Another legal setback for detainees

[ProSense]

Another legal setback for detainees

Tuesday, April 7th, 2009

The D.C. Circuit Court, in a compromise decision that opens the courts somewhat further to detainees being held at Guantanamo Bay but limits what courts can do in response, ruled on Tuesday that the government has broad authority to transfer prisoners to other countries. The Executive Branch can do so, the Circuit Court indicated, without “second-guessing” by the courts, and without advance notice to detainees’ lawyers who wanted a chance to try to block a transfer they feared would lead to torture in another country.

The decision spoke in sweeping terms, but its practical impact may be limited to a situation where, because of conditions in the country where a transferee would go, torture was in prospect. The Circuit Court in essence said that detainees need not worry about that, because it is government policy — which it said the courts are obliged to respect — that it will not approve a transfer to any country where torture was a likelihood.

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The Court also declared that courts are not to interfere with a decision by the Executive Branch to transfer a detainee to a country where the individual could again be detained, or could be prosecuted for some crime, when confinement or prosecution would be based only on that country’s laws. It said, though, that it was not passing upon the government’s power to transfer a detainee to another country for confinement just to put him beyond the reach of U.S. courts.

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Circuit Judge Brett M. Kavanaugh joined the Ginsburg opinion, but wrote separately. Among other separate comments, Kavanaugh said that Congress could, if it wished, put limits on the Executive’s transfer of detainees to other nations. If Congress wanted to expand the courts’ power to second-guess such transfer decisions, it has the power to do so, Kavanaugh said.

Circuit Judge Thomas B. Griffith agreed that federal judges have authority to hear the challenge to transfer, but dissented on the majority’s rejection of the detainees’ plea for notice and a chance to object to transfer. “I do not believe,” Griffith wrote, that “Munaf compels absolute deference to the government on this matter, and I believe the promise of Boumediene requires that the detainees have notice of their transfers and some opportunity to challenge the government’s assurances.”

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