Detention & Guantanamo

Another Cert Petition to Get Munaf and Kiyemba II Before the Justices

By Benjamin Wittes
Friday, September 23, 2011, 5:29 PM

It comes in the case of Abdah and is available here, posing the following question:

Whether, in a habeas corpus action, a Guantánamo detainee has a right to challenge his transfer to a
foreign country on the ground that he is likely to be tortured there, and a court has the power to enjoin
the transfer upon a proper showing by the detainee.

The overview of the case reads:

Petitioners are Guantánamo detainees who have brought habeas corpus actions challenging the lawfulness of their detention. In this case, the court of appeals summarily vacated orders of the district court requiring the government to give a detainee’s counsel and the court 30 days’ advance notice of the detainee’s transfer from Guantánamo. App. 1a. The court cited its earlier decision in Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) (“Kiyemba II”), as compelling the result. App. 2a. In Kiyemba II, the court of appeals read Munaf v. Geren, 553 U.S. 674 (2008), to preclude the district court from enjoining a Guantánamo detainee’s transfer to a particular country, based on the detainee’s fear of torture, if the government has determined that the detainee is unlikely to face torture in that country. The advance
notice requirement was invalid, the court reasoned, because the requirement itself had the effect of enjoining the detainee’s transfer during the 30-day period. Obviously, however, a detainee can challenge his transfer only if he has advance notice of the transfer. By holding the notice requirement invalid, Kiyemba II effectively held that a detainee, in a habeas corpus action, has no right to challenge his transfer based on his fear of torture in the receiving country.

The court of appeals has twice applied Kiyemba II to preclude a detainee from challenging his transfer to a particular country based on his fear of torture. In one of those cases, the detainee applied to this Court for a stay of transfer pending his filing of a petition for certiorari. The Court denied the application. In a dissenting statement, joined by Justice Breyer and Justice Sotomayor, Justice Ginsburg stated: “I would grant the stay to afford the Court time to consider, in the ordinary course, important questions raised in this case and not resolved in Munaf v. Geren, 553 U.S. 674 (2008).” Mohammed v. Obama, 131 S. Ct. 32 (2010) (No. 10A52). This Court denied a similar stay application in Naji v. Obama, 131 S. Ct. 32 (2010) (No. 10A70). The government mooted both detainees’ cases by transferring them before this Court could decide whether they were entitled to challenge their transfers.

The court of appeals acknowledged that Congress, in the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), has allowed judicial review of torture claims under the Convention Against Torture (“CAT”), as part of judicial review of a final order of removal. But the court also read the REAL ID Act of 2005 to make such review “the sole and exclusive means for judicial review of any cause or claim under the [CAT].” Based on its reading of these provisions, the court of appeals held that, while individuals may assert CAT claims in appeals from final orders of revoval, a detainee, facing the same threat of torture if transferred to the same country, cannot assert CAT claims in a habeas corpus action.

As discussed below, review is warranted for at least three reasons: First, to clarify whether Munaf bars a detainee, in a habeas corpus action, from challenging his transfer to another country based on his fear of torture. Second, to resolve whether a detainee has a right under the Due Process Clause to challenge his transfer based on his fear of torture and, a fortiori, a right to advance notice of his transfer. Third, to consider whether Congress, through FARRA and the REAL ID Act, has limited CAT claims to judicial review of final orders of removal, thereby precluding individuals from asserting CAT claims in habeas corpus actions, and whether, if Congress is understood to have so limited the assertion of CAT claims, the limitation violates the Suspension Clause and the equal protection guarantee of the Due Process Clause.