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Hicks v. Bush

March 23, 2007

DAVID M. HICKS, PETITIONER,
v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Currently pending before the Court is Petitioner David M. Hicks' Motion to Enjoin Military Commission Proceedings ("Motion to Enjoin"). Petitioner asks this Court to enjoin Petitioner's arraignment by a military commission in Guantanamo Bay, Cuba -- currently scheduled for March 26, 2007 -- as well as all subsequent commission proceedings, until there is a determination by this Court on Petitioner's habeas challengesto the jurisdiction of and procedures of the military commissions. Acknowledging that the D.C. Circuit's recent decision in Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), would bar his habeas claims, Petitioner asserts that the Supreme Court is likely to grant certiorari in that case and reverse the D.C. Circuit's decision. Petitioner therefore requests that this Court enjoin the military commission proceedings, at least until the Supreme Court decides whether to grant certiorari in Boumediene, in order to protect his asserted right to pre-trial review of those proceedings. Respondents oppose Petitioner's Motion to Enjoin. After careful consideration of Petitioner's Motion to Enjoin, Respondents' Opposition to Petitioner's Motion to Enjoin Military Commission Proceedings, Petitioner's Reply in Support of Preliminary Injunction, the relevant statutes and case law, and the entire record herein, the Court concludes that it lacks jurisdiction to entertain Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, and therefore is without authority to issue the injunction Petitioner seeks in his Motion to Enjoin. As such, the Court shall deny Petitioner's Motion to Enjoin.

I. BACKGROUND

The Court expressly adopts and incorporates by reference herein all previous Orders and Opinions entered in this case. As the Court's previous Orders and Opinions include extensive discussion of the facts underlying this action, the Court will only set forth herein the facts relevant to the currently pending Motion to Enjoin.

Petitioner David M. Hicks, an Australian citizen, was captured in Afghanistan in late 2001 by the Northern Alliance, in the course of the campaign against the Taliban and Al Qaeda. Hicks v. Bush, 397 F. Supp. 2d 36, 38 (D.D.C. 2005). Petitioner was subsequently transferred to United States custody and transported to Guantanamo Bay in January 2002, where he has been detained until the present time. Hicks, 397 F. Supp. 2d at 38. Petitioner filed his initial petition for writ of habeas corpus with the Court on February 19, 2002, and amended that petition on March 18, 2002. Id. On July 3, 2003, Respondent President George W. Bush designated Petitioner as a person eligible for trial by military commission, and on June 10, 2004, Petitioner was publicly charged with three offenses to be tried by military commission: Conspiracy, Attempted Murder by an Unprivileged Belligerent, and Aiding the Enemy. Id. At an appearance before the military commission on August 25, 2004, Petitioner pleaded not guilty to all charges. Id. On September 22, 2004, Petitioner's Combatant Status Review Tribunal ("CSRT") was held, in which Petitioner waived participation, and Petitioner was determined to be an enemy combatant. Respondents' Opp'n to Pet.'s Mot. to Enjoin Military Comm'n Proceedings (hereinafter "Resp'ts' Opp'n") at 5 (citing Resp'ts' Fact. Ret.).

On September 28, 2004, with leave of the Court, Petitioner filed his currently operative Second Amended Petition. Hicks, 397 F. Supp. 2d at 38.*fn1 On December 10, 2004, the Appointing Authority for Military Commissions stayed the military commission proceedings in Petitioner's case pending the D.C. Circuit's review of Judge James Robertson's ruling in Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004), which invalidated the military commission proceedings at issue. Hicks, 397 F. Supp. 2d at 38-39. This Court then stayed motions then before the Court relating to the military commission hearings, "pending a ruling from the Circuit Court in Hamdan." Hicks v. Bush, Civil Action No. 02-299, Order (D.D.C. April 21, 2005). Following the D.C. Circuit's decision in Hamdan, 415 F.3d 33 (D.C. Cir. 2005), which reversed Judge Robertson's decision, this Court lifted its stay of Petitioner's challenges to the military commission proceedings, and the Appointing Authority reinitiated proceedings against Petitioner. Hicks, 397 F. Supp. 2d at 39.*fn2 An initial hearing in Petitioner's military commission proceedings was thereafter scheduled for November 18, 2005 in Guantanamo Bay for the purpose of deciding pre-trial motions with a trial date to follow. Id.

