Supreme Court Friday: Secret D.C. Circuit Court of Appeals proceedings (overruling lower court), allowing Obama DOD to rendition Guantanamo prisoner fearing torture to Algeria, can take effect before appeal is heard

As originally posted in the reader-diary section of; the post’s 2010 comment thread is available at that link.

Here’s the pitiless, anodyne legal formalism behind which a man’s life or liberty likely hangs in the balance:

FRIDAY, JULY 16, 2010



The application for stay presented to The Chief Justice and by him referred to the Court is denied.

Justice Ginsburg, with whom Justice Breyer and Justice Sotomayor join, dissenting.

I would grant the stay to afford the Court time to consider, in the ordinary course, important questions raised in this case and not resolved in Munaf v. Geren, 553 U. S. 674 (2008).

The Supreme Court, of course, is on vacation until October, having left crucial questions unaddressed and unresolved in its last term, and left unreviewed crucial panel decisions of the lower D.C. Circuit, which directly impact the fate of Guantanamo prisoners. [Chief Justice Roberts, for example, who was responsible for hearing bin Mohammed’s plea to reinstate Judge Kessler’s injunction this week, will be lecturing about the American Bill of Rights – the Fifth Amendment, the Sixth Amendment, etc. – in Australia later this month…]

Farhi Saeed bin Mohammed, however, like every other Guantanamo inmate, is not on vacation. He won his habeas corpus appeal last November. [Translation: Independent federal District Judge Gladys Kessler, after hearing all the evidence the government could muster about his pre-capture activities, while detaining this man for seven years, using its many Pentagon and DOJ resources and outsourced torture-state contractors, determined in an adversarial proceeding with a pro bono civilian attorney acting on bin Mohammed’s behalf, that it was not “more likely than not” that bin Mohammed was a participant in the conflict authorized by the 2001 AUMF (against forces responsible for the 9/11 attacks), and therefore that he has been unlawfully detained by the American military under the law of armed conflict since February, 2002.]

As of yesterday, however, bin Mohammed was still a prisoner at Guantanamo, despite having made an emergency motion in May to effect his release to a nation other than Algeria, where he fears for his life at the hands of both the government and terrorist gangs in that nation.

Lyle Denniston at, who has been all over this story (as has Josh Gerstein of Politico), puts the recent events that culminated in Friday evening’s ruling by a Supreme Court majority – consisting of Justices John Roberts, Jr., Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, Jr. – into plain English:

Lyle Denniston | Friday, July 16th, 2010 7:44 pm

UPDATE Saturday 5:50 a.m. Late Friday night, the Court, without noted dissent, refused to delay the transfer of a second Algerian, Abdul Aziz Naji. The order is here.


In the first indication that the Supreme Court will not allow federal judges to interfere with government controls on who leaves or stays at Guantanamo Bay, the Court Friday evening cleared the way for the transfer of an Algerian detainee to his home country over his protest. The action divided the Court 5-3; the dissenters noted that the case involved “important questions” the Court has yet to answer. The Court’s action was not a final ruling on those questions; rather, it was a refusal to block a lower [D.C. Circuit panel] court order letting the government, not a judge, decide the transfer issue.

While the order would not prevent lawyers for the Algerian, Farhi Saeed Bin Mohammed, from going ahead with an appeal seeking to challenge his transfer, such an appeal very likely would lose all of its significance if the government opts to send him to Algeria promptly. Nothing in the order prevents that result, which probably would moot the controversy.

Mohammed is one of six Algerians now at Guantanamo, each of whom is trying to head off being sent to their homeland because each fears that he faces torture or death, either from the Algerian government or from a terrorist group operating in that country — a fear the U.S. government says is not well-founded.


But, since the Munaf decision was issued by the Court on June 12 two years ago, the D.C. Circuit Court has given it a wide interpretation, ruling that it bars any federal judge from “second-guessing” a decision by the Pentagon and State Departments that controls the ultimate fate of detainees who have been cleared by judges for release. In Mohammed’s case, for example, the Circuit Court relied upon only one Supreme Court precedent — Munaf – as it overturned a federal judge’s order barring his transfer to Algeria.


The Court has not taken any action on the merits of a detainee case since its Boumediene ruling.


