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

July 15, 2010

* 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