On November 7, 2005, the Supreme Court granted certiorari in Hamdan. Id. The next day, Petitioner filed in this Court a Motion to Stay Military Commission Proceedings, requesting that this Court "stay" military commission proceedings relating to Petitioner until after the Supreme Court had made a final decision in Hamdan and until after this Court had ruled on Petitioner's then-pending Motion for Partial Summary Judgment. Id. at 40. On November 14, 2005, the Court granted Petitioner's Motion to Stay, issuing an injunction pursuant to the All Writs Act, 28 U.S.C. § 1651(a), enjoining Respondents from going forward with any and all military commission proceedings, and staying proceedings in the case before this Court, "pending the issuance of a final and ultimate decision by the Supreme Court in" Hamdan. Hicks, 397 F. Supp. 2d at 45. In so doing, the Court recognized that "granting an injunction under the All Writs Act is normally considered an extraordinary remedy, [but that] the posture of this case and the importance of the issues involved call[ed] for this extraordinary measure to be imposed." Id. at 41. The Court acknowledged that the D.C. Circuit's decision in Hamdan "virtually eliminate[d] Petitioner's 'likelihood of success on the merits;'" however, the Court concluded that an injunction was nevertheless warranted because "the Supreme Court ha[d] already granted certiorari in [Hamdan] for immediate briefing and oral argument . . . [such that] a full and complete resolution by the highest court in the land of the claims underlying [Petitioner's] Second Amended Petition . . . [was] on the horizon." Id. at 44.

Thereafter, Congress enacted the Detainee Treatment Act of 2005, Pub. L. No. 109-148, 118 Stat 2680 (2005) ("DTA"), which amended the federal habeas statute, 28 U.S.C. § 2241, to preclude the federal district courts from exercising jurisdiction over Guantanamo Bay detainees' claims -- whether habeas actions or "any other action . . . relating to any aspect" of their detention. DTA § 1005(e)(1); see also Boumediene, 476 F.3d at 985. The DTA also provided for exclusive judicial review of CSRT determinations and military commission decisions in the D.C. Circuit. DTA § 1005(e)(2), (e)(3); Boumediene, 476 F.3d at 985. On June 29, 2006, the Supreme Court issued its opinion in Hamdan, --- US ---, 129 S.Ct. 2749, 165 L.Ed. 2d (2006), in which it invalidated the military commission system in existence at the time because it lacked congressional authorization, 129 S.Ct. at 2772-75, and held that the DTA did not strip federal courts of jurisdiction over habeas cases pending at the time of the DTA's enactment, id. at 2769.

In response to Hamdan, Congress passed the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006) ("MCA"), which the President signed into law on October 17, 2006, and which again amended the federal habeas statute. Boumediene, 476 F.3d at 985. Section 7 of the MCA is entitled "Habeas Corpus Matters," subsection (a) of which reads:

(1) No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in [section 1005(e)(2) and (e)(3) of the DTA], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have properly been detained as an enemy combatant or is awaiting such determination. MCA § 7(a). Furthermore, subsection (b) provides:

The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of the Act, which relate to any aspect of the detention, transfer, treatment, trial or conditions of detention of an alien detained by the United States since September 11, 2001.

MCA § 7(b). In addition, section 3 of the MCA, which is entitled "Military Commissions," creates jurisdiction in the D.C. Circuit for review of military commission decisions, Boumediene, 476 F.3d 981 (citing 10 U.S.C. § 950g), and includes section 950j, which "strips federal courts of jurisdiction over any pending or future cases that would involve review of such decisions," id. Subsection 950j(b) provides:

Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter. 10 U.S.C. ยง 950j(b). On January 18, 2007, the ...


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