The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge
Petitioners in the above-captioned cases have each requested a
preliminary injunction ordering respondents to provide advance
notice of petitioners' transfer from the United States Naval Base
at Guantanamo Bay, Cuba, where they are currently detained. Murat
Kurnaz, a twenty-two year old Turkish citizen who was born and
raised in Germany, has been detained in Guantanamo Bay for more
than three years. He requests thirty-days notice to counsel of
any proposed transfer. Jamel Ameziane is a citizen of Algeria and
has been detained for more than two years. Mr. Ameziane is as yet
unaware of his representation by counsel. His counsel requests that petitioner not be transferred from Guantanamo until
counsel has had an opportunity to meet with him to ascertain his
Kurnaz's case was initially consolidated before Judge Joyce
Hens Green and has been stayed pending appeal to the United
States Court of Appeals for the District of Columbia. See Order
Granting in Part and Denying in Part Resp'ts' Mot. for
Certification of Jan. 31, 2005 Orders and For a Stay, In re
Guantanamo Detainee Cases, No. 02-0299, et al. (D.D.C. Feb. 3,
2005).*fn1 Since Ameziane's Petition for Writ of Habeas
Corpus was filed subsequent to Judge Green's decision, it is not
subject to the stay or protective orders entered by her. This
Court ordered respondents to show cause by April 1, 2005 why
Ameziane's writ should not be granted. (Show Cause Order, Mar.
10, 2005.) Respondents have, however, moved for a stay, which
Ameziane opposes. Ameziane has also moved for entry of a
protective order. The parties presented oral argument on each of
these motions on April 8, 2005.
As neither Ameziane nor respondents oppose entry of protective
orders identical to those entered by Judge Green, the Court does
so by order below. The Court also concludes that respondents'
Motion to Stay should be granted. However, to ensure that the
proceedings can continue in an orderly fashion in the event that
the detainees prevail on appeal, respondents are ordered to
provide factual returns to Ameziane's counsel within ninety days
of the date of this Order. Finally, upon consideration of the
arguments of the parties, in view of the orders issued by four other judges on this Court granting substantially
identical relief as is requested in this case, see Al-Marri v.
Bush, No. 04-2035 (D.D.C. Apr. 4, 2005); Al-Joudi v. Bush, No.
05-0301 (D.D.C. Apr. 4, 2005); Al-Oshan v. Bush, No. 05-0520
(D.D.C. Mar. 31, 2005); Al-Shiry v. Bush, No. 04-0490 (D.D.C.
Apr. 1, 2005); Abdah v. Bush, 2005 WL 711814 (D.D.C. Mar. 29,
2005), and for the reasons stated below, the Court concludes that
petitioners must be given notice of a potential transfer in a
limited type of circumstance. In particular, if respondents have
not reached a diplomatic understanding with the transferee
country that a petitioner's transfer from Guantanamo is for
release only, respondents must provide that petitioner's counsel
with thirty days advance notice of the proposed transfer.
In Rasul v. Bush, 124 S. Ct. 2686 (2004), the Supreme Court
held that federal courts have jurisdiction to determine the
legality of the ongoing detention of petitioners held in
Guantanamo Bay. Id. at 2698. See also In re Guantanamo
Detainee Cases, 355 F. Supp. 2d 443, 464 & 479 (D.D.C. 2004)
(Guantanamo detainees possess rights under the Due Process Clause
and Geneva Convention); Hamdan v. Rumsfeld,
344 F. Supp. 2d 152, 165 (D.D.C. 2004) (Guantanamo detainees possess rights under
Geneva Convention). Accordingly, the Court must also have
authority to preserve this jurisdiction if it can be shown that
respondents are acting to circumvent it. See All Writs Act,
28 U.S.C. § 1651(a); Al-Marri, No. 04-2035, slip. op. at 10 n. 11
(quoting SEC v. Vision Communications, Inc., 74 F.3d 287, 291
(D.C. Cir. 1996)) (All Writs Act "empowers a district court to
issue injunctions to protect its jurisdiction"); Abu Ali v.
