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Abdulrazzaq v. Trump

United States District Court, District of Columbia

September 26, 2019

DONALD J. TRUMP, et al., Defendants.


          Emmet G. Sullivan United States District Judge

         Petitioner Nashwan Al-Ramer Abdulrazzaq, a male Iraqi citizen detained at a prison facility in Guantanamo Bay, Cuba (“Guantanamo”), is awaiting trial before a military commission on non-capital charges of Denying Quarter, Attacking Protected Property, Using Treachery or Perfidity, Attempted Use of Treachery or Perfidity, and Conspiracy to Violate the Laws of War. Mot. to Dismiss Pet’r’s Second Am. Pet. for a Writ of Habeas Corpus (“Mot. to Dismiss”), ECF No. 47 at 17.[1]

         On November 29, 2017, Petitioner filed a Second Amended Petition for a Writ of Habeas Corpus, raising four claims: (1) the conditions of his confinement at Guantanamo violate the Eighth Amendment; (2) the structure of the military commissions process violates the Due Process Clause of the Fifth Amendment (“conflict-of-interest” claim); (3) discrimination against him by reason of his nationality in violation of the equal protection guarantees in the Fifth Amendment (“equal protection” claim); and (4) violation of his right to counsel guaranteed by the Sixth Amendment and the Military Commissions Act (“MCA”) (“interference-with-counsel-communications” claim). Pet’r’s Opp’n to Resp’ts’ Mot. to Dismiss Pet’r’s Second Am. Pet. for a Writ of Habeas Corpus, ECF No. 59 at 6-7.

         Pending before the Court is Petitioner’s motion to lift stay of proceedings and for preliminary injunction. Pet’r’s Mot. to Lift Stay of Proceedings and for Prelim. Inj. (“MPI”), ECF No. 147.[2] In view of the Court’s forthcoming memorandum opinion ruling on Respondent’s motion to dismiss, the Court HOLDS IN ABEYANCE Petitioner’s motion to lift the stay. With regard to his motion for preliminary injunction, Petitioner requests that the Court preliminarily enjoin further proceedings in the military commission pending this Court’s determination that he is medically competent to stand trial. Id. at 1. Upon careful consideration of the motion, the response, the reply thereto, the applicable law, and for the reasons explained below, the Court DENIES Petitioner’s motion for preliminary injunction.

         I. Background

         A. Petitioner’s Military Commission Proceedings and Medical Condition

         On June 2, 2014, the Convening Authority[3] referred the charges against Petitioner to a military commission for trial, Mot. to Dismiss, ECF No. 47 at 17, and pretrial proceedings have been ongoing since that time, Resp’t Opp’n to Pet’r’s Mot. to Lift Stay and for Prelim. Injunction (“Opp’n”), ECF No. 149 at 6. Petitioner’s trial is scheduled to begin September 19, 2020. Id. at 7.

         Petitioner has been diagnosed “with stenosis of both his lumbar and cervical spine, a degenerative condition, ” Mot. to Dismiss, ECF No. 47 at 20, and has undergone five surgeries during his detention, MPI, ECF No. 147 at 8. Petitioner states that “he remains disabled, in constant pain, and heavily medicated with tranquilizers and painkillers to alleviate his symptoms.” Id. at 4. Petitioner has sought the relief he seeks before this Court–a medical competency hearing–more than once before the military judge, but those requests have been denied. Id. at 8. Petitioner is also dissatisfied with the military judge’s denial of his requests to present his own evidence regarding his medical condition to counter that of the Guantanamo medical officers. Id.

         The impetus for the motion before the Court is Petitioner’s dissatisfaction with the military judge’s response to his medical condition during a military commission hearing session on August 21, 2019. Id. at 4-5.[4] After approximately two hours of the session, “Petitioner informed his defense counsel that he was ‘in tremendous pain and cannot focus on what is being said in court.’” Id. at 4 (quoting Tr., ECF No. 147-1 at 74). The Court recessed for two hours, but Petitioner did not return to court, choosing instead to “follow the proceedings on a closed-circuit video/audio feed” from the jumbo cell, [5]accompanied by one of his counsel.” Id. Petitioner states that on “August 22, 2019, the military judge stated his intention to determine whether Petitioner’s absence from the hearing yesterday (August 21) was voluntary, or based on medical incapacity, solely on the basis of witnesses and evidence adduced by the government.” Id. at 5. When Petitioner did not appear for the August 22, 2019 afternoon session, the military judge canceled testimony on substantive matters after hearing representations from Petitioner’s counsel that Petitioner was involuntarily absent as a result of his medical condition. Opp’n, ECF No. 149 at 11.

         II. Analysis

         A. Jurisdiction

         As a preliminary matter, the parties disagree as to whether this Court has jurisdiction to consider this request. Petitioner argues that it does because the “gravamen” of his motion – “the agony he regularly and predictably experiences when compelled to attend hearings” is a condition of his confinement, which is within the scope of habeas. Reply, ECF No. 152 at 3. Respondent argues that the Court lacks jurisdiction to consider Petitioner’s request for injunctive relief pursuant to 28 U.S.C. § 2241(e)(2) and/or 10 U.S.C. § 950g because his request for this Court “to stop his military commission does not go to any aspect of his confinement or its lawfulness . . . [but] concerns only an aspect of his trial.” Opp’n, ECF No. 149 at 17. Because the Court concludes that the abstention principles set forth in In re Al-Nashiri are fatal to Petitioner’s ability to succeed on the merits for the relief he seeks, the Court does not reach whether it has subject matter jurisdiction to consider the request. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (“[A] federal court has leeway ‘to choose among threshold grounds for denying audience to a case on the merits.’” (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 (1999))); see also In re Al-Nishiri, 835 F.3d 110, 117 n.1 (D.C. Cir. 2016) (“We need not weigh in on whether the district court had subject matter jurisdiction to adjudicate Al-Nashiri’s motion for preliminary injunctive relief. Although the government suggests in its briefing before us that Al-Nashiri’s claim does not sound in habeas-a claim that calls into question the district court’s statutory jurisdiction, see 28 U.S.C. § 2241(e)(2)-we affirm the denial of that motion for reasons we explain below. Because the motion was properly denied on threshold grounds, we need not consider the district court’s subject matter jurisdiction any further.”) (citations omitted)).

         B. Standard of Review

          “‘A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.’” Aamer v. Obama, 742 F.3d 1023, 1039 (D.C. Cir. 2014) (quoting Sherley v. Sebelius,644 F.3d 388, 392 (D.C. Cir. 2011) (alteration in original) (quoting Winter v. Natural Resources Defense Council, Inc.,555 U.S. 7, 20 (2008)). “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). It is “an extraordinary and drastic remedy” and “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis omitted). In this Circuit, the four factors have typically been evaluated on a ...

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