United States District Court, District of Columbia
MEMORANDUM OPINION ON MOTION FOR ORDER EFFECTING
ROSEMARY M. COLLYER United States District Judge
Barhoumi is detained by the Department of Defense at
Guantanamo Bay, Cuba, pursuant to the Authorization for Use
of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
On his petition for release by habeas corpus, this
Court, in a decision affirmed by the D.C. Circuit Court of
Appeals, held that he was legally detained as “part
of” an al-Qaida associated force. See Barhoumi v.
Obama, 609 F.3d 416, 418, 432 (D.C. Cir. 2010). In
August 2016, a Periodic Review Board (PRB) determined that
detention of Mr. Barhoumi was “no longer necessary to
protect against a continuing significant threat to the
security of the United States.” Respondents'
Response to Order to Show Cause [Dkt. 282] at 1
(Resp.). The Board recommended that Mr. Barhoumi be
repatriated to Algeria subject to certain pre-conditions.
Friday, January 13, 2017, facing the imminent end of the
Obama Administration and fearing that the incoming Trump
Administration will not allow any releases from Guantanamo,
Mr. Barhoumi's counsel filed an Emergency Motion for
Order Effecting Release. Counsel posited various legal bases
for the motion and argued that Mr. Barhoumi's transfer
has “been delayed due to bureaucratic obstacles
unrelated to Petitioner, the underlying facts of . . .
[his] case, or any serious substantive concerns about the
ability of . . . [his] home countr[y, ] [Algeria, ] to
receive and monitor” him. Mot. [Dkt. 279] at 1-2. On
that same day, the Court issued an Order to Respondents to
Show Cause by Tuesday, January 17, 2017, why Mr.
Barhoumi's motion should not be granted. Respondents
timely filed their response and Petitioner filed his reply on
the same day. Reply [Dkt. 284].
motion must be denied. Mr. Barhoumi does not have standing to
bring it. “The Constitution limits [the Court's]
‘judicial Power' to ‘Cases' and
‘Controversies, ' U.S. Const. art. III, § 2,
cl. 1, and there is no justiciable case or controversy unless
the plaintiff has standing.” West. v. Lynch,
No. 15-5107, slip op. at 2 (D.C. Cir. Jan. 18, 2017). To
demonstrate standing, Mr. Barhoumi must show the existence of
a case or controversy, which requires (1) an “injury in
fact” that is (2) “fairly traceable to the
challenged action of the defendant” and is (3) likely
to be “redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992). Because Mr. Barhoumi's alleged injury is not
“legally and judicially cognizable, ” Raines
v. Byrd, 521 U.S. 811, 819 (1997), the Court has no
jurisdiction to entertain his motion. “[A]n injury
refers to the invasion of some ‘legally protected
interest' arising from constitutional, statutory, or
common law.” Pender v. Bank of Am. Corp., 788
F.3d 354, 366 (4th Cir. 2015) (quoting Lujan, 504
U.S. at 578). Recently, the Supreme Court emphasized that
“injury in fact” is the “‘[f]irst and
foremost' of standing's three elements.”
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)
(quoting Steel Co. v. Citizens for Better Env't,
523 U.S. 83, 103 (1998)). But an interest is not
“legally protected” or cognizable for the purpose
of establishing standing when its asserted legal
source-whether constitutional, statutory, common law or
otherwise-does not apply or does not exist. The D.C. Circuit
has explained “if the plaintiff's claim has no
foundation in law, he has no legally protected interest and
thus no standing to sue.” Claybrook v. Slater,
111 F.3d 904, 907 (D.C. Cir. 1997); see also McConnell v.
FEC, 540 U.S. 93 (2003), overruled in part on other
grounds, Citizens United v. FEC, 558 U.S. 310 (2010)
(holding that a group of litigants lacked standing because
their interest was premised on a mistaken interpretation of
legal precedent that did not apply; the group's
“claim of injury . . . [was], therefore, not to a
legally cognizable right”); Arjay Assocs., Inc. v.
Bush, 891 F.2d 894, 898 (Fed. Cir. 1989) (“We hold
that appellants lack standing because the injury they assert
is to a nonexistent right.”).
