TO: Morton Sklar
FROM: Ying Chi, Charlie Wait, Rebecca Bers, Kristin Connor, Sarah Fick, Eric Rasmussen, Nicole Woods
DATE: 10/19/2005
RE: District Court decisions granting or denying preliminary injunctions or TRO’s for Guantanamo detainees
Contents
Research Memo………………………………………………………………………………….2
Appendix A: Case Outlines……………………………………………………………………...7
Appendix B: Attorney Contact Info………………………………………………...……………34
Research Memo
QUESTIONS PRESENTED
I. What is the standard, in the District Court for the District of Columbia, for granting a temporary restraining order and a preliminary injunction?
II. How have different judges applied this standard to the petitions for temporary restraining orders and preliminary injunctions brought by Guantanamo detainees?
Petitioners typically requested a preliminary injunction or a temporary restraining order to prevent their transfer from Guantanamo Bay Naval Base (“Guantanamo”) while their habeas corpus petitions were being considered.
[1] In about half of the cases, these requests were denied for reasons discussed below (the most significant being that the judge favored sworn government statements that the petitioners would not be tortured as a result of a transfer).
[2] In the remaining cases, while a blanket preliminary injunction was denied as moot, the court granted a preliminary injunction requiring that petitioners’ counsel and the court be given 30-days advance notice of an intended transfer.
[3]I. The Four-Part Test for a Temporary Restraining Order or A Preliminary Injunction
The standard for granting a temporary restraining order (“TRO”) or a preliminary injunction under Fed. R. Civ. P. 65 and the D.C. Circuit’s precedent consists of a four-factor test.
[4] The court must look to four factors in deciding whether either of these two types of relief may be granted.
[5] First, the court looks to whether “irreparable harm” will be done to the petitioners (those seeking an injunction).
[6] Second, the court asks whether the petitioners are likely to succeed on the merits of the case itself.
[7] Third, the court examines whether the respondent will be harmed by granting the relief.
[8] Finally, the court must ask whether the “public interest” will be harmed or helped by the injunction or TRO.
[9] The D.C. Circuit does not treat these factors as a list of elements.
[10] Rather, it employs a “sliding scale” in which individual factors are balanced against one another to reach a result.
[11] Courts are reluctant to disturb the status quo when “serious, substantial, difficult and doubtful” questions are raised by the litigation on the merits.
[12] II. How the Tests Have Been Applied
The first factor requires a petitioner to show that the harm is more than “remote or speculative.”
[13] Arguments that petitioners in the cases would lose their habeas claims upon transfer constituted irreparable harm in at least three of the cases.
[14] Furthermore, one case ruled that the threat of torture to petitioners reached the level of irreparable harm, relying on a State Department report on the level of torture occurring in the countries that petitioners would be transferred to.
[15] However, in another case, the court accepted the government’s sworn statements that it was government policy not to transfer a person to a country if the government believed that they would likely be tortured.
[16] Moreover, in a few cases, the court expressed skepticism towards petitioners’ claims of likely torture.
[17] Evidence petitioners presented in those cases included newspaper articles and threats made by officers during interrogations at Guantanamo.
[18] In another case, the judge dismissed the petitioners’ evidence of the practice of rendition as mere “speculation, innuendo and second hand media reports,” holding that such purported evidence fails to demonstrate that the destination country is acting as an agent of the U.S. government and to rebut the U.S. government’s assertion that the detainees would no longer be subject to U.S. control. Success on this point seems to swing more on the predilections of the particular judge—how the judge views petitioners’ evidence and weighs it against government assurances—rather than the particular argument made.
[19] To win on the second factor, a petitioner need not show “a mathematical probability of success,” but rather must raise “fair ground[s] for litigation.”
[20] District court decisions on Guatanamo cases show no clear patterns on this issue. Some judges found that petitioners had “a fifty-fifty chance” of success on the merits, and granted an injunction.
[21] Another judge noted that jurisdiction had properly been alleged.
[22] Another mentioned Judge Green’s ruling on the merits, commenting that there was substantial disagreement as to 1) petitioners’ constitutional rights, 2) jurisdiction, and 3) whether the Geneva Convention is self-executing.
[23] Other judges, however, have ruled against petitioners on this point, stating that the court has no authority to prevent transfer to other jurisdictions.
[24] Another judge cited Fed. R. App. P. 23, saying that it lets courts protect jurisdiction from inter-state transfer, but not from foreign transfer (another court criticized this very argument, however).
[25] Another judge said that there was not sufficient evidence of an immediate transfer.
[26] Finally, one judge criticized petitioners’ argument as inconsistent; the injunction, if granted, would contradict petitioners’ ultimate goal of release from Guantanamo.
[27] The third factor simply requires the court to ask whether the government would be injured if the injunction or TRO were granted.
[28] In each case, the government argued that its
ability to conduct sensitive, secret diplomatic negotiations and to transfer detainees would be compromised by these injunctions or TRO’s.
[29] In three cases, judges simply refused to accept this argument, noting the limited nature of the relief granted.
[30] In other cases, however, judges reacted differently to this position, noting that an injunction would indeed impede the government’s ability to conduct such negotiations and transfers.
[31] The final factor asks whether the relief is in the public interest. Judges were predictably split on this issue as well.
[32] Some judges thought that the government’s claim that the ability to detain and transfer foreign nationals was in the public interest (furthering the war on terror) simply “conflate[d] the government’s own position with the public interest.”
[33] One judge thought that the adjudication of petitioners’ constitutional claims was “undeniably” in the public interest.
[34] They also focused on courts’ ability to protect jurisdiction over constitutional claims.
[35] Other judges thought that the public interest was best served by not interfering with the Executive’s foreign policy and war powers.
[36] Overall, the analysis of the third and fourth factors—injury to government and public interest)—was less substantial and did not heavily sway the court to decide either for the petitioners or the respondents.
[37] Courts relied more on the balancing of the first two factors: irreparable harm and likelihood of success on the merits.
[38] If the judge did not believe the petitioners to be under an imminent threat to be transferred to a country where they could be tortured, the judge did not grant an injunction.
[39] Thus, our efforts should be focused on these two factors.
APPENDIX A: Case Outlines
Almurbati v. Bush, 366 F. Supp. 2d 72 (4/14/05)
6
Paracha v. Bush, 374 F. Supp. 2d 118
7
Sliti v. Bush, 2005 U.S. Dist. LEXIS 18888 (8/28/05)
8
O.K. v. Bush, 377 F. Supp. 2d 102 (7/12/05)
9
Al-Anazi v. Bush, 370 F. Supp. 2d 188 (4/21/05)
11
Doe v. Bush, 2005 U.S. Dist. LEXIS 6417 (3/13/05)
13
Abdah v. Bush, 2005 WL 589812 (3/12/05)
14
Abdah v. Bush, 2005 WL 711814 (3/29/05)
16
Al-Joudi v. Bush, 2005 U.S. Dist. LEXIS 6265 (4/4/05)
18
Al-Odah v. U.S., 355 U.S. App. D.C. 189 (2003)
20
Kurnaz v. Bush, 2005 U.S. Dist. LEXIS 6560 (4/12/05)
21
Mokit v. Bush, 374 F. Supp. 2d 106 (2005)
23
Al-Marri v. Bush WL 774843 D.D.C. (4/4/05)
24
Qassim v. Bush, 382 F. Supp. 2d 126 (2005)
25
Al-Oshan v. Bush, Civil Actn No. 05-0520 (2005)
26
Gherebi v. Bush, 338 F. Supp. 2d 91 (2004)
27
Hamdan v. Rumsfeld, 415 F.3d 33 (2005)
29
Case Name: Almurbati v. Bush 366 F. Supp. 2d 72
[40]Court: D.D.C. before judge Reggie B. Walton
Relief Requested: Preliminary injunction requiring the officials to provide advance notice of the prisoners’ proposed transfers to foreign countries.
Issue(s): 1) Are petitioners likely to prevail on the merits of their claim (habeas corpus)?
