Petitioners, Respondents. PETITION FOR A WRIT OF...

IN THESUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2010

FARHI SAEED BIN MOHAMMED, ET AL.,

Petitioners,V.

BARACK OBAMA, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

APPENDIX (VOLUME I)

Jerry CohenBURNS & LEVINSON LLP125 Summer StreetBoston, MA 02110

Stewart EisenbergWEINBERG & GARBER, P.C.71 King StreetNorthampton, MA 01060

David H. RemesCounse! of Record

APPEAL FOR JUSTICE1106 Noyes DriveSilver Spring, MD 20910(202) [email protected]

Stephen I. Vladeck4801 Mass. Avenue, NWWashington, DC 20016

Counsel for Petitioners

TABLE OF CONTENTS

PageOrder Granting Motion for ExpeditedSummary Reversal [July 8, 2010] ............................la

Memorandum Opinion GrantingPreliminary Injunction [June 29, 2010] ...................8a

Order Granting Petition for Writ of HabeasCorpus [November 19, 2009] ...................................25a

Order Requiring 30-Day Notice [July 10, 2008] ....27a

Order Granting Petitioner’s Injunction Motion[September 26, 2008] ...............................................29a

Kiyemba, et al. v. Obama, et al. CaseSummary .................................................................31a

Order Denying Petition for RehearingEn Banc [July 27, 2009] ..........................................71a--

Order for Administrative Stay [June 3, 2010] .......90a

Amended Order to Resolve All OutstandingMotions [June 25, 2010] ..........................................91a

Order Denying Motion to Stay Mandate[July 12, 2010] .........................................................93a

i

UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 10-5218 September Term 2009

1:05-cv-01347-GK

Farhi Saeed BinMohammed, Detainee,Guantanamo Bay NavalStation and MoazzamBegg, as next friend ofFarhi Saeed binMohammed,

Appellees

Vo

Filed On: July 8, 2010

Barack Obama, et al.,

Appellants

BEFORE: Tatel,* Griffith, and Kavanaugh,Circuit Judges

ORDER

Upon considerationfor expedited summarythereto, and the reply, it is

of the emergency motionreversal, the opposition

la

ORDERED that the motion be granted. Thepreliminary injunction entered June 29, 2010, inCivil Action No. 05-1347 (D.D.C.), is herebydissolved. The district court had enjoined thegovernment from transferring Farhi Saeed BinMohammed to Algeria in light of his allegations thathe would be tortured there by the Algeriangovernment and by non-state actors. UnderKiyemba v. Obama ("Kiyemba II"), however, thedistrict court may not prevent the transfer of aGuantanamo detainee when the government hasdetermined that it is more likely than not that thedetainee will not be tortured in the recipient country.561 F.3d 509, 516 (D.C. Cir. 2009); see Munaf v.Geren, 128 S. Ct. 2207, 2226 (2008).

The government’s representations in this casesatisfy that standard. The government avers that itevaluated "all information that is in any wayrelevant to whether a detainee is more likely thannot to be tortured in the receiving country,"Emergency Mot. at 14, "including submissions [thegovernment had] received to date from counselrepresenting the detainee," Fried Decl. ¶ 3, July 9,2009 [hereinafter July Fried Decl.]; see also id. ¶ 6;Fried Decl. ¶¶ 4, 7-8, Nov. 25, 2009, and hasdetermined that, in the face of the allegations madeby Mohammed, his transfer complies with "the policythat the U.S. Government will not transferindividuals to countries where it has determined thatthey are more likely than not to be tortured." JulyFried Decl. ¶ 2. It is

FURTHER ORDERED, on the court’s ownmotion, that the preliminary injunction entered June

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29, 2010, in Civil Action No. 05-1347 (D.D.C.),remain in effect until issuance of the mandateherein.

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Pursuant to DIC. Circuit Rule 36, thisdisposition will not be published. The Clerk isdirected to issue the mandateat 4:00 p.m.,Wednesday, July 14, 2010.

Per Curiam

FOR THE COURT:Mark J. Langer,Clerk

BY: /s/Sabrina M. CrispDeputy Clerk

* Circuit Judge Tatel would deny in part themotion for summary reversal for the reasons setforth in the attached statement, entered under seal.

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TATEL, Circuit Judge, concurring in part anddissenting in part:

The United States captured Fahri Saeed binMohammed in Pakistan in 2002 and has detainedhim at Guantanamo Bay ever since. In November2009, the U.S. District Court for the District ofColumbia found Mohammed’s detention unlawfuland granted his petition for a writ of habeas corpus.Although pursuant to its inherent remedial powersthe district court possesses authority to ensureMohammed’s safe release, Boumediene v. Bush, 128S. Ct. 2229, 2271 ("[W]hen the judicial power toissue habeas corpus properly is invoked the judicialofficer must have adequate authority toformulate and issue appropriate orders for relief...."), the government argues that Kiyemba v. Obama(Kiyemba II), 561 F.3d 509 (D.C. Cir. 2009),precludes the district court or this court from second-guessing the Executive’s determination thatMohammed faces no harm in Algeria, where thegovernment intends to release him.

In Kiyemba II we held that "the district courtmay not question the Government’s determinationthat a potential recipient country is not likely totorture a detainee." Id. at 514 (citing Munaf v.Geren, 128 S. Ct. 2207, 2226 (2008)). The districtcourt’s injunction therefore cannot stand to theextent that it rests on Mohammed’s fear of torturefrom the Algerian government or on the court’sdesire to question Ambassador Fried about hisdeclarations.

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In an allegation that the district courtcredited, however, Mohammed also claims that hewill be targeted by non-governmental actors--armedIslamic militants unaffiliated with the Algeriangovernment--if the United States sends him toAlgeria. Even if the logic of Kiyemba H requiresdeference to the government’s evaluation of threatsfrom non-governmental entities, that decision stillrequires evidence of a governmental policy not totransfer a detainee where such harm is likely.Notwithstanding several rounds of briefing byMohammed raising the issue, however, thegovernment has never said in its declarationswhether, as a matter of policy, it even considersthreats from non-governmental entities--or whetherit receives assurances from the recipient governmentregarding its ability to protect the detainee fromsuch threats--when making transfer decisions.Pointing out that Ambassador Fried’s declarationsrefer to United States policy against transferring"individuals to countries where it has determinedthat they are more likely than not to be tortured,"Fried Decl. ¶ 3, NOV. 25, 2009, and stating that it hasevaluated "all information that is in any wayrelevant" to that po!icy, Emergency Mot. at 14, thegovernment suggests that this policy necessarilyconsiders the likelihood of torture by non-governmental entities. But the declarations focusexclusively on "whether the foreign governmentconcerned will treat the detainee humanely," and onwhether "the Government of Algeria has treated anyof these individuals in a manner inconsistent with itsobligations under the Convention Against Torture."Fried Decl. ¶ 4, Nov. 25, 2009 (emphasis added);Fried Decl. ¶ 3, July 9, 2009 (empl~asis added). In my

63

view, then, the declarations fail to. show that thegovernment has specifically considered the likelihoodof torture at the hands of nongovernmental actors. Ifthe government has in fact done so, all it needs to dois clearly say so in its declaration. To be sure,Kiyemba II prohibits courts from second-guessinggovernment declarations regarding the risk oftorture in the recipient country, but nothing inKiyemba II requires courts to guess as to what thegovernment’s policy is.

Thus, while I agree with my colleagues thatKiyemba II compels us to reverse the district courtwith respect to Mohammed’s allegations of torture bythe Algerian government and the court’s intention tointerrogate Ambassador Fried, I would remand toallow the government an opportunity to submitsupi~lemental declarations as to whether, in decidingit was safe to send Mohammed to Algeria, itconsidered potentialthreats posed by non-governmental entities.

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

FARHI SAEED BINMOHAMMED,

Petitioner,

BARACK H. OBAMA, et al.,

Defendants.

Civil Action: No. 05-1347

(GK): ~adv~$~a4

MEMORANDUM OPINION

I. PROCEDURALBACKGROUND

On November 19, 2009, after a MeritsHearing, this Court granted Petitioner’s request for aWrit of Habeas Corpus and ordered the Governmentto take all necessary and appropriate diplomaticsteps to facilitate his release forthwith. On May 27,2010, Petitioner filed an Emergency Motion toCompel Compliance With This Court’s Order ofNovember 19, 2009 and For TRO and InjunctionAgainst Transfer of Petitioner to Algeria("Petitioner’s Emergency Motion" or "EmergencyMotion"). On June 3, 2010, the Court entered anAdministrative Stay until resolution of theEmergency Motion [Dkt. No. 292]. On June 10,2010, after full briefing, the Court issued an Order[Dkt. No. 295] setting a hearing on Petitioner’sMotion for June 21, 2010, at 10:00 a.m., requiringthat Special Envoy Daniel Fried, whose three

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declarations supported the Government’s Oppositionto the Motion, be present in order to testify about therepresentations he made under penalty of perjury inthose declarations, and entering an AdministrativeStay until the Emergency Motion was decided.

On Monday June 14, 2010, the Governmentfiled an Emergency Motion for Reconsideration, inwhich it requested, at p. 2, "given AmbassadorFried’s schedule," that the Court "either immediatelystay the June 21 hearing or reschedule it for a datefar enough in the future for this Court to rule uponthe instant reconsideration motion and, in the eventthat the Court does not grant reconsideration, forRespondents to seek appropriate relief in the Courtof App e als."

On June 15, 2010, the Court granted in partand denied in part the Government’s EmergencyMotion for Reconsideration [Dkt. No. 311]. TheGovernment’s request to postpone the June 21, 2010,hearing on Petitioner’s Emergency Motion wasgranted, and the hearing was postponed until a date"far enough in the future" for full briefing by theparties and to accommodate Special Envoy Fried’sschedule. The Government’s request for the lifting ofthe Administrative Stay was denied. Finally, theC.ourt refused to rule on the Government’s request towithhold that portion of its June 10, 2010, Orderrequiring Special Envoy Fried to appear and testifyfor two reasons: first, if the Government’s concernwas Special Envoy Fried’s busy schedule, that issuecould be resolved in a conference call scheduled forJune 16, 2010, and second, if the Government wasrequesting withdrawal of that portion of the June 10,

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2010, Order requiring Special Envoy Fried to bepresent at a hearing on Petitioner’s EmergencyMotion, that request was premature given that themerits of that issue, which was raised in theGovernment’s Emergency Motion forReconsideration, were still pending.

