United States District Court, District of Columbia
ROYEE C. LAMBERTH United States District Judge
This case comes before the Court on petitioner's Motion  for an Order to Show Cause as to why an Order should not issue requiring the Department of Defense ("DOD") to (1) promptly provide petitioner a hearing before a Periodic Review Board; (2) cease interfering with petitioner's access to this habeas Court; and (3) cease imposing arbitrary and severe restrictions on petitioner's conditions of confinement.
Upon consideration of petitioner's Motion, respondents' response and petitioner's reply thereto, the arguments made in open court on November 24, 2015, the entire record in this case, and the applicable law, the petitioner's Motion is DENIED for the reasons provided below.
Petitioner has been detained without charge since November 2001. Salahi v. Obama, 710 F.Supp.2d 1, 3 (D.D.C. 1010), vacated and remanded, 625 F.3d 745 (D.C. Cir. 2010). The United States government moved him to Guantanamo Bay Naval Base in 2002, where he remains to this day. Salahi, 710 F.Supp.2d at 3. In 2005 he filed a habeas petition, id., which this Court, Judge Robertson presiding, granted in 2010. Id. at 16. The government appealed, and the D.C. Circuit vacated that decision and remanded for review in the light of decisions such disAwad v. Obama, 608 F.3d 1 (D.C. Cir. 2010), Bensaya v. Obama, 610 F.3d 718 (D.C. Cir. 2010), and Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010). Salahi v. Obama, 625 F.3d 745, 752-53 (D.C. Cir. 2010).
In March 2011, the President created an interagency administrative process "to review on a periodic basis" whether continued detention of certain Guantanamo detainees was "necessary to protect against a significant threat to the security of the United States." Executive Order 13567, 76 Fed. Reg. 13277. Each detainee is to get a full hearing every three years from the Periodic Review Board ("PRB")-an entity DOD created for this purpose-plus a review of his file for new information every six months, which may lead to a recommendation for a full PRB hearing, even if such a hearing would fall before the triennial one. See Deputy Secretary of Defense, Directive-Type Memorandum (DTM) 12-005 (May 9, 2012). Respondents have yet to inform petitioner of the date of his PRB hearing.
Congress withdrew jurisdiction from the federal courts over habeas and non-habeas claims filed by or on behalf of, among others, Guantanamo detainees. See 22 U.S.C. § 2241(e). In Boumediene v. Bush, the Supreme Court struck down § 2241(e)(l)'s withdrawal of habeas jurisdiction as an unconstitutional suspension of the writ. 553 U.S. 723, 733 (2008). The D.C. Circuit subsequently clarified that § 2241(e)(2) remains in force, which means "actions other than habeas" are still unavailable to detainees. Al-Zahrani v. Rodriguez, 669 F.3d 315, 319 (D.C. Cir. 2012). The first question presented in this case is therefore whether or not petitioner's claim that the government must fix a date for his PRB hearing sounds in habeas.
Petitioner argues that INS v. St. Cyr-which dealt with habeas, though in the context of immigration-controls this case. See 533 U.S. 289 (2001). In St. Cyr, the habeas petitioner (St. Cyr) was an alien who had been admitted to the United States as a lawful permanent resident but had rendered himself deportable by pleading guilty to selling a controlled substance. Id. at 293. St. Cyr brought a habeas petition arguing that the Attorney General of the United States had discretion to waive deportation under the law in effect at the time of his conviction. Id. The Attorney General, however, interpreted the statutes in effect at the time of St. Cyr's removal as divesting him of such discretion. Id. The parties in St. Cyr also disputed the threshold issue of jurisdiction. The government argued that the Antiterrorism and Effective Death Penalty Act of 1996, § 401(e), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. §§ 1252(a)(1), (a)(2)(C), and (b)(9), barred habeas jurisdiction over "the question of law presented by" St. Cyr's petition. 533 U.S. at 298. But the Court declined to so read those statutes, in part because the government's interpretation would raise a serious question as to whether the jurisdictional statutes at issue violated the Suspension Clause, "even assuming that the Suspension Clause protects only the writ as it existed in 1789." Id. at 304-05.
In doing so, the Court rejected the government's argument that common law habeas (i.e. what the Court assumed was the minimum guaranteed by the Suspension Clause) would have been unavailable where "an official had statutory authorization to detain the individual. . . but... the official was not properly exercising his discretionary power to determine whether the individual should be released." Id. at 303 (citations omitted) (internal quotation marks omitted). Though the St. Cyr Court took care to note that "courts recognized a distinction between eligibility for discretionary relief, on the one hand, and the favorable exercise of discretion, on the other hand, " id. at 307, it pointed out that "[h]abeas courts . . . regularly answered questions of law that arose in the context of discretionary relief." Id. at 307-08 (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), and United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 (1957)).
