Curb on judges’ power stands — for now
Algerian's plea fails
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.
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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 court order letting the government, not a judge, decide the transfer issue.
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[see Lyle's analysis in original]
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(NOTE TO READERS: There is another notable aspect of the Court’s Friday order: the Justices acted without the public ever having access to most of the significant filings in that case — in the Supreme Court, in the Circuit Court, and in the District Court. Except for the
Circuit Court’s most recent ruling, which was made public on Thursday [2-page majority; 2-page partial dissent], every other document of importance remains under seal. As a consequence, the full range of the legal issues that the courts have been exploring remains unknown. Moreover, no one outside the group of judges, lawyers and law clerks involved has any idea when any of those materials will be made public, even in redacted form.
(Moreover, most of the information that is in the documents is not formally classified as secret: it fits into an unusual category of what the courts call “protected information.” As a brief Justice Department motion, filed with the Supreme Court in the Mohammed case, put it, this is information that must be withheld “because public disclosure of that information may cause diplomatic and potential security harm.” A special court rule was written in 2008 to govern the protection of such information in Guantanamo habeas cases. In the second Algerian detainee’s case that was filed at the Supreme Court Friday (docket 10A70), a brief motion asserted that his application “includes little if any information properly designated as ‘protected’ under the protective order.” It nevertheless had to be filed under seal.)