2) Have petitioners submitted sufficient evidence to demonstrate that they will suffer irreparable harm (torture resulting from rendition/ moot habeas corpus writ) if injunction is not issued?
3) Would issuing injunctive relief “substantially harm” the respondents by impinging on their authority?
Holding: 1) The injunction requested would prevent petitioners from prevailing on the merits of their claim of writ for habeas corpus.
2) Petitioners’ evidence demonstrates only the remote and speculative threat of torture resulting from rendition. Petitioners have not submitted sufficient evidence supporting the claim that rendition would moot their habeas corpus writ and thus cause irreparable harm.
3) Issue of injunction would substantially harm respondents by compromising their relationships with foreign governments.
Reasons: 1) The injunction requested contradicts petitioners’ writ for habeas corpus, since the writ seeks to challenge the justice of petitioners’ detention, while the injunction seeks to provide petitioners an opportunity to stay that detention.
2) While petitioners have supplied news articles and threats from GTMO personnel supporting their apprehension that rendition will result in torture, respondents have provided testimony from high officials that their operating procedure is not what petitioners claim. As for the second claim for irreparable harm, rendition would remove petitioners from the custody of respondents, and it is that custody that the writ seeks to challenge. Therefore, if this custody is terminated, petitioners have not been harmed, they have succeeded.
3) Respondents would be harmed by injunction by intervening in their regular activities mandated by their executive power of authority, intervene in their administration of the war on terror, and cause foreign governments to become reluctant to admit to respondents their own problems with torture.
Notes: While this injunction was not issued, the judge issued a different injunction ordering respondents to submit a declaration that any transfers or repatriations were not made for the purpose of merely continuing the petitioners’ detention… or of extinguishing the court’s jurisdiction over petitioners’ actions for habeas relief.
The court’s holding on irreparable harm by torture (#2 above) seems to have established precedent, cited by the Sliti court.
Case Name: Paracha v. Bush 374 F. Supp. 2d 118
[41]Court: D.D.C. before judge Paul L. Friedman
Relief Requested: 1) preliminary injunction ordering removal from isolation, 2) and prohibiting his rendition, also 3) leave to proceed in forma pauperis.
Issue(s): none related to rendition
Holding: Injunction prohibiting rendition is denied as moot.
Reasons: Petitioner has failed to demonstrate that he will suffer irreparable harm unless injunction is granted. (note—there was no discussion in the opinion about the evidence forwarded by petitioner)
Notes: The court’s opinion seems to have been influenced by counsel’s relationship with the petitioning detainee. Counsel has refused to comply with the Amended Protective Order and Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay, Cuba. As a result, he has not had direct contact with the petitioning detainee.
While the court did not issue the requested injunction, the judge did order, without any apparent motion from petitioner, that the respondents may not remove petitioner from GTMO unless the court and counsel for petitioners receive thirty days’ advance notice of such removal.
Case Name: Sliti v. Bush (no citation)
[42]Court: D.D. C. before judge Richard J. Leon
Relief Requested: 1) preliminary injunction to prevent respondents from transferring petitioner to Egypt (his country of citizenship), 2) preliminary injunction regarding production of documents concerning medical condition and medical treatment
Issue(s): Does petitioner’s claim of irreparable harm (torture resulting from rendition) prevail, or respondent’s denial of such imminent harm?
Holding: If petitioner’s evidence only supports the speculation that irreparable harm will occur, then respondent’s sworn declarations to the contrary prevails. (citing Almurbati)
Reasons: To conclude that petitioner would suffer certain irreparable harm would require the court to assume that the respondent’s declarations are disingenuous.
Notes: Court mentions that petitioners have not submitted any direct evidence rebutting the respondent’s declarations.
O.K. v. Bush
[43]377 F.Supp.2d 102
D.D.C., 2005
July 12, 2005
Facts: O.K. is a Canadian citizen captured in Afghanistan. He was a minor (15 years old) at the time. At the time of writing there is a pending Habeas Corpus petition on behalf of him and other detainees before another judge (Green) in the U.S. Court of Appeals for the D.C. Circuit [*104]. Petitioner alleges that he was tortured at Guantanamo. The alleged incidents took place before 2003 [*106]. After 2003 he was still subject to harsh interrogation, including exposure to cold and threats to strip him to his underwear if he didn’t cooperate.[*107] The plaintiff also alleges that as part of his interrogation he was threatened with transfer to another country where he would be sexually assaulted. [*107]
Issue:
A) Whether the court should issue a preliminary injunction to prevent petitioner from being tortured or interrogated.
B) Whether the court should issue a preliminary injunction requiring 30 days notice of transfer to a foreign state. [*111]
Rule:
A) The court states t
hat parties must make a concrete showing that they are likely to face unlawful conduct in the imminent future. Absent such a showing, the court will not issue prospective relief. [*113]
B) The Al-Anazi decision was the controlling precedent with regards to the second petition. The petitioner tried to distinguish the case from Al-Anazi in two ways.
a. First he cites the Federal Rules of Appellate Procedure on Transfer of Custody Pending Review: “Pending review of a decision in a habeas corpus proceeding commenced before a court, justice, or judge of the United States for the release of a prisoner, the person having custody of the prisoner must not transfer custody to another unless a transfer is directed in accordance with this rule. When, upon application, a custodian shows the need for a transfer, the court, justice, or judge rendering the decision under review may authorize the transfer and substitute the successor custodian as a party.
Fed. R.App. P. 23(a). [*116]
b. Second he claims that the threats made during interrogation to transfer him to another country where he would sexually assaulted amount to sufficient evidence of an actual transfer in the imminent future. [*107] In reference to this claim, the court states that it is impermissible to “transfer… detainees to a foreign state in order to exercise continuing custody over the detainees on foreign soil, or secure their torture through the intermediary of a foreign government,”[*115] and cites legal standard set out in the regulations implementing the Convention Against Torture that the state must not transfer a prisoner to another state without obtaining assurances from the receiving state that it was "more likely than not" that the detainee would be humanely treated upon transfer. [*115]
Analysis:
A) The plaintiff failed to show that he was in imminent danger of being tortured again. The alleged mistreatment occurred before 2003, and the conditions after that time were less severe. The court said that even if the allegations of past abuses are true, there is no “real and immediate threat” that the petitioner will be subject to such conduct in the foreseeable future. [*113-*114] The court also said that “Absent a persuasive claim that the conditions of confinement at Guantánamo are so severe that they present an imminent threat to petitioner's health, the Court will not insert itself into the day-to-day operations of Guantánamo.” [*114]
B) The petitioner failed to distinguish the case from Al-Anazi.
a. The court said that the abovementioned rule does not apply. “Nothing in the Rule indicates a desire to extend it to situations where the United States (or a state) is transferring an individual out of federal or state custody entirely.” [*116] It referred to the “well-settled canon of statutory interpretation providing that
a court should not construe a statute to interfere with the province of the Executive over military affairs in the absence of a clear manifestation of Congressional intent to do so. See Dep't of Navy v. Egan, 484 U.S. 518, 527, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988) [*117] and said “it is implausible that Congress intended the Rule to block the movement of detainees captured in the course of ongoing military hostilities.” [*116]
b. The court noted declarations of high lever Dept. of Defense and Dept. of State officials that it is not the policy or practice of the U.S. to transfer detainees for the purpose of torture or any other improper reason. [*117-18] It also notes that interrogators have not taken any steps to carry out the threat, and there is no evidence that a transfer is imminent. [*118] More evidence is needed than “petitioners' simple mistrust of the government.” Furthermore, The Court distinguished between between the "rendition" of terrorism suspects by the Central Intelligence Agency which were specially authorized by the White House (where the receiving government was expected to carry out the will of the United States), and the transfer of Guantánamo detainees by the Department of Defense (where that was not the case). Also it noted that the respondents pledged to inform the Court if the United States ever were to begin to transfer detainees overseas for continuing United States custody. [*106-7]
Conclusion: Case cannot be distinguished from Al-Anazi. Motions denied.
Judge: Bates
Petitioner: O.K. et. al.
