The opinion of the court was delivered by: JOHN BATES, District Judge
Petitioners Abdulla Thani Faris Al-Anazi, Adel Egla Hussan
Al-Nussairi, N.A.O.,*fn1 Abdulaziz Sa'ad Oshan, and Ibrahim
Suleiman Al-Rubaish (collectively the "petitioners") have filed a
petition for a writ of habeas corpus challenging the legality of
their detention by the United States at the United States Naval
Station at Guantanamo Bay, Cuba ("Guantanamo"). Presently before
the Court is petitioners' motion for a preliminary injunction
pursuant to Fed.R.Civ.P. 65 and the All Writs Act,
28 U.S.C. § 1651, which as it has evolved now seeks an order requiring
respondents to provide petitioners' counsel with 30-days' notice
of any proposed transfer of petitioners from Guantanamo to any
location outside of the United States. For the reasons that
follow, the Court denies petitioners' motion.*fn2 BACKGROUND
Petitioners have been detained by the United States at
Guantanamo for approximately the last three years. On February
17, 2005, they filed a petition for a writ of habeas corpus in
this Court seeking, among other forms of relief, their release
from the custody of the United States. This petition is similar
to many others filed by Guantanamo detainees in the United States
District Court for the District of Columbia both before and since
the Supreme Court held in Rasul v. Bush, 124 S.Ct. 2686, 2698
(2004), that the federal habeas statute "confers on the District
Court jurisdiction to hear petitioners' habeas corpus challenges
to the legality of their detention at the Guantanamo Bay Naval
Base."
Late last year, eleven petitions advancing the claims of
several dozen detainees were consolidated for further proceedings
before Judge Joyce Hens Green, including a petition assigned to
this judge, O.K. v. Bush, No. 04-CV-1136. On January 31, 2005,
Judge Green granted in part and denied in part the government's
motion to dismiss, holding that the Guantanamo detainees before
her possessed constitutional and other legal grounds to challenge
their detention. See In re Guantanamo Detainee Cases,
355 F. Supp. 2d 443, 481 (D.D.C. 2005). Almost simultaneously, on
January 19, 2005, Judge Richard Leon of this Court granted the
government's motion to dismiss the habeas petitions of two other
Guantanamo detainees, concluding that there was no constitutional
or other basis to challenge their detention. See Khalid v.
Bush, 355 F. Supp. 2d 311, 314 (D.D.C. 2005). Those cases have
been consolidated on appeal before the United States Court of
Appeals for the District of Columbia Circuit. On February 3, 2005,
Judge Green issued a stay in the eleven consolidated cases
pending the appeal. II. Transfers From Guantanamo
On March 17, 2005, petitioners filed a motion for preliminary
injunction. Although originally framed as an attempt to enjoin
respondents from effectuating the transfer of petitioners from
Guantanamo, the motion is now confined to the alternative request
that respondents provide 30-days' notice (once a transfer has
been decided) before a transfer actually occurs. The motion
appears to have been prompted by a number of newspaper articles
recently published about the transfer of detainees. Petitioners
rely most heavily on an article in the March 11, 2005, edition of
the New York Times reporting that the Pentagon is seeking to
enlist the assistance of other departments in the United States
government "in a plan to cut by more than half the population at
its detention facility in Guantanamo Bay, Cuba, in part by
transferring hundreds of suspected terrorists to prisons in Saudi
Arabia, Afghanistan and Yemen, according to senior administration
officials." Douglas Jehl, Pentagon Seeks to Shift Inmates from
Cuba Base, N.Y. Times, Mar. 11, 2005, at A1.