Thereafter, on June 17, 2010, the Governmentfiled an Emergency Motion for Expedited SummaryReversal in the Court of Appeals; Petitioner filed hisOpposition to that Motion on June 22, 2010; theGovernment filed its Reply on June 23, 2010. OnJune 25, 2010, the Court of Appeals issued anAmended Order requiring this Court to resolve alloutstanding Motions by June 29, 2010, at 4:00 p.m.,1"in a manner consistent with Munaf v. Geren, 553U.S. 674 (2008), and Klyemba v. Obama, 561 F.3d

1 The Order from the Court of Appeals was received inChambers at approximately 5:00 p.m. on June 25, 2010. With adecision deadline of 4:00 p.m. on June 29, 2010, the lawyers hadtwo and a half days (two of which were weekend days) toprepare for the remand and hearing which this Court set forJune 28, 2010, at 2:00 p.m. This schedule placed an enormousburden on the lawyers who were allowed under the Court ofAppeals Order to submit further briefing and evidence to thisCourt. By the same token, the Court had approximately 24hours in which to prepare its ruling, since the hearing lastedfrom 2:00 to 4:00 p.m. This Court was required to deal withsignificant issues, possibly affecting a man’s life, in the briefspace of 24 hours. It is impossible to prepare a scholarly or indepth opinion in that period of time. This Court hopes that itwill be understood that the Opinion which follows can onlytouch on the most significant of issues raised by counsel in theirlengthy presentations during the hearing of June 28, 2010.

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509 (D.C. Cir. 2009) (Kiyemba If)" and "in an orderfrom which a party can take an immediate appeal."The Court of Appeals ordered, that no furthertestimony from Special Envoy Fried or any otherUnited States government official be required beforeresolution of all outstanding Motions by June 29,2010. The Court of Appeals did not preclude theparties from voluntarily submitting further briefingor evidence regarding Petitioner’s claimed fear ofprivate individuals or private groups in Algeria. TheCourt noted that it "states no view at this time onhow Munaf and Kiyemba II apply" to Petitioner’sarguments, which the Government disputes. Id.

On June 28, 2010, this Court held a closedhearing (because sealed matters were underdiscussion) on both Petitioner’s Emergency Motionand the Government’sEmergency Motion forReconsideration.2

II. ANALYSIS

Petitioner has been held at Guantanamo Baysince 2002, when he was first captured in Pakistan.Since then, in 2007, an Administrative Review Board.cleared him for transfer; in the spring of 2009, theGuantanamo Bay Review Task Force again cleared

2 The Court, once again, thanks all counsel for their excellent,

highly professional, written and oral presentations made in thepast several weeks concerning these Motions. In particular,Petitioner’s counsel, especially newly appointed counsel atCovington & Burling, have worked very hard under intensetime pressures to effectively represent their client.

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him for transfer out of Guantanamo Bay; and onNovember 14, 2009, this Court concluded .that hisdetention was unlawful and granted his habeaspetition. Thus, Mohammed has spent more thaneight years at Guantanamo Bay, during which therehave been findings by three separate entities thattransfer is appropriate.

The Government now wishesMohammed to the country of hiswhich he ;ft about 20

as to enjoin that trans: ~ecause o:

to transfer

etitionergreat fear

that he will be caught in a "no win" situation: eitherthe Government of Algeria will arrest him as aterrorist because of his detention at GuantanamoBay, and then torture, try, and possibly execute him,or he will be targeted for recruitment and retributionby Islamic extremist groups who have beenterrorizing the Algerian population for close to 20years and who will kill him if he refuses to join theirranks. Petitioner stated that he no longer has familyties, friends, or prospects in Algeria. He hasdeclared that he would rather stay at GuantanamoBay for the rest of his life than be returned toAlgeria. Emergency Mot. at 4.

The Government denies that any danger orharm will come to Petitioner if he is transferred toAlgeria. In support of that argument, theGovernment has submitted three declarations, one ofwhich was submitted ex parte and therefore hasnever been read by Petitioner’s counsel, from DanielFried, Special Envoy for the Closure of theGuantanamo Bay Detention Facility. Two of those

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declarations are more than six months old: one wassigned on June 9, 2009, and the second was signedon November 25, 2009. The classified ex partedeclaration was filed much more In thosedeclarations.

.er 25, 2009~cial Envoy Fried, at ¶ 6. Given the

significance of those representations and assurancesabout Petitioner’s safety and possibly his very life,and the fact that they are the only evidence offeredby the Government, this Court determined itnecessary, in order to weigh the credibility andreliability of that evidence, to inquire further into thedetails of the rather conclusory statements containedin Special Envoy Fried’s declarations.

This Court is fully aware of the long line ofcases holding that "the duties of high rankingexecutive officers should not be ~interrupted byjudicial demands for information that could beobtained elsewhere." In re Chaney, 544 F.3d 311, 314(D.C. Cir. 2008), and that the judiciary "may notsecond guess the Government’s assessment" that "itis more likely than not" that a detainee who istransferred to a particular country will not betortured or subjected to inhumane treatment. Nordid this Court have any intention of "secondguessing" the assessment of Special Envoy Fried, asthe Government repeatedly claims.

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However, when the Government offersevidence to support its arguments, and mostespecially when the strength of the Government’sevidence may put a man’s physical safety and life injeopardy, this Court does not believe that it isobligated to simply accept, as absolute truth, theconclusory representations offered by a governmentofficial. Detailed questioning could well uncovergaps in the representations made or the data reliedupon. It is inconceivable that an Article III Judge, inthe process of carrying out her duties to rule on anEmergency Motion of this nature, where a person’slife is at stake, does not have the authority to testand probe the only evidence presented by theGovernment in support of its position.

The following examples of questions needinganswers will suffice:

¯ Is it true, as asserted in Petitioner’sExhibit that Algeria will not receive anyGuantanamo Bay detainee who does not wish toreturn to that country? See Decl. of Ellen Lubell,Esq., at ¶¶ 8-9 (Ex. 1 to Emergency Mot.). If so, howdoes Petitioner’s strong opposition to returning toAlgeria square with the Government’s intent totransfer him there?

¯ What are the actual assurances, writtenor oral, that the United States Government is relyingupon from Algeria that Petitioner will receivehumane treatment?

¯ How does the United States plan tomonitor Petitioner’s treatment in Algeria, if at all, so

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as to ensure that the promises it has received fromAlgeria are being honored?

¯ How can the United States enforcethose diplomatic assurances from Algeria? Has itrequested access to monitor Mohammed’s conditionafter transfer is complete?

¯ How can Special Envoy Fried explainthe assurances of humane treatment given in hisdeclarations, when the information contained in ourown State Department’s Country Report on Algeriadescribes the existence of torture, extendeddetention, and cruel punishment in that country?

U.S. Dep’t of State, 2006 Country Report on HumanRights Practices: Algeria (March 6, 2007), availableathttp ://www.st ate. gov/g/drl/rls/hrrp t/2006/78849.htm.

We do not know the answers to any of thesequestions. How can such information not be relevantto this Court’s duty to examine the evidence theGovernment has presented? Does the Court sit, inGuantanamo Bay cases, to merely act as a rubberstamp to accept whatever evidence--whether in adeclaration or in testimony--submitted by theGovernment without subjecting it to reasonablescrutiny? Simply asking questions does not amountto second-guessing the conclusions reached byofficials in the Executive Branch.

In opposition to Petitioner’s request for aninjunction against transfer, the Government reliesalmost totally on three cases: Munaf v. Geren, 553U.S. 674, 128 S. Ct. 2207 (2008); Kiyemba v. Obama,561 F.3d 509 (D.C. Cir. 2009), cert. denied, 130 S. Ct.

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1880 (2010) ("Kiyemba II); and Kiyemba v. Obama,605 F.3d 1046 (D.C. Cir. 2010) ("Kiyemba III’).Petitioner argues vigorously that Munaf isdistinguishable in several significant respects, andthat since both Kiyemba II and Kiyemba III restheavily on Munaf, they too are distinguishable. TheCourt concludes that Petitioner is correct for thefollowing reasons.

Munaf did not involve Guantanamo Baydetainees. It involved two American citizens whovoluntarily traveled to Iraq and allegedly committedserious crimes on Iraqi soil. They sought to enjointheir transfer from an American military prison inIraq to Iraqi custody for prosecution in the Iraqicriminal justice system.

It is clear that Munaf was decided in a verydifferent context than the present case. Munafconcerned American citizens fighting their transferto a foreign criminal court; it involved criminalconduct which those American citizens are alleged tohave committed in Iraq, and it focused on thequestion of "whether United States District Courtsmay exercise their habeas jurisdiction to enjoin ourArmed Forces from transferring individual detaineeswithin another sovereign’s territory to thatsovereign’s Government for criminal prosecution."128 S. Ct. at 2218. In contrast, this case concernswhether United States District Courts may enjoinour Government, after a habeas petition has beengranted, from transferring a non-citizen unlawfullydetained by the United States, who now has a legalright to his freedom, to another country where hefears harm.

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In addition, again in contrast to Munaf, thePetitioners in that case feared prosecution and trialby a foreign government, whereas in this case,Petitioner fears torture and/or killing, not just by aforeign government, but also by non-governmentalIslamic terrorists. There was no consideration inMunaf or the Kiyemba cases of wh~ther DistrictCourts could enjoin such transfers based upon acredible fear of the harm foreign terrorist non-governmental groups would inflict upon a petitioner.

For all these reasons, Petitioner is correct thatthe factual and legal context of Munaf is somaterially different from this case as to render it

. totally distinguishable.

The Kiyemba II court expressly stated that itwas ruling only on the specific issue presented inthat case. See 561 F.3d at 514. That decision by itsvery language was limited to a factual situation inwhich its holding . vacated orders "barring[petitioners’] transfer without notice during thependency of their habeas cases." id. In this case,Petitioner’s habeas petition is no longer "pending" --it was granted on November 19, 2009. This casetherefore presents distinct factual and legaldifferences from those presented in Munaf andKiyemba II.

As the Supreme Court noted in Munaf,"[h]abeas is at its core a remedy for unlawfulexecutive detention . . . The typical remedy for suchdetention is, of course, release. See Preiser v.Rodriguez, 411 U.S. 475, 484 (1973) ("[T]hetraditional function of the writ is to secure release

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from illegal custody") (citations omitted); Munaf, 128S. Ct. at 2221.

Thus, in a typical habeas case, a petitionerwhose writ has been granted should be able to walkout of this courthouse as a free person. BecausePetitioner is not a citizen of the United States, thatoption is not available. Kiyemba v. Obama, 555 F.3d1022, 1028-29 (D.C. Cir. 2009) ("Kiyemba I").However, the fact that our immigration laws barMohammed from immediate release into the UnitedStates, does not mean that he can be transferredagainst his will to a country where he fears thateither the Government and/or lawless privateterrorist groups will cause him great harm andperhaps death. Mohammed has explicitly expressedhis reasonable, and well founded fears that he will bein "great danger" .from Islamic militants if he isreturned to Algeria-.~ August 5, 2009 Decl. of FarhiMohammed, at 3 (Ex. 1 to Pet.’s Reply). Hespecifically mentions a particular incident in Algeriainvolving a religious threat which caused him to fleethat country to France. It is noteworthy that thedeclarations of Special Envoy Fried say nothingabout the risks Petitioner faces in Algeria from theseroving terrorist bands. For all these reasons,Kiyemba II cannot control this case.