Al-Anazi v. Bush
[44]370 F.Supp.2d 188
D.C.C., 2005
April 21, 2005
Facts: As of April 13, 2005, two hundred fourteen detainees had been transferred from Guantanamo. Of those, one hundred forty-nine were transferred for release and sixty-five were transferred for continued custody. Each of the 65 detainees transferred for custody has been transferred to his home government. Most of those 65 have subsequently been released as well. Respondents also indicated at the April 13, 2005
motions hearing that some detainees transferred for release have in fact been detained by their home governments. In the cases where a detainee is transferred for continued detention by the detainee's home government, DOD "does not ask or direct the receiving government to detain the individual on behalf of the United States," and "the detainees are no longer subject to the control of the United States once they are transferred.”
Issue: Whether the court should grant a preliminary injunction requiring 30 days notice for any proposed transfer of petitioners from Guantanamo to outside of the U.S.
Rule: To prevail on their motion for a preliminary injunction, petitioners must demonstrate (1) a substantial likelihood of success on the merits; (2) that they will suffer irreparable harm absent the relief requested; (3) that other interested parties will not be harmed if the requested relief is granted; and (4) that the public interest supports granting the requested relief. Cobell v. Norton, 391 F.3d 251, 258 (D.C.Cir.2004); Katz v. Georgetown Univ., 246 F.3d 685, 687-88 (D.C.Cir.2001); Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1505-06 (D.C.Cir.1995); Washington Area Metro. Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977). [*193] Factors must be balanced against each other, but it is especially important for the movant to demonstrate a likelihood of success on the merits. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995). Davenport v. Int'l Bhd. of Teamsters, AFL-CIO, 166 F.3d 356, 366-67 (D.C.Cir.1999); Nat'l Head Start Ass'n v. Dep't of Health and Human Servs., 297 F.Supp.2d 242, 246 (D.D.C.2004). [*193] The court also notes that since injunctions are an extraordinary and drastic remedy, and should be used sparingly. Sociedad Anonima Vina Santa Rita v. United States Dep't of the Treasury, 193 F.Supp.2d 6, 13 (D.D.C.2001); see Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C.Cir.1969), Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997); accord Cobell, 391 F.3d at 258. [*193]
Analysis:
Success on the Merits: Petitioners have not come forward with any legal authority that can be read to prohibit the transfer of Guantanamo detainees to a foreign country; any evidence that the United States is transferring Guantanamo detainees to foreign countries for an illicit purpose; or any reason to doubt the statements in the sworn declarations of high-level Department of Defense and Department of State officials that the United States relinquishes control of the detainees upon transfer to the foreign state and obtains all assurances necessary under the law from the foreign state that the detainee will be treated humanely upon transfer. [*195-*197]
Irreparable harm: In order to issue an injunction, there must be evidence that the harm is concrete and imminent. In this case, the evidence presented by petitioners--or the lack thereof-- balanced with the sworn declarations of high level government officials, fails
to establish that petitioners face irreparable harm in the absence of 30-days' advance notice of transfer. As indicated earlier, there is no evidence at all that petitioners are being transferred for the purpose of torture or in inappropriate collusion with a foreign government. [*197-*198]
Harm to Respondents. Respondents have explained that the notice, and the judicial review of the transfer that would follow, would render agreements with foreign states contingent and therefore impede the ability of the United States to communicate with foreign nations with a single voice, would chill the frank discussions with foreign governments that are essential to diplomatic relations, and will give foreign states pause before accepting Guantanamo detainees when they are informed that the acceptance carries the condition of a period of delay and then potential inquiry by a United States court into the communications between the United States and the foreign state and even into the treatment the foreign state anticipates providing the detainee following transfer. [*198-*199]
Public Interest: “Finally, there is a strong public interest against the judiciary needlessly intruding upon the foreign policy and war powers of the Executive on a deficient factual record. Where the conduct of the Executive conforms to law, there is simply no benefit--and quite a bit of detriment--to the public interest from the Court nonetheless assuming for itself the role of a guardian ad litem for the disposition of these detainees. See People's Mojahedin Org., 182 F.3d at 23 ("[I]t is beyond the judicial function for a court to review foreign policy decisions of the Executive Branch.").” [*199]
Conclusion: Motion for a preliminary injunction is denied.
Judge: Bates
Petitioners: Abdulla Thani Faris Al-Anazi, Adel Egla Hussan Al-Nussairi, N.A.O. (minor petitioner),
Abdulaziz Sa'ad Oshan, and Ibrahim Suleiman Al-Rubaish
Also note: Unlike the Pentagon, the C.I.A. was authorized by President Bush after the Sept. 11 attacks to transfer prisoners from one foreign country to another without case-by-case approval from other government departments. Former intelligence officials said that the C.I.A. has carried out 100 to 150 such transfers, known as renditions, since Sept. 11. By contrast, the transfers carried out by the Pentagon are subject to strict rules requiring intraagency approval. Officials said that the transfers do not constitute renditions under the Pentagon's definition, because the government that accept the prisoners are not expected to carry out the will of the United States. The essential question in evaluating the assurances regarding treatment of a detainee proposed for transfer is whether the Department of State officials believe it is more likely than not that the individual will be tortured in the country to which he is being transferred. [*192]
Doe v. Bush
[45]Date: March 13, 2005
Facts: At the time of the decision, the petitioners habeas corpus petition was under review in the DC District Court (after the decision in Rasul v. Bush)
Issue: Whether the detainees should be granted a temporary restraining order (TRO) to prevent removal to a foreign country before the legality of their detainment is reviewed by the court.
Rule: In considering a request for a TRO, the court must examine whether: "(1) there is a substantial likelihood plaintiff will succeed on the merits; (2) plaintiff will be irreparably injured if an injunction is not granted; (3) an injunction will substantially injure the other party; and (4) the public interest will be furthered by an injunction." Davenport v. Int'l Bhd. of Teamsters, AFL-CIO, 334 U.S. App. D.C. 228, 166 F.3d 356, 360 (D.C. Cir. 1999). [*6]
Analysis: In Abdah v. Bush (another TRO petition) the court found that the petitioners had adequately shown that they could face continuous detention at the request of the US in any country where they might be transferred. This would inhibit their right of access to our court system established in Rasul v. Bush. However, “what the record contained in Abdah, and what is conspicuously absent here, is sufficient evidence that any of the Petitioners in the instant case could be at risk of an immediate transfer and continued indeterminate detention [*8 -*9].” In the present case the only evidence the petitioners could present was a newspaper article, unconfirmed sources, and the transfer of a single habeas petitioner in a different case. The court said that there are no facts that any of the petitioners are at a particular risk of transfer. TRO is an extraordinary relief and is inappropriate without a showing of imminent harm.
Conclusion: Emergency Motion for TRO denied.
Judge: Rosemary M. Collyer
Petitioners: John Does 1-570
Latest ruling?
Abdah v. Bush
[46]No. Civ.A.041254(HHK)(RMC) 2005 WL 589812 (D.D.C. Mar. 12, 2005)
Facts:
Thirteen Yemeni nationals who are imprisoned in Guantanamo Bay Naval Base (“Guantanamo”) petitioned the court for a writ of habeas corpus. Abdah, 2005 WL 589812, at *1. They are seeking release from that prison. Id. Articles have appeared in the New York Times describing the United States’Government’s plan to transfer detainees to other countries for the purpose of continued—and possibly indefinite—detention. Id. Additionally, co-counsel at the Center for Constitutional Rights has told petitioner’s counsel that one unnamed source—who was informed by another unnamed source—told her that the detainees may be transferred “very quickly.” Id. at *4. This may or may not include the petitioners. Id.
Procedure:
Petitioners filed for a Temporary Restraining Order (“TRO”) to prevent their transfer from Guantanamo. Id. at *1. The motion was made ex parte because Petitioners “are apprehensive that a public filing will provoke respondents to initiate the exact dark-of-night transfers that petitioners seek to prevent.” Id.
