United States District Court for the District of Columbia
April 4, 2005.
MAJID ABDULLA AL-JOUDI, et al., Petitioners,
GEORGE W. BUSH, et al., Respondents.
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
A. Procedural History
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.
B. Transfers from GTMO
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. Bush, No.
05-CV-313 (March 12, 2005) (order denying request for temporary
restraining order). On March 29, 2005, Judge Henry H. Kennedy
granted a Preliminary Injunction in Abdah.
After the Motion was filed in the instant case, the Government
represented to this Court that none of the parties were scheduled
for transfer within the next several weeks. In addition, counsel
for all parties agreed to a combined hearing on the request for a
temporary restraining order and the request for a preliminary
injunction. On March 17, 2005, based on those representations,
the Court scheduled the hearing on the Motion for March 30, 2005.
II. STANDARD OF REVIEW
In considering Petitioners' request for a preliminary
injunction, the Court must consider four factors: (1) whether
Petitioners would suffer irreparable injury if an injunction were
not granted; (2) whether Petitioners have a substantial
likelihood of success on the merits; (3) whether an injunction
would substantially injure other interested parties; and (4)
whether the grant of an injunction would further the public
interest. Al-Fayed v. CIA, 254 F.3d 300, 303 (D.C. Cir. 2001).*fn6 "These
factors interrelate on a sliding scale and must be balanced
against each other." Serono Labs, Inc. v. Shalala,
158 F.3d 1313, 1318 (D.C. Cir. 1998). "If the arguments for one factor are
particularly strong, an injunction may issue even if the
arguments in other areas are rather weak." CityFed Fin. Corp. v.
Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995).
When the balance of hardships tips decidedly toward the movant,
it will "ordinarily be enough that the [movant] has raised
questions going to the merits so serious, substantial, difficult
and doubtful, as to make them a fair ground for litigation and
thus for more deliberative investigation.'" Washington Metro.
Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 844
(D.C. Cir. 1977) (quoting Hamilton Watch Co. v. Benrus Watch
Co., 206 F.2d 738, 740 (2d Cir. 1953)). "An order maintaining
the status quo is appropriate when a serious legal question is
presented, when little if any harm will befall other interested
persons or the public and when denial of the order would inflict
irreparable injury on the movant." Id. at 844. III. ANALYSIS
A. Harm to Petitioners
Petitioners argue that they will suffer irreparable harm if
transferred to the custody of another country that practices
torture or other inhumane treatment of prisoners. Respondents
argue that there is no potential harm to Petitioners, because
there is no credible evidence that detainees are being
transferred to countries that practice torture; instead, any
transfers will be largely for purposes of release.*fn7
Irreparable harm to the moving party is "the basis of
injunctive relief in the federal courts." CityFed Fin. Corp.,
58 F.3d at 747 (quoting Sampson v. Murray, 415 U.S. 61, 88
(1974)). To obtain preliminary injunctive relief, Petitioners
must show that the threatened injury is not merely "remote and
speculative." Milk Indus. Found. v. Glickman, 949 F. Supp. 882,
897 (D.D.C. 1996).
In this case, there are two obvious and substantial threats to
Petitioners. First, they face the possibility of transfer to a
country where they might be tortured or indefinitely confined, which undeniably would constitute irreparable harm. While the
Government presents declarations that attempt to mitigate these
concerns, they neither refute Petitioners' claims nor render them
frivolous.*fn8 Indeed, the Government admits that 65 of the
211 detainees transferred to date have been transferred for
detention, not release. Several of the 65 have been transferred
to countries that our own State Department has acknowledged
torture prisoners, including Pakistan, Saudi Arabia, and Morocco.
See Country Reports on Human Rights Practices 2004,
available at http://www.state.gov/g/drl/rls/hrrpt/2004. Finally,
the Government was unable to provide any details about the type
or form of "assurances" given, the scope of the monitoring that
takes place after transfer, or the consequences of
noncompliance.*fn9 Tr. at 32-33. In short, the threatened
injury is not merely remote and speculative; it is a serious
Second, Petitioners face the threat of irreparable harm based
on the potential elimination of their habeas claims. It is
unclear at this point whether transferring Petitioners would
strip this Court of jurisdiction. See Abdah v. Bush, No.
04-CV-1254, Slip op. at 7 (D.D.C. March 29, 2005) (transfer to
another country "would effectively extinguish [Petitioners']
habeas claims by fiat"); but see Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 54 (D.D.C. 2004)
(holding that an individual detained in Saudi Arabia could
survive a motion to dismiss his habeas claim based on the theory
of constructive custody). However, given the danger that, upon
transfer, the Court could lose jurisdiction to adjudicate
Petitioners' claims, it follows that such a transfer could
obviate Petitioners' right to "test the legitimacy of [their]
executive detention." Lee v. Reno, 15 F. Supp. 2d 26, 32
(D.D.C. 1998). Since such a turn of events would certainly
constitute a threat of irreparable harm, an order preserving the
status quo in this case is appropriate.*fn10
Both threats are imminent. While the Court certainly has relied
upon the Government's representations that Petitioners will not
be transferred in the next several weeks, the Government is
clearly maintaining its right to transfer them at any time after
the Court rules upon the instant Motion. Thus, the threats are
not distant or speculative, and transfer could occur in the near
future. B. Likelihood of Success on the Merits
Petitioners contend that, given Judge Green's Opinion in In re
Guantanamo Cases, they have a substantial likelihood of success
on the merits of their habeas claim. The Government responds that
Petitioners' claim would be barred because the treaties under
which they seek review are non-self-executing, and because the
review sought would encroach upon the foreign policy authority of
To justify granting a preliminary injunction, Petitioners need
not show "a mathematical probability of success." Washington
Metro. Area Transit Comm'n, 559 F.2d at 844. Rather, "it will
ordinarily be enough" that the questions raised are so "serious,
substantial, difficult and doubtful, as to make them a fair
ground for litigation." Id. (quoting Hamilton Watch Co.,
206 F.2d at 740).
The exact chances of success in this case are extremely
difficult to assess. It is clear, however, that, at a minimum,
Petitioners have raised "fair ground[s] for litigation."