District judges handling habeas cases from Guantanamo prisoners are left, for the time being, with only one option if they decide that a detainee is not being held legally: they can urge the government to use its best efforts to try to find a place to relocate that prisoner. That, in fact, is the way most release orders have been worded in the wake of the Circuit Court’s interpretation of the Munaf precedent.


The ruling that the Supreme Court refused to stay [Friday], pending its challenge on appeal, accepted the government’s word that it was more likely than not that a transferred detainee would not be subjected to torture, or worse. Different panels of the Circuit Court have made it clear that the government’s word on that issue is not to be subjected to rigorous testing by District judges in habeas cases.

This is probably a good place to point out that the autocratic-presidency-enamored D.C. Circuit Court, and many of its three-member panels, is an outlier of increasingly-obvious proportions on this and similar Constitutional questions. For example, just one week before the Supreme Court summarily dismissed bin Mohammed’s plea to temporarily prevent (pending appeal) his U.S. military captors from shipping him to Algeria, for fear of torture or worse, a Third Circuit Court of Appeals panel strongly repudiated the Obama DOJ’s similar effort to deport a foreign citizen living in New York to China, for fear of torture, citing the Convention against Torture:

Published: July 15, 2010

Saying that government lawyers let their zeal for victory in a deportation case outweigh their responsibility to be fair, a federal appeals court last week ordered the United States to provide a haven for a woman facing the likelihood of torture in China.


“It is disappointing, even shocking, that the government fails to acknowledge that the evidence is not only strongly in Kang’s favor, but, indeed, compels the conclusion that she will likely be tortured,” said the decision, issued by a three-judge panel of the United States Court of Appeals for the Third Circuit, which covers Delaware, New Jersey, Pennsylvania and the United States Virgin Islands.


The Third Circuit judges called the government’s position “inexplicable” and said both the board [the Board of Immigration Appeals which had overturned an immigration judge who granted Kang protection] and the government lawyers ignored overwhelming evidence.


“Instead, the government sought to characterize the facts in such a way so as to distract the court from the dire nature of Kang’s plight,” Judge Marjorie O. Rendell wrote. “While our adversarial system may permit such advocacy by private parties, when the United States appears before us, it is duty-bound to ‘cut square corners’ and seek justice rather than victory. We are distressed that it failed to do so.

[Tellingly, that proceeding and ruling was in the context of immigration law, to which the D.C. Circuit has been trying to reduce the fundamental, bedrock, Constitutionally-protected right of habeas corpus (the actual judicially-mandated release it encompasses, at least) for Guantanamo detainees, via Kiyemba I, II, & III (the Chinese Uighur cases forbidding their release into the U.S.), in order to try to write our independent Judicial Branch out of an “exclusive” province of the Executive and Congress.]

A similar “zeal for victory” has been in evidence in the Guantanamo case at issue here, the instant that Judge Gladys Kessler requested the presence of a State Department representative (Daniel Fried) in her court so that she could test the strength of the government’s assurances that Algeria will not harm bin Mohammed. Her order for Fried to appear was immediately appealed to the D.C. Circuit, a D.C. Circuit panel in turn immediately acted to prevent the hearing Kessler ordered, and then proceeded to order her to issue a final judgement without recourse to State Department witnesses. All, as Lyle Denniston noted, without benefit of full briefing or oral argument:

The case of Farhi Saeed bin Mohammed, proceeding largely in secret in lower courts, poses a major test of federal judges’ power to assert control over the legal fate of Guantanamo prisoners.

At its core, the case could test how the Supreme Court reconciles two opinions on detainee rights that it issued on the same day, June 12, 2008 — Boumediene v. Bush, and Munaf v. Geren.


The government pursued an emergency appeal of that order, as it did an earlier temporary order by Kessler. Each time, the Circuit Court summarily reversed the judge — that is, it acted without full briefing and oral argument.

