Mohammed v. Obama (D.C. Cir. July 8, 2010) (with opinion)

* Mohammed v. Obama (D.C. Cir. July 8, 2010) (reversal of district court decision prohibiting transfer of GTMO detainee to Algeria)

Yesterday I posted about a sealed DC Circuit decision involving whether the government may transfer a GTMO detainee to Algeria. That opinion has now been unsealed, and I have attached it to this email. The key points:

The majority of the panel (Griffith, Kavanaugh) held that it was error for the district judge to enjoin the government from transferring Mohammed on fear-of-torture grounds. The majority explained that, in its view, the Circuit’s prior decision in Kiyemba II forecloses judicial review in this scenario once the government has determined that the person does not face a more-likely-than-not risk of torture.

Judge Tatel wrote separately to state that he agrees with the majority insofar as Mohammed is complaining of the risk of torture at the hands of the Algerian government, but not as to Mohammed’s additional claim that he also faces a risk of torture at the hands of private actors. As to the latter scenario, Judge Tatel concedes, the logic of Kiyemba II would seem to apply by extension. Since the government had not made clear that its risk analysis actually accounted for the private-torture scenario, however, Judge Tatel felt that this extension of Kiyemba II had not yet come into play.

unsealed 311 summary reversal order.pdf

By Robert M. Chesney

Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.

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