United States District Court, District of Columbia
S. CHUTKAN, UNITED STATES DISTRICT JUDGE.
United States citizen-remains in Iraq in the custody of U.S.
armed forces. While Petitioner now has access to counsel in
order to pursue this habeas petition, the Department of
Defense (“Defense Department”) may seek to
transfer him prior to this court's decision on his
petition. The Defense Department is unable to provide a
timeline for when this transfer might take place. Petitioner
has requested that this court enjoin the Defense Department
from transferring him to another country during the pendency
of this litigation. Upon consideration of the parties'
filings, the oral arguments of counsel, and for the reasons
stated herein, Petitioner's Motion Regarding Continued
Interim Relief will be GRANTED in part and DENIED in part.
The court will not enjoin the Defense Department from
transferring the Petitioner, but will require the Defense
Department to provide the court and Petitioner's counsel
seventy-two hours' notice prior to any such transfer.
December 23, 2017, this court entered an order (1) denying
the Defense Department's Motion to Dismiss (ECF No. 11),
(2) requiring the Defense Department to permit the American
Civil Liberties Union Foundation (“ACLUF”)
immediate and unmonitored access to Petitioner to determine
whether he wanted the ACLUF to pursue this action on his
behalf, and (3) requiring the Defense Department to
“refrain from transferring the detainee until the ACLUF
informs the court of the detainee's wishes.” (ECF
No. 30). On January 5, 2018, the ACLUF informed the court
that Petitioner wanted the ACLUF to represent him in this
action. (ECF No. 32 (“Mot.”) at 1). The ACLUF
also requested that the court extend the interim relief
provided in its December 23 Order, and order the Defense
Department not to transfer Petitioner until the court renders
its decision on Petitioner's habeas petition.
(Id. at 2).
January 18, 2018, the court held a hearing on
Petitioner's motion for continued relief. In response to
the court's inquiry as to whether the Defense Department
intended to transfer the Petitioner within the next
forty-eight hours, Department counsel indicated that it had
no basis to believe that a transfer would take place within
that timeframe. Counsel added, however, that it is the
Defense Department's position that it has the authority
to transfer Petitioner as soon as another country is ready to
receive him. Given the Defense Department's position, and
the court's impending ruling on Petitioner's motion,
the court ordered the Defense Department to refrain from
transferring Petitioner until Tuesday, January 23, 2018. (ECF
January 18 hearing, the Defense Department also offered to
provide the court with a classified declaration which would
provide more detail regarding the Department's position
as to Petitioner. On January 19, 2018, the Defense Department
filed a classified ex parte declaration through a
Classified Information Security Officer. (See ECF
No. 44). That evening, the Defense Department filed a
redacted, sealed version of the same declaration. (ECF No.
45-1 (“Classified Declaration”)).
January 22, 2018, the court held a status hearing, during
which the court asked the parties whether they opposed an
order requiring the Defense Department to provide the court
and Petitioner's counsel notice prior to transferring
Petitioner. The Defense Department indicated that it would
object to such an order. Petitioner's counsel informed
the court that Petitioner would not object to such an order,
as long as he had the opportunity to contest his transfer.
order to prevail on a motion for a preliminary injunction,
the movant must show that: “ he is likely to succeed
on the merits,  . . . he is likely to suffer irreparable
harm in the absence of preliminary relief,  . . . the
balance of equities tips in his favor, and  . . . an
injunction is in the public interest.” Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
A preliminary injunction is an “extraordinary
remedy” that is “never awarded as of
right.” Id. at 24 (citing Munaf v.
Geren, 553 U.S. 674, 689-90 (2008)). The D.C. Circuit
has applied a sliding scale approach to evaluating
preliminary injunctions, such that an unusually strong
showing on one factor could make up for a weaker showing on
another. See, e.g., Davis v. Pension Ben. Guar.
Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009). It has
been suggested that a movant's showing of a likelihood of
success, however, is a “‘free-standing
requirement for a preliminary injunction.'”
Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir.
2011) (quoting Davis, 571 F.3d at 1296 (Kavanaugh,
Likelihood of Success on the Merits
has shown a likelihood of success on the merits of his claim
that there should be some restriction on the Defense
Department's ability to transfer him during the pendency
of this litigation. Prior to transferring Petitioner, the
Defense Department must present “positive legal
authority” for his transfer. See Omar v.
McHugh, 646 F.3d 13, 24 (D.C. Cir. 2011) (“None of
this means that the Executive Branch may detain or transfer
Americans or individuals in U.S. territory at will, without
any judicial review of the positive legal authority for the
detention or transfer.”); see also Valentine v.
United States ex rel. Neidecker, 299 U.S. 5, 8 (1936)
(power to provide for extradition “is not confided to
the Executive in the absence of treaty or legislative
court has reviewed the classified information provided by the
Defense Department and finds that it does not present
“positive legal authority” for Petitioner's
transfer. Neither does the Defense Department's assertion
that “international relations” with the receiving
country would be harmed should the court prohibit his
transfer at this time.
its failure to present legal authority for Petitioner's
transfer, such as an extradition request or an allegation of
criminal conduct committed in the receiving country, the
Defense Department maintains that the court nonetheless
cannot restrict Petitioner's transfer while it considers
his claim of unlawful detention. Relying on Munaf v.
Geren, 553 U.S. 674 (2008), and Kiyemba v.
Obama (“Kiyemba II”), 561 F.3d 509
(D.C. Cir. 2009), the Defense Department argues that the
court is barred from restricting Petitioner's transfer
because of the “significant ...