Meanwhile, as Lyle also recently noted, there are now three pending petitions to the D.C. Circuit for rehearing en banc (soon to be four, with the recent Al-Adahi decision overturning Kessler on another case), that challenge assorted panel decisions aggressively expanding the reach of the unilateral military power to detain (as triggered and maintained by the existence of armed conflict), including the latest brought on behalf of the Chinese Uighurs, whose new en banc petition asserts that “[T]he courts have not merely lost the judicial power. Kiyemba I and III cede it to the Executive Branch. This is inimical to an independent judiciary, which, under our tripartite system, may not constitutionally cede remedy in a case or controversy to the political branches:

The [Uighur/Kiyemba] petition for rehearing en banc in this case is one of three now pending at the Circuit Court seeking further review of important panel decisions in detainee cases. One of the others is a challenge to a panel ruling that severely restricts the power of federal judges to consider the impact of international law on Guantanamo cases (Al-Bihani v. Obama, Circuit docket 09-5051; the Circuit Court has taken no action on that case since asking for and receiving a government response). The third case is Maqaleh v. Obama (09-5265), challenging a panel ruling that prisoners now held by the U.S. military base at Bagram, outside Kabul, Afghanistan, have no habeas rights in U.S. courts. That petition, seeking panel rehearing, (discussed in this post) was filed just last week, and awaits word on whether a government response will be sought by the Court. – Lyle Denniston,

In the case of Farhi Saeed bin Mohammed (specifically, his appeal to reinstate Judge Kessler’s injunction and her order for Fried’s testimony, in which the only substantive public document is this ruling), Lyle reported:

Citing to still-secret declarations by a special Administration official working on detainee release matters, Daniel Fried, the [Circuit panel] majority noted that “the government avers that it evaluated ‘all information that is in any way relevant to whether a detainee is more likely than not to be tortured in the receiving country,’…and has determined that, in the face of the allegations made by Mohammed, his transfer complies with ‘the policy that the U.S. Government will not transfer individuals to countries where it has determined that they are more likely than not to be tortured.'”

Incidentally, the order clarified for the first time — although this was commonly assumed — that Judge Kessler’s still-secret order issued June 29 had barred Mohammed’s transfer to Algeria “in light of his allegations that he would be tortured there by the Algerian government and by non-state actors.” The order “dissolved” Judge Kessler’s injunction. The majority was made up of Circuit Judges Thomas B. Griffith and Brett M. Kavanaugh.

Thus backed-up and protected by the D.C. Circuit from the lower court most familiar with the facts of the case – a D.C. Circuit Court whose increasingly-radical, post-Boumediene decisions have been left undisturbed by the Supreme Court – the Obama administration appears determined to send Farhi Saeed bin Mohammed to Algeria against his wishes, under cover of darkness and with little or no media attention, as has been the usual routine – to a country which he’d fled by the mid-1990s, and after unlawfully renditioning him once from Afghanistan or Pakistan to Cuba, and then unlawfully depriving him of his liberty for eight years, after his 2002 capture in Pakistan by Pakistani authorities:

As reported in the Miami Herald [link broken, 2/2012; articles before 1/2011 are apparently hosted separately on the newspaper’s website, and I couldn’t relocate this one without its current title and date] by Carol Rosenberg, who was the first journalist to write about the story, bin Mohammed has been represented for four years by Boston lawyer Jerry Cohen, who said that his client “fled his homeland and lived between Britain, France and Italy as an itinerant laborer in the 1990s before going to Afghanistan months before the 9/11 attacks. He fled the US invasion to Pakistan, where he was captured and sent to Guantánamo in February 2002.” Cohen added, “He’s an easy guy to like, and certainly not the worst of the worst and not even close to it.”


Sadly, however, his court victory, which probably means that he has now been cleared for release on three occasions, does not guarantee that he will finally regain his freedom. Like the Uighurs and dozens of other prisoners from countries including Algeria, China, Libya, Syria, Tunisia and Uzbekistan, he cannot be repatriated because of fears that he will be tortured on his return, and must wait to see if another country can be found that is prepared to take him, while the government responsible for his long and unjust detention continues to wash its hands of all responsibility, hiding behind Republican fearmongering and refusing to allow cleared prisoners to be rehoused in the United States.

– Andy Worthington, 11/24/2009

If the Obama administration now acts on the license given to it by two members of the only lower appellate court with jurisdiction over Guantanamo [at least one of whom – Kavanaugh – pretends and asserts that international treaty law (the Geneva Conventions, as implemented by statute in the Uniform Code of Military Justice and otherwise) is not the law of the land nor binding on the U.S. government], as left intact by a majority of the Supreme Court with a cursory glance, bin Mohammed will soon be sent from his eight years of wholly-unlawful detention in Guantanamo Bay Naval Station, Cuba, to a nation he hasn’t seen for fifteen years and wishes to never see again.