counsel present the issue as only the nuisance of the
statutorily-mandated 30-day notice period before a Guantanamo
detainee can be transported elsewhere. Reply at 2 (“The
government cites the transfer restrictions as an obstacle to
Petitioner's transfer [to Algeria], and essentially
admits that the Secretary of Defense's refusal to
transfer Petitioner at this time is due to the onerous
certification requirement.”); id. at 14
(“[T]he only sensible implication from the
government's representation (and from the lengthy
discussion of the transfer restrictions that precedes it,
Response at 5-6), is that the government was in fact making
efforts from the summer onward (indeed, through potentially
as late as last week) to transfer Petitioner to Algeria, and
that the sole reason for its failure to repatriate him is
precisely the transfer restrictions at issue in this
motion-restrictions that he asks this Court to set
aside.”); see also National Defense
Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92,
§ 1034(a)(1), 129 Stat. 726, 969 (2015) (2016 NDAA)
(requiring 30-days' notice to Congress before using
defense funds to transfer a Guantanamo detainee). Counsel
contend that the Court can exercise its habeas
jurisdiction or grant the motion pursuant to the court-order
exception to the NDAA, see 2016 NDAA §
1034(a)(2), which would then relieve Mr. Barhoumi of the
certification and notice provisions of the law and
allow-although not necessarily require-his immediate
Barhoumi's situation is not quite as portrayed by
counsel. Rather, while the government agrees that the PRB
recommended his release and transfer, subject to certain
preconditions, the Secretary of Defense has not accepted that
recommendation. Thus, the requirements of certification and
30-day prior notice are not the impediments to Mr.
Barhoumi's transfer to Algeria. The government is quite
clear in this regard: “With regard to Petitioner, who
was deemed eligible for transfer by the PRB with a
recommendation for repatriation to Algeria, [the Department
of Defense] (DoD) represents that on January 12, 2017, the
Secretary of Defense determined that Petitioner should not be
repatriated at this time based on a variety of substantive
concerns, shared by multiple agencies, relevant to
Petitioner's circumstances, including factors not related
to Petitioner himself.” Resp. at 6. While counsel for
Petitioner suggest that the timing of the Secretary's
decision is “curious” because it came “two
days after Petitioner first sought consent to the relief
sought in this emergency motion from counsel for the
government, ” Reply at 13-14, there is no basis to cast
any doubt upon the decision or its timing. The Obama
Administration has been interested in closing the prison at
Guantanamo Bay since its first day in office in 2009; in the
waning days of his presidency, it is no surprise that the
President and his Cabinet are making the last decisions they
can. The news media reported this week that ten detainees
previously held at Guantanamo Bay just were released to Oman.
See Paul Schemm, Oman accepts 10 Guantanamo
detainees at the request of the U.S., The Washington
Post (Jan. 16, 2017),
fact that Mr. Barhoumi has not been released is due to the
discretionary judgment call of the Secretary of Defense that
“a variety of substantive concerns, shared by multiple
agencies” counsel against his transfer “at this
time.” Resp. at 6. The PRBs and their review process
were established by Executive Order 13, 567 (E.O. 13, 567)
and were designed to end on the desk of the Secretary of
Defense. That is exactly what happened here. Thus, Mr.
Barhoumi “ha[d] no right to a transfer in the first
instance [because] it is entirely within the discretion of
the Executive . . . [and] it is not the place of the
judiciary to police the discretion of the President.”
Ahjam v. Obama, 37 F.Supp.3d 273, 280 (D.D.C.
point of fact, the Executive Order specifies:
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.
E.O. 13, 567 § 10(c). Further, the Secretary is
“not . . . bound by any such [PRB] recommendation,
” 2012 NDAA § 1023(b)(2), and, as here, is fully
empowered to reject it. The fact of the PRB recommendation
assuredly raised hopes that Mr. Barhoumi would be repatriated
to Algeria but at all times the Secretary had to agree and so
notify Congress. In light of the express provisions in the
Executive Order and the 2012 NDAA, the PRB recommendation
gives Mr. Barhoumi no cognizable legal right on which to
his reliance on the possibility of relief under habeas
corpus is also misplaced. In ruling on Mr.
Barhoumi's formal habeas petition, the D.C.
Circuit agreed with this Court that Mr. Barhoumi is lawfully
detained at Guantanamo Bay. And the Supreme Court has held
that such a detainee may be lawfully detained “for the
duration of the relevant conflict.” Hamdi v.
Rumsfeld, 542 U.S. 507, 521 (2004); see also
Boumediene v. Bush, 553 U.S. 723, 733 (2008); Aamer
v. Obama, 742 F.3d 1023, 1041 (D.C. Cir. 2014); Ali
v. Obama, 736 F.3d 542, 544 (D.C. Cir. 2013). Until
there is “a determination by the political branches
that hostilities in Afghanistan have ceased, [Mr.
Barhoumi's] continued detention is justified.”
Al-Bihani v. Obama, 590 F.3d 866, 875 (D.C. Cir.
2010). This Court is, of course, bound by these decisions.
result, without a legally protected right to challenge the
Secretary's discretion or to obtain habeas
relief for an immediate transfer, there is no law to apply
here. Mr. Barhoumi has no cognizable legally protected
interest that has been injured and, therefore, no standing to
pursue his motion. The Court is without jurisdiction. The
motion must be denied.
memorializing order accompanies ...