The opinion of the court was delivered by: GLADYS KESSLER, District Judge
Petitioners, four Saudi Arabian nationals, bring this action
against Defendants, seeking release from the Guantanamo Bay Naval
Station ("GTMO") in Cuba, where they are being detained.*fn1
This matter is before the Court on Petitioners' Motion for a
Temporary Restraining Order and Preliminary Injunction Requiring
Respondents to Provide Counsel for Petitioners and the Court with
30-Days' Advance Notice of Any Intended Removal from Guantanamo.
Upon consideration of the Motion, Opposition, Reply, and the
entire record herein, and for the reasons stated below,
Petitioners' Motion is granted. I. BACKGROUND
Petitioners are being detained at GTMO and have been classified
as enemy combatants.*fn2 On February 9, 2005, they filed a
Petition for Writ of Habeas Corpus in this Court. They are among
many GTMO detainees who have filed such petitions in the United
States District Court for the District of Columbia since the
Supreme Court held that "the federal courts have jurisdiction to
determine the legality of the Executive's potentially indefinite
detention of individuals who claim to be wholly innocent of
wrongdoing." Rasul v. Bush, 124 S. Ct. 2686, 2699 (2004).
On January 19, 2005, Judge Richard Leon granted the
Government's Motion to Dismiss the detainees' Petition for Writ
of Habeas Corpus in Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C.
2005). On January 31, 2005, Judge Green granted in part and
denied in part the Government's Motion to Dismiss in eleven cases
consolidated pursuant to the September 15, 2004, Resolution of
the Executive Session. In re Guantanamo Cases,
355 F. Supp. 2d 443 (D.D.C. 2005).*fn3 The cases before Judges Leon and
Green have been fully briefed in the United States Court of Appeals for the District of
Columbia and are under submission.
On February 3, 2005, Judge Green granted a stay in the eleven
cases to which her January 31, 2005, Opinion and Order applied. A
Motion to Stay the instant case until resolution of Khalid and
In Re Guantanamo Cases is pending in this Court.
Approximately 540 foreign nationals currently are being held at
GTMO. Decl. of Matthew C. Waxman ¶ 2 ("Waxman
Declaration").*fn4 The Department of Defense ("DOD") states
it is conducting a review of each detainee's case, at least
annually, to determine whether continued detention is warranted.
Id. at ¶ 3. Since the Government began detaining individuals at
GTMO, the DOD has transferred 211 detainees to other countries.
Id. at ¶ 4.
Detainees are subject to two types of transfer: (1) transfer to
the custody of another country, with the understanding that they
will be released, Tr. at 22-23; and (2) transfer to the custody
of another country with the understanding that the country's
government has "an independent law enforcement interest" in them
and that they likely will face continued detention and processing
by that country's judicial system. Id. at 24. In each case, the
United States loses all control of the detainees once they are
transferred to another country. Waxman Decl. at ¶ 5. Of the 211 detainees who have been transferred, 146 have been
transferred with the understanding that they would be released.
Id. at ¶ 7. The Government represents that most of those
individuals actually have been released, Tr. at 29, but it cannot
provide precise numbers. Id.
Sixty-five detainees have been transferred to the control of
other countries for detention. Waxman Decl. at ¶ 7. Of that
group, 29 were transferred to Pakistan; 9 to the United Kingdom;
7 to Russia; 5 to Morocco; 6 to France; 4 to Saudi Arabia; and 1
each to Australia, Denmark, Kuwait, Spain, and Sweden. Id..
When transfers for detention are being considered, DOD
coordinates with various other Government agencies, including the
Department of State ("DOS"). Id. ¶ 6. The Government states
that, as a matter of policy, it does not "repatriate or transfer
individuals to other countries where it believes it is more
likely than not that they will be tortured." Id..
The Government claims that it ensures compliance with this
policy by obtaining "assurances" from officials within the
foreign government. The process for obtaining such assurances
"involves a frank dialogue, discussion, [and] communication with
officials of the other government." Tr. at 32. The Government
evaluates the adequacy of the assurances by considering "the
identity, position, or other information concerning the official
relaying the assurances," Decl. of Pierre-Richard Prosper at ¶ 8
("Prosper Declaration");*fn5 political or legal developments in the
country that would provide context for the assurances, id.; and
U.S. relations with the country. Id. Senior Government
officials ultimately make the final decision on whether to
transfer a detainee. Waxman Decl. at ¶ 7. The Government's papers
do not indicate which DOD official has this responsibility.
In recent months, a number of newspaper articles about the
transfer and treatment of detainees have been published. Some,
for example, quote former employees of the United States
government who have been involved in transferring detainees to
other countries, including countries that practice torture. See,
e.g., Dana Priest, Jet Is an Open Secret in Terror War, Wash.
Post, Dec. 27, 2004, at A1. In addition, some quote by name
former Guantanamo detainees who allege that they have been moved
by the United States government to countries where they have been
tortured. See, e.g. Douglas Jehl and David Johnson, Rule
Change Lets C.I.A. Freely Send Suspects Abroad, N.Y. Times, Mar.
6, 2005, at A1.
On March 11, 2005, an article in The New York Times reported
that DOD plans to transfer "hundreds of suspected terrorists to
prisons in Saudi Arabia, Afghanistan, and Yemen." Douglas Jehl,
Pentagon Seeks to Shift Inmates from Cuba Base, N.Y. Times,
Mar. 11, 2005, at A1. In response to this article, several petitioners, including the
Petitioners in the instant case, filed motions for temporary
restraining orders and preliminary injunctions. On March 12,
2005, Judge Rosemary Collyer granted a request for a temporary
restraining order in Abdah v. Bush, No. 04-CV-1254 (D.D.C.
March 12, 2005) (order granting temporary restraining order) and
denied a similar request in John Does 1-570 v. ...