Some may be thinking that Voodoo has given up on his blog and that I don't have the drive to carry on. A pox on your house if you are one of them. I've been running around all over the Mid-Atlantic/Southeast region of this country for the past three weeks trying to move, vacation, and chill out for awhile. But fear not for I am back and regular blogging should be resuming, and what better way to start it off than with a new Kiyemba post.
Don't get excited because this post is not about the Kiyemba case that I've written so many posts about. Remember, the Supreme Court is still considering that case's cert petition and it will make a decision as to whether it will hear that case as soon as the justices get back from summer camp. That should be some time in late September or October I believe. This post looks at the case being dubbed Kiyemba II. This case deals with a challenge by the Uighur detainees ("Petitioners") asking that they be given advanced notice before the U.S. transfers them out of Gitmo and out of the reach of the U.S. court system. Petitioners' central concern is that they don't want the U.S. government to order a surprise transfer in which they are taken out of Gitmo and sent to another prison outside the reach of U.S. courts or sent back to China where they will almost certainly be tortured and/or executed.
The procedural history of this case is slightly convoluted and took me awhile to figure out, but what is most important to know is that the motion discussed in this post is a motion to stay the mandate of the D.C. Circuit Court during the pendency of Kiyemba II's cert petition to the Supreme Court. The mandate that Petitioners seek to stay says that Gitmo detainees do not have a right to notice before they are transferred even if they fear being tortured or prosecuted by the transferee country.
I'm not going to get deep into the minutiae of this motion because the argument centers around the legal test for staying a court order. I don't think that it is important to get into the esoteric legal details of that argument here; however, it is important to understand what this case is about and what the arguments being made are actually saying. First, as already discussed, Kiyemba II is about Petitioners getting the right to have notice from the government before they are transferred so that they can see where they are going and challenge that transfer if it will take them to a country that will further prosecute, torture, execute, or violate their rights in some other way.
Second, I think that what the arguments are actually saying here is that not allowing for pre-transfer notice to detainees is a huge blow to the habeas rights given to detainees in Boumediene to the point that it may "[render it] hollow." This argument should sound very familiar because it is the central ideological argument in Kiyemba I. In Kiyemba I Petitioners are saying that they are entitled to release from Gitmo to an acceptable country, even if it has to be the U.S., because they won their habeas cases. To not allow them release is anathema to both Boumediene and the constitutional right of habeas itself. Petitioners argue in Kiyemba II that allowing the government to surprise detainees with transfer without any right to analyze the specifics of the transfer and challenge the transfer is another way for the government to potentially skirt the legal process and constitutional protections.
This discussion is fairly superficial and if you want to get acquainted with the specifics of the argument then you should definitely read the motion. There is also a good discussion of it by Lyle Denniston on SCOTUSblog. I just want to say that I agree with Petitioners' argument here. The government should most certainly not be allowed to circumvent the habeas protection promised to detainees by transferring them out of the judiciary's jurisdiction or by transferring them to countries that may very well violate their legal or human rights. That being said I don't believe that the government would try to solve the detainee problem through surprise transfers. The first reason I believe this is that such a move would be a public relations nightmare. The administration would be torn apart in the court of public opinion for trying to do this. Secondly, we've already seen a concerted effort by the government to find suitable countries for relocation. Proof positive of this came in June when four of the Uighur detainees were transferred to Bermuda and it seems like the administration is doing all it can to find suitable transferee nations for those detainees that qualify. I think that if the government were going to try to solve the detainee problem by quick transfers then they would have done it already and not waited until Kiyemba I got so much publicity and made it all the way to the Supreme Court. Finally, I don't think surprise transfers are likely because of the part of the Supplemental Appropriations Act that requires the Executive to give Congress fifteen days notice before a Gitmo detainees is released or transferred. Petitioners in this case recognize that this law is on the books and requires notice, but they argue that the law cuts the courts out of the decision as to whether transfer would be appropriate. While that argument is true I don't believe that Congress would sanction a transfer that was clearly meant to remove a detainee from U.S. court jurisdiction or that was going to send the detainee to a questionable country. Again, the court of public opinion should keep the Executive's and Congress's actions in check in this situation.
A reply brief by the government should be forthcoming and I'll keep you updated on that.