Wednesday, July 21, 2010

Naji: The Problem With Involuntary Repatriation

Steve Vladeck

I've written before both here and elsewhere about the problems raised by the D.C. Circuit's recent (i.e., post-Boumediene) jurisprudence concerning whether Guantanamo detainees who have been cleared for release are entitled to notice and a hearing before a neutral magistrate prior to being transferred out of Guantanamo to a country (including their home country) where they credibly fear torture or other forms of persecution. [Hat tip to Lyle Denniston at SCOTUSblog, who has been on top of this issue throughout.] Much of this boiled to the surface last week in the attempt by an Algerian detainee, Farhi Saeed Bin Mohammed, to block his potential repatriation to Algeria. Although he successfully obtained a preliminary injunction in the district court, a divided panel of the D.C. Circuit granted the government's "expedited motion for summary reversal," and dissolved the injunction on the ground that its earlier decision in Kiyemba II controlled Mohammed's entitlement to relief.

Judge Tatel concurred in part and dissented in part, suggesting that at least some of Mohammed's claims (especially those going to his fear of persecution by non-governmental actors) were not covered by Kiyemba II. Mohammed then sought a stay in the Supreme Court, only to lose there, 5-3, with Justice Ginsburg writing (briefly) for herself and Justices Breyer and Sotomayor that Mohammed's case--like most of the Guantanamo transfer cases--raises issues not resolved by the Supreme Court's 2008 decision in Munaf v. Geren. (Reading between the lines, Justice Ginsburg appeared to be taking a pot-shot at Kiyemba II--which held that Munaf governed in all of the Guantanamo cases--even though the Court denied certiorari without dissent in that case earlier this year).

Why does all of this matter? Shortly after denying the stay in Mohammed last Friday, the Court unanimously denied an application for a stay in the case of another Algerian detainee--Abdul Aziz Naji. Naji was quickly repatriated to Algeria on Monday (against his will), where, according to a Reuters report filed late today, he promptly disappeared.


The country allows detention for up to 12 days, and it seems that is what happened here. An update should be provided.

The policy still is open to question

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