Holding:
The district court granted the TRO, holding that:
(1) Petitioners had “at least a fifty-fifty chance” of success at the appellate level, and thus they had demonstrated likelihood of success on the merits, id. at *4;
(2) Petitioners would likely lose their habeas claims upon transfer, and thus they had demonstrated irreparable harm. Id. Although the court “paused” over the immediacy requirement for a TRO, it eventually held that that requirement had been satisfied, noting that only the government would know whether and when Petitioners would be transferred, id. at *5;
(3) no injury to the government would result from a TRO, id.;
(4) there would be no injury to the public interest from granting a TRO. Id.
Reasoning:
(1) Success on the Merits:
The court reasoned that a TRO would not interfere with the government’s ability to conduct negotiations with other nations. Id. at *3. Moreover, the determination of the legality of Petitioners’ detention was so “serious, substantial, difficult, and doubtful” that it warranted maintaining Petitioners’ status quo. Id. at *2. The court rejected the government’s argument that Judge Green, in a prior proceeding, had stayed these cases “for all purposes,” and thus that ther is no jurisdiction for the district court to rule on the TRO. Id. at *4. The court pointed out that the purpose of Judge Green’s ruling was to save time, money, and resources, not to “deprive the Petitioners of their rights to seek emergency assistance. . . .” Id.
(2) Irreparable Harm:
The court here reasoned that the continued incarceration of Petitioners—those being released would presumably not fulfill this requirement—without a determination of the legality of this incarceration “could constitute irreparable harm. . . .” Id.
(3) Harm to the Government
The court concluded that there would be no harm to the government, emphasizing the limited character of the TRO. Id. at *5.
(4) Public Interest
The court concluded that there would be no injury to the public interest from granting a TRO. Id.
Al-Joudi v. Bush
[47]No. Civ.A. 05-301(GK), 2005 WL 774847, (D.D.C. Apr. 4, 2005)
Facts:
Four Saudi Arabian nationals are detained at Guantanamo Bay Naval Station ("Guantanamo"), and are seeking release from that prison. The United States has begun a policy of transferring prisoners to other countries for either (1) eventual release, or (2) continued detention. Several detainees have already been transferred to Saudi Arabia, and other countries, for detention. The United States loses all control over these prisoners. The Government's policy is to obtain "assurances" from these countries that they will not torture the prisoners. However, it is well known that Saudia Arabia "tortures prisoners." Moreover, some former Guantanamo detainees have alleged that they have been tortured in other countries after being transferred.
Procedure:
The nationals filed a petition for a Writ of Habeas Corpus in the District Court for the District of Columbia on February 9, 2005, seeking release from Guantanamo, following the Supreme Court's holding that the district court has jurisdiction to determine the legality of the Guantanamo detainees' detention. This question has been litigated in the district court and is on appeal to the Court of Appeals, but until this is resolved, a motion to stay until the resolution of this litigation is pending in the district court. For now, the Saudi nationals are seeking a preliminary injunction, since the Government has stated that none of the nationals are up for transfer within the next several weeks. The nationals basically seek a thirty-day warning of their planned transfer by the Government.
Holding:
The district court held that (1) the nationals will likely suffer irreparable harm if they are transferred, because might be tortured, and the court may lose habeas jurisdiction to decide their claims, (2) the nationals have a fair shot at success on the merits because they raise thorny constitutional questions, (3) there will not likely be any harm to the Government because the relief requested is minimally burdensome and narrow, and finally (4) there is a strong public interest in ensuring that the nationals' constitutional rights are adjudicated in an appropriate manner.
Reasoning:
With regard to issue (1), the court cited recent news articles and the State Department itself to show that Saudi Arabia is a nation that tortures prisoners. The court reasoned that the threat of torture was not "remote and speculative" on the basis of this information and the Government's vague "assurances." Secondly, the court noted that the nationals face irreparable harm from the potential loss of their habeas jurisdiction. The court emphasized the doubt surrounding this question, and cited 18 U.S.C. § 1651(a), which allows the court to issue injunctions to protect its jurisdiction. In issue (2), the court stated that the nationals needn't prove their potential success to a mathematical certainty, but rather they need only raise "fair ground[s]" for litigation. They have, according to the court, because they have raised thorny constitutional questions and there is substantial disagreement, even within the district court itself, as to how to proceed on their claims. In issue (3), the court reasoned that the Government's "vague premonitions" that the requested relief would harm the Executive's interests were insufficient to show injury to the Government. However, it did caution that further relief might infringe on Government interests. In issue (4), the court explained that the Government's assertion that the public's interest is in prosecuting the War on Terror confused the public's interest with the Government's own interest. The court then stated that the public had an interest in seeing the nationals' constitutional claims adjudicated. The court therefore concluded that the nationals had met their burden to show all four elements necessary for injunctive relief, and granted the order accordingly.
Abdah v. Bush
[48]No. Civ.A. 04-1254(HHK) 2005 WL 711814 (D.D.C. Mar. 29, 2005)
Facts:
Thirteen Yemeni nationals who are imprisoned in Guantanamo Bay Naval Base (“Guantanamo”) petitioned the court for a writ of habeas corpus. They were arrested in Pakistan by Pakistani police. They assert that they were captured “far from the battlefield.” They were then transported to Guantanamo, where they have been held as “enemy combatants” and held “virtually incommunicado.” They deny that they have participated in hostilities against the United States.
Procedure:
In Rasul v. Bush, 159 L.Ed. 2d 548 (2004), the Supreme Court ruled that the Federal Courts have jurisdiction to hear petitioners’ habeas claims. Petitioners thus brought a habeas corpus petition in the District Court for the District of Columbia seeking a ruling on the legal status of their continued detention. Judge Green subsequently ruled that some of the causes of action asserted in their habeas petition survive a motion to dismiss. The Government then began to transfer detainees to foreign countries for the purpose of continued detention or release. Petitioners then filed a motion for a preliminary injunction seeking thirty days’ notice of any such intended transfer.
Holding:
The court granted petitioners’ motion seeking a preliminary injunction. It concluded that petitioners had met their burden to show that (1) they would be irreparably harmed without an injunction; (2) that there was a “substantial likelihood” that they would succeed on the merits; (3) that an injunction would not “substantially injure” respondents; and (4) that the public interest would be furthered by an injunction.
Reasoning:
Factor 1: Irreparable Harm
The court first noted that irreparable harm must be more than “remote or speculative.” The court refused to accept or reject petitioners’ argument that the transfer of detainees to countries that would allegedly torture them constituted irreparable harm. It did note, however, that the Government’s “declarations concerning general policy” did not “entirely refute” petitioners’ contentions regarding torture. The court did hold, however, that petitioners’ second claim—that transfer would destroy their habeas claims—constituted irreparable harm. It reasoned that the Government “may not act to deprive this court of its jurisdiction of the very “corpus” of this case.” Further, Federal courts should “take such action as will defeat attempts to wrongfully deprive parties entitled to sue in the Federal courts for the protection of their rights. . . .”
Factor 2: Likelihood of Success
The court cited Fed. R. App. P. 23(a), stating that it forbids this type of transfer. The court noted that although this rule is not typically applied to prisoners being transferred abroad, the purpose of the rule makes the case for its application even stronger in such situations. The rule was designed “to prevent prison officials from impeding a prisoner’s attempt to obtain habeas corpus relief by physically removing the prisoner from the territorial jurisdiction of the court in which a habeas petition is pending.”
The court here seems to confuse the first and second factors. It does not analyze the strength or weakness of petitioners’ claims. Rather, it adds analysis that would seemingly belong in factor 1, although it seems to assume that petitioners’ claims are meritorious (it refers to Judge Green’s ruling as favorable to petitioners).
Factor 3: Substantial Injury to the Government
The court weighed the “respective hardships imposed upon the parties.” In doing so, it decided that “[w]hile the injunction the Petitioners seek might restrict or delay Respondents with respect to one aspect of managing Petitioners’ detention, such a consequence does not outweigh the imminent threat facing Petitioners with respect to the entirety of their claims before the court.” The court rejected the Government’s arguments to the contrary, calling them “vague premonitions.”
