Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bin Lep v. Trump

United States District Court, District of Columbia

September 23, 2019

MOHAMMED NAZIR BIN LEP, Petitioner,
v.
DONALD TRUMP, et al., Respondents.

          MEMORANDUM OPINION & ORDER

          JOHN D. BATES, UNITED STATES DISTRICT JUDGE

         Petitioner Mohammed Nazir Bin Lep, a detainee at the Guantanamo Bay Naval Station in Guantanamo Bay, Cuba, seeks a court order enjoining the government XXXXX ostensibly for a military commission proceeding but before any charges against Bin Lep have actually been referred to a military commission. XXXXX Before this Court is petitioner's oral motion for temporary emergency relief, which was supported by the arguments in petitioner's motion for a preliminary injunction and additional memorandum of law. See. Pet'r's Mot. for a Preliminary Injunction [ECF No. 4] ("Pet'r's PI Mot."); Pet'r's Mem. of Law on Jurisdiction and Other Issues. The government opposes petitioner's motion for temporary emergency relief. See Resp'ts' Opp. to Pet'r's Mot. for a Preliminary Injunction and Request for Emergency Relief ("Resp'ts' Opp. Br."). For the reasons below, this Court grants petitioner's request for temporary emergency relief and orders that the government is restrained from conducting the first XXXXX (scheduled to commence on XXXXX

         I. Background

         Based on the briefing and exhibits presented to the Court thus far, the Court's understanding of the facts is as follows. Bin Lep is currently detained at the Guantanamo Bay Naval Station pursuant to the 2001 Authorization for Use of Military Force. Resp'ts' Opp. Br. at 2. I"here is, however, the possibility that Bin Lep will be tried for various offenses by a military commission. The Military Commissions Act of 2009 authorizes the President to establish military commissions to try alien unprivileged enemy belligerents for violations of the laws of war or other offenses triable by military commissions. 10 U.S.C. § 948b(a)-(b).

         Before a military commission proceeding begins, charges against the accused must be sworn by a member of the armed forces having knowledge or reason to believe that the matters alleged are true. Id. § 948q. Then, the Secretary of Defense or his designee-here, the Convening Authority-considers the swom charges and supporting evidence and decides whether to dismiss the charges, forward them to another authority for disposition, or refer the charges to a military commission. Rules for Military Commissions ("R.M.C.") 401, 406, 601. Finally, a military commission must be convened. R.M.C. 504, 601. All of these elements are required for a "referral" of charges, which is "the order of a convening authority that charges against an accused will be tried by a specified military commission." RM.C. 601(a), 601(a) Discussion.

         Here, the Office of the Chief Prosecutor of the Department of Defense ("the prosecution") swore draft charges against Bin Lep on December 7, 2017 for his role in various terrorist plots. Resp'ts' Opp. Br. at 2. Those charges are currently pending with the Convening Authority. Id. But twenty-one months later, the Convening Authority has still not referred the charges to a military commission. Id.

         In June 2018, the prosecution submitted a request to the Convening Authority XXXXX though the request was not served on the defense. See Zelnis Decl. ¶ 4; Attachment A to Zelnis Decl. In September 2018, the prosecution submitted a superseding request XXXXX See Zelnis Decl., Ex. 1 to Opp. Br at ¶¶ 2-4. XXXXX

         On March 8, 2019, the Convening Authority granted the prosecution's request XXXXX See Convening Authority's March 8, 2019 Order, Ex. 2-1 to Pet'r's PI Mot. ("March 8, 2019 Order") [ECF No. 4-2] at 1. The Convening Authority ordered that XXXXX Id. at 2.

         Bin Lep claims that he objected XXXXX and submitted various requests seeking additional discovery, the declassification of information, and continuances of the timeline set by the Convening Authority. Sec Pet'r's PI Mot. at 5 (citing Exs. 3-7 to Pet'r's PI Mot.). On September 11, 2019, the Convening Authority denied Bin Lep's request for reconsideration of its March XXXXX order. Ex. 8 to Pet'r's PI Mot. On September 18, 2019, Bin Lep filed a motion for preliminary injunctive relief, informing this Court that the first two XXXXX Pet'r's PI Mot. at 6. A scheduling conference was held that day.

         At that conference, the Court learned that XXXXX Bin Lep's counsel said they would request a temporary restraining order. The next day, the government submitted a brief in opposition and Bin Lep submitted a memorandum on additional jurisdictional and abstention issues that had been raised at the scheduling conference. A hearing on Bin Lep's request for temporary emergency relief was held on Friday, September 20, 2019.

         II. Jurisdiction & Abstention

         Before reaching the merits of Bin Lep's request for temporary emergency relief, there are threshold issues of jurisdiction and abstention. For the reasons summarized below, this Court is confident that it has jurisdiction to review Bin Lep's claims and that, at this time, based on the facts and arguments presented thus far, abstention is unwarranted.

         A. Jurisdiction

         First, the government argues that 28 U.S.C. § 2241(e)(2) strips this Court of jurisdiction to review detainees' non-habcas claims, and that Bin Lep's claim is a non-habeas claim because it "does not go to any aspect of his confinement or its lawfulness." Resp'ts' Opp. Br. at 10. The controlling question is whether Bin Lep's claim is "the sort that may be raised in a federal habeas petition under section 2241." Aamer v. Obama,741 F.3d 1023, 1030 (D.C. Cir. 2014). "[A] person is entitled to the writ of habeas corpus when, though lawfully in custody, he is deprived of some right to which he is lawfully entitled even in his confinement, the deprivation of which serves to make his imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits." Id. at 1036 (quoting Miller v. Overholser,206 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.