The opinion of the court was delivered by: RICHARD LEON, District Judge
MEMORANDUM OPINION AND ORDER (August 28th, 2005) [# 13, 15]
Presently before the Court is petitioner Sami al
Laithi's*fn1 ("petitioner") motion for a preliminary
injunction [#15] seeking to prevent the respondents from
transferring him from the United States Naval Base at Guantanamo
Bay, Cuba, to the country of Egypt, where he is a citizen, and
petitioner's motion for a preliminary injunction regarding the
production of documents concerning petitioner's medical condition
and medical treatment [#13].*fn2 After consideration of the
parties' submissions, the relevant law, and the entire record
herein, the Court DENIES petitioner's motions for the following reasons.
To prevail in a request for a preliminary injunction, the
petitioner "must demonstrate 1) a substantial likelihood of
success on the merits, 2) that [he] would suffer irreparable
injury if the injunction is not granted, 3) that an injunction
would not substantially injure other interested parties, and 4)
that the public interest would be furthered by the injunction."
Katz v. Georgetown Univ., 246 F.3d 685, 687-88 (D.C. Cir. 2001)
(internal quotations omitted). To prove irreparable harm,
however, the petitioner must demonstrate more than a
"theoretical" harm the harm "must be both certain and great."
Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985).
The petitioner in this case has failed to meet his burden.
II. Motion for a Preliminary Injunction Concerning Potential
Transfer of Petitioner
Petitioner alleges that he has a "good faith, reasonable belief
that he will be rendered to Egypt . . . within the near future"
unless the Court grants his present motion. Petitioner's Motion
For a Preliminary Injunction Barring Rendition to Egypt ("Pet.'s
Mot. for a PI Barring Rendition") at 12. The government opposes
petitioner's motion on grounds that he has failed to establish
any factual or legal basis to grant his request. Respondents'
Memorandum in Opposition to Petitioner's Mot. For a Preliminary
Injunction ("Resps.' Opp'n") at 1.
Even assuming, without deciding, that the petitioner can
demonstrate the existence of factors one, three and four of the
aforementioned preliminary injunction standard, the petitioner's
motion must nevertheless fail because his proffer of irreparable
harm is premised upon unsubstantiated conjecture rather than
"certain" or "imminent" harm. Wisconsin Gas Co.,
758 F.2d at 674. The petitioner, for example, states that "[u]pon
information and belief, the United States has secretly
transferred detainees and terrorist suspects to other countries
for interrogation" and that he has a "good faith, reasonable
belief that he will be rendered to Egypt . . . within the near
future. . . ." Pet.'s Mot. for PI at 12 (emphasis added).
Moreover, these unsubstantiated allegations of potential
rendition and torture are directly refuted by the sworn
declarations submitted by the respondents. E.g., Waxman Decl.
(Ex.A); Prosper Decl. (Ex. B). Indeed, the respondents'
declarations set forth the United States policy not to transfer
detainees to countries where the United States believes it is
more likely than not the detainee will be tortured. Prosper Decl.
In the final analysis, to conclude that the petitioner will
"certainly" or "imminently" suffer irreparable harm if the
injunction is not granted would require the Court to assume that
the United States policy and practice, as set forth in the
respondents' sworn declarations, are disingenuous. The Court has
no basis upon which to reach such a conclusion. See Almurbati,
et al v. Bush, et al., 366 F.Supp.2d 72, 78 (D.D.C. Apr. 14,
2005) (Walton, J.) (denying preliminary injunction where
government had submitted declarations of "high-level officials" containing assurances that the detainees would not be
transferred to a contrary where they will be subjected to torture
or mistreatment). Moreover, the petitioner has failed to offer
any direct evidence rebutting the respondents sworn declarations.
Accordingly, based upon the record presented, the factors
required for the issuance of a preliminary injunction, and the
entire record herein, the Court concludes that the petitioner's
motion [#15] must be DENIED.
III. Motion for Preliminary Injunction Concerning Production
of Medical Records
On April 7, 2005, the Court stayed this case pending the
resolution of all the appeals in Khalid v. Bush, No. 04-CV-1142
(RJL), Boumediene v. Bush, No. 04-CV-1166 (RJL), and in the In
re Guantanamo Bay Detainee Cases, No. 02-CV-299. The appeals in
these cases will determine whether, and to what extent, detainees
at Guantanamo Bay, such as the petitioner here, have any rights
under the United States Constitution, statutory law, or
The petitioner now seeks an order requiring the production of
"a complete set of his medical records, and barring the
Respondents from continuing to subject him to gross and
intentional medical malpractice." Pet.'s Mot. for Preliminary
Injunction Requiring Respondents to Provide His Counsel with a
Copy of His Medical Records ("Mot. for PI Concerning Med. Recs.")
at 1. He relies upon the Fourth, Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1981,
and other international agreements. Id. However, the extent to which the petitioner is
even afforded the right to invoke these legal bases is currently
under consideration in our Circuit Court. Petitioner's motion,
therefore, prematurely presents the Court with the precise
situation the stay was designed to prevent. Accordingly, the
Court DENIES the petitioner's motion without prejudice.
In accordance with the foregoing, it is hereby
ORDERED that the petitioner's motion [#15] is DENIED; ...