Factor 4: Public Interest
The court rejected the Government’s arguments here as well, stating that it mistook the public interest for its own position. Rather, the court said that “the public has a strong interest in ensuring that its laws do not subject individuals to indefinite detention without due process . . . .”
The court commented that although the war on terror was also in the public interest, petitioners’ challenge their designation as “enemy combatants,” and thus it was “misleading . . . to frame the relevant interest here as the government’s ability “to detain enemy combatants.””
The court did not rule on the merit of petitioners’ claims under the All Writs Act.
Al-Odah v. U.S.A., 355 U.S. App. D.C. 189, (2003)
[49]Injunction DENIED
ü Decision relies heavily on decision in Johnson v. Eisentrager, 339 U.S. 763 (1950), a case in which German appellants were seeking protection from the US, but were considered not under any US court’s jurisdiction because they were “enemy aliens” But, the court distinguishes this case from Eisentrager; detainees are not “enemy aliens” as Eisentrager used the term. However, uses three arguments for why there is no jurisdiction:
1. “Aliens outside the sovereign territory of the US” do not hold certain constitutional rights
Citing: Verdugo-Urquidez, 494 U.S. 269
Zadvydas b Davis, 533 U>S. 678
Pauling v. McElroy, 107 U.S. App. DC 372
SO: no court in the US has the jurisdiction to grant habeas relief under 28 USC §2241
2. Petitioner argues that the military control of Guantanamo essentially is equivalent to sovereign control, and besides the decision in Eisentrager did not depend on the definition of sovereignty or territory.
Court shoots it down: the lease of the military base stipulates that Cuba has sovereignty
Citing also: Vermilya-Brown Co. v. Connell, 335 U.S. 377
But: Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326 (vacated)
Ralpho v. Bell, 186 U.S. App. D.C. 368 (distinguished)
3. Petitioner argues for injunctions and declaratory judgments under the Alien Tort Act, 28 U.S.C. §1350.
Court relies again on Eisentrager
Subsequent History: Injunction Granted (Abdah v. Bush, 2005 U.S. Dist. LEXIS 4144)
KURNAZ v. BUSH
[50]U.S. District Court for DC
Decided April 12, 2005, 2005 U.S. Dist. LEXIS 6560
- Facts: Murat Kurnaz’s case (Turk, detained for 3+ years) requests 30-days notice to counsel of any proposed transfer. [*2]
- Other plaintiff, Jamel Ameziane (Algerian, detained for 2+ years), doesn’t know he’s being represented by counsel. Counsel requests that Ameziane isn’t transferred until counsel meets with him to ascertain his interest. [*2]
- Procedural History:
- Kurnaz’s case has been consolidated with related cases and stayed pending appeal (In re Guantanamo Detainees). All petitioners in these combined cases have requested a preliminary injunction ordering respondents to provide advance notice of petitioners’ transfer from Gtmo. [*1]
- The stay entered by Judge Green doesn’t bar the Court’s consideration of Kurnaz’s motion for injunctive relief. [*2]
- Court ordered respondents to show cause by 4/1/05 why Ameziane’s writ shouldn’t be granted, but respondents moved for a stay. Ameziane opposes stay and has moved for protective order similar to that granted other detainees. [*3]
- Judgment:
1) Grants respondents stay with regard to Ameziane, but they’re ordered to give Ameziane’s counsel facts w/in 90 days. [*3]
2) Ameziane granted protective order similar to detainees in In re Guantanamo Detainees. [*4]
3) Petitioners’ counsel will receive 30-days advance notice of transfers in limited circumstances (when respondents haven’t reached diplomatic understanding with the transferee country that the transfer is for release only). [*4]
4) Petitioners’ motions for preliminary injunctions denied as moot.
- LQ: Can petitioners receive injunctive relief while cases are pending?
- Holding: Petitioner’s counsel must be given 30-days notice of a potential transfer if respondents have not reached a diplomatic understanding with the transferee country that the petitioner’s transfer is for release only. [*4]
- Reasoning: In Rasul, Supreme Court held that federal courts have jurisdiction to determine legality of the ongoing detention of petitioners held in Gtmo. [*5]
- Court must therefore have the authority to preserve jurisdictional authority if it can be shown that respondents are acting to circumvent it (All Writs Act (28 U.S.C.S. § 1651(a) “empower a district court to issue injunctions to protect its jurisdiction,” Al-Marri, Abu Ali v. Ashcroft, Lindstrom v. Graber, Michael v. INS). [*6]
- Respondents state that some petitioners may be transferred to custody of foreign government for investigation, possible prosecution, and continued detention when those governments accept responsibility that those detainees won’t pose further threat to U.S. Once the transfer happens, the Court would lose its jurisdiction. [*6]
- Examples raised by petitioners raise sufficiently serious concerns about whether this or another type of transfer could be subject to an injunction to “justify the limited remedy of advance notice.” [*7]
- Closer scrutiny of transfer might be appropriate if petitioner is being transferred to the custody of a country where he has never had occasion to violate that country’s laws, thereby raising question about the governmental claim of “independent law enforcement” interest. [*7]
- Docket info:
- Judge Ellen Huvelle
- Attorney for Ameziane, Robert d. Rachlin of Downs Rachlin Martin PLLC
P.O. Box 190, Burlington, VT 05402
rrachlin@drm.com, 802-846-8327, fax 802-863-2573
- Attorney for Murat Kurnaz: Baher Azmy of Seton Hall Law School
Center for Social Justice
833 McCarter Highway, Newark, NJ 0712
973-642-8700, 973-642-8295 fax, azmybahe@shu.edu
MOKIT v. BUSH
[51]U.S. District Court for DC
Decided June 16, 2005 (374 F. Supp. 2d 106)
- Procedural history: Wahidof Abdul Mokit filed motion for a preliminary injunction preventing respondents from rendering him into custody to his native Tajikistan or any other foreign country.
- Respondents filed motion to stay proceedings pending appeal of related cases.
- Both parties consent to entry in this case of Protective Orders entered by Judge Green in other GTMO habeas cases.
- Judgment:
1) ordered that the amended protective orders for procedures, access to counsel, and filing apply to this case;
2) This case is stayed pending resolution of all appeals in In re Guantanamo Detainee Cases and Khalid et al. v. Bush;
3) Respondents shall file factual return regarding Mokit w/in 90 days of entry of this order or w/in 90 days of the conclusion of any Combatant Status Review Tribunal proceeding (whichever is later)
4) Respondents and those in concert w them may not remove petitioner from GTMO unless the court and counsel receive 30 days’ advance notice.
5) Petitioner’s motion for preliminary injunction denied as moot.
- Reasoning: No reasoning given the orders.
- Contact info:
- Judge Paul L. Friedman
- Petitioner’s attorney: Bridget McCormack of Michigan Clinical Law Program
363 Legal Research Building, 801 Monroe St., Ann Arbor, MI 48109
mclp@umich.edu, 734-753-4319
Al-Marri v. Bush Slip Copy, 2005 WL 774843 D.D.C.,2005.Apr 04, 2005
[52]Grants motion for preliminary injunction giving 30 days notice on intended transfer.
Bases on:
Standard of review:
(1) whether Petitioner would suffer irreparable injury if an injunction were not granted;
a. transfer to torture country
i. Gov’t has xferred to torture countries—Pakistan, Saudi Arabia, Morocco.
b. Xfer might make petitioner lose habeas claim
c. Both threats imminent—gov’t retains right to xfer even though they say not in the next few weeks.
(2) whether Petitioner has a
substantial likelihood of success on the merits;
a. has shown “fair ground for litigation.”
(3) whether an injunction would substantially injure other interested parties.
a. No concrete evidence that delay will hurt gov’t.—just seeks 30 days notice.
(4) whether the grant of an injunction would further the public interest.
Public interest is in preserving rights, not gov’t position of war on terror.
Qassim v. Bush, 382 F.Supp.2d 126 D.D.C.,2005. Aug 19, 2005
[53]This is not a standard injunction motion—Detainees were ruled not enemy combatants, currently awaiting release.