Because Munaf and Ki_vemba II do not control,the Court concludes that the declarations submittedby Special Envoy Fried are inadequate to support the

Footnote from Petitioner’s exhibits

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Government’s contention that we should accept--without scrutiny--its representations that Petitionerwill not be subject to any inhumane treatment iftransferred to Algeria.4

Petitioner’s Emergency Motion asks the courtto compel compliance with its Order of November 19,2009 and for a TRO and injunction against his

4 In his opinion in Kiyemba II, concurring in part anddissenting in part, Judge Griffiths recognized the very problempresented in this case. He raised the issue of whether transferto continued detention, on behalf of the United States, to aplace where the writ of habeas corpus does not reach, would beunlawful, and may be enjoined. He then explained that, "[t]hequestion we must consider is what process courts must use todetermine whether the government’s proposed transfers runafoul of that bar." Kivemba II, 561 F.3d at 524. However, in thefactual context of Kiyemba II, he recognized that unquestioneddeference to the executive’s sworn representations would "leavethe petitioners without any opportunity to challenge theaccuracy .of the government’s sworn declarations. Althoughprudential concerns may justify some flexibility in fashioninghabeas relief .... such innovations must not strip the writ of itsessential protections." Id. That is precisely the situation we facein Mohammed’s case. In discussing this issue, Judge Griffithpoints out that although the status of these detainees, i.e.,whether they have been lawfully detained "has been put to anadversarial process, whether their transfers will be lawful hasnot." Id. at 525. Finally, as he noted "[t]he stakes of unlawfulcustody, which led the Court in Boumediene to extend habeasprotections to the detainees in the first place, are no higherthan the stakes of unlawful transfer. Indeed, because anunlawful transfer will deny the detainees any prospect ofjudicial relief, protecting their habeas rights in this context isvital." Id. at 524.

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transfer to Algeria. As to the first portion of hisMotion, the Court concludes that the Motion tocompel compliance with this Court’s Order ofNovember 19, 2009, must be denied. That Orderrequired the Government to take all necessary andappropriate diplomatic steps to facilitate his releaseforthwith. In the pending Emergency Motion,Mohammed has ~ed on histransfer to A1

Certainly thdse negotiations fall within the scope otthe Court’s November 19, 2009 Order "to take allnecessary and appropriate diplomatic steps" tofacilitate Petitioner’s release. At this point, theCourt has no information regarding any otherdiplomatic steps the Government has, or has not,taken to comply with the Order of November 19,2009. In short, Petitioner has not presentedevidence to support his request and for that reason,that part of the Emergency Motion requestingcompliance with the November 19, 2009 Order isdenied.

Petitioner’s Emergency Motion also asks theCourt to issue a TRO and injunction against histransfer to Algeria. That request must be evaluatedwithin the traditional four part test for issuance of apreliminary injunction. Both the Supreme Court andour Court of Appeals have spoken to this issuerecently. See Winter v. National Resources DefenseCouncil, 129 S. Ct. 365 (2008) and" Davis v. PensionBen. Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009).

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In Winter, the Supreme Court set forth thetraditional standard: "[a] plaintiff seeking apreliminary injunction must establish that he islikely to succeed on the merits, that he is likely tosuffer irreparable harm in the absence ofpreliminary relief, that the balance of equities tips inhis favor, and that an injunction is in the publicinterest." 129 S. Ct. at 374. In that opinion, theCourt accepted the Navy’s argument that "plaintiffsmust demonstrate a likelihood of irreparable injury-not just a possibility--in order to obtain preliminaryrelief." Id. at 375. There is no question thatPetitioner has satisfied this requirement. The recordshows that the Government is moving forward in itsefforts to transfer Mohammed to Algeria and thatthere is certainly a likelihood of his sufferingirreparable injury from such a transfer, as hasalready been discussed. Petitioner has demonstratedthat "irreparable injury is likel~ in the absence of aninjunction." Winter, 129 S. Ct. at 375.(emphasis inoriginal).

In Davis, our Court of Appeals also. reviewedthe four requirements for obtaining a preliminaryinjunction, the second of which is that the movingparty must show "a substantial likelihood of successon the merits." Davis, 571 F.3d at 1291. In this case,fo~ the reasons already discussed, the Courtconcludes that Petitioner has carried the burden ofestablishing a substantial likelihood of success onthe merits of his claim for injunctive relief barringhis transfer to Algeria.

The third and fourth factors to be consideredoften overlap. They are "substantial harm to the

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non-movant" and the )ublic interest." Id.

sclaim. Petitioners have

point, and probably are not in aposition to do so because of their lack of knowledgeabout the classified diplomatic processes in whichthe Government is engaged. Consequently, theCourt wil! assume that the Government will in factsuffer substantial harm if injunctive relief is granted.

As to the public interest, that is a far morecomplex question. There is no question that anenormous public interest exists in determining thefate of the many detainees left at Guantanamo Bay.The Court is well aware of the public efforts theGovernment has made to accomplish this end andthe importance of accomplishing it as quickly aspossible. On the other hand, the public interest isalso served by ensuring that individuals who theGovernment has unlawfully detained, as in this case,are not transferred to countries where there is asubstantial likelihood of their facing harm, includingtorture and possibly execution, from either privateterrorist groups or from the country’s Government.As a country, we pride ourselves on ourConstitutional guarantees that individual rights willbe protected. For that reason, the Court concludesthat the public interest is better served by ensuringthat no errors are made in the transfer of anunlawfully detained person that could result inirreparable harm even though there may well be

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some delays in reaching the very important goal oftransferring detainees to appropriate countries.

Consequently, based upon the aboveevaluation of the four requirements for granting apreliminary injunction, the Court concludes thatPetitioner’s request should be granted. Therefore, itis hereby

ORDERED, that Petitioner’s EmergencyMotion as to his request for a preliminary injunctionagainst his transfer to Algeria is granted; and it isfurther

ORDERED, that Petitioner’s Motion tocompel compliance with this Court’s Order ofNovember 19, 2009, is denied; and it is further

ORDERED, that the Government’sEmergency Motion for Reconsideration is denied asmoot. 5

June 29, 2010/s/ /s/

5 At oral argument, the Government agreed with Petitioner thatonce the Petitioner’s Emergency Motion was ruled upon, theGovernment’s Emergency Motion for Reconsideration would bemoot, because the Administrative Stay is automatically liftedonce the Petitioner’s Emergency Motion is decided, the Court ofAppeals has in its Amended Order of June 25, 2010, disposed ofthe issue regarding testimony from Special Envoy Fried, andthe Court has ruled on the merits.

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Gladys KesslerUnited States District Judge

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FARHI SAEED BINMOHAMMED,

Petitioner, Civil Action: No. 0.5-1347

v. (GK): ~

BARACK H. OBAMA,. et al.,:

Defendants. :

ORDER

For the reasons set forth in this Court’sClassified Memorandum Opinion of November 19,2009,1 it is hereby

ORDERED, that Petitioner Farhi Saeed BinMohammed’s petition for a writ of habeas corpus isgranted; and it is further

ORDERED, that the Government is directedto take all necessary and appropriate diplomaticsteps to facilitate Petitioner’s release forthwith.Further, the Government is directed to comply withany reporting requirements mandated by the

1 The Classified Opinion is currently undergoing classificationreview. As soon as it is completed, the Unclassified Opinion willbe made public.

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Department of Homeland Security AppropriationsAct, 2010, Pub. L. No. 111-83, 123 Star. 2142 (2009),if applicable, to facilitate Petitioner’s release, and toreport back to the Court no later than December 17,2009, as to the status of that release and what stepshave been taken to secure that release.

November 19, 2009 IslGladys KesslerUnited States DistrictJudge

Copies to: Attorneys of Record via ECF

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IN RE:

GUANTANAMO BAYDETAINEELITIGATION

Misc. No. 08-442 (TFH)

ORDER

During the hearing held on July 8, 2008,petitioners’ representative counsel requested thatthis Court order the government to providepetitioners’ and the Court with 30 days’ advancenotice of any intended removal of a petitioner fromdetention at Guantanamo Bay, Cuba. Recognizingthat issues pertaining to notice of removal and acourt’s power to enjoin the government fromremoving a detainee are currently pending before theUnited States Court of Appeals for the District ofColumbia Circuit, see Kiyemba, et al. v. Bush, et al.,No. 05-5487 (consolidated), and Abdah, et al. v. Bushet al., No. 05-5224 (consolidated), and that someJudges of this Court have entered such orders andothers have not, the Court adopts the reasoning ofthose Judges who entered orders requiring noticeand, therefore,

ORDERS that, in cases in which thepetitioner requests such notice, the government shallfile notice with the Court 30 days prior to any

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transfer of a petitioner from Guantanamo Bay,Cuba. i

July 10th, 2008Thomas F. Hogan

United States District Judge

1 Nothing in this order should be construed as a determinationthat this Court has the power to enjoin the government fromtransferring petitioners from detention at Guantanamo Bay,Cuba.

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IN RE:

GUANTANAMO BAYDETAINEELITIGATION

Misc. No. 08-mc-0442 (TFH)

Civil Action No.05-cv-1347 (GK)

ORDER

Pending before the Court are Petitioner’s (1)Emergency Motion For Order Enjoining Transfer OfPetitioner To Likely Abuse And Torture in Algeria("Injunction Motion") and (2) Motion To File UnderSeal. Upon review of the motions, the government’soppositions, and the record herein, the Court

ORDERS that Petitioner’s Injunction Motionis GRANTED. Specifically, finding it necessary toprotect its jurisdiction over Petitioner’s petition for awrit of habeas corpus, and pursuant to its remedialauthority under the All Writs Act, 28 U.S.C. § 1651,see Belbacha v. Bush, 520 F.3d 452 (D.C: Cir. 2008),the Court temporarily enjoins the government fromtransferring Petitioner from the United States NavalBase at Guantanamo Bay, Cuba, to Algeria, pendingthe United States Court of Appeals for the District ofColumbia Circuit’s decision in Kiyemba v. Bush, No.05-5487 (consolidated with Nos. 05-5488, 05-5489,05- 5490, and 05-5492). The Court further

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ORDERS that the minute order entered onSeptember 23, 2008, granting Petitioner’s Motion ToFile Under Seal is VACATED. The Court further

ORDERS that Petitioner’s Motion To FileUnder Seal is GRANTED in part and DENIED inpart. Specifically, Petitioner’s Injunction Motionand all pleadings related thereto, includingPetitioner’s Motion To File Under Seal and thegovernment’s oppositions~ to Petitioner’s InjunctionMotion and Motion To File Under Seal shall not befiled on the Court’s public docket, but thegovernment is not prohibited from sharinginformation contained in such pleadings withrepresentatives of Algeria.

SO ORDERED.

September 26, 2008[for] Thomas F. Hogan

United States District Judge

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United States Court of Appeals,District of Columbia Circuit.

Jamal KIYEMBA, Next Friend, et al., AppelleesV.

Barack OBAMA, President of the United States, etal., Appellants.

No. 05-5487, 05-5489.

Argued Sept. 25, 2008.Decided April 7, 2009.

