually get released from Guantanamo, and whether any detainee will be able to prevent his transfer to a country where he fears torture or abuse, are questions that are now immersed in deep doubt because of the way various panels of the D.C. Circuit Court have applied the Munaf decision.
Munaf itself seemed like a narrowly focused ruling, dealing with attempts by two U.S. citizens held by the U.S. military in Iraq to avoid being handed over to Iraqi authorities to face charges for crimes allegedly committed in that country. The Supreme Court ruled that, while they were welcome to file habeas challenges, the courts could not prevent their transfer to Iraq custody. (The decisdion was unanimous, a rarity in Supreme Court rulings on detainees’ rights.)
As interpreted by the Circuit Court, however, Munaf now is said to stand for the proposition that the question of who is tranferred from Guantanamo, and where, is a matter for the Executive Branch, without “second-guessing” by the courts, including federal District judges handling Guantanamo cases. As a result, District judges have generallly concluded that the most they could do for a detainee who has won release is to urge the Executive Branch to use its best efforts to arrange a prisoner’s release or transfer.
But Senior U.S. District Judge Gladys Kessler, a 16-year veteran on the bench, has not limited the remedy she has imposed in a Guantanamo case to a plea for diplomatic efforts only.  That case (docket 05-1347) involves an Algerian national, Farhi Saeed Bin Mohammed, who won a release order from Judge Kessler last November. On May 27, lawyers for Mohammed asked the judge to order the government to carry out his release, but to bar his transfer to Algeria, where he fears persecution or even death from either the Algerian government or from armed terrorist groups there.
Although it is not entirely clear what his legal arguments are, because many of the court filings in both District Court and the Circuit Court remain under seal, it appears that one of the claims made by Mohammed’s lawyers is that the Munaf decision does not apply to cases like his, because that case did not involve a risk of death at the hands of a terrorist organization in his home country.
Judge Kessler has referred to “the seriousness of the issues raised” by Mohammed,  and has said that his claims about what may happen in Algeria if he is sent there “are of great concern.” So, beginning with a temporary order on June 3, Kessler has barred his transfer to Algeria.  Her boldest order came on June 10. Saying that she needed to “test” the government’s assurances that Mohammed would be treated humanely if returned to Algeria, she ordered the top U.S. diplomat in charge of detainee transfers to other countries, Daniel Fried, to appear in her Court on June 29 to defend what she said were his dated and “boilerplate” assurances. Mohammed’s lawyers, as well as the judge herself, would question Fried, she said. (That order was discussed in this post.)
That hearing never took place.  Within a week, the Justice Department had filed a an appeal to the D.C. Circuit (Obama v. Mohammed, Circuit docket 10-5200). The Department asked the Circuit Court to summarily overturn Kessler’s June 10 order, and to do so on an expedited basis.
On June 25, a week after ordering briefing (the papers remain under seal), the three-judge panel of the Circuit Court did not directly reverse Kessler’s order, but it told her to “resolve all outstanding motions in this case” and gave her four days to do so. She also was given some very explicit instructions: she was to decide those motions “in a manner consisent with Munaf v. Geren” (the Supreme Court’s 2008 ruling) and Kiyemba v. Obama, also known as “Kiyemba II“ (the Circuit Court’s 2009 ruling giving an expansive reading to the Munaf decision). (That order is here.)
While the order did not say that Kessler could not hold a hearing on Mohammed’s plea not to be sent to Algeria, it specified that the judge was to rule on that issue “withour requiring testimony from Special Envoy Fried or any other United States government official.”  That, of course, completely undercut the purpose that Kessler had for calling the June 29 hearing.
The Circuit Court also noted that it would allow the parties, if they wished, to file new briefs in Kessler’s Court on Mohammed’s “claimed fear of private individuals or private groups in Algeria” — a claim, the Circuit Court noted, that Mohammed’s lawyers had contended “distinguishes this case from the binding precedents of Munaf and Kiyemba II.” It noted that the Justice Department contested the idea that Mohammed’s case was different.  The order added at the end that the Circuit Court was taking no position on how Munaf and Kiyemba II applied to Mohammed’s claim.
Within a short time after issuing that order, the Circuit Court issued it anew, in amended form. This time, it added a further instruction to Kessler: she was to decide the Mohammed plea “in an order from which a party can take an immediate appeal.” (The amended version of the order is here.)
The Circuit Court thus had taken over, in a significant way, the further proceedings in Kessler’s Court, and has sent her the strongest hint that she risked being overturned if she barred his transfer anew.  Since it noted the binding nature of the precedents she was to observe, the Circuit Court clearly was signaling that, if it accepted the government’s view that Mohammed’s case was no different, Kessler would be found to be without authority to prevent his transfer to Algeria.
Judge Kessler two days later set a new hearing, for Monday, June 28. The hearing was held behind closed doors, and the papers involved remain under seal. After that hearing, the judge issued a sealed order along with a sealed opinion explaining the order. Both remain under seal.
The next day, the Justice Department filed a new appeal. While no one outside the Court and the parties knows exactly what Kessler ordered, the government’s notice of appeal said that it was challenging her action “granting [Mohammed]’s Emergency Motion [filed on May 27] as to his request for a preliminary injunction.” That seems to indicate strongly that Kessler has again barred Mohammed’s transfer to Algeria.
The government’s new appeal is Circuit docket 10-5218.  Again, the Justice Department asked the Circuit Court to summarily reverse Judge Kessler’s new order, and to do so on an expedited basis.  Mohammed’s lawyers have now been ordered to file a response to that by July 6, with the Justice Department response due on July 7.  (The panel is composed of Circuit Judges Thomas B. Griffith, Brett M. Kavanaugh, and David S. Tatel — the same three who issued the June 25 order.)
The stakes are high in this internal judicial jousting, so it seems highly likely that the case will move on to the Supreme Court, at least for purposes of emergency orders.
(Thanks to Josh Gerstein of Politico for a heads-up on some of these developments.)