· Qassim and Al-Hakim are native Chinese, caught by Pakistan in late 2001, delivered to US. At GTMO since 6/2002, CSRT determined them not to be enemy combatants anymore.
· Writ of Habeas Corpus 3/10/05
· Gov’t asserts right to continue to detain them: "the Executive's necessary power to wind up wartime detentions in an orderly fashion."
· Court doesn’t discuss this assertion, notes that both parties agree that detainees will be released: issues are when and to where. Cannot return them to China—persecuted (for being muslim?).
o Cases before Court of Appeals now do not involve non-enemy combatants.
· “It is unnecessary, however--at least for now--to decide whether this Court has the power to require the production of the petitioners [to the United States as a result of the Habeas writ].”
· Court sets date of 8/25/05 for “hearing will be set for the purpose of considering and perhaps reaching agreement on the conditions in which the petitioners are live, and the privileges they will have, pending their relocation to another country.” –Can’t find the outcome of this hearing.
AL-OSHAN v. BUSH
[54]U.S. District Court for DC
Decided April 7, 2005 (Civil Action No.: 05-0520 (RMU))
- Procedural history: Petitioner sought habeas corpus relief, and the court ordered respondents to show cause in response to petitions under 28 U.S.C. § 2243.
- Petitioners move to compel respondents to produce factual returns justifying ongoing detention of petitioners at GTMO. [*2]
- Government argues:
- it doesn’t make sense to continue on with the proceedings by submitting factual returns while waiting for the D.C. Circuit to decide related Guantanamo detainee appeals that will determine the legal analyses applicable to the cases and how they should proceed. [*3]
- Government says that requiring the factual returns burdens government resources and risks the disclosure of classified info. [*3]
- Holding: Waiting for the decision doesn’t prevent government from processing returns. The petitioners’ counsel should have the opportunity to review the returns in order to prepare their cases. [*3] The protective order entered in this case will guard against any inadvertent disclosures of classified info. Court is confident that the government can handle the logistical burden of producing the factual returns. [*4]
- Judgment: 1) Petitioner’s motion to compel granted. 2) Respondents shall file factual returns regarding the petitioners w/in 45 days. [*4]
- Notes: Judge Urbina seemed annoyed that the government was making these arguments. A note even says “the court would rather focus its attention on the merits of these cases than disciplining the government’s lawyers and explaining the obvious.” [*2]
- Contact info:
- Judge Ricardo Urbina
- Petitioner’s counsel: Julia L. Tarver of Paul, Weiss, Rifkind, Warton & Garrison
New York, NY
- Subsequent history: This case is later combined into Kurnaz v. Bush which grants petitioners 30 days advance notice of transfer.
GHEREBI v. BUSH
[55]U.S. District Court for DC
Decided September 29, 2004, 338 F. Supp. 2d 91
- Procedural History: Belaid Gherebi filed an amended petition for writ of habeas corpus with the 9th Circuit for his brother Faren Gherebi who was been detained in GTMO since 1/11/02. [**2]
- Transferred from Court of Appeals to U.S. District Court for Central District of CA where it was dismissed for lack of jurisdiction (bc GTMO not w/in sovereign territory) [Id.]
- 9th Circuit reversed District Court (said jurisdiction over detainees as well as Rumsfeld) [**3]
- on petition for writ of certiorari, Supreme Court vacated 9th Circuit’s decision to be remanded in light of Padilla (respondent immediate custodian and district of confinement rules) [**4]
- 9th Circuit said it still had jurisdiction but transferred to the DC District Court
- Respondents ordered to show cause why writ should not be issued [**4]
- Respondents filed motion to dismiss, Petitioners opposed, and Respondents filed a reply [**7]
- Respondents assert that 1) questionable habeas jurisdiction over Sec. Rumsfeld, 2) petitioner detainee has no cognizable constitutional rights, 3) respondents haven’t violated constitutional rights, 4) petitioner can’t state a claim under the 3rd Geneva convention [**9]
- Respondents also filed motion to coordinate the numerous GTMO detainees cases [**7]
- 9/17/04 Judge Walton ordered this case referred to Judge Green [**8]
- Judgment: The portion of the respondent’s motion to dismiss addressing habeas jurisdiction of the Court is severed from the rest, and the Court does have habeas jurisdiction.[**9]
- LQ: Does the DC Court have habeas jurisdiction over Rumsfeld as a respondent?
- Holding: Yes bc the DC Court is the designated court for hearing GTMO detainee cases.
- Reasoning: Respondents do not argue that DC Court is the inappropriate forum to resolve Petitioner’s request for relief but say that the Court may lack jurisdiction over Rumsfeld who works in VA and who they say is the only properly named respondent in petition. [**13]
- Rasul makes it clear that this Court is the appropriate forum for resolution of GTMO detainee cases, and the respondents would like to litigate the cases together. [**14]
- § 2441 requires only that the district court have jurisdiction over the petitioners’ custodians and therefore confers on the District Court for DC jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention at Gtmo. [**14]
- also acknowledge respondents’ expressed desire to litigate this case in DC in coordination with Rasul cases [**15]
- precedent for habeas jurisdiction over Pentagon officials (Burns v. Wilson, U.S. ex rel. Toth v. Quarles) [**15]
- recognizes that while “habeas jurisdiction” requires 1) petition name as respondent only the person having immediate custody of the detainee and 2) must be filed in the district where the detainee is confined, Supreme Court recognizes exceptions to these general rules when the detainee seeking relief is held outside the territorial jurisdiction of any district court. [**11]
- the Constitutional and Third Geneva Conventions issues are to be addressed at a later date.
- Docket info:
- Judge Reggie B. Walton
- Attorney Erwin Chemerinsky of Duke Law School
Corner of Science Dr. & Towerview Rd.
Durham, NC 27708, 919-613-7173
- Attorney Stephen Yahman of Yagman & Yagman & Reichmann
723 Ocean Front Walk
Venice Beach, CA 90291, 310-452-3200
- Subsequent history: Included In re Guantanamo for issuance of Protective Orders.
HAMDAN v. RUMSFELD
[56]U.S. Court of Appeals for the DC Circuit
Decided July 15, 2005, 415 F.3d 33
- Facts: U.S. Government alleges that Salim Ahmed Hamdan was Osama bin Laden’s personal driver in Afghanistan (also was personal bodyguard, delivered weapons to al Qaeda members, and trained at the al Farouq camp). He was captured in Afghanistan, turned over to the American military, and transported to Guantanamo Bay Naval Base. [**4-**5]
- Hamdan designated for trial before a military commission and appointed counsel.
- Government charged Hamdan with conspiracy to commit attacks on civilians and civilian objects, murder and destruction of property, and terrorism. [**4]
- Hamdan admitted in affidavit that was bin Laden’s personal driver. [**5]
- Trial was to be before a military commission (3 colonels) [**5]
- After Hamdi v. Rumsfeld, Hamdan’s enemy combatant status was confirmed in hearing before a Combatant Status Review Tribunal. [**5]
- Procedural history: 4/04 Hamdan filed a habeas petition in the U.S. District Court for DC. [**4]
- 11/04 District Court held that Hamdan couldn’t be tried by a military commission proceedings unless a competent tribunal determined that he was not a POW under the Geneva Convention Relative to the Tx of POWs (1949 Geneva Convention). [**5-**6]
- Held that the 1949 Geneva Convention could be enforced in federal court. Said Common Article 3 applied.
- Government appealed.
- Judgment: The District Court judgment is reversed. Hamdan can be tried by military commission, has already been determined to not be a POW, and the Geneva Convention can’t be enforced in court.
- LQ1: Does District Court should not have exercised jurisdiction over Hamdan’s petition?
- Holding: Yes, pursuant to Quirin civilian courts can entertain challenges seeking to interrupt processes of military commissions. [**8]
- Government argued that the court should not have exercised jurisdiction over Hamdan’s habeas corpus petition, citing Councilman and New. These cases, however, only say that civilian courts should not interfere with ongoing court-martial proceedings against citizen servicemen. [**6]
- LQ2: Did the President violate separation of powers in establishing the military commissions?