Rehearing Denied July 27, 2009.FN*

FN* Circuit Judge Griffith would grant thepetition.

Rehearing En Banc Denied July 27, 2009.FN**

FN**Circuit Judges Rogers, Tatel, andGriffith would grant the petition for rehearingen banc.

"510 Appeals from the United States District Courtfor the District of Columbia, (No. 05cv01509), (No.05cv01602).Robert M. Loeb, Attorney, UIS.Department of Justice, argued the cause forappellants. With him on the briefs were Gregory G.Katsas, Assistant Attorney General, Jonathan F.Cohn, Deputy Assistant*511 Attorney General, andDouglas N. Letter, Jonathan H. Levy, Catherine Y.Hancock, and Sameer Yerawadekar, Attorneys.

Christopher P. Moore argued the cause for appellees.With him on the briefs were Jonathan I. Blackman,

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Rahul Mukhi, Aaron Marr Page, Susan BakerManning, P. Sabin Willett, Rheba Rutkowski, NeilMcGaraghan, Jason S. Pinne_v, and GitanjaliGutierrez.

Before: GINSBURG, GRIFFITH, and KAVANAUGH,Circuit Judges.

Opinion for the Court filed by Circuit JudgeGINSBURG.

Concurring opinionKAVANAUGH.

filed by Circuit Judge

Opinion concurring in the judgment in part anddissenting in part filed by Circuit Judge GRIFFITH.

GINSBURG, Circuit Judge:

**200 Nine Uighurs held at Guantanamo Bay, inorder to challenge their detention, petitioned thedistrict court for a writ of habeas corpus. Assertingthat they feared being transferred to a country wherethey might be tortured or further detained, they alsosought interim relief requiring the Government toprovide 30 days’ notice to the district court and tocounsel before transferring them from Guantanamo.The district court entered the requested orders.Kiyemba v. Bush, No. 1:05cv1509 (Sept. 13, 2005);Mamet v. Bush, No. 1:05cv1602 (Sept. 30, 2005).The Government appealed each of the orders and weconsolidated its appeals. In light of the SupremeCourt’s recent decision in Munaf v. Geren, 553 U.S.674, 128~ S.Ct. 2207, 171 L.Ed.2d 1 (2008), we nowreverse.

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I. Background

In granting the request for 30 days’ notice of anyplanned transfer, the district court, in Mamet notedthe detainee’s fear of being tortured. In Kiyemba thedistrict court did not advert to the detainees’ fear ofharm but entered an order requiring pre-transfernotice lest removal from Guantanamo divest thecourt of jurisdiction over the detainees’ habeaspetitions.

While this appeal was pending, the Congress passedthe Military Commissions Act (MCA), § 7 of whichprovided:

No court ... shall have jurisdiction to hear orconsider an application for a writ of habeas corpusfiled by or on behalf ,of an alien detained by theUnited States who has been determined by theUnited States to have been properly detained as anenemy combatant or is awaiting suchdetermination.

PuboL. No. 109-366, 120 Stat. 2600, 2635-36 (2006)(codified at 28 U.S.C. § 2241(e)(1)). Accordingly, wedismissed the cases for lack of subject matterjurisdiction. K~yemba v. Bush, 219 Fed.Appx. 7(D.C.Cir.2007). In Boumediene v. Bush, however, theSupreme Court held § 2241(e)(1) "effects anunconstitutional suspension of the writ" of habeascorpus. 553 U.S. 723~ 128 S.Ct. 2229~ 2274~ 171L.Ed.2d 41 (2008). In light of that decision, wevacated our judgment of dismissal and reinstated theGovernment’s appeal. Kiyemba, No. 05-5487 (July

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31, 2008).FN***

FN*** After oral argument in the court ofappeals, the Government acknowledged in thedistrict court that it no longer views any of thepresent petitioners as enemy combatants,whereupon the district court ordered themreleased into the United States. See In reGuantanamo Bay Detainee Litig., 581F.Supp.2d 33 (D.D.C.2008). The Governmentappealed that order, which this court reversedon the ground that the political branches have"the exclusive power ... to decide which aliensmay, and which aliens may not, enter theUnited States, and on what terms." Kiyemba~. Obama, 555 F.3d 1022, 1025 (2009).

*’201 "512 II. Subject Matter Jurisdiction

~ We begin with the Government’s argumentthat the MCA bars the district court from exercisingjurisdiction in their ongoing habeas cases over claimsrelated to the detainees’ potential transfer. TheGovernment contends the Supreme Court inBoumediene held the first provision of § 7 of theMCA, 28 U.S.C. § 2241(e)(1), unconstitutional onlyinsofar as it purported to deprive the district court ofjurisdiction to hear a claim falling within the "core"of the constitutional right to habeas cbrpus, such as achallenge to the petitioner’s detention or theduration thereof. According to the Government’stheory, because the right to challenge a transfer is"ancillary" to and not at the "core" of habeas corpusrelief, ,~ 2241(e)(1) still bars the district court fromexercising jurisdiction over the instant claims. In

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support of its argument, the Government invokes therule that ordinarily a court should invalidate as littleof an unconstitutional statute as necessary to bringit into conformity with the Constitution. See _~yottev. Plan~ed Parenthood of N. New Eng., 546 U.S. 320,329, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) ("[W]e trynot to nullify more of a legislature’s work than isnecessary .... Accordingly, the normal rule is thatpartial, rather than. facial, invalidation is therequired course." (internal quotation marksomitted)).

In response, the detainees maintain it was noaccident that the Court in Boumediene avoidedmaking just the sort of fine distinction theGovernment proposes. They point specifically to theCourt’s caution in _~_votte that "making distinctionsin a murky constitutional context, or where line-drawing is inherently complex, may call for a farmore serious invasion of the legislative domain thanwe ought to undertake." Id. at 330, 126 S.Ct. 961. (internal quotation marks omitted).

We think the detainees have the better of theargument. The Court in Boumediene did not draw(or even suggest the existence of) a line between"core" and "ancillary" habeas issues, neither of whichterms appears in the opinion (apart from theinnocuous observation that "Habeas is, at its core, anequitable remedy"). Rather, the Court stated simplythat § 2241(e)(1) "effects an unconstitutionalsuspension of the writ." 128 S.Ct. at 2274. FN1Accordingly, we read Boumediene to invalidate §2241(e)(1) with respect to all habeas claims broughtby Guantanamo detainees, not simply with respect to

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so-called "core" habeas claims.FN2

FN1. The Court actually referred to § 7without specifying a particular subsection of §2241(e) but its discussion of the SuspensionClause clearly indicates it was referring onlyto that part of § 7 codified at § 2241(e)(1).

FN2. Thus, the Court necessarily restored thestatus quo ante, in which detainees atGuantanamo had the right to petition forhabeas under ![ 2241. See Rasul v. Bush, 542U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548(2004); see also Boumediene, 128 S.Ct. at 2266(identifying § 2241 as "the habeas statute thatwould govern in MCA § 7’s absence"). Thereis, therefore, no need to decide today whetherthe present petitions come within "thecontours and content of constitutional habeas,"Dis. Op. at 523. See INS v. St. Cyr, 533 U.S.289, 301 n. 13, 121 S.Ct. 2271, 150 L.Ed.2d~347 (2001) (noting that "what the SuspensionClause protects" is a "difficult question").

[31 The Government next argues the second provisionof MCA § 7 stripped the district court of jurisdiction.That provision eliminates court jurisdiction over"any other action against the United States or itsagents relating to any aspect of the ... transfer" of adetainee. 28 U.S.C, § 2241(e)(2). This case does notcome within the reach of § 2241(e)(2), however. **202"513 That provision applies by its terms to " anyother action"-meaning other than a petition for awrit of habeas corpus, which is the subject of .~2241(e)(1). The detainees’ claims are not in the

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nature of an action barred by § 2241(e)(2) because,based upon longstanding precedents, it is clear theyallege a proper claim for habeas relief, specifically anorder barring their transfer to or from a place ofincarceration. See Benson v. McMahon, 127 U.S.457, 462, 8 S.Ct. 1240, 32 L.Ed. 234 (1888)(reviewing, on petition for writ of habeas corpus,claim of unlawful extradition); Ward v. Rutherford,921 F.2d 286, 288 (D.C.Cir.1990) ("[A]ctions taken bymagistrates in international extradition matters aresubject to habeas corpus review by an Article IIIdistrict judge"); INS v. St. Cyr, 533 U.S. 289, 305-08,121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (detailinglong history of reviewing deportations per petitionfor habeas); In re Bonner, 151 U.S. 242, 255-56, 14S.Ct. 323, 38 L.Ed. 149 (1894); Miller v. Overholser,206 F.2d 415, 419-20 (D.C.Cir.1953) ("We think ithas been settled since ... Bonner that the writ isavailable to test the validity not only of the fact ofconfinement but also of the place of confinement").

Because a potential transfer out of the jurisdiction ofthe court is a proper subject of statutory habeasrelief, § 2241(e)(2) does not apply to and thereforedoes not deprive the court of jurisdiction over theclaims now before us. Even "where a habeas courthas the power to issue the writ," however, thequestion remains " ’whether this be a case in which[that power] ought to be exercised.’ " Munaf, 128S.Ct. at 2221 (quoting Ex parte Watkins, 28 U.S. (3Pet.) 193, 201, 7 L.Ed. 650 (1830)). We turn,accordingly, to the merits of the petitioners’ claims.

III. Proper Grounds for Habeas Relief

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[4][5][6] A court considering a request forpreliminary relief must examine four factors: (I) themoving party’s likelihood of success on the merits; (2)irreparable injury to the moving party if aninjunction is denied; (3) substantial injury to theopposing party if an injunction is granted; and (4)the public interest. Belbacha v. Bush, 520 F.3d 452,459 (D.C.Cir~2008). We review for abuse, ofdiscretion the district court’s weighing of thesefactors; insofar as "the district court’s decision hingeson questions of law," however, our review is de novo.Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1318(D.C.Cir.1998) (internal quotation marks omitted).If the moving party can show no likelihood of successon the merits, then preliminary relief is obviouslyimproper and the appellant is entitled to reversal ofthe order as a matter of law. See Munaf, 128 S.Ct. at2220. FN3

FN3. The detainees argue the district court inKiyemba correctly issued the injunction-regardless of their ability to make a showingon the four factors for granting preliminaryrelief-in order to protect the court’sjurisdiction over their underlying claims ofunlawful detention. In defense of the districtcourt’s rationale, the detainees rely upon theAll Writs Act, 28 U.S.C. § 1651 (federal courts"may issue all writs necessary or appropriatein aid of their respective jurisdictions"), andupon our opinion in Belbacha, but theyoverstate the holding in that case. In

Belbacha, we held that "when the SupremeCourt grants certiorari to review this court’sdetermination that the district court lacks

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jurisdiction, a court can, pursuant to the AllWrits Act ... and during the pendency Of theSupreme Court’s review, act to preserve thestatus quo," but only, we added, "if a partysatisfies the [four] criteria for issuing apreliminary injunction." 520 F.3d at 457.Belbacha therefore provides no basis forrelieving the detainees of the need to satisfythe standard for a preliminary injunction,which, as discussed below, they have failed todo.