Petitioners also cite articles discussing an alleged practice
known as "rendition." Under this procedure, the Central
Intelligence Agency ("CIA") allegedly transfers foreign nationals
from one country to another, where the receiving governments are
expected to carry out the will of the United States. In one
article, a former detainee alleged that prior to being moved to
Guantanamo, he had been transferred to Egypt and questioned there
by United States officials. See Megan K. Stack and Bob Drogin,
Detainee Says U.S. Handed Him Over for Torture, L.A. Times,
Jan. 13, 2005, at A1. Petitioners also cite an article discussing
the case of a Syrian-born Canadian citizen who alleged that he
was detained by the United States at Kennedy Airport immediately
following September 11, 2001, and then transported to Syria,
where he was interrogated and tortured before being released and returned to Canada. See Pet'rs' Mem. ¶ 7;
Douglas Jehl and David Johnson, Rule Change Lets CIA Freely Send
Suspects Abroad, N.Y. Times, Mar. 6, 2005, at A1. Petitioners
concede that none of these incidents involve the transfer of
detainees out of Guantanamo. See Transcript of Motions Hearing
("Tr.") at 12:20-13:5 (April 13, 2005). Even the New York Times
article on which they place the greatest weight notes the
distinction between Guantanamo transfers and CIA rendition:
Unlike the Pentagon, the C.I.A. was authorized by
President Bush after the Sept. 11 attacks to transfer
prisoners from one foreign country to another without
caseby-case approval from other government
departments. Former intelligence officials said that
the C.I.A. has carried out 100 to 150 such transfers,
known as renditions, since Sept. 11. By contrast, the
transfers carried out by the Pentagon are subject to
strict rules requiring intraagency approval.
Officials said that the transfers do not constitute
renditions under the Pentagon's definition, because
the government that accept the prisoners are not
expected to carry out the will of the United States.
Id.
In response to petitioners' claims, respondents have submitted
to the Court declarations from two high-ranking Department of
Defense and Department of State officials describing the
procedures that govern the detention and transfer of Guantanamo
detainees. See Decl. of Matthew C. Waxman ("Waxman Decl.");
Second Decl. of Matthew C. Waxman ("Second Waxman Decl."); Decl.
of Pierre-Richard Prosper ("Prosper Decl."). The officials state
that the United States has no interest in detaining the 540
foreign nationals presently at Guantanamo any longer than
necessary, and that the Department of Defense ("DOD") therefore
conducts at least an annual review of whether each detainee
merits continued detention. Waxman Decl. ¶ 3.
The officials further explain that when detention is no longer
deemed necessary, the DOD may transfer the detainee to the
control of another country with the understanding that the country will release the individual. Id. Where the "appropriate
conditions" exist, the DOD will also transfer detainees "to the
control of other governments 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." Id. 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 detainee. Id.
As of April 13, 2005, two hundred and fourteen (214) detainees
had been transferred from Guantanamo. Id.; Second Waxman Decl.
¶ 2. Of those, one hundred forty-nine (149) were transferred for
release and sixty-five (65) were transferred for continued
custody. Waxman Decl. ¶ 4; Second Waxman Decl. ¶ 2.*fn3 Each
of the 65 detainees transferred for custody has been transferred
to his home government. Id. ¶ 4. Most of those 65 have
subsequently been released as well. Id. ¶ 5. Respondents also
indicated at the April 13, 2005 motions hearing that some
detainees transferred for release have in fact been detained by
their home governments. In the cases where a detainee is
transferred for continued detention by the detainee's home
government, DOD "does not ask or direct the receiving government
to detain the individual on behalf of the United States," and
"the detainees are no longer subject to the control of the United
States once they are transferred." Id.
Once a transfer is proposed, DOD consults other interested
parties in the United States government, and in particular the Department of State. Id. ¶ 6.
The Department of State is responsible for initiating discussions
with the foreign government regarding transfer. Prosper Decl. ¶
6. The purpose of these discussions is to learn the measures that
the foreign government will take to ensure the detainee does not
pose a continuing threat to the United States or its allies, and
to receive appropriate assurances regarding the transfer. Id.
The necessary assurances include assurances that the detainee
will be humanely treated in accordance with international
obligations. Id. If the foreign government is a party to the
relevant treaties, i.e., the Torture Convention, the Department
of State will pursue further assurances. Id.