- Holding: No. These military commissions were authorized by Congress to try detainees such as Hamdan. [**13]
- Reasoning:
- Hamdan cites Art. I § 8 of the Constitution which gives Congress power to constitute tribunals, but the Constitution doesn’t give similar powers to the executive. [**9]
- Court doubts whether someone of Hamdan’s position can raise such a constitutional claim. [**9]
- in establishing the military commissions the President relied on: authority as Commander in Chief, Congress’s joint resolution authorizing the use of force, 10 U.S.C.§ 821, and 10 U.S.C. § 836. [**10]
- trial and punishment of enemy combatants is part of the conduct of war (Yamashita 1946), and Congress came close enough to declaring war in the joint resolution [**10-**11]
- court-martial jurisdiction doesn’t exclude military commissions of concurrent jurisdiction [**12]
- LQ3: Can the 1949 Geneva Convention be enforced in federal court?
- Holding: No. The 1949 Geneva Convention doesn’t confer upon Hamdan a right to enforce its provisions in court. [**20]
- Reasoning:
- traditionally treaties do not create judicially enforceable individual rights. [**14]
- international agreements do not generally create private rights or provide for private cause of action in domestic courts [**15]
- Eisentrager (1950) said that while the 1929 Geneva Convention specifies rights of POWs, political and military authorities have the responsibility to observe and enforce these rights – not enforced by writ of habeas corpus. [**16]
- no big differences btw the 1929 and 1949 GCs [**17]
- distinguishes Rasul (2004) which decided whether federal courts had jurisdiction to consider challenges to the legality of the detention of foreign nationals (not about enforcing GC) [**16]
- jurisdiction over a claim doesn’t make the claim valid [**19]
- treaty-based rights are to be enforced by means other than the writ of habeas corpus [**19]
- LQ4: Would Hamdan even be protected from military commissions if the 1949 Geneva Convention could be enforced in federal court?
- Holding: No. In determining the type of conflict, court defers to the President’s interpretation. Members of al Qaeda are not protected within the 1949 Geneva Convention framework.
- Reasoning:
- Hamdan doesn’t fit Article 4 definition of POW entitled to protection. [**20]
- 1949 GC doesn’t apply to al Qaeda and its members bc don’t fit into international conflict framework (al Qaeda is not a state, nor a “High Contracting Party,” and hasn’t accepted and applied provisions of GC). [**21]
- Common Article 3 covers “armed conflict not of an international character” and requires judgment from a regularly constituted court w regular judicial guarantees. [**22]
- Hamdan says if Common Article 3 applies, military commission couldn’t try him.
- Court defers to President’s defining of the conflict as “international in scope”, so Common Art. 3 wouldn’t apply. [**23]
- Even if Common Article 3 applied, he would first exhaust military remedies before contesting his conviction in federal court bc comity dictates that Court defers to ongoing military proceedings. [**25]
- LQ5: Must military commissions comply in all respects with requirements of the Uniform Code of Military Justice?
- Holding: President may not adopt procedures that are contrary to or inconsistent with the UCMJ’s provisions military commissions. [**27]
- Reasoning: UCMJ distinguishes between courts-martial (done in the presence of the accused) and military commissions (our commonlaw war courts). [**26]
- UCMJ only imposes minimal restrictions upon the form and function of military commissions, and Hamdan doesn’t allege that the present commission violate any of the pertinent provisions. [**27-**28]
- District court misinterpreted the final clause of 10 U.S.C. § 836 to mean that military commissions must comply in all respects w requirements of UCMJ. [**26]
- LQ6: Does Army Regulation 190-8 entitle Hamdan to a competent tribunal?
- Holding: If it does, the military commission is competent. [**28]
- Reasoning: AR 19-8 § 1.6(c) requires one of the 3 commissioned officers to be field-grade. Current commissions are composed of 3-7 officers, and Hamdan’s commission will consist of 3 colonels (meets requirement). [**28]
- Concurrence: Agrees in everything but the conclusion that Common Article 3 doesn’t apply to al Qaeda members captured in the conflict in Afghanistan. [**30]
- Common Article 3 fills the gap for non-state actors. Words “not of an international character” should be understood to refer to conflict between signatory nation and a non-state actor. [**31]
- Docket info:
- Judge James Robertson
- Petitioner’s attorneys: Benjamin S. Sharp and Kelly Alfred Cameron
Pekins Coie, 607 14th St. NW, Ste. 800, Washington, DC 20005
202-234-1652 and 202-434-1690 fax (Cameron), 202-434-1690 (Sharp)
Appendix B: Attorney Contact Information
Group 1:
Julia L. Tarver
1285 Avenue of the AmericasNew York, NY 10019-6064 United States Phone 212-373-3029Fax 212-373-2769
jtarver@paulweiss.com
Cases:
Al-Joudi v. Bush
Majid Abdulla Al-Joudi
Yousif Mohammad Mubarak Al-Shehry
Abdul-Hakim Abdul-Raman Al-Moosa
Abdulla Mohammaed Al-Ghanmi
Group 2:
David H. Remes
Covington & Burling1201 Pennsylvania Avenue, NWWashington, DC 20004-2401dremes@cov.com
202.662.5212
Marc D. Falkoff
Covington & Burling1330 Avenue of the AmericasNew York, NY 10019
mfalkoff@cov.com
212.841.1166
Cases: Abdah v. Bush (2005 WL 589812)
Mahmoad Abdah
Presumably, the same Yemeni Nationals listed below, since these are the people listed on the petition for habeas corpus. However, the court in (2005 WL 711814) notes that there was an inconsistency between the claimed number of nationals and the number listed on the petition.
Abdah v. Bush (2005 WL 711814)
(1) Mahmoad Abdah
(2) Majid Mahmoud Ahmed
(3) Abdulmalik Abdulwahab Al-Rahabi
(4) Makhtar Yahia Naji Al-Wrafie
(5) Aref Abd Il Rheem
(6) Yasein Khasem Mohammad Esmail
(7) Adnan Farhan Abdul Latif
(8) Jamal Mar'i
(9) Othman Abdulraheem Mohammad
(10) Adil Saeed El Haj Obaid
(11) Mohamed Mohamed Hassan Odaini
(12) Sadeq Mohammed Said
(13) Farouk Ali Ahmed Saif
(14) Salman Yahaldi Hsan Mohammed Saud
Group 3:Gaillard T. Hunt 8909 Grant Street Bethesda, Maryland 20817 (according to the court he no longer lives here . . .)301-530-2807 gthunt@mdo.net
Cases: Paracha v. Bush
Saifullah Paracha
Group 4:
Christopher G. Karagheuzoff
Dorsey & Whitney LLP
(212) 735-0793
karagheuzoff.christopher@dorsey.com
Joshua Colangelo-Bryan
Dorsey & Whitney LLP
(212) 415-9234
colangelo.bryan.joshua@dorsey.com
Mark S. Sullivan
Dorsey & Whitney LLP
(212) 415-9245
sullivan.mark@dorsey.com
Cases: Almurbati v. Bush
Clients: Isa Ali Abdulla Almurbati
Adel Kamel Abdulla Hajee
Salah Abdul Rasool Al Bloushi
Next friends: Mohamad Ali Abdulla Almurbati
Abdullah Kamel Abdulla Jajee
Abdul Rasool Ali Al Bloushi
Group 5:
Barry J. Pollack
Washington Harbour, Suite 4003050 K Street, NWWashington, DC 20007-5108TEL: 202.342.8472FAX: 202.342.8451
Kurnaz v. Bush
See Docket Report for Client list and additional contact information (CCR)
Murat Kurnaz
Jamel Ameziane
Note: The Ameziane docket report is unavailable, but since these cases were filed together, presumably the same attorneys worked on them.