The detainees here seek to prevent their transfer toany country where they are likely to be subjected tofurther detention **203 "514 or to torture. Ouranalysis of their claims is controlled by the SupremeCourt’s recent decision in Munaf. In that case, twoAmerican citizens held in the custody of the UnitedStates military in Iraq petitioned for writs of habeascorpus, seeking to enjoin the Government fromtransferring them to. Iraqi custody for criminalprosecution in the Iraqi courts. Id. at 2214-15. TheCourt held the district court had jurisdiction over thepetitions, but that it could not enjoin theGovernment from transferring the petitioners toIraqi authorities. Id. at 2213. As we explain below,Munaf precludes a court from issuing a writ ofhabeas corpus to prevent a transfer on the groundsasserted by the petitioners here; therefore thedetainees cannot prevail on the merits of theirpresent claim and the Government is entitled toreversal of the orders as a matter of law.FN4

FN4. For present purposes, we assumearguendo these alien detainees have the same

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constitutional rights with respect to theirproposed transfer as did the U.S. citizensfacing transfer in Munaf. They are not, in anyevent, entitled to greater rights.

A. Fear of Torture

I~1 Like the detainees here, the petitioners in Munafasked the district court to enjoin their transferbecause they feared they would be tortured in therecipient country. The Court recognized thepetitioners’ fear of torture was "of. course a matter ofserious concern," but held "in the present contextthat concern is to be addressed by the .politicalbranches, not the judiciary." Id. at 2225. The contextto which the Court referred was one in which-ashere-the record documents the policy of the UnitedStates not to transfer a detainee to a country wherehe is likely to be tortured. Id. at 2226. Indeed, as thepresent record shows, the Government doeseverything in its power to determine whether aparticular country is likely to torture a particulardetainee. Decl. of Pierre-Richard Prosper, UnitedStates Ambassador-at-Large for War Crimes Issues¶¶ 4, 7-8, Mar. 8, 2005.

The upshot is that the detainees are not liable to becast abroad willy-nilly without regard to their likelytreatment in any country that will take them. UnderMunaf, however., the district court may not questionthe Government’s determination that a potentialrecipient country is not likely to torture a detainee.128 S.Ct. at 2226 ("The Judiciary is not suited tosecond-guess such determinations-determinationsthat would require federal courts to pass judgment

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on foreign justice systems and undermine theGovernment’s ability to speak with one voice in thisarea"). In light of the Government’s policy, adetainee cannot prevail on the merits of a claimseeking to bar his transfer based upon the likelihoodof his being tortured in the recipient country.

FN5. As in Munaf, we need not address whatrights a detainee might possess in the "moreextreme case in which the Executive hasdetermined that a detainee is likely to betortured but decides to transfer him anyway."128 S.Ct. at 2226.

[8] The detainees seek to distinguish Munaf on theground that the habeas petitioners in that case didnot raise a claim under the Convention AgainstTorture, as implemented by the Foreign AffairsReform and Restructuring (FARR) Act, 8 U.S.C. §1231 note. See Munaf, 128 S.Ct. at 2226 n. 6. Thatdistinction is of no help to them, however, because

¯ the Congress limited judicial review under theConvention to claims raised in a challenge to a finalorder of removal. 8 U.S.C. § 1252(a)(4) ("Notwithstanding any other provision of law ...including section 2241 of Title 28, or any otherhabeas corpus provision, ... a petition for review [ofan **204 "515 order of removal] shall be the sole andexclusive means for judicial review of any cause orclaim" arising under the Convention). Here thedetainees are not challenging a final order ofremoval. As a consequence, they cannot succeed ontheir claims under the FARR Act, and Munafcontrols. FN6

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FN6. Munaf concerned a specific transfer, butthe transferee sovereign’s likely treatment ofthe petitioners was not material to its holding.Contrary to the statement in the dissent, theCourt gave not merely "substantial weight tothe [G]overnment’s determination that theproposed transfer was lawful," Dis. Op. at 526;it held the judiciary cannot look behind thedetermination made by the political branchesthat the transfer would not result inmistreatment of the detainee at the hands ofthe foreign government. 128 S.Ct. at 2225,2226.

B. Prosecution or Continued Detention

[9][10][11] To the extent the detainees seek to enjointheir transfer based upon the expectation that arecipient country will detain or prosecute them,Munaf again bars relief. After their release from thecustody of the United States, any prosecution ordetention the petitioners might face would beeffected "by the foreign government pursuant to itsown laws and not on behalf of the United States."Decl. of Matthew C. Waxman, Deputy AssistantSecretary of Defense for Detainee Affairs ¶ 5, June 2,2005. It is a longstanding principle of ourjurisprudence that "[t]he jurisdiction of [a] nation,within its own territory, is necessarily exclusive andabsolute." Schooner Exch. v. McFaddon, 11 U.S. (7Cranch) 116, 136, 3 L.Ed. 287 (1812). As theSupreme Court explained in Munaf, the "sameprinciples of comity and respect for foreignsovereigns that preclude judicial scrutiny of foreignconvictions necessarily render invalid attempts to

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shield citizens from foreign prosecution." 128 S.Ct. at2224 (quoting Brown, J., dissenting in part in Omarv. Harvey, 479 F.3d I, 17 (D.C.Cir.2007)). Munaftherefore bars a court from issuing a writ of habeascorpus to shield a detainee from prosecution anddetention by another sovereign according to its laws.

~ Judicial inquiry into a recipient country’s basisor procedures for prosecuting or detaining atransferee from Guantanamo would implicate notonly norms of international comity but also the sameseparation of powers principles that preclude thecourts from second-guessing the Executive’sassessment of the likelihood a detainee will betortured by a foreign sovereign. See id. at 2225("Even with respect to claims that detainees wouldbe denied constitutional rights if transferred, wehave recognized that it is for the political branches,not the judiciary, to assess practices in foreigncountries and to determine national policy in light ofthose assessments"). Furthermore, the requirementthat the Government provide pre-transfer noticeinterferes with the Executive’s ability to conduct thesensitive diplomatic negotiations required to arrangesafe transfers for detainees. Prosper Decl. ¶ 10("Later review in a public forum of the Department’sdealings with a particular foreign governmentregarding transfer matters would seriouslyundermine our ability to investigate allegations ofmistreatment or torture ... and to reach acceptableaccommodations with other governments to addressthose important concerns"). FN7

FN7. Our dissenting colleague agrees thedetainees cannot prevail on a claim based

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upon their likely treatment by a foreignsovereign acting pursuant to its own laws. SeeDis. Op. at 525 ("[T]he [G]overnment hassubmitted sworn declarations assuring thecourt that any transfer will result in releasefrom U.S. authority. If the [G]overnment’srepresentations are accurate, each transferwill be lawful."). Nor can they prevail on theground that the foreign sovereign is an agentof the United States merely because, withrespect to detainees who are-unlike thepresent petitioners-regarded as enemycombatants, the Government engages in adialogue "to ascertain or establish whatmeasures the receiving government intends totake pursuant to its own domestic laws andindependent determinations that will ensurethat the detainee will not pose a continuingthreat tb the United States and its allies,"Waxman Decl. ¶ 5. The dissent takes note ofthe Government’s statement that "underappropriate circumstances," it transfersdetainees "to the control of other governmentsfor continued detention," see Dis. Op. at 525,but, as the Government explains, "[i]n all suchcases ... the individual is detained, if at all, bythe foreign government pursuant to its ownlaws and not on behalf of the United States,"Waxman Decl. ¶ 5. Whether, acting pursuantto its own laws, a "foreign nation will continuedetention of the petitioners," Dis. Op. at 525,

¯ is precisely the inquiry Munaf forbids thiscourt from undertaking.

This case involves the Government’s

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proposed release from U.S. custody ofdetainees whom the Government no longerregards as enemy combatants. It does notinvolve-and therefore, unlike our dissentingcolleague, we. express no opinion concerning-the transfer of detainees resulting in their"continued detention on behalf of the UnitedStates in places where the writ does notextend," Dis. Op. at 524. The Governmentrepresents that it is trying to find a countrythat will accept the petitioners and, in theabsence of contrary evidence, we presumepublic officers "have properly dischargedtheir official duties." See United States v.Chem. Found., Inc., 272 U.S. 1, 15, 47 S.Ct.1, 71 L.Ed. 131 (1926). In view of theGovernment’s sworn declarations, and of thedetainees’ failure to present anything thatcontradicts them, we have no reason to thinkthe transfer process may be a ruse-and afraud on the court-designed to maintaincontrol over the detainees beyond the reachof the writ.

’516 **205 In short, "habeas is not a means ofcompelling the United States to harbor fugitivesfrom the criminal justice system of a sovereign withundoubted authority to prosecute them." Munaf, 128S.Ct, at 2223. Therefore, the district court may notissue a writ of habeas corpus to shield a detaineefrom prosecution or detention at the hands ofanother sovereign on its soil and under its authority.As a result, the petitioners cannot make the requiredshowing of a likelihood of success on the meritsnecessary to obtain the preliminary relief they here

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seek.

IV. Conclusion

The Supreme Court’s ruling in Munaf precludes thedistrict court from barring the transfer of aGuantanamo detainee on the ground that he is likelyto be tortured or subject to further prosecution ordetention in the recipient country. The Governmenthas declared its policy not to transfer a detainee to acountry that likely will torture him, and the districtcourt may not second-guess the Government’sassessment of that likelihood. Nor may the districtcourt bar the Government from releasing a detaineeto the custody of another sovereign because thatsovereign may prosecute or detain the transfereeunder its own laws. In sum, the detainees’ claims donot state grounds for which habeas relief is available.The orders of the district court barring their transferwithout notice during the pendency of their habeascases therefore must be and are

Vacated.KAVANAUGH, Circuit Judge, concurring:I agree with and join the persuasive opinion of theCourt. Under current law, the U.S. Governmentmay transfer Guantanamo detainees to the custodyof foreign nations without judicial intervention-atleast so long as the Executive Branch declares, as ithas for the Guantanamo detainees,**206 "517 thatthe United States will not transfer "an individual incircumstances where torture is likely to result."Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2226,’171 L.Ed.2d 1 (2008).

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I write separately to emphasize three points.

