Federal Judiciary

Munaf test reaches Court

By Akin Gump Supreme Court Practice Group

An Algerian national, seeking to avoid being sent from Guantanamo Bay to his home country, on Tuesday asked Chief Justice John G. Roberts, Jr., to temporarily delay any transfer until after the detainee’s appeal is pursued.   The case of Farhi Saeed bin Mohammed, proceeding largely in secret in lower courts, poses a major test of federal judges’ power to assert control over the legal fate of Guantanamo prisoners.

At its core, the case could test how the Supreme Court reconciles two opinions on detainee rights that it issued on the same day, June 12, 2008 — Boumediene v. Bush, and Munaf v. Geren.   At the time they were decided by the Justices, Boumediene appeared to be far more significant.  But, at the D.C. Circuit Court, the Munaf ruling has taken on broad significance when applied as a strict limitation on the authority of federal judges handling the detainee habeas challenges that Boumediene  had authorized.

As of Tuesday afternoon, the only document in the appeal by Mohammed’s lawyers that was publicly available was a motion to file under seal the emergency request to the Chief Justice for a stay of the Circuit Court decision last Thursday.  (The case is Mohammed, et al., v. Obama, et al., 10A52).  A three-judge Circuit Court panel summarily overturned an order by a District judge temporarily barring Mohammed’s transfer to Algeria, where he fears persecution or death by a terrorist group or the government there.  The Circuit Court’s opinion in the case remains under seal, and is not due for release in a redacted version until later this week, at the earliest.  (A Circuit Court order regarding preparation of that version is here.)

Mohammed’s lawyers said in a footnote to their motion that they would work with government attorneys to prepare a public version of the application for a temporary stay.  (A post on this blog discussing the Circuit Court’s latest ruling against Mohammed can be found here; it includes a link to an earlier, more extensive post on the case.)

The challenge to potential transfer to Algeria was filed one day after the Circuit Court panel refused his request to postpone the issuance of its mandate.  (The order denying that motion is here.)   At the Circuit Court, the case is filed under docket 10-5812.  Only a few orders in the case, and none of the written pleadings by the two sides, are publicly available. For example, when the government opposed Mohammed’s plea to delay the mandate’s issuance, it filed a classified brief in support.   The order by District Judge Gladys Kessler, issued June 29, temporarily barring Mohammed’s transfer also remains under seal.

The government pursued an emergency appeal of that order, as it did an earlier temporary order by Kessler. Each time, the Circuit Court summarily reversed the judge.  On the most recent reversal, Circuit Judge David S. Tatel filed a partial dissent to the order, which was issued by Circuit Judges Thomas B. Griffith and Brett M. Kavanaugh.

Full post as published by SCOTUSBLOG on July 13, 2010 (boomark / email).