Washington Metro. Area Transit Comm'n, 559 F.2d at 844. The
issues raised in these motions are sensitive and involve complex
constitutional questions. Indeed, there are areas of disagreement
even among the judges on this Bench about the legal issues raised
in these Petitions. Like the issues in Hamdi v. Rumsfeld,
Padilla v. Rumsfeld, and Rasul, there is a strong probability
that they ultimately will be resolved by the Supreme Court. For example, there is disagreement about whether the detainees
have any constitutional rights at all. See Khalid,
355 F. Supp. 2d 311 (holding that Guantanamo detainees have no
constitutional rights); but see In re Guantanamo Cases,
355 F. Supp. 2d 311 (holding that Guantanamo detainees have some
constitutional rights). There is also disagreement over whether
the Court will lose jurisdiction over the cases if Petitioners
are transferred to another country.*fn11 See Abdah v.
Bush, No. 04-CV-1254, slip op. at 7 (D.D.C. March 29, 2005);
but see Abu Ali v. Ashcroft, 350 F. Supp. 2d at 54. And,
there is disagreement about whether the Geneva Conventions are
self-executing. See Hamdan v. Rumsfeld, 344 F. Supp. 2d 152,
164 (D.D.C. 2004).
In short, even though the mathematical probability of success
is impossible to assess, there can be no doubt that the questions
raised here are so "serious, substantial, difficult, and
doubtful," as to make them a "fair ground for litigation."
Washington Metro. Area Transit Comm'n, 559 F.2d at 844. C. Harm to Government
Petitioners argue that there is absolutely no harm to the
Government if it is required to provide the Court and
Petitioners' counsel with 30 days' notice before transferring
them to another country. The Government contends, however, that
there is great potential harm to its ability to conduct
negotiations with foreign governments regarding the transfer and
subsequent release of GTMO detainees, because such negotiations
are often conducted in secret and divulging their details could
seriously impair their success.
The Court fails to see any injury whatsoever that the
Government would suffer from granting the requested preliminary
injunction. Petitioners request only 30 days' notice of transfer
a narrow and discrete request that would impose no burden on
the Government. Beyond "vague premonitions" that such relief
would harm the executive's ability to conduct foreign policy,
there is no concrete evidence that such notice actually will
intrude upon executive authority. Abdah, slip op. at 10 (D.D.C.
March 29, 2005). For example, granting Petitioners' request for
30 days' notice of transfer would not require the Court to
second-guess foreign policy decisions of the Executive, would not
require the Government to divulge information relating to its
negotiations with foreign governments, and would not prevent the
Government from speaking with one voice.*fn12 In weighing the respective hardships imposed upon the parties,
the balance clearly tilts in favor of Petitioners. The requested
relief does not constitute even a minimal burden on the
Government; at most, it would require the Government to file a
few pieces of paper. Such a minimal consequence does not outweigh
the imminent threats of indefinite detention, potential torture,
and the elimination of Petitioners' claims before this Court.
D. Public Interest
Petitioners argue that the public has a strong interest in
protecting the constitutional rights of detainees. The Government
responds that the requested relief would be contrary to the
public interest, because it could frustrate the Government's
ability to conduct foreign policy, which ultimately could harm
the nation by impairing the effectiveness of the war on
The Government's argument is unpersuasive, however, for it
"simply conflate[s] the public interest with [the Government's]
own position," Abdah, 04-CV-1254, slip op. at 11 (March 29,
2005), and asks the Court to accept its predictions of harm
without challenge. This the Court is not prepared to do. It is
obvious beyond words that there is a strong public interest in
the zealous pursuit of those who wish to commit acts of terrorism
against the United States and its citizens. However, the narrow
relief sought in this case will not compromise that effort in any
In contrast, the public interest undeniably is served by
ensuring that Petitioners' constitutional rights can be
adjudicated in an appropriate manner. G & V Lounge, Inc. v. Mich. Liquor
Control Comm'n, 23 F.3d 1071, 1079 (6th Cir. 1994) ("[i]t is
always in the public interest to protect the violation of a
party's constitutional rights"). Retaining jurisdiction over this
case is essential to protecting that public interest. Thus, the
public interest clearly favors entering the preliminary
injunction sought by Petitioners.
Petitioners have requested 30 days' notice of any transfer from
GTMO, a concrete, narrow, and minimally burdensome remedy. Based
on the Court's analysis of the four relevant factors set forth in
the applicable caselaw, it is clear that Petitioners have
satisfied their burden. They are faced with an imminent threat of
serious harm, which far outweighs any conceivable burden that the
Government might face. Furthermore, while it is not possible to
demonstrate a "mathematical probability of success," the
questions are "serious, substantial, difficult and doubtful."
Washington Metro. Area Transit Comm'n, 559 F.2d at 844.
Certainly, the Government cannot argue that its success on the
merits is a foregone conclusion. Finally, the public interest in
granting Petitioners the requested relief is strong. Therefore,
for the foregoing reasons, 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
is granted. An Order will issue with this Opinion.