First, our disposition does not preclude Congressfrom further regulating the Executive’s transfer ofwartime detainees to the custody of other nations.Congress possesses express constitutional authorityto make rules concerning wartime detainees. See,e.g., U.S. CONST. art. I, § 8 ("Congress shall havePower ... To ... make Rules concerning Captures onLand and Water"). The constitutional text, JusticeJackson’s Youngstown opinion, and recent SupremeCourt precedents indicate that the President doesnot possess exclusive, preclusive authority over thetransfer of detainees. See Hamdan v. Rumsfeld, 548U.S. 557, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006);Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633,159 L.Ed.2d 578 (2004); Youngstown Sheet & TubeCo. v. Sawyer, 343 U.S. 579, 634, 72 S.Ct. 863, 96L.Ed. 1153 (1952) (Jackson, J., concurring). Exceptperhaps in a genuine, short-term emergency, thePresident must comply with legislation regulating orrestricting the transfer of detainees. In other words,under the relevant precedents, the President doesnot have. power to trump legislation regardingwartime transfers in a Youngstown category-threesituation. To be sure, there are weighty policyreasons why Congress may not seek to restrict theExecutive’s. transfer authority or to involve theJudiciary in reviewing war-related transfers. Thatpresumably explains why Congress has not done so.But to the extent Congress wants to place judiciallyenforceable restrictions on Executive transfers ofGuantanamo or other wartime detainees, it has thatpower.

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Second, in the absence of a meritorious statutoryclaim,FNI the detainees argue that they have aconstitutional due process right against "transfer totorture’-and, therefore, to judicial reassessment ofthe Executive’s conclusion that transfer to a foreignnation’s custody is unlikely to result in torture. Butboth Munaf and the deeply rooted "rule of non-inquiry" in extradition cases require that we defer tothe Executive’s considered judgment that transfer isunlikely to result in torture. Those precedentscompel us to reject the detainees’ argument that thecourt second-guess the Executive’s conclusion in thiscase.

FN1. The detainees advance a claim under theForeign Affairs Reform and Restructuring Act,but that argument is unavailing. See Maj. Op.at 514-15.

In Munaf, in response to a similar due process claim,the Supreme Court unanimously held that theJudiciary may not "second-guess" the Executive’sassessment that transferred detainees are unlikelyto be tortured by the receiving nation (in that case,by Iraq, where the detainees were to be prosecuted inIraqi courts). 128 S.Ct. at 2226.FN2 The Munafdecision applies here a fortiori: That case involvedtransfer of "518 **207 American citizens, whereasthis case involves transfer of alien detainees with noconstitutional or statutory right to enter the UnitedStates.

FN2. There is no meaningful distinctionbetween (i) the Executive’s declaration in thiscase that no Guantanamo detainees will be

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transferred to the custody of a foreign countrywhere the Executive believes they would likelybe tortured, and (ii) a similar Executivedeclaration with respect to a specific .transfer(as in Munaf). The former encompasses thelatter. In other words, for our purposes, theGovernment h~s represented that no detaineein this case will be transferred to a countrywhere the Government believes it likely thedetainee would be tortured. It bears emphasisthat neither Munaf nor this case is the "moreextreme case in which the Executive hasdetermined that a detainee is likely to betortured but decides to transfer him anyway."128 S.Ct. at 2226.

Similarly, the longstanding rule of non-inquiry inextradition cases undermines the detainees’argument. When the Executive seeks extraditionpursuant to a request from a foreign nation, theJudiciary does not inquire into the treatment orprocedures the extradited citizen or alien will receivein that country. "It is the function of the Secretary ofState to determine whether extradition should bedenied on humanitarian grounds." Ahmad v. Wigen,910 F.2d 1063, 1067 (2d Cir.1990); see also Neely v.Henkel, 180 U.S. 109, 122-23, 21 S.Ct. 302, 45 L.Ed.448 ~1901); Hoxha v. Levi, 465 F.3d 554, 563 (3dCir.2006); United States v. Kin-Hong, 110 F.3d 103,110-11 & nn. 11-12 (1st Cir.1997); Lopez-Smith v.Hood, 121 F.3d 1322~ 1326-27 (9th Cir.1997); Jacques

¯ Semmelman, Federal Courts, the Constitution, andthe Rule of Non-Inquiry in International ExtraditionProceedings, 76 CORNELL L.REV. 1198 (1991).FN~

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FN3. The rule of non-inquiry traditionally hasnot required an express executive declarationregarding the prospect of abuse by the foreignnation. After Munaf, courts in extraditioncases presumably may require-but must deferto-an express executive declaration that thetransfer is not likely to result in torture.

Therefore, with respect to international transfers ofindividuals in U.S. custody, Munaf and theextradition cases have already struck the due processbalance between the competing interests of theindividual and the Government. That balancecontrols here.FN’t The detainees’ interest in avoidingtorture or mistreatment by a foreign nation is thesame "matter of serious concern" at issue in Munafand the extradition cases. Munaf, 128 S.Ct. at 2225.And on the other side of the ledger, theGovernment’s interest in transferring thesedetainees to foreign nations without judicial second-guessing is at least as compelling as in those cases.Cf. *’208"519id. at 2224- 25 (noting significantgovernmental interest in detainee transfersconnected to "the Executive’s ability to conductmilitary operations abroad").

FN4. In Boumediene v. Bush, the SupremeCourt held that the Guantanamo detaineespossess constitutional habeas corpus rights.553 U.S. 723, 128 S.Ct. 2229, 2262, 171L.Ed.2d 41 (2008). This Court has since statedthat the detainees possess no constitutionaldue process rights. Kiyemb.a v. Obama, 555F.3d 1022, 1026-27 (D.C.Cir.2009). Thedetainees argue that they must possess due

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process rights if they have habeas rights. SeeHamdi, 542 U.S. at 525-26, 124 S.Ct. 2633(plurality opinion) (discussing interaction ofhabeas and procedural due process); id. at 555-58 (Scalia, J., dissenting) (explaining linkedorigins of habeas and due process). And theyfurther contend that the due process balancingtest from Mathews v. Eldridge, 424 U.S. 319,335, 96 S.Ct. 893, 47 L.Ed.2d 18 O976),applies here-rather than a test based solely onhistory and tradition. See Hamdi, 542 U.S. at529, 124 S.Ct. 2633 (plurality opinion)(applying Mathews test); see also Boumediene,128 S.Ct. at 2283-92 (Roberts, C.J., dissenting)(applying Mathews test as articulated inHamdi); but see Hamdi, 542 U.S. at 575-77,124 S.Ct. 2633 (Scalia, J., dissenting)(criticizing application of Mathews test);Medina v. California, 505 U.S. 437, 446-48,112 S.Ct. 2572, 120 L.Ed.2d 353 (1992)(applying history-based test). That Mathews/Hamdi test requires "weighing the privateinterest that will be affected by the officialaction against the Government’s assertedinterest, including the function involved andthe burdens the Government would face inproviding greater process." Hamdi, 542 U.S. at529, 124 S.Ct. 2633 (plurality opinion)(citation and internal quotation marksomitted).

But as explained in the opinion of the Courtand in this concurring opinion, the detaineesdo not prevail in this case even if they areright about the governing legal framework:

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Even assuming that the Guantanamodetainees, like the U.S. citizens in Munaf,possess constitutionally based due processrights with respect to transfers and that theMathews/ Hamdi balancing test applies,Munaf and other precedents precludejudicial second-guessing of the Executive’sconsidered judgment that a transfer isunlikely to result in torture.

The detainees counter that the Government’stransfer interest in this case involves non-enemycombatants and is therefore less important than inMunaf and the extradition cases; they further hintthat transfer without their consent would be withoutlegal authority. Those arguments are incorrect fortwo separate reasons.

To begin with, even if this were just a standardimmigration case involving inadmissible aliens atthe U.S. border, the governmental interest intransfer would be compelling. Like Guantanamodetainees, inadmissible aliens at the border or a U.S.port of entry have no constitutional right to enter theUnited States. See Shaughnessy v. United States exrel. Mezei, 345 U.S. 206, 210-13, 73 S.Ct. 625, 97L.Ed. 956 (1953); see also id. at 222-23 (Jackson, J.,dissenting) (agreeing with majority that there is noconstitutional right for an alien to enter the UnitedStates); Kiyemba v. Obama, 555 F.3d 1022(D.C.Cir.2009). In those cases, the United States hasa very strong interest in returning the aliens to theirhome countries or safe third countries so that theywill not be detained indefinitely in facilities run bythe United States-a scenario that can trigger a host

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of security, foreign policy, and domesticcomplications. Cf. 8 C.F.R. §§ 241.13, 241.14. Thatgovernmental interest applies at least as strongly inthe case of these Guantanamo detainees.

In addition, and more fundamentally, this is a caseinvolving transfer of wartime alien detainees.Transfers are a traditional and lawful aspect of U.S.war efforts. When waging war, the United Statescaptures and detains enemy combatants. TheUnited States may hold enemy combatants for theduration of hostilities, and it of course may prosecuteunlawful enemy combatants. See Hamdi, 542 U.S. at518-19, 124 S.Ct. 2633 (plurality opinion). At theconclusion of hostilities, the United States ordinarilytransfers or releases lawful combatant detainees totheir home countr.ies. Most relevant in this case,when the United States determines during anongoing war that an alien no longer needs to bedetained or has been mistakenly detained-forexample, if he is a non-combatant and not otherwisesubject to confinement-the United States attempts topromptly transfer or release that detainee to hishome country or a safe third country. Cf. ArmyRegulation 190-8 § 1-6(10)(c) (person who is capturedand determined to be "innocent civilian should beimmediately returned to his home or released"); id.§§ 3-11 to 3-14 (transfer and repatriation of prisonersof war); id. § 6-15 (transfer of civilian internees)..FN~

FN5. The factual complication in this casearises because the United States will not sendthese Uighur detainees back to their homecountry of China, apparently because theExecutive has concluded there is a likelihood

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of torture by China. See John B. Bellinger,III, U.S. State Dep’t Legal Advisor, Prisonersin War: Contemporary Challenges to theGeneva Conventions (Dec. 10, 2007). Thedetainees do not want to return to China forthat same reason and thus support theExecutive’s decision. Yet these alien detaineesalso have no constitutional or statutory rightto enter the United States. Assuming theExecutive has the authority to bring them intothe United States, the Executive has thus fardeclined to do so. And the Executiveapparently has not yet found a safe thirdcountry willing to accept them.

Throughout the 20th Century, the United Statestransferred or released hundreds of thousands ofwartime alien detainees-some of whom had beenheld in America-back to their home countries or, insome **209 *520 cases, to other nations.FN6 Thosetransfer and exchange decisions rested then-as theydo now-on confidential information, promises, andnegotiations. They involved predictive, expertjudgments about conditions in a foreign country andrelated matters. Given those sensitivities, as well asthe delays and burdens associated with obtainingjudicial pre-approval of transfers and transferagreements, it comes as no surprise that war-relatedtransfers traditionally have occurred without judicialoversight. See Boumediene, 128 S.Ct. at 2248-49(negotiated exchange of prisoners was "a wartimepractice well known to the Framers," and "[j]udicialintervention might have complicated" thosenegotiations). As both history and modern practicedemonstrate, the capture, detention, possible trial,

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and eventual transfer or release of combatants:aswell as the transfer or release of those mistakenlydetained during wartime-are all necessary andtraditional incidents of war implicating compellinggovernmental interests. See Hamdi, 542 U.S. at 518-19, 124 S.Ct. 2633 (plurality opinion); cf.Authorization for Use of Military Force, Pub.L. No.107-40, 115 Stat. 224 (2001).

