Gitmo Repatriation Authority Expanded

Via Robert Chesney, the government seems to have won a fairly significant victory yesterday after an appeals court, in Kyiemba v. Obama,  ruled that judges don't have the power to question the executive branch's assertions that detainees won't face torture when they're repatriated. This clears the way for the government to begin to negotiate the terms of prisoner release with several countries, as it (essentially) prevents a judge from overruling the administration's judgment about the repatriation status of any individual detainee. In the timeframe of these legal challenges, we're in the disposition phase --  beyond the stage where habeas and due process rights have been asserted. However, the Kyiemba court, citing the 2009 Boumediene decision by the Supreme Court, rejected the government's contention that the 2007 Military Commissions Act prevents district courts from hearing habeas challenges after the government has deemed any particular prisoner's detention to be lawful. The government argued that the Supreme Court did not mean to extend its ruling to "ancillary" habeas issues like where a prisoner ought to  be transferred to. The Kiyemba court disagreed, setting a new precedent: detainees CAN, as part of their habeas proceedings, question the conditions of their repatriation.  However -- much as the detainees can ask these questions, the courts have no authority to question the government's judgment about whether the accepting country will torture them.  The Supreme Court, in Munaf v, Geren, limited the court's ability to "question the Government's determination that a potential recipient country is not like to torture a detainee."  In its most recent filings, the government was able to convince the Kyiemba judges that the "detainees are not liable to be cast abroad willy-nilly without regard to their likely treatment in any country that will take them."

In essence, the court here is deferring to the executive branch's authority to interpret and investigate the internal practices of another country. 

"Judicial inquiry into a recipient country's basis or procedures for prosecuting or detaining a transferee from Guantanamo would implicate not only norms of international comity but also the same separation of powers principles that preclude the courts from second-guessing the Executive's assessment of the likelihood a detainee will be tortured by a foreign sovereign."

An open -- and absolutely crucial -- question of modern national security jurisprudence revolves around the degree and exclusivity of the executive branch's ability to make fact claims about national security. The same question lies at the heart of virtually every State Secrets Privilege assertion, as the courts generally defer to the executive's assertions about what constitutes harm.  Robert Chesney's forthcoming paper on the subject is vital reading.