Ashcroft, 350 F. Supp. 2d 28, 54 (D.D.C. 2004) (federal courts
"may and should take such action as will defeat attempts to
wrongfully deprive parties" of their right to sue in federal
court) (internal citation omitted); Lindstrom v. Graber,
203 F.3d 470, 474-76 (7th Cir. 2000) (All Writs Act permits court to stay extradition pending appeal of habeas corpus
petition); Michael v. INS, 48 F.3d 657, 664 (2d Cir. 1995) (All
Writs Act permits federal Court of Appeals to stay a deportation
order pending review of its legality). Cf. Fed.R.App.P.
23(a); Jago v. U.S. Dist. Court, 570 F.2d 618, 623 (6th
Cir. 1978) (Rule 23(a) preserves district judge's authority to
issue order regarding custody of prisoner pending review of
Respondents state that some petitioners may be transferred to
custody of a foreign government
for investigation and possible prosecution and
continued detention when those governments are
willing to accept responsibility for ensuring,
consistent with their laws, that the detainees will
not continue to pose a threat to the United States
and its allies. Such governments can include the
government of a detainee's home country, or a country
other than the detainee's home country that may have
law enforcement or prosecution interest in the
(Waxman Decl. ¶ 3.) According to respondents, once such a
transfer is effected, the Court would lose its jurisdiction.
While the Court has no occasion to decide at this time whether
this or any other type of transfer could be subject to an
injunction, several examples offered by petitioners raise
sufficiently serious concerns to justify the limited remedy of
advance notice. For instance, a petitioner could be transferred
to the custody of a different United States custodian in a
foreign country, such as the United States military base in
Afghanistan. (See Kurnaz Reply at 14.) Alternatively, he could
be transferred to the custody of a foreign government, but held
under the direction and control of the United States government.
See Abu Ali, 350 F. Supp. 2d at 69. Or, he could be transferred
to the custody of a country where he has never had occasion to
violate that country's laws, again raising a possible question as
to the governmental claim of an "independent law enforcement"
interest. In such narrowly circumscribed circumstances, closer scrutiny of the transfer might well be appropriate in order to
preserve the petitioner's right to obtain review of the legality
of his detention.
For these reasons, it is hereby
ORDERED that respondents' Motion to Stay is GRANTED and
Ameziane v. Bush, No. 05-0392, is STAYED pending resolution
of all appeals in In re Guantanamo Detainee Cases,
355 F. Supp. 2d 443 (D.D.C. 2005), and Khalid v. Bush, 355 F. Supp. 2d 311
(D.D.C. 2005). This stay shall not, however, prevent the parties
from availing themselves of the procedures set forth in the
Protective Order entered below, nor shall it bar the filing or
disposition of any motion for emergency relief.
It is further ORDERED that respondents shall provide a
factual return to the Court and to counsel for Ameziane within
ninety (90) days of the date of this Order; and it is further
ORDERED that the Court ENTERS by way of reference the
protective order and supplementary orders previously entered in
In re Guantanamo Bay Detainee Cases, Civil No. 02-0299, et
al., by Judge Joyce Hens Green. These include the Amended
Protective Order and Procedures for Counsel Access to Detainees
at the United States Naval Base in Guantanamo Bay, Cuba, first
issued on November 8, 2004; the Order Addressing Designation
Procedures for "Protected Information," entered on November 10,
2004; and the Order Supplementing and Amending Filing Procedures
Contained in November 8, 2004 Amended Protective Order, issued on
December 13, 2004.
It is further ORDERED that, where respondents do not have an
understanding with the receiving country that a transfer from
Guantanamo Bay, Cuba is for purposes of release only, respondents
shall provide petitioner's counsel with thirty (30) days advance
notice of the transfer, including the proposed destination and conditions of transfer.
ORDERED that petitioners' motions for preliminary ...