The Court also observed, however, that it had "held that a deportable alien had a right to challenge the Executive's failure to exercise the discretion authorized by the law" where "[eligibility that was 'governed by specific statutory standards' provided 'a right to a ruling on an applicant's eligibility.'" 533 U.S. at 307-08 (quoting Jay v. Boyd, 351 U.S. 345, 353-54 (1956)). Here, unlike St. Cyr, petitioner points to no statute conferring a right to periodic review of the threat he poses. The only statute that might have-The Authorization for the Use of Military Force, Pub. L. No. 107-10 § 2(a), 115 Stat. 224 (2002)-does not. See Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) ("The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who 'engaged in an armed conflict against the United States.'"). And petitioner's ostensible right to the PRB process cannot be grounded in the Executive Order which created it. Compare Meyer v. Bush, 981 F.2d 1288, 1297 n.7 (D.C. Cir. 1993) ("An Executive Order devoted solely to the internal management of the executive branch-and one which does not create any private rights-is not, for instance, subject to judicial review."), with Executive Order 13567 ("This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person."). As the D.C. Circuit noted in Omar v. McHugh, detainees should be wary of reading St. Cyr too broadly; "St. Cyr did not concern extradition or military transfers, but rather addressed removal of aliens under the immigration laws, " and it "protected and enforced what [the Court] determined to be the historical scope of the writ." 646 F.3d 13, 23 n.10 (D.C. Cir. 2011). St. Cyr determined that petitioner's claim-that he was eligible for discretionary relief from removal-was one a common-law judge with the power to issue a writ of habeas corpus could have answered in 1789. See Id. Here, by contrast, even if we ignore the distinction between a statute which creates rights and an Executive Order which does not, what respondents dispute is not petitioner's eligibility for PRB consideration, but rather whether he may obtain an order compelling the government to fix a date for that consideration.
Respondents argue that petitioner's claim does not sound in habeas and is therefore barred because the relief he seeks (a hearing which would allow the government to exercise its discretion to release him) would only possibly result in his release. Though respondents have not attempted to distinguish St. Cyr, they offer cases more recent than St. Cyr supporting their proposition. In Skinner v. Switzer, for example, the Supreme Court considered whether a prisoner who had filed a civil rights claim under 42 U.S.C. § 1983 seeking DNA testing of crime-scene evidence was barred from doing so by a doctrine which requires certain claims attacking confinement be brought via habeas. See 562 U.S. 521, 524 (2011). The Skinner Court decided that the petitioner's claim need not have been brought via habeas because it would not "necessarily imply" the wrongness of his conviction. Id. at 534 (quoting Wilkinson v. Dotson, 544 U.S. 74 (2005)). Most importantly for our purposes, Skinner also noted that the petitioner "has found no case, nor has the dissent, in which the Court has recognized habeas as the sole remedy, or even an available one, where the relief sought would 'neither terminat[e] custody, accelerat[e] the future date of release from custody, nor reduc[e] the level of custody, '" 562 U.S. at 534 (quoting Dotson, 544 U.S. at 86 (Scalia, J., concurring)), and that "Dotson declared . . . that when a prisoner's claim would not 'necessarily spell speedier release, ' that claim does not lie at 'the core of habeas corpus, ' and may be brought, if at all, under § 1983." 562 U.S. at 535 (citation omitted).
The D.C. Circuit followed suit in Davis v. U.S. Sentencing Comm'n. 716 F.3d 660 (D.C. Cir. 2013). In Davis, a prisoner whose convictions involved powder and crack cocaine brought an Equal Protection challenge against the U.S. Sentencing Commission's decision to reduce the sentencing disparities between the two, because that the reduction did not apply to offenses that, like his, involved 15 kg or more of crack cocaine. Id. at 662. The prisoner sought relief under, among other things, the Declaratory Judgment Act, 28 U.S.C. §2201(a), but the district court denied relief on that basis because it concluded that it lacked "jurisdiction to entertain an action for a declaratory judgment when, as here, an adequate remedy is available by petitioning the sentencing court for a writ of habeas corpus." Davis, 812 F.Supp.2d at 2. On appeal, the D.C. Circuit decided that Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371 (D.C. Cir. 2000)-which held that "a federal prisoner must still bring his claim in habeas even when success on the merits 'would have a merely probabilistic impact on the duration of custody, '" id. at 373-must be recognized as overturned in light of, among other things, Skinner. Davis, 16 F.3d at 665-6 ("'[Probabilistic' claims may not even lie within the bounds of habeas, much less at its core. If habeas is not even 'proper' for claims with only a probabilistic impact on custody, ... it could not be the case that Congress intended that prisoners asserting such claims should be limited to habeas.").
In rebutting this, petitioner relies on Aamer v. Obama, in which the D.C. Circuit recognized statutory habeas jurisdiction over claims challenging certain conditions of confinement, namely, the practice of force-feeding Guantanamo detainees engaged in a hunger strike. See 742 F.3d 1023, 1026 (D.C. Cir. 2014). Petitioner argues that Aamer demonstrates that habeas jurisdiction "encompasses any challenge where a 'petitioner contends that some aspect of his confinement has deprived him of a right to which he is entitled while in custody.'" Pet'r's Mot. 8, ECF No. 453 (quoting Aamer, 742 F.3d at 1036). He also argues that this Court should disregard habeas-channeling cases like Skinner and Davis because they "turn on whether [a] claim for relief is at the 'core of habeas'" and do not describe the full scope of statutory habeas jurisdiction. Pet'r's Reply Supp. Mot. 5, ECF No. 472. The Court disagrees with both arguments. First, while Aamer does show that claims not relating to release may sound in habeas, it does not show that "probabilistic" or "discretionary" claims relating to release do so. Second, Skinner and Davis clearly do make statements about the scope of statutory habeas in general, namely, "Switzer has found no case, nor has the dissent, in which the Court has recognized habeas as the sole remedy, or even an available one, where the relief sought would 'neither terminat[e] custody, accelerate] the future date of release from custody, nor reduc[e] the level of custody, '" Skinner, 562 U.S. at 534 (citation omitted), and "'probabilistic' claims may not even lie ...