UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
October 24, 2008
IN RE: GUANTANAMO BAY DETAINEE LITIGATION
The opinion of the court was delivered by: Alan Kay United States Magistrate Judge
Misc. No. 08-442 (TFH)
Pending before the Court are Petitioners' Emergency Motion For Order Related to Counsel Visit of October 27, 2008 , and Respondents' Opposition thereto . Upon consideration of the record, memoranda submitted by the parties and oral argument, for the reasons set forth below, the Emergency Motion is denied.
The eight Uighur petitioners in Kieymba v. Bush, No. 05-1509--detainees at the United States Naval Station, Guantanamo Bay, Cuba ("Guantanamo")--request that the Court issue an order governing the conditions and procedures of a counsel visit scheduled for October 27, 2008. Petitioners argue that, despite the appeal and stay of the Court's October 7, 2008 release order, the release order has changed the circumstances of these cases profoundly and therefore presents a reason to revisit the protective order and issues relating to the conditions of attorney-client visits.*fn2 ( See Pet'rs' Mot. at 3.) Specifically, Petitioners request that the Court order several accommodations with respect to the October 27 counsel visit, including less restrictive group visitations without barriers or the clients being chained. ( See Pet'rs' Mot. at 2-3.)
Respondents' opposition challenges both the Court's jurisdiction to consider Petitioners' motion with respect to their conditions of confinement and Petitioners' ability to meet the burden of showing a need for preliminary injunctive relief. ( See Resp'ts' Opp.) Respondents first argue that, in light of Section 7 of the Military Commissions Act of 2006 ("MCA"), 28 U.S.C. § 2241(e), and the Supreme Court's decision in Boumediene v. Bush, 128 S.Ct. 2229 (2008), this Court lacks jurisdiction to modify the conditions of Petitioners' confinement at Guantanamo. ( See Resp'ts' Opp. at 4-5.) Respondents point to recent opinions by Judge Urbina in the instant case and Judge Hogan in a similar case that conclude that 28 U.S.C. § 2241(e)(2) remains valid under Boumediene and strips the Court of jurisdiction to hear a detainee's claims that "relat[e] to any aspect of the detention, transfer, treatment, trial, or conditions of confinement." 28 U.S.C. § 2241(e)(2); ( see Mem. Op.  at 6); see Husayn v. Bush, No. 08-1360, Mem. Op. . Respondents further argue that Petitioners cannot meet their burden under a preliminary injunction analysis because they cannot show, among other things, a substantial likelihood of success on the merits and irreparable harm.
During the hearing conducted by telephone on October 24, 2008, Petitioners responded, among other things, to the jurisdictional arguments made by Respondents. Petitioners assert that the Court retains jurisdiction despite the language in § 2241(e)(2) of the MCA because that section speaks only to aliens who have "been determined by the United States to have been properly detained as an enemy combatant or [are] awaiting such determination," 28 U.S.C. § 2241(e)(2), and the Uighurs are no longer determined to be enemy combatants in light of the Court's October 7, 2008 release order.
Given the condensed time frame presented, the Court will look to and adopt the framework and rationale in Judge Urbina's August 7, 2008 Memorandum Opinion denying a motion for injunctive relief with respect to conditions of confinement at Guantanamo. ( See Mem. Op. .) In that opinion, the Court concluded that Petitioners had not met their burden for a temporary restraining order and preliminary injunction because they did not show a substantial likelihood of success on the merits and did not sufficiently demonstrate irreparable injury. ( See id.) The analysis with respect to the instant motion largely mirrors that found in the Court prior Memorandum Opinion.
As to the first element, the Court concluded that given the constitutional standard for relief,*fn3 the deference that is afforded to prison officials in maintaining day-to-day operations,*fn4 and the traditional deference given to "the Executive in military and national security affairs," Dep't of the Navy v. Egan, 484 U.S. 518, 530 (1988), the petitioners failed to make a showing adequately supporting injunctive relief relating to their confinement at Guantanamo. ( See Mem. Op.  at 7-8.) Given that the relief sought here--an order requiring that counsel be permitted to meet with Petitioners without shackles--is far short of that sought in prior motion, Petitioners here fall short of meeting their burden in the same manner.*fn5
The irreparable injury analysis follows much the same course. Here petitioners seek a remedy for a problem that is far less severe, and certainly more temporary, than the restrictive conditions of confinement discussed in the August 7 Memorandum Opinion. ( See id. at 8.) The Court therefore concludes that the Petitioners have not shown that they will suffer irreparable injury if the injunction is not granted.
For the foregoing reasons, it is this 24th day of October, 2008, hereby ORDERED that Petitioners' Emergency Motion For Order Related to Counsel Visit of October 27, 2008  is denied.