The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
GRANTING THE RESPONDENTS'MOTION TO DISMISS THE AMENDED PETITION FOR A WRIT OF HABEAS CORPUS
This matter is before the court on the respondents' motion to dismiss the petitioners' amended petition for a writ of habeas corpus. The petitioner,*fn1 an American citizen detained in Iraq by the United States military, commenced these proceedings to prevent his transfer to the custody of Iraqi authorities to face criminal charges. In his amended petition, the petitioner principally contends that he is entitled to such relief because his transfer would violate the Foreign Affairs Reform and Restructuring Act ("the FARR Act"), which implements domestically the Convention Against Torture ("CAT") and prohibits the government from transferring an individual to a country in which he or she will be subject to torture. The respondents move to dismiss the amended petition, arguing that the amended petition fails to state a claim on which relief can be granted.
The court concludes that because the FARR Act limits judicial review to claims challenging a final order of removal by immigration authorities -- which is not the case here -- the statute does not provide the petitioner a grounds for habeas relief. In addition, the court concludes that the other bases for relief asserted in the amended petition are foreclosed by the Supreme Court's ruling in Munaf v. Geren, 128 S.Ct. 2207 (2008). Accordingly, the court grants the respondents' motion to dismiss the amended petition.
II. FACTUAL & PROCEDURAL BACKGROUND
The petitioner is an American citizen detained in Iraq by the Multinational Force -- Iraq ("MNF-I"), based on his suspected role in facilitating insurgent activities.*fn2 Respts' Mot. to Dismiss the Am. Pet. ("Respts' Mot.") at 2-3. On December 12, 2005, the petitioner's wife and son filed a next-friend habeas corpus petition on his behalf in this court. Pet. For Writ of Habeas Corpus ("Pet.") ¶ 2. On February 2, 2006, after receiving an e-mail from the respondents stating that "a determination was previously made to refer his case to the Central Criminal Court of Iraq," counsel for the petitioner filed a motion for an ex parte temporary restraining order ("TRO") to prevent the transfer. Petr's Suppl. Mem. in Supp. of Mot. for a TRO at 3. On February 3, 2006, the court granted that motion and issued a temporary restraining order valid until February 13, 2006. Order Granting Ex Parte TRO (Feb. 3, 2006). On February 13, 2006, the court granted the motion for a preliminary injunction, and ordered that "the respondents, their agents, servants, employees, confederates, and any persons acting in concert or participation with them . . . not remove the petitioner" from United States custody. Order Granting Prelim. Inj. (Feb. 13, 2006).
On review, the Circuit affirmed the order granting the motion for a preliminary injunction. Omar v. Harvey, 479 F.3d 1 (D.C. Cir. 2007), reh'g denied en banc, (May 24, 2007). The Supreme Court subsequently granted the respondents' petition for a writ of certiorari and consolidated the appeal with a separate petition for a writ of certiorari granted in an action captioned Munaf v. Geren. See Omar v. Harvey, 479 F.3d 1 (D.C. Cir. 2007), cert. granted sub nom. Geren v. Omar, 128 S.Ct. 741 (2007). On June 12, 2008, the Supreme Court vacated the preliminary injunction and remanded the case for further proceedings. Munaf v. Geren, 128 S.Ct. 2207, 2228 (2008), reh'g denied,129 S.Ct. 19 (Aug. 18, 2008).
On July 24, 2008, the petitioner filed an amended petition for a writ of habeas corpus, asserting claims under the FARR Act, the Fifth and Eighth Amendments to the U.S. Constitution, the Citizen Non-Detention Act and international law. See generally Am. Pet. for Writ of Habeas Corpus ("Am. Pet."). At the heart of the petitioner's amended petition is his contention that he would likely be tortured if transferred to the custody Iraqi authorities. Id. On November 25, 2008, the respondents filed the instant motion to dismiss, asserting that the petitioner failed to state a claim under the FARR Act and that the other bases for relief cited in the amended petition likewise fail to justify the relief sought. See generally Respts' Mot. The petitioner opposed the motion, which is now fully submitted. See generally Petr's Opp'n. The respondents subsequently filed a notice of supplemental authority regarding the Circuit's recent decision in Kiyemba v. Obama,61 F.3d 509 (D.C. Cir. 2009). Notice of Supplemental Authority in Supp. of Respts' Mot. to Dismiss at 1-2. The court turns to the respondents' arguments for dismissal.
A. The FARR Act Does Not Provide a Legal Basis for the Relief Sought
In their motion to dismiss, the respondents assert that the plaintiff has no claim for relief under the FARR Act because the Act does not apply to a detainee who is already physically present in the nation to which his transfer is threatened, and because the Act precludes judicial review of claims under the Act except in the context of final orders of removal by immigration authorities. Respts' Mot. at 7-11; Respts' Reply at 2-12. Additionally, the respondents assert that separation of powers concerns counsel against interpreting the FARR Act in a way that would interfere with the Executive branch's historical authority in the realm of military and foreign affairs. Respts' Reply at 12-13.
In response, the petitioner contends that Congress's inclusion in the FARR Act of the phrase "expel, extradite, or otherwise effect the involuntary return" of a person to torture indicates its intent to "prohibit without exception any transfer by U.S. personnel, wherever located, that ends in torture." Petr's Opp'n at 8-11. Additionally, the petitioner argues that the FARR Act does not contain the clear and unambiguous language required to strip federal courts of habeas jurisdiction. Id. at 11-14. Finally, the petitioner ...