One significant detainee case over?

By Lyle Denniston
on Jan 6, 2011 at 7:08 pm

The much-contested case of an Algerian national detained at Guantanamo Bay, who feared being sent home, apparently will now end, with the Obama Administration’s just-disclosed transfer of him to that country.  The case of Mohammed v. Obama (docket 10-746) was one of eight new Guantanamo cases that had reached the Supreme Court in recent weeks, raising basic questions about the law of detention.  Mohammed’s case, in particular, involved a significant plea for the Court to clarify one of its prior rulings on courts’ powers in detention cases — a plea that three Justices previously said should be reviewed.

The transfer of Farhi Saeed Bin Mohammed made his case the latest of several cases, going back to the Bush Administration, in which the government headed off court review of war-on-terrorism issues by changing the legal status of the individual involved.  The courts have not formally resisted those efforts, although one federal appeals court judge sternly protested.

In the case of the Algerian, Mohammed, the Obama Administration on Wednesday used the authority given to it by the D.C. Circuit Court to carry out a transfer out of the Guantanamo prison to a foreign country without notifying the individual’s attorneys, even when a specific prisoner objects to the transfer.  Mohammed’s move to Algeria became known publicly on Thursday only with the filing of two government documents in the D.C. Circuit, and in a Pentagon news release.

Mohammed’s case was moving ahead in the Supreme Court.  On Dec. 28, the Administration gained permission to postpone filing its response to his petition until Feb. 4.  After that, the Obama Administration moved to bring about his transfer without any public mention that this was about to happen.  The government has repeatedly argued in court that such secrecy is necessary because of the delicacy of diplomatic negotiations over transfers of Guantanamo detainees to a foreign land.

On Dec. 29, the Justice Department filed a motion — stamped “SECRET” —  in the D.C. Circuit, reporting that the State Department had resumed discussions over Mohammed’s possible transfer to Algeria, and now had an agreement to send him home “no later than January 10.”  The motion was filed as a classified document without notice to Mohammed’s lawyers, it said, because the Circuit Court had ruled that detainees and their lawyers need not be given notice of a potential transfer.  “Such notice,” the motion said, “can interfere with the Executive’s ability to successfully engage in sensitive diplomatic negotiations.”

The Department’s lawyers went so far as to ask the Circuit Court, in that motion, not to record the filing of the document on its public docket.  To do so, it said, would in fact “provide counsel and the public the very information that we are seeking to file ex parte” – that is, without notice to the other side in the case.  If the Circuit Court were not willing to keep the filing off of its docket, the filing said, it should simply be handed back to the Department unfiled.

That formerly secret document, now declassified, was attached to a new motion, filed Thursday in the Circuit Court, to withdraw the earlier plea for secrecy.   The new motion, with the Dec. 29 filing attached, can be read here.

In a separate motion filed at the Circuit Court Thursday (found here), the Justice Department asked the Circuit Court to dismiss as “moot” appeals that both the government and Mohammed had pending in that Court over his habeas situation.  While Mohammed at one point had won a District Court order that he be released, he also had later won a separate order blocking his transfer to Algeria for fear of persecution or death in that country.  He is one of six Algerians at Guantanamo who have sought to bar being sent home.  That later order in Mohammed’s case was summarily overturned by the Circuit Court, and the Supreme Court last July refused to get involved.

Attached to the new dismissal motion was the Pentagon’s news release Thursday announcing Mohammed’s transfer to Algeria.

When Mohammed’s plea to block transfer was denied by the Supreme Court on July 16, three Justices dissented, saying the case raised “imporant questions” that the Court had not yet answered about the meaning of a 2008 decision, Munaf v. Geren, that restricted the habeas powers of U.S. federal judges when the U.S. military was holding a citizen overseas.  (This  blog reported on the Justices’ action  in this post.)  Justice Ruth Bader Ginsburg, joined by Justices Stephen G. Breyer and Sonia Sotomayor, filed that dissent.  (At that time, the Court had one vacancy; Justice Elena Kagan had not yet joined the bench.)

Mohammed was not sent to Algeria after that judicial activity last summer.  On Nov. 5, his attorneys filed a petition for cert. in the Supreme Court.  Here is the question the petition sought to raise:  “Whether, in a habeas corpus action brought by an individual held in United States territory, including Guantanamo, (a) Munaf v. Geren..., requires, and (b) Boumediene v. Bush…, the Suspension Clause, and the Due Process Clause permit, the district court to give conclusive effect to the government’s assertion that the individual is unlikely to be tortured if transferred to a particular country, disabling the individual from challenging his transfer on the ground that he will likely be tortured, and the court from fashioning an equitable remedy.”

(NOTE TO READERS: The following paragraph has been updated to reflect the factual situation with the case discussed.) 

That same question is posed in another of the new Guantanamo petitions, Khadr v. Obama (10-751).  The lead figue in that case is a young Canadian, Omar Ahmed Khadr, but it also involves others at Guantanamo.  The Justice Department response to that petition is now due Feb. 7.  While Khadr himself is scheduled to be sent home to Canada after serving a year in military prison at Guantanamo after his conviction there in October by a military commission, the fact that others are also involved in that petition appears to assure that the case would not lose its legal significance even with Khadr scheduled to depart..