With regard to the evidence that the government proffered to Judge Kessler (much of it ‘guilt by association’ inferences, and general aspersions cast on bin Mohammed’s years living in Europe as an illegal immigrant under assumed names) in the years since bin Mohammed’s habeas appeal was filed in 2005, Judge Kessler stated, in part, in her unclassified November, 2009 ruling [note especially the actions taken under color of law against Binyam Mohamed, at the behest of American authorities whose “word” the Supreme Court quickly saluted and accepted yesterday]:

Given the extensive briefing and oral argument presented by counsel during the discovery phase of this case, as well as the exhibits submitted at the Merits Hearing, it is clear that the accuracy of much of the factual material contained in those exhibits is hotly contested for a host of different reasons ranging from the fact that it contains second-level hearsay to allegations that it was obtained by torture to the fact that no statement purports to be a verbatim account of what was said.


Just as a criminal defendant need not prove his innocence, a detainee need not prove that he was acting innocently. In sum, the fact that the Petitioner [bin Mohammed] may not be able to offer air-tight answers to every factual question posed by the Government does not relieve the Government of its obligation to satisfy its burden of proof.


Petitioner contends that Binyam Mohamed’s statements–the only other evidence placing Petitioner in a training camp–cannot be relied upon, because he suffered intense and sustained physical and psychological abuse while in American custody from 2002 to 2004. Petitioner argues that while Binyam Mohamed was detained at locations in Pakistan, Morocco, and Afghanistan, he was tortured and forced to admit to a host of allegations, most of which he has since denied. […] However, after being released from Guantanamo Bay, [Binyam Mohamed] signed a sworn declaration claiming that he never met Petitioner until they were both detained at Guantanamo Bay, thereby disavowing the statements he made at Guantanamo Bay about training with Petitioner. In that sworn declaration Binyam Mohamed stated that he was forced to make untrue statements about many detainees, including Petitioner. […] The Government does not challenge Petitioner’s evidence of Binyam Mohamed’s abuse.


The Government’s claims of reliability are undermined by the sworn declaration of Binyam Mohamed that he was brutalized for years while in United States custody overseas at foreign facilities. He was then transferred to Guantanamo Bay, where he was further detained by the United States and where Government personnel quickly resumed their interrogation of him, although no coercive measures were used. These later interrogations yielded the information that the Government relies on to support several allegations in this case, the most significant of which is that Petitioner trained with al-Qaida.


In addition, Binyam Mohamed detailed his mistreatment in meetings with his attorney, Clive Stafford Smith, in August of 2005. Smith recorded his client’s words in a memorandum that presents Binyam Mohamed’s story chronologically, starting with his detention in Pakistan, following his rendition to Morocco for eighteen months, his transfer to the “Dark Prison”20 in Kabul, his imprisonment at Bagram, and then his arrival at Guantanamo Bay. […] The remainder of this section presents the harrowing story that Binyam Mohamed has told about his abuse, as recounted in either Smith’s memorandum or the diary he created for his lawyer in 2005, and repeated since his release from Guantanamo Bay.


On January 21 or 22, 2004, Binyam Mohamed and two other prisoners were put on a plane with United States soldiers dressed similarly to those who had transferred him to Morocco from Pakistan. Id. at 16-17. Again they stripped him before transporting him. Binyam Mohamed recalls that one female soldier was assigned to take pictures of him. She expressed horror at the scars on his penis. Id. at 17.

The diary reports that Binyam Mohamed was taken to the “Prison of Darkness” in Kabul.


[Binyam Mohamed] told a British newspaper in 2009 that he was shackled often, once for eight days on end in a position that prevented him from standing or sitting. JE 65 at Daily Mail 5. While undergoing this treatment, it appears that Binyam Mohamed attempted to be forthright with CIA interrogators and renounce the story he had been coached to adopt. This resulted in his “being chained to the rails for a fortnight.” JE 65 at Mem. at 18. He stated that he tried to tell the truth because “the CIA interrogators looked understanding.”


