Kiyemba II, again

D.C. Circuit Court judges have issued orders requiring that Guantanamo detainees not be transferred for at least 30 days after the detainee’s lawyer is notified of the possible transfer.  The Circuit Court asked lawyers for 31 Guantanamo detainees to respond to a request by the Department of Justice to vacate those orders.  In two filings this week by the detainee’s lawyers addressed this issue.  The first asked the full Circuit Court to overrule Kiyemba II.  In the second filing, the lawyers asked the Circuit Court not to vacate any of the transfer-notice orders until after the plea for en banc review had been resolved.

Behind the continuing challenges to “Kiyemba II” lies another goal of detainees’ lawyers: to persuade the Supreme Court to pare down a 2008 ruling by the Justices, in the case of Munaf v. Geren, that has been interpreted very broadly by the D.C. Circuit in curtailing what federal judges can do about Guantanamo prisoners’ fear of being sent to countries where they would be at risk of torture or death.  In July, three Justices indicated that there are “important questions” about judges’ powers that did not get resolved in Munaf.  Those questions are what detainees’ attorneys want to get back before the Supreme Court at some point.  The Munaf case, dealing with prisoners held by the U.S. military in Iraq, had nothing directly to do with Guantanamo detainees — until the D.C. Circuit started applying it to them last year.


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