mohammed v. obama

July 5, 2010

* Mohammed v. Obama (D.D.C, D.C. Cir.)

A while back I posted notice of a decision by Judge Kessler directing Ambassador Fried to appear in court to testify regarding the executive branch’s efforts to find a third country to which a GTMO detainee, Farhi Saeed bin Mohammed, might be repatriated (Mohammed won his habeas petition, but resists repatriation to his native Algeria). Lyle Denniston at SCOTUSblog provides a very interesting update, noting that the D.C. Circuit on June 25th issued the following order in response:

BEFORE: Tatel, Griffith, and Kavanaugh, Circuit Judges


Upon consideration of the emergency motion for expedited summary reversal, the oppositions thereto, and the replies, it is

ORDERED, pursuant to this court’s authority under the All Writs Act, 28 U.S.C. § 1651, that the district court resolve all outstanding motions in this case by Tuesday, June 29, at 4:00 p.m., in a manner consistent with Munaf v. Geren, 553 U.S. 674 (2008), and Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) (Kiyemba II). The district court is ordered to do so without requiring further testimony from Special Envoy Fried or any other United States government official. This order does not preclude the parties from voluntarily submitting further briefing or evidence to the district court regarding petitioner’s claimed fear of private individuals or private groups in Algeria, which petitioner contends (but the government disputes) distinguishes this case from the binding precedents of Munaf and Kiyemba II. This court states no view at this time on how Munaf and Kiyemba II apply to petitioner’s allegation.

Denniston reports that Judge Kessler subsequently held a hearing and issued a sealed order on June 28th, and that the Justice Department has appealed that decision. For Denniston’s full account, see here. (h/t: Anthony Arend)