As promised, the government filed its opposition to the Kiyemba II petitioners' request for a stay of the D.C. Circuit's mandate. SCOTUSblog actually reported on the brief about an hour after I posted my previous Kiyemba II post, but I couldn't turn around and write another post about it so soon after the first. SCOTUSblog is a machine, I am just one man. Cut me some slack. I think the government's response is lackluster at best and occassionally misleading at worst.
A big part of both of these briefs is based on the Supreme Court's decision in Munaf v. Geren which is a case I had not read up to this point. I have read it now and will give a brief rundown here. The Munaf case is about two prisoners that were being held by the U.S. in Iraq. In pertinent part, the two prisoners in that case were seeking to stop the U.S. from releasing them to Iraqi authorities for fear of prosecution and torture. They essentially argued that habeas protections should require the court to enjoin their release to the Iraqi government. The Supreme Court disagreed and said that habeas offered these two no protection in this case. The Munaf decision said two things that I think are important to understanding the arguments in Kiyemba II. First, the Court said that habeas did not apply to the two petitioners in Munaf because they committed crimes in Iraq and were being held in Iraq. The Court said that allowing habeas to protect the two from release would interfere with the Iraqi government's sovereign power to punish crimes in its own land committed by people still being held in Iraq. Second, the Court said that the determination of whether a country is likely to torture or otherwise abuse a prisoner if transferred there is one left to the political branches. This statement was fairly resolute, but there seemed to be some wavering to this point in the concurring opinion in Munaf.
So that is your background for Munaf. The government's opposition brief here in Kiyemba II is fairly straightforward and is based almost exclusively on Munaf. The government's two main arguments here are: 1) the Kiyemba II petitioners are in essentially the same factual situation as the ones in Munaf; and 2) that the torture determination is one to be made the political branches.
As far as Munaf being completely applicable to Kiyemba II because the facts are similar I completely disagree. I agree with Petitioners' argument in Kiyemba II that Munaf was based on a very fact specific determination. The Court's decision in Munaf came back to the fact several times that the petitioners in that case had committed crimes in Iraq and that they were currently being held there. The Court's major consideration in Munaf was not to allow those petitioners to use habeas as a tool to get the U.S. to shelter them from the power of a country in which they were currently being held. In the case of the Kiyemba II petitioners the prisoners are being held in Cuba for no legitimate reason. They ended up in U.S. custody because American authorities wrongly apprehended them because they mistakenly believed they were training to attack the U.S. Their habeas cases have already been decided and they won. They should have been released long ago, but they remain incarcerated for various reasons. Munaf simply does not apply in this sense. If they had committed crimes in Cuba, and had they not already won their habease cases then it would probably apply, but they did not and that is a very important factual distinction.
The second main argument about leaving the torture determination to the political branches is one that the government harps on over and over and over again in this brief. It seems like they cling to it because the language in Munaf seemed particularly clear on that subject. I will agree with the government that the Court in Munaf did say that the likelihood of torture determination should be left to the political branches. However, the government claims that this ruling in Munaf is unambiguous. I disagree with that a little bit because there is language in the concurrence that suggests that judicial review may be appropriate if there is a good deal of evidence that torture is likely and the government is going to go through with the transfer anyway.
In the end the government simply misses the boat in their brief because they don't focus at all on the fact that the petitioners are not trying to avoid release like the ones in Munaf. Petitioners in this case merely want advanced notice before they are released so that they might be able to stop a release that may send them to a hostile country. I think I only saw the word "notice" one time in the government's brief. It pretended like the petitioners were attacking the government's ability to release them at all, but release is exactly what Petitioners want. They desperately want to get out of Gitmo, which courts have already said they have the right to do, but they don't want to be sent to a country that may torture or kill them. The government just doesn't address the fact that notice is what Petitioners are looking for in this case. That fact alone distinguishes Kiyemba II from Munaf. Since the government's entire brief is based on the that alleged similarity that makes that government's brief extremely weak and I think it should make Petitioners' request for a stay likely to be granted.