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Almurbati v. Bush

April 14, 2005

ISA ALI ABDULLA ALMURBATI, ET AL., PETITIONERS,
v.
GEORGE WALKER BUSH, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

Currently before this Court is the Petitioners' Motion for Preliminary Injunction [D.E. # 101] ("Pets.' Mot."), which seeks an Order, pursuant to Rule 65 of the Federal Rules of Civil Procedure and the All Writs Act, 28 U.S.C. § 1651, that would prohibit the respondents from transferring any of the petitioners from the United States Naval Base at Guantánamo Bay, Cuba ("GTMO") without first providing the Court and counsel with thirty days' advance written notice of such intended transfer, including notice of the location to which the respondents intend to transfer the petitioners. Pets.' Mot. at 1. Upon consideration of the motion, respondents' opposition thereto, the petitioners' reply, and arguments of counsel, the petitioners' motion must be denied. However, so that the Court is kept abreast of the petitioners' detention status, it will require the respondents to submit a declaration to this Court advising it of any transfers and certifying that any such transfers or repatriations were not made for the purpose of merely continuing the petitioners' detention on behalf of the United States or for the purpose of extinguishing this Court's jurisdiction over the petitioners' actions for habeas relief for a reason unrelated to the decision that the petitioners' detention is no longer warranted by the United States.*fn1

I. Background

Petitioners are six Bahraini nationals who have been classified as "enemy combatants" by the respondents and are being detained at GTMO.*fn2 As provided in their Petition for Writ of Habeas Corpus, filed with this Court on July 22, 2004, the petitioners maintain that they are being "detained in violation of the Constitution, treaties and laws of the United States." Memorandum of Law in Support of Motion for Preliminary Injunction Enjoining Respondents from Transfer of Petitioners from Guantánamo Bay Without Advance Notification to Counsel ("Pets.' Mem.") at 3. The respondents moved to dismiss the petitioners' habeas petitions and this case, along with several other cases before other judges of this Court, was transferred to Judge Joyce Hens Green for purposes of having common issues raised in the several cases collectively addressed by one judge. Ultimately, Judge Green denied in part and granted in part the respondents' motion. See In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 443 (D.D.C. 2005). Judge Green subsequently issued an order certifying her rulings for interlocutory appeal to the UNITED STATES COURT OF APPEALS for the District of Columbia Circuit and staying the proceedings pending resolution of the respondents' appeal.

In the past several months, there have been a number of media reports concerning earlier transfers of detainees by the United States to countries where they were allegedly subjected to "inhumane interrogations techniques" and the alleged anticipated transfers of current GTMO detainees to countries where they would be physically abused or tortured. Pets.' Mem. at 4-6. In addition, two of the petitioners have proffered their declarations wherein they represent that they have been told by unidentified "U.S. personnel" that they will be transferred to countries where they will be sexually abused or tortured. Id. at 2. Consequently, the petitioners have now filed the instant motion requesting an order from this Court prohibiting the respondents from transferring any of the petitioners from GTMO without providing thirty days advance notice to the Court and counsel. In response, the respondents contend that "the motion[] is based on rumors, myths, and hype that are refuted by sworn testimony of senior United States Government officials." Respondents' Memorandum in Opposition to Petitioners' Motions for Temporary Restraining Orders and Preliminary Injunctions ("Resp'ts' Opp'n") at 5.

II. Scope of the Court's Authority

A necessary predicate for addressing the petitioners' motion is an evaluation of this Court's judicial authority to grant the petitioners' requested relief. Federal district courts, as courts of limited jurisdiction, possess only such authority as is conferred to them by the Constitution and acts of Congress, and this authority cannot "be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, (1994); Friends of the Earth v. United States Envtl. Prot. Agency, 333 F.3d 184, 187 (D.C. Cir. 2003); Commodity Futures Trading Comm'n v. Nahas, 738 F.2d 487, 492 (D.C. Cir. 1984). As a consequence of this limitation, the Court must, in the first instance, assess its authority to provide the relief requested by a party. Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 41 (D.D.C. 2004). The petitioners assert that this "Court has the inherent power" to afford them the requested relief pursuant to the All Writs Act through the issuance of an injunction "to protect its jurisdiction," and "to preserve the status quo between the parties pending a final determination of the merits of [this] action." Pets.'

Mem. at 7 (citations omitted).

