New Cert. Petition-Khadr v. Obama

By Larkin Reynolds
Monday, December 6, 2010, 10:40 PM

Today, Omar Khadr and fellow habeas petitioners filed a cert. petition in one of a number of non-merits Guantanamo matters. The petition challenges the D.C. Circuit's September decision to vacate several 2008 orders issued by Judge Thomas Hogan in the wake of the Supreme Court's Boumediene decision. Judge Hogan's 2008 orders had imposed a requirement that the government provide 30 days' notice before transferring any detainee from Guantanamo. The D.C. Circuit's decision vacating the notice orders relied on its April 2009 Kiyemba decision ("Kiyemba II"), and the Khadr petitioners thus effectively challenge Kiyemba II as well.

The Khadr petition presents two issues for the Court's resolution--both quoted below.  The arguments on the first question are actually those made by Farhi Saeed Bin Mohammed in his own cert. petition, which is now public and incorporated by reference in the Khadr petition.  (Lyle Denniston's summaries of the issues implicated in the Mohammed petition are here and here.)

Questions presented in Khadr:

1. Whether, in a habeas corpus action brought by an individual held in United States territory, including Guantánamo,
(a) Munaf v. Geren, 553 U.S. 674 (2008), requires, and
(b) Boumediene v. Bush, 553 U.S. 723 (2008), 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 there, and the court from fashioning an equitable remedy.

2. Whether, in a habeas corpus action brought by an individual held in Guantánamo:

(a) Section 242(a)(4) of the Immigration and Naturalization Act, 8 U.S.C. § 1252(a)(4), bars “judicial review of any cause or claim under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment,” except in appeals from final orders of deportation.