FN6. See generally George G. Lewis & JohnMewha, History of Prisoner of War Utilizationby the United States Army 1776-1945, DEP’TOF THE ARMY PAMPHLET NO. 20-213, at46, 177, 201-204, 240-43, 247, 258-60 (1955),http:// cgsc. cdmhost, com; Raymond Stone,The American-German Conference onPrisoners of War, 13 AM. J. INT’L L. 406(1919); Martin Tollefson, Enemy Prisoners ofWar, 32 IOWA L.REV. 51 (1946); Mark Elliott,The United States and Forced Repatriation ofSoviet Citizens, 1944-47, 88 POLITICALSCIENCE QUARTERLY 253 (1973); HowardS. Levie, How It All Started-And How ItEnded: A Legal Study of the Korean War, 35AKRON L.REV. 205 (2002); U.S. DEP’T OFDEFENSE, FINAL REPORT TO CONGRESS:CONDUCT OF THE PERSIAN GULF WAR661-73, 703-08 (1992), http://www, ndu. edu.

In short, Munaf and the extradition cases havealready weighed the relevantdue processconsiderations regarding transfers.They haveestablished that "the political branches are wellsituated to consider sensitive foreign policy issues,such as whether there is a serious prospect of torture

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at the hands of an ally, and what to do about it ifthere is." Munaf, 128 S.Ct. at 2226. And the"Judiciary is not suited to second-guess suchdeterminations." Id. In light of those precedents, itwould be quite anomalous for courts, absentcongressional direction, to second-guess suchExecutive assessments in these war-related transfercases, where the governmental interest is at least ascompelling and the individual interest in avoidingmistreatment is the same. See A1-Anazi v. Bush, 370F.Supp.2d 188, 194-95 (D.D.C.2005) (Bates, J.); seegenerally The Supreme Court, 2008 Term-LeadingCases, 122 HARV. L.REV.. 415 (2008) (analyzingMunaf and collecting authorities).

Third, I respectfully offer a few comments about thedissent.

The dissent does not address the fundamental issueraised in this appeal: whether the Constitution’s DueProcess Clause (or the Foreign Affairs Reform andRestructuring Act, see Maj. Op. at 514-15) requiresjudicial reassessment of the Executive’sdetermination that a detainee is not likely to betortured by a foreign nation-and whether, in order toensure such a judicial inquiry, the Government mustnotify the district court before transfer. Rather, thedissent discusses a question that was not raised bythe parties and fashions a new legal rule Seeminglyout of whole cloth. According to the dissent, a courtmust prevent a transfer of an alien detainee to aforeign nation’s custody if it concludes thatprosecution or detention by the foreign nation wouldalso amount to continued detention "on behalf of theUnited States." Dis. Op. at 518. The detainees**210

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"521 did not advance that position in their 104 pagesof briefing in this Court (except perhaps anambiguous reference at the tail end of one sentencein a supplemental brief). Nor did the detainees raisethe point during two lengthy oral arguments in thisCourt. And because the detainees did not make theargument, the Government has not been able toaddress and respond to the dissent’s novel approach.

In any event, I respectfully disagree with thedissent’s theory. The Government represents that aforeign nation’s prosecution or detention in the wakeof a transfer to that nation’s custody would takeplace "pursuant to its own laws." Waxman Decl. ~ 5.Under the principles of Munaf, that declarationsuffices to demonstrat.e that the proposed transfer ofan alien to the custody of a foreign nation is not thesame thing as the U.S. Government’s maintainingthe detainee in U.S. custody..FN7

FN7. A quite different issue arises, of course,when the United States maintains physicalcustody of an alien detainee but moves himafter he has filed his habeas petition from aplace where habeas applies (such asGuantanamo) to a place where the writ doesnot extend for aliens (such as a U.S. militarybase in Germany). Cf. Rumsfeld v. Padilla, 542U.S. 426, 440-41, 124 S.Ct. 2711, 159 L.Ed.2d513 (2004); Ex parte Endo, 323 U.S. 283, 306,65 S.Ct. 208, 89 L.Ed. 243 (1944).

The dissent cites no precedent-none-requiring orallowing a court to review a proposed transfer andassess whether custody of such an alien by a foreign

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nation would somehow also amount to custody "onbehalf of the United States." The dearth of citationsis noteworthy, particularly given that transfers ofinadmissible or removed aliens to the custody offoreign nations have long occurred in theimmigration context.

Furthermore, the dissent does not define or explainits proposed standard. What does "on behalf of theUnited States" mean in the context of a foreignnation’s custody of an alien detainee? Does thatconcept apply to any negotiated transfer of an aliendetainee? Does the dissent mean to prevent transferfrom Guantanamo whenever the United States seeksor becomes aware of prosecution or detention of analien by the receiving country pursuant to thatcountry’s laws? The dissent does not say.

The dissent in places seems to imply that an alienwho is not an enemy combatant is perforce notdangerous, as that term is used in immigrationpractice, and that prosecution or detention by aforeign nation after transfer therefore would beimproper, at least if the United States were aware ofor encouraged it beforehand. But no authority iscited to support such a conclusion or theextraordinary judicial role it portends in connectionwith the Nation’s foreign and immigration policiesand international negotiations. Cf. Munaf, 128 S.Ct.at 2223 ("Habeas does not require the United Statesto keep an unsuspecting nation in the dark when itreleases an alleged criminal insurgent within itsborders."); Demore v. Kim, 538 U.S. 510, 522, 123S.Ct. 1708, 155 L.Ed.2d 724 (2003) ("any policytoward aliens is vitally and intricately interwoven

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with contemporaneous policies in regard to theconduct of foreign relations, the war power, and themaintenance of a republican form of government")(internal quotation marks omitted); INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143L.Ed.2d 590 (1999) ("judicial deference to theExecutive Branch is especially appropriate in theimmigration context where officials exerciseespecially sensitive political functions that implicatequestions of foreign relations") (internal quotationmarks omitted).

*522 *’211 Moreover, the dissent’s theorynecessarily would require some judicial review of aforeign nation’s legal practices and procedures. Butthat would contravene the longstanding principlereiterated by the Supreme Court in Munaf: "Evenwith respect to claims that detainees would bedenied constitutional rights if transferred, we haverecognized that it is for the political branches, notthe judiciary, to assess, practices in foreign countriesand to determine national policy in light of thoseassessments." 128 S.Ct. at 2225.

Nor does the dissent explicate how its regime wouldwork procedurally. For instance, would the Judiciaryrequire questioning of the American and foreignofficials who negotiated the transfer? Would itmandate disclosure of confidential nation-to-nationdocuments? Presumably so. But absent congressionaldirection otherwise, courts traditionally are wary ofwading so deeply into this Nation’s negotiations andagreements with foreign nations. Cf. Dep’t of Navyv. Egan, 484 U.S. 518, 529-30, 108 S.Ct. 818, 98L.Ed.2d 918 (1988); Dames & Moore v. Regan, 453

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U.S. 654~ 101 S.Ct. 2972~ 69 L.Ed.2d 918 ~1981).

Courts have a responsibility to decide war-relatedcases with as much clarity and expedition aspos.sible. Especially in this sensitive area, ourholdings and opinions should strive to be readilyunderstandable to the political branches that have tomake critical wartime decisions. The dissent’suncertain "on behalf of’ standard likely would createyears of case-by-case litigation as the courts and thepolitical branches grapple with what it means andhow it applies to a given U.S. negotiation with aforeign nation about transfer of a wartime aliendetainee.

In my respectful judgment, the dissent’s theory doesnot advance a proper ground, absent congressionaldirection, for a judge to prevent the transfer ofGuantanamo detainees to the custody of a for.eignnation. And thus I fully agree with the opinion of theCourt that the dissent’s argument provides no basisin this case for the court to second-guess theExecutive’s proposed transfer ofthese aliendetainees. See Maj. Op. at 515-16 n.*.

The opinion of the Court correctly concludes that,under current law, the UoS. Government maytransfer Guantanamo detainees to the custody offoreign nations without judicial intervention-at leastso long as the Executive Branch declares, as it hasfor the Guantanamo detainees, that the UnitedStates will not transfer "an individual incircumstances where torture is likely to result."

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Munaf, 128 S.Ct. at 2226.GRIFFITH, Circuit Judge, concurring in thejudgment in part and dissenting in part:Nine ldetainees ask us to affirm district court ordersrequiring the government to provide thirty days’notice of their transfers from Guantanamo Bay. Ishare the majority’s concern that requiring suchnotice limits the government’s flexibility in asensitive matter of foreign policy. Nevertheless, inBoumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229,171 L.Ed.2d 41 (2008), the Supreme Court rejectedthis court’s view of the reach of the writ of habeascorpus and extended its protections to those held atGuantanamo Bay. Since at least the seventeenthcentury, the Great Writ has prohibited the transferof prisoners to places beyond its reach where theywould be subject to continued detention on behalf ofthe government. Because this protection applies tothe petitioners, the critical question before us is whatprocess a court must employ to assess thelawfulness**212 *523 of their proposed transfers.Based on its reading of Munaf v. Geren, 553 U.S.674, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008), themajority finds sufficient the government’srepresentations that no transfer will result incontinued detention on behalf of the United States. Iwrite separately because I do not believe Munafcompels absolute deference to the government onthis matter, and I believe the premise of Boumedienerequires that the detainees have notice of theirtransfers and some opportunity to challenge thegovernment’s assurances. Accordingly, I wouldaffirm the district court orders.

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I agree with the majority that the district court hassubject matter jurisdiction to hear the detainees’challenges to their transfers. I am less certain thanthe majority, however, that there remains astatutory basis to hear these claims afterBoumediene. The majority opinion in Boumedienesaid nothing about whether statutory habeas for theGuantanamo detainees survived the MilitaryCommissions Act 0f 2006, Pub.L. No. 109-366, 120Stat. 2600, and at least three Justices were of theview it did not. See Boumediene, 128 S.Ct. at 2278(Souter, J., concurring, joined by Ginsburg & Breyer,JJ.) (noting that Congress "eliminated the statutoryhabeas jurisdiction over these claims, so that nowthere must be constitutionally based jurisdiction ornone at all"). Statutory habeas may in fact exist forthese detainees and cover claims against unlawfultransfer, but fornow this remains an open question,and the Constitution provides a more sure footing forjurisdiction.