The separation of powers doctrine lies at the heart of the structure of our constitutional structure of government. In establishing [our] three branches of government, the Legislative, the Executive, and the Judicial, the Framers [of the Constitution] conferred separate and distinct powers to each, together with correlative checks and balances, as a safeguard against the encroachment or aggrandizement of one branch at the expense of another. United States v. Scott, 688 F. Supp 1483, 1488 (D.N.M. 1988) (quoting Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 960 (1983) (Powell, J., concurring)). Moreover, courts must be mindful of the Article III proscription that they may not exercise "executive or administrative duties of a non-judicial nature." Buckley v. Valeo, 424 U.S. 1, 123 (1976). The purpose of this rule is "to maintain the separation between the Judiciary and the other branches of the Federal Government by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accomplished by those branches." Morrison v. Olson, 487 U.S. 654, 680-81 (1988). Thus, in deference to the Executive Branch, courts are reluctant to intrude upon the discretionary authority of the Executive in military and national security matters. Hamdi v. Rumsfield, ___ U.S. ___, ___, 124 S.Ct. 2633, 2647 (2004); Dep't of Navy v. Egan, 484 U.S. 518, 530 (1988). Accordingly, the Supreme Court has acknowledged "the generally accepted view that foreign policy [is] the province and responsibility of the Executive." Egan, 484 U.S. at 529 (quoting Haig v. Agee, 453 U.S. 280, 293-94 (1981)). "As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities." Id. at 529-30 (quoting United States v. Nixon, 418 U.S. 683, 710 (1974)). It is against this legal landscape that the Court must assess whether it can grant the relief requested by the petitioners.

III. The Petitioners' Motion for a Preliminary Injunction

In determining whether to grant a motion for a preliminary injunction, the Court must consider four factors: (1) whether the petitioners have demonstrated that there is a substantial likelihood that they will prevail on the merits of their claims; (2) whether the petitioners have shown that they would be irreparably harmed if injunctive relief is not awarded; (3) whether the issuance of injunctive relief would not "substantially harm" the other parties; and (4) whether awarding the relief is in the public interest. Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977) (citing Virginia Petroleum Jobbers Assoc. v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958)); Al-Fayed v. CIA, 254 F.3d 300, 303 (D.C. Cir. 2001). These factors should be balanced against one another and "[i]f 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, 747 (D.C. Cir. 1995). Thus, injunctive relief may be warranted "where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury." Id. However, a party seeking injunctive relief must "demonstrate at least 'some injury'... since '[t]he basis for injunctive relief in the federal courts has always been irreparable harm.'" Id. (citations omitted).

A. Irreparable Harm

The petitioners allege that they "stand to suffer immeasurable and irreparable harm - from torture to possible death - at the hands of a foreign government like Pakistan, Afghanistan, Saudi Arabia or Yemen" if they are transferred to such a country. Pets.' Mem. at 7. They further contend that "[t]ransfer to another country, even if 'only' for continued imprisonment, also circumvents Petitioners' right to adjudicate the legality of their detention in this Court." Id.

Despite the petitioners' allegations - that they may suffer torture and possible death if transferred to certain countries - they have submitted no evidence in support of these assertions. Instead, the petitioners rely extensively on "a range of [allegedly] credible news reports," and statements from two of the petitioners in this case, to support their allegations. Pets.' Mem. at 4. For example, the petitioners cite an article authored by Douglas Jehl, entitled Pentagon Seeks to Transfer More Detainees From Base in Cuba, that appeared on page A-one of the March 11, 2005 edition of the New York Times. This article alleges that the United States Government is "contemplating 'a plan to cut by more than half the population at its detention facility in Guantánamo Bay, Cuba, in part by transferring hundreds of suspected terrorist to prisons in Saudi Arabia, Afghanistan and Yemen.'" According to the petitioners, media reports have represented that "the U.S. Government has repeatedly transferred detainees into the custody of foreign governments that employ inhumane interrogation techniques." Pets.' Mem. at 4 (citing Jane Mayer, Outsourcing Torture, New Yorker, Feb. 14, 2005 ¶ 7).*fn3 Moreover, one petitioner alleges that he was told by an unidentified United States official at Guant√°namo Bay that "he would be sent to a prison where he would be raped." Id. at 2 (citing Declaration of Joshua Colangelo-Bryan dated March 15, 2005 ("Colangelo-Bryan Decl.") ¬∂ 2). Another petitioner ...


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