When he tried to be compliant and provide made-up information about the pictured men, his interrogator was initially happy, but then “did [his] homework” and threatened to torture him further if he lied again. They simply wanted him to repeat what they told him to say. This included an admission of his involvement in a dirty bomb plot.


At Bagram [in July, 2004], Special Agent [censored] made him write out his narrative. Part of this story repeated the lies that he was fed by his captors while in Morocco, including the story about his involvement with the alleged “dirty bomber,” Jose Padilla. Id.

In October of 2008, the Government dropped allegations that Binyam Mohamed was involved in any bomb plot.


In the criminal context, confessions or testimony procured by torture are excluded under the Due Process Clause [see: the Fifth Amendment] because such admissions would run contrary to “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”


First, Binyam Mohamed’s lengthy and brutal experience in detention weighs heavily with the Court.


The difference, of course, is that Binyam Mohamed’s trauma lasted for two long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans. The Government does not dispute this evidence.


In this case, even though the identity of the individual interrogators changed (from nameless Pakistanis, to Moroccans, to Americans, and to Special Agent [censored]), there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United States. Captors changed the sites of his detention, and frequently changed his location within each detention facility. He was shuttled from country to country, and interrogated and beaten without having access to counsel until arriving at Guantanamo Bay, after being re-interrogated by Special Agent [censored]. See JE 72 (declaration of Binyam Mohamed’s attorney, Clive Stafford Smith, stating that he did not meet with client until May of 2005)


In Bagram, he wrote that he trained with three Algerians. JE 73 at 1902. When he arrived at Guantanamo Bay and, according to his subsequent statements, met Petitioner for the first time, he then reported that one of those unnamed Algerians was in fact Petitioner. JE 27 at 2; JE 36 at 5. Given the factors discussed above, the court cannot credit this confession as voluntary. The earlier abuse had indeed “dominated the mind” of Binyam Mohamed to such a degree that his later statements to interrogators are unreliable.


Without Binyam Mohamed’s statements implicating Petitioner in training, the Government’s evidence supporting this allegation is severely weakened.


But the Government’s evidence fails to prove anything more. The Government has failed to provide reliable evidence that Petitioner received any training in weaponry or fighting, or that he engaged in actual fighting of any kind on behalf of al-Qaida and/or the Taliban.

The question then becomes whether, under Gherebi and Hamlily, the Government’s evidence meets the standard for detention.

Analyzing those two cases, the court concludes that Petitioner’s conduct does not meet the legal standard for detention.


Whether or not one believes that Petitioner was a potential danger to the security of this country, or whether or not one speculates that Petitioner would have attended a training camp and then fought with al-Qaida and/or the Taliban if the opportunity presented itself, is not relevant. […] In short, Petitioner may well have started down the path toward becoming a member or substantial supporter of al-Qaida and/or the Taliban, but on this record he had not yet achieved that status.

[Note: Gladys Kessler to date has ruled on the merits of five Guantanamo habeas corpus petitions. She granted release in three of the appeals, and denied it in two. She also had the petition of Mohammad Jawad, the juvenile whose case was thrown out of the military commissions by a military judge (after the prosecutor had resigned in protest), following which the governnment finally effectively conceded Jawad’s habeas corpus appeal in federal court, and agreed to release him just before Kessler ruled. Of the three detainees Kessler determined to have been unlawfully detained, only one has actually been released from Guantanamo (her first ruling, in favor of Ali Bin Ali Aleh/Ahmed of Yemen, last May). A second ordered detainee release last August was overturned this month by Judges Randolph and Henderson and Kavanaugh (again) of the D.C. Circuit (based on an argument about mathematical probabilities in assessing evidence, and with reference to the supposedly voluntary nature of Senate-ratified international treaty law as it pertains to U.S. government actors). Her third ordered release, the case at issue here, in favor of bin Mohammed, was not appealed by the government, which is now fighting in the courts to send bin Mohammed to a nation where he fears for his life.]

To paraphrase the Third Circuit panel, it is much more than disappointing, it is shocking, that the federal appellate courts overseeing Guantanamo detention cases, without full briefing or argument, are acting to prevent a district judge from testing the Obama administration’s claims that bin Mohammed’s fears that he will be tortured in Algeria are unfounded, rather than ordering that he stay in Guantanamo until an appeal of his pending rendition to Algeria can be heard on the merits.

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