The bar against transfer beyond the reach of habeasprotections is a venerable element of the Great Writand undoubtedly part of constitutional habeas. "[A]tthe absolute minimum, the Suspension Clauseprotects the writ ’as it existed in 1789.’ " INS v. St.Cyr, 533 U.S. 289, 301, 121 S.Ct. 2271, 150 L.Ed.2d347 (2001) (quoting Felker v. Turpin, 518 U.S. 651,664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996)).Because the Habeas Corpus Act of 1679 "was themodel upon which the habeas statutes of the 13American Colonies were based," Boumediene, 128S.Ct. at 2246~ see Dallin H. Oaks, Habeas Corpus inthe States, 1776-1865, 32 U. CHI. L.REV.. 243, 252

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(1965) (explaining the "close conformity of most statelegislation to the English Habeas Corpus Act of1679"), the Supreme Court has looked to the 1679Act to determine the contours and content ofconstitutional habeas, see, e.g., Boumediene, 128S.Ct. at 2245-47~ Hamdi v. Rumsfeld, 542 U.S. 507,557-58, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004)(Scalia, J., dissenting); Peyton v. Rowe, 391 U.S. 54,58-59, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). Section12 of the 1679 Act included a prohibition against thetransfer of prisoners to places where the writ did notrun. See Habeas Corpus Act, 1679, 31 Car. 2, c. 2, §12 (Eng.) ("[N]o subject ... may be sent ... into parts,garrisons, islands or places beyond the seas ... withinor without the dominions of his Majesty .... "); see alsoBoumediene, 128 S.Ct. at 2304 (Scalia, J.,dissenting) ("The possibility of evading judicialreview through such spiriting-away was eliminated,not by expanding the writ abroad, but by forbidding(in Article XII of the Act) the shipment of prisonersto places where the writ did not run or where itsexecution would be difficult."); Oaks at 253 ("The actalso prohibited sending persons to foreign prisons (§12)."). Because Boumediene extended constitutionalhabeas to the Guantanamo detainees, see 128 S.Ct.at 2240 (holding that petitioners "have theconstitutional privilege of habeas corpus, a privilegenot to be withdrawn except in conformance with theSuspension Clause"), we should acknowledge thatjurisdiction**213 *524 to hear the petitioners’ claimsagainst unlawful transfer-a fundamental andhistoric habeasprotection-is grounded in theConstitution.

II.

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Transfer to continued detention on behalf of theUnited States in a place where the writ does notreach would be unlawful and may be enjoined. Thequestion we must consider is what process courtsmust use to determine whether the government’sproposed transfers run afoul of that bar. Themajority holds that the district court must defer tothe Executive’s sworn representations that transferto the physical custody of a foreign government willnot involve continued detention on behalf of theUnited States. Majority Op. at 516. But this willleave the petitioners without any opportunity tochallenge .the accuracy of the government’s sworndeclarations. Although prudential concerns mayjustify some flexibility in fashioning habeas relief,see Boumediene, 128 S.Ct. at 2267 (noting that"common-law habeas corpus was, above all, anadaptable remedy"), such innovations must not stripthe writ of its essential protections. See id. at 2276("Certain accommodations can be made to reduce theburden habeas corpus proceedings will place on themilitary without impermissibly diluting theprotections of the writ.").

Fundamental to a prisoner’s habeas rights is thegovernment’s duty to appear in court to justify hisdetention. At its most basic level, habeas "protectsthe rights of the detained by affirming the duty andauthority of the Judiciary to call the jailer toaccount." Id. at 2247~ see Peyton, 391 U.S. at 58, 88S.Ct. 1549 ("The writ of habeas corpus is aprocedural device for subjecting executive, judicial,or private restraints on liberty to judicial scrutiny.Where it is available, it assures among other things

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that a prisoner may require his jailer to.justify thedetention under the law."). To vindicate thedetainees’ habeas rights, Boumediene requires thecourt to "conduct a meaningful review" of thegovernment’s reasons for the detention, whichincludes, at the very least,.the rudimentaries of anadversary proceeding. 128 S.Ct. at 2268-69 (for the"writ [to] be effective ... [t]he habeas court must havesufficient authority to conduct a meaningful reviewof both the cause for detention and the Executive’spower to detain," typically through "a fair, adversaryproceeding"); see also id. at 2269 (identifying as acritical deficiency in the CSRT process the"constraints upon the detainee’s ability to rebut thefactual basis for the Government’s assertion that heis an enemy combatant"). Calling the jailer toaccount must include some opportunity for theprisoner to challenge the jailer’s account.

Here the nine detainees claim their transfers mayresult in continued detention on behalf of the UnitedStates in places where the writ does not extend,effectively ttenying them the habeas protectionsBoumediene declared are theirs. See, e.g., Appellees’Supp. Br. at 4-5 (arguing that habeas "extends toensuring that any proposed ’release’ " would notresult in "continued unlawful detention in a locationbeyond the jurisdiction of the district court ... incoordination with[ ] or at the behest of the UnitedStates"); Appellees’ Supp. Resp. Br. at 5-6;Application for Prelim. Inj. at 7, 9-10, Kiyemba v.Bush, No. 05-1509 (D.D.C. Sept. 9, 2005). The stakesof unlawful custody, which led the Court inBoumediene to extend habeas protections to thedetainees in the first place, are no higher than the

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stakes of unlawful transfer. Indeed, because anunlawful transfer will deny the detainees anyprospect of judicial relief,~ protecting their habeasrights in this context is vital.

*525 *’214 It is significant that the government hassubmitted sworn declarations assuring the court thatany transfer will result in release from U.S.authority. If the government’s representations areaccurate, each transfer will be lawful, for in habeasthe only relevant judicial inquiry about a transfer iswhether it will result in continued detention onbehalf of the United States in a place where the writdoes not run. But as we recently noted in anothercase involving the scope of habeas protections fordetainees at Guantanamo Bay, a "naked declarationcannot simply resolve the issue." Al-Odah v. UnitedStates, 559 F.3d 539, slip op. at 10 ~D.C.Cir.2009)(per curiam) (rejecting "the government’s suggestionthat its mere certification-that the [classified]information redacted from the version of the[document] provided to a detainee’s counsel do[es]not support a determination that the detainee is notan enemy combatant-is sufficient to establish thatthe information is not material" (internal quotationmarks omitted)); see id. at 545, slip op. at 11 ("[I]t isthe [habeas] court’s responsibility to make themateriality determination itself."). Critical toensuring the accuracy of the government’srepresentations is an opportunity for the detainees tochallenge their veracity. The rudimentaries of anadversary proceeding demand no less. SeeBoumediene, 128 S.Ct. at 2273 ("If a detainee canpresent reasonably available evidence demonstratingthere is no basis for his continued detention, he must

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have the opportunity to present this evidence to ahabeas corpus court."). When an individual entitledto habeas protections faces the prospect of continueddetention-be it by the United States at GuantanamoBay or on its behalf after transfer to a foreign nation-he must be afforded some opportunity to challengethe government’s case.

Relying solely on the government’s sworn declarationand despite the petitioners’ claims to the contrary,the majority insists that this case is not aboutpossible continued detention by a foreign nation onbehalf of the United States. Majority Op. at 515-16.But the majority makes too much of what thegovernment has actually said. The government hasstated only that transfer to a foreign nation willresult in release of the detainees from the physicalcustody of the United States. See Declaration ofMatthew C. Waxman, Deputy Assistant Sec’y of Def.for Detainee Affairs 2-3 (June 2, 2005). Thedeclaration expressly left open the possibility that aforeign nation will continue detention of thepetitioners. See id. at 2 ("[T]he United States alsotransfers GTMO detainees, under appropriatecircumstances, to the control of other governmentsfor continued detention .... "). The possibility ofcontinued detention by a foreign nation on behalf ofthe United States after a transfer is the very issuewe must address. Although the status of thesedetainees has been put to an adversarial process,whether their transfers will be lawful has not. I donot see how the court can safeguard the habeasrights Boumediene extended to these detaineeswithout allowing them to challenge the government’saccount.FNI

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FN1. Because this case should be governed byBoumediene’s extension to the detainees ofhabeas protections that include the baragainst unlawful transfer, I view the issues ofinterest to Judge Kavanaugh in his concurringopinion as inapposite. For example, whetherthe Due . Process Clause of the FifthAmendment reaches these detainees is simplynot part of the inquiry required in this case.The critical issue is whether the petitioners’habeas rights permit them to offer evidencethat their proposed transfers will result incontinued detention by a foreign nation onbehalf of the United States.

Munaf is not to the contrary. The majority makesmuch of its language that courts may not "second-guess" the government’s**215 *526 determinations,but it overlooks a significant difference between thatcase and ours: the Munaf petitioners knew inadvance that the government intended to transferthem to Iraqi authorities and had the opportunity todemonstrate that such a transfer would be unlawful.There was no need for the Munaf Court to consideran issue at the center of this dispute: whether noticeis required to prevent an unlawful transfer. Inconsidering the Munaf petitioners’ request to enjointheir transfers, the district court had the benefit ofcompeting arguments from the petitioners and thegovernment for each specific transfer. See 128 S.Ct.at 2226 (emphasizing that the government hadconsidered and determined that the petitioners,Shawqi Ahmad Omar and Mohammad Munaf, wouldbe treated adequately by Iraq’s Justice Ministry and

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the prison where they .would be held); see also Omarv. Harvey, 416 F.Supp.2d 19, 28 (D.D.C.2006)(stating petitioner’s reasons for seeking an injunctionbarring transfer); Petition for Writ of Habeas Corpusat 7, Munaf v. Harvey, No. 06-1455 (D.D.C. Aug. 18,2006) (same). Although the Supreme Court rightlygave substantial weight to the government’sdetermination that the proposed transfer was lawful,the petitioners were at least permitted to argueotherwise. The Kiyemba petitioners should beafforded the same opportunity.

Other factual and legal differences limit Munafsapplicability to our case. Critical to Munafs holdingwas the need to protect Iraq’s right as a foreignsovereign to prosecute the petitioners. See 128 S.Ct.at 2221 ("[O]ur-cases make clear that Iraq has asovereign right to prosecute Omar and Munaf forcrimes committed on its soil."). No such interest isimplicated here. The Court also emphasized Iraq’sstatus as an ally and the fact that the petitioners hadvoluntarily traveled to Iraq to commit drimes duringongoing hostilities. See id. at 2224-25. Again, nothingsimilar is involved in this case. Perhaps mostimportant, the Munaf petitioners sought a uniquetype of relief, as the Court stressed:

[T]he nature of the relief sought by the habeaspetitioners suggests that habeas is not appropriatein these cases. Habeas is at its core a remedy forunlawful executive detention .... At the end of theday, what petitioners are really after is a courtorder requiring the United States to shelter themfrom the sovereign government seeking to havethem answer for alleged crimes committed within

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that sovereign’s borders.

Id. at 2221. Given the significant differencesbetween the circumstances of Munaf and this case,we are not required to hold that courts are foreclosedfrom exercising their habeas powers to enjoin atransfer without some opportunity for a detainee tochallenge the government’s representation that histransfer will be lawful.

III.

In the end, I would add only one element to theprocess the majority concludes is sufficient forconsidering the petitioners’ transfer claims. But it is,I believe, a fundamental element called for by theGreat Writ. The constitutional habeas protectionsextended to these petitioners by Boumediene will begreatly diminished, if not eliminated, without anopportunity to challenge the government’sassurances that their transfers will not result incontinued detention on-behalf of the United States.Accordingly, I respectfully dissent.

C.A.D.C.,2009.Kiyemba v. Obama561 F.3d 509, 385 U.S.App.D.C. 198

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