United States District Court, District of Columbia
MEMORANDUM OPINION & ORDER
D. BATES, UNITED STATES DISTRICT JUDGE
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
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).
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.
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
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
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.
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.
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.
Jurisdiction & Abstention
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.
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 ...