Decisions regarding assurances from a foreign government are
made on a case-by-case basis, considering the particular
circumstances of the transfer, country, and individual involved
and concerns regarding possible torture and persecution. Id. ¶
7. The essential question in evaluating the assurances regarding
treatment of a detainee proposed for transfer is whether the
Department of State officials "believe it is more likely than not
that the individual will be tortured in the country to which he
is being transferred." Id. ¶ 8. When making this determination,
the United States considers the identity, position, and
information concerning the official providing the assurances, as
well as political or legal developments in the country. Id. The
Department of State also considers the United States diplomatic
relations with the foreign government in assessing the
sufficiency of assurances received, and will in some instances
seek access to the individual by governmental and
non-governmental entities in the foreign country in order to
monitor the individual's return. Id. In the past, DOD has
decided against the transfer of detainees because of concerns
about torture in countries of origin. Waxman Decl. ¶ 7.
On the basis of their newspaper articles, and notwithstanding
respondents' declarations, petitioners have asked this Court to issue a preliminary
injunction ordering respondents to provide 30-days' notice prior
to any transfer of a petitioner from Guantanamo. Because such
advance notice would be provided only after DOD has decided to
transfer a detainee, petitioners concede, as they must, that they
are essentially requesting an order preventing the United States
from transferring any Guantanamo detainee for 30 days. See Tr.
at 4:1-4:15. Other Guantanamo detainees have filed similar
motions for preliminary injunctions before other judges in this
District seeking notice prior to any transfer from Guantanamo.
Generally, other judges have ordered some form of the requested
30-days' notice, either by granting the motion for preliminary
injunction, see Abdah v. Bush, No. 04-CV-1254 (HHK) (March
29, 2005 Order); Al-Joudi v. Bush, No. 05-CV-0301 (GK) (April
4, 2005 Order), by including the 30-days' notice as a condition
of granting respondents' motion to stay the case, see Abdullah
v. Bush, No. 05-CV-0023 (RWR) (March 16, 2005 Order), or by
requiring the 30-days' notice pursuant to the All Writs Act,
see Ameziane v. Bush, No. 05-CV-0392 (ESH) (April 12, 2005
Order). In one other case, Almurbati v. Bush, No. 04-CV-1227
(RBW) (April 14, 2005 Order), the court denied the requested
30-days' notice. In addition to the motion for a preliminary
injunction, also before the Court are respondent's motion to stay
and petitioners' requests for an order to show cause, entry of a
protective order,*fn4 and issuance of factual returns. LEGAL STANDARD
To prevail on their motion for a preliminary injunction,
petitioners must demonstrate (1) a substantial likelihood of
success on the merits; (2) that they will suffer irreparable harm
absent the relief requested; (3) that other interested parties
will not be harmed if the requested relief is granted; and (4)
that the public interest supports granting the requested relief.
Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004); Katz v.
Georgetown Univ., 246 F.3d 685, 687-88 (D.C. Cir. 2001); Taylor
v. Resolution Trust Corp., 56 F.3d 1497, 1505-06 (D.C. Cir.
1995); Washington Area Metro. Transit Comm'n v. Holiday Tours,
Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). In determining whether
to grant urgent relief, a court must "balance the strengths of
the requesting party's arguments in each of the four required
areas." CityFed Fin. Corp. v. Office of Thrift Supervision,
58 F.3d 738, 747 (D.C. Cir. 1995). "If the arguments for one factor
are particularly strong, an injunction may issue even if the
arguments in other areas are rather weak." Id. It is
particularly important for petitioners to demonstrate a
substantial likelihood of success on the merits; where a
plaintiff cannot show a likelihood of success on the merits, "it
would take a very strong showing with respect to the other
preliminary injunction factors to turn the tide in plaintiff['s]
favor." Davenport v. Int'l Bhd. of Teamsters, AFL-CIO,
166 F.3d 356, 366-67 (D.C. Cir. 1999); Nat'l Head Start Ass'n v. Dep't of
Health and Human Servs., 297 F. Supp. 2d 242, 246 (D.D.C. 2004)
(factors "must be balanced against each other, but it is
especially important for the movant to demonstrate a likelihood
of success on the merits").*fn5 Because preliminary injunctions are extraordinary forms of
judicial relief, courts should grant them sparingly. Sociedad
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