Group 6:
Timothy S. Susain
One Logan Square, Suite 3040Philadelphia, PA 19103-6903
215) 561-1408
tsusain@gibbonslaw.com
Lawrence S. Lustberg
One Riverfront PlazaNewark, NJ 07102-5496
973-596-4731
llustberg@gibbonslaw.com
Mark A. Berman
One Riverfront PlazaNewark, NJ 07102-5496
973-596-4753
mberman@gibbonslaw.com
Jonathan L. Hafetz
One Pennsylvania Plaza, 37th FloorNew York, NY 10119-3701
212-649-4743
jhafetz@gibbonslaw.com
Cases: Al-Marri v. Bush
Jarallah Al-Marri
Group 7:
Richard J. Wilson
American University, Washington College of Law
Room 448
Telephone: (202) 274-4246 rwilson@wcl.american.edu
Mainer I. Ahmad (this is the court's spelling, not WCL's)
American University, Washington College of Law
Room 428
Telephone: 202-274-4389
mahmad@wcl.american.edu
Cases: O.K. v. Bush
O.K.
Group 8:
David A. Hickerson
Weil, Gotshal & Manges
Washington DC1300 Eye Street NW, Suite 900
Washington, DC 20005
Tel: +1 202 682 7105
Fax: +1 202 857 0940
david.hickerson@weil.com
Cases: Al-Anazi v. Bush
Petitioners Abdulla Thani Faris Al-Anazi
Adel Egla Hussan Al-Nussairi, N.A.O.
Abdulaziz Sa'ad Oshan
Ibrahim Suleiman Al-Rubaish
Group 9:
Barbara J. Olshansky
bjo@ccr-ny.org
Center for Constitutional Rights
666 Broadway
7th Floor
New York, NY 10012
212-614-6439
P. Sabin Willett
Sabin.willett@bingham.com
Bingham McCutchen LLP
150 Federal Street
Boston, MA 02110-1726
617-951-8000
Susan Baker Manning
Susan.manning@bingham.com
Bingham McCutchen LLP
1120 20th Street, NW
Suite 800
Washington, DC 20036
202-778-6150
Cases: Qassim v. Bush, 382 F. Supp. 2d 126 (D.D.C. 2005)
Note: Certain petitioners in particular cases have their own attorneys as well. This is contained in the docket reports for the cases (if available).
[1] See Abdah v. Bush, No. Civ.A. 04-1254(HHK), 2005 WL 711814, at *1 (D.D.C. Mar. 29, 2005) (preliminary injunction); Abdah v. Bush, No. CIVA041254(HHK)(RMC), 2005 WL 589812 at *1 (D.D.C. Mar. 12, 2005) (temporary restraining order); Al-Anazi v. Bush, 370 F. Supp. 2d 118 (D.D.C. 2005); Al-Joudi v. Bush, No. Civ. A. 05-301(GK), 2005 WL 774847, at *1 (D.D.C. Apr. 4, 2005); Al-Marri v. Bush, No. Civ.A. 04-2035(GK), 2005 WL 774843 at *1 (D.D.C. Apr. 4, 2005); Almurbati v. Bush, 366 F. Supp. 2d 72 (D.D.C. 2005); Doe v. Bush, Civil Action No. 05-313 (CKK) (RMC), U.S. Dist. LEXIS 6417, at *1 (D.D.C. Mar. 13, 2005); Kurnaz v. Bush, Civil No. 04-1135 (ESH), Civil No. 05-0392 (ESH), 2005 U.S. Dist. LEXIS 6560, at *1 (D.D.C. Apr. 12, 2005); O.K. v. Bush, 377 F. Supp. 2d 102 (D.D.C. 2005); Sliti v. Bush, Civ. Action No. 05-429 (RJL), 2005 U.S. Dist. LEXIS 18888, at *1 (D.D.C. Aug. 28, 2005).
[2] See supra note 1.
[3] See, e.g., Kurnaz, 2005 U.S. Dist. LEXIS 6560 at *8–9.
[4] Abdah, 2005 WL 589812, at *2 (a TRO also requires immediacy, but this is merely an additional requirement); Al-Joudi, 2005 WL 774847 at *3 (preliminary injunction).
[5] Al-Joudi, 2005 WL 774847 at *3.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Cf. id.
[11] Id.
[12] Id.
[13] Id.
[14] Abdah, 2005 WL 711814 at *3; Abdah, 2005 WL 589812, at *5; Al-Joudi, 2005 WL 774847 at *4.
[15] See Al-Joudi, 2005 WL 774847 at *4.
[16] See Al-Anazi, 370 F. Supp. 2d at 195–97.
[17] Id.; Doe, 2005 U.S. Dist. 6560 at *9; O.K., 377 F. Supp. 2d at 113–14.
[18] See, e.g., O.K., 377 F. Supp. 2d at 108–09.
[19] Compare id. and O.K., 377 F. Supp. 2d at 108–09, with Abdah, 2005 WL 589812 at *5 and Al-Joudi, 2005 WL 774847 at *4.
[20] Al-Joudi, 2005 WL 774847 at *5.
[21] Abdah, 2005 WL 589812 at *4.
[22] Abdah, 2005 WL 711814 at *4.
[23] Al-Joudi, 2005 WL 774847 at *5.
[24] Al-Anazi, 370 F. Supp. 2d at 195–97.
[25] O.K., 377 F. Supp. 2d at 116. But see Abdah, 2005 WL 711814 at *5 (stating that Fed. R. App. P. actually prevents this type of transfer).
[26] Doe, 2005 U.S. Dist. LEXIS 6417 at *8–9.
[27] Almurbati, 366 F. Supp. 2d at 80 (noting that a delay of release “conflicts with the purpose for seeking habeas relief, in the absence of proof that the release is a sham and that control over a petitioner is in some manner being retained by the respondents)).
[28] Al-Joudi, 2005 WL 774847 at *5.
[29] See, e.g., id.
[30] See, e.g., id.
[31] See, e.g., Al-Anazi, 370 F. Supp. 2d at 198–99.
[32] Al-Joudi, 2005 WL 774847 at *5.
[33] Abdah, 2005 WL 711814 at *6; Al-Joudi, 2005 WL 774847 at *6.
[34] Al-Joudi, 2005 WL 774847 at *6.
[35] See id.
[36] See, e.g., Al-Anazi, 370 F. Supp. 2d at 199.
[37] See Abdah, 2005 WL 589812 at *5 (advancing only conclusory assertions for both of these elements); Almurbati, 366 F. Supp. 2d at 81–82 (treating these issues only briefly).
[38] See, e.g., Al-Anazi, 370 F. Supp. 2d at 197 (“The lynchpin of a request for preliminary injunctive relief is a showing of irreparable injury to the movant in the absence of the requested relief.”).
[39] See Al-Anazi, 370 F. Supp. 2d at 197–98; Almurbati, 366 F. Supp. 2d at 77–79; O.K., 377 F. Supp. 2d at 113; Sliti, 2005 U.S. Dist. LEXIS 18888 at *4–6.
[40] Briefed by Nicole Woods, aikdeewani@yahoo.com
[41] Briefed by Nicole Woods, aikdeewani@yahoo.com
[42] Briefed by Nicole Woods, aikdeewani@yahoo.com
[43] Briefed by Sarah Fick, srf258@nyu.edu
[44] Briefed by Sarah Fick, srf258@nyu.edu
[45] Briefed by Sarah Fick, srf258@nyu.edu
[46] Briefed by Charles Wait, cw864@nyu.edu
[47] Briefed by Charles Wait, cw864@nyu.edu
[48] Briefed by Charles Wait, cw864@nyu.edu
[49] Briefed by Rebecca Bers, rab416@nyu.edu
[50] Briefed by Kristin Connor, kmc391@nyu.edu
[51] Briefed by Kristin Connor, kmc391@nyu.edu
[52] Briefed by Eric Rasmusen, ericr@nyu.edu
[53] Briefed by Eric Rasmusen, ericr@nyu.edu
[54] Briefed by Kristin Connor, kmc391@nyu.edu
[55] Briefed by Kristin Connor, kmc391@nyu.edu
[56] Briefed by Kristin Connor, kmc391@nyu.edu
