Abdullah v. Obama

• Decision Date: 04 April 2014
• Docket Number: No. 13–5203.,13–5203.
• Citation: 753 F.3d 193
• Parties: Hani Saleh Rashid ABDULLAH, Detainee, Camp Delta, Appellant Rami Bin Saad Al–Oteibi, Detainee, Camp Delta, Appellee Yosra Saleh Rashid Abdullah, Next Friend of Hani Saleh Rashid Abdullah, Appellant v. Barack Hussein OBAMA, President of the United States, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

753 F.3d 193

Hani Saleh Rashid ABDULLAH, Detainee, Camp Delta, Appellant

Rami Bin Saad Al–Oteibi, Detainee, Camp Delta, Appellee

Yosra Saleh Rashid Abdullah, Next Friend of Hani Saleh Rashid Abdullah, Appellant

v.Barack Hussein OBAMA, President of the United States, et al., Appellees.

No. 13–5203.

United States Court of Appeals,District of Columbia Circuit.

Argued Jan. 21, 2014.

Decided April 4, 2014.

Appeal from the United States District Court for the District of Columbia, (No. 1:05–cv–00023).

Stephen M. Truitt argued the cause for the appellant. Charles H. Carpenter was on brief.

Sharon Swingle, Attorney, United States Department of Justice, argued the cause for the appellees. Stuart F. Delery, Assistant Attorney General, and Dana L. Kaersvang, Attorney, were on brief.

Before HENDERSON, Circuit Judge, and WILLIAMS and RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Senior Circuit Judge RANDOLPH, with whom Circuit Judge HENDERSON joins.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Hani Saleh Rashid Abdullah (Abdullah) is a Yemeni national who has been detained by the United States at the United States Naval Station Guantanamo Bay (Guantanamo) since 2002 as an enemy combatant. In 2005, Abdullah filed a petition for a writ of habeas corpus in the United States District Court for the District of Columbia challenging his detention. Abdullah eventually sought preliminary injunctive relief in 2010, when he asked the court to enjoin the United States from holding him in violation of a 1946 executive agreement between Yemen and the United States (Yemen Agreement or Agreement). The district court denied his motion. For the reasons that follow, we affirm.

I

Abdullah's motion for a preliminary injunction recounts that Abdullah traveled from Yemen to Afghanistan in the months before September 11, 2001, to attend a terrorist “training camp.” Mot. for Prelim. Inj. 7, Abdullah v. Obama, Civ. No. 05–0023 (D.D.C. Oct. 8, 2010). Abdullah left the camp following the September 11, 2001 attacks to defend an airstrip in southern Afghanistan against the impending United States invasion. In December 2001, Abdullah abandoned his post at the airstrip and fled to nearby Pakistan. Pakistani authorities arrested Abdullah in Karachi, Pakistan, on September 11, 2002, and he was transferred to United States custody shortly thereafter. After brief stints of detention in Kabul and at the Bagram Airfield Military Base, both locations in Afghanistan, the United States moved Abdullah to Guantanamo in October 2002. Abdullah remains detained at Guantanamo as an enemy combatant pursuant to the Authorization for Use of Military Force (AUMF), Pub.L. No. 107–40, 115 Stat. 224, 224 (2001), which confers on the President the authority to detain enemy combatants “for the duration of the particular conflict in which they were captured.” Hamdi v. Rumsfeld, 542 U.S. 507, 518, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion); id. at 588–89, 124 S.Ct. 2633 (Thomas, J., dissenting); see also Boumediene v. Bush, 553 U.S. 723, 733, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008); Janko v. Gates, 741 F.3d 136, 138 (D.C.Cir.2014); Maqaleh v. Hagel, 738 F.3d 312, 317 (D.C.Cir.2013).

On January 7, 2005, Abdullah petitioned the United States District Court for the District of Columbia for habeas corpus relief. Although the United States Supreme Court has held that a Guantanamo detainee can petition for habeas corpus relief in federal court, see Boumediene, 553 U.S. at 771, 128 S.Ct. 2229 (Suspension Clause, Art. I, § 9, cl. 2, “has full effect at Guantanamo Bay”), the district court did not act on Abdullah's petition. Abdullah then sought preliminary injunctive relief. In his motion, Abdullah asserted that he has been indefinitely detained by the United States in violation of the Yemen Agreement, under which he claims protection as a Yemeni national. The Yemen Agreement provides, in relevant part, that

Subjects of His Majesty the King of the Yemen in the United States of America and nationals of the United States of America in the Kingdom of Yemen shall be received and treated in accordance with the requirements and practices of generally recognized international law.

Agreement between the United States of America and the Kingdom of Yemen respecting friendship and commerce, art. III, May 4, 1946, 60 Stat. 1782. According to Abdullah, the Yemen Agreement incorporated the Third Geneva Convention, Article 87 of which provides:

[p]risoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.

Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), art. 87, Aug. 12, 1949, 6 U.S.T. 3316. Abdullah argued that, because the Uniform Code of Military Justice does not provide for indefinite detention as punishment for members of the United States Armed Forces, his indefinite detention is contrary to Article 87 and, hence, the Yemen Agreement. Abdullah also alleged that his conditions of confinement at Guantanamo violate the Third Geneva Convention because he is not permitted to purchase personal items, family and friends are not allowed to send him food or clothing, detainees cannot choose representatives to air their grievances to their Guantanamo custodians and copies of the Geneva Convention are not posted in prominent places.

For relief, Abdullah requested an order “restraining respondents from continuing to detain him indefinitely,” Mot. for Prelim. Inj. 1, but he later clarified in his reply to the Government's opposition to his motion that he did not seek immediate release. Instead, Abdullah sought “an injunction prohibiting [the Government] from detaining him in violation of the express terms of [the Yemen Agreement].” Reply in Supp. of Mot. for Prelim. Inj. 1–2, Abdullah v. Obama, Civ. No. 05–0023 (D.D.C. Jan. 3, 2011). Although Abdullah did not expressly ask the court to enjoin his allegedly unlawful conditions of confinement, his request for full compliance with the Yemen Agreement and, consequently, the Third Geneva Convention, appeared to encompass such relief.¹

Abdullah next filed a mandamus petition with this Court on May 14, 2013, seeking to compel the district court to decide his motion. One week later, the district court denied Abdullah's motion for preliminary relief. ² The court concluded that, even if the Yemen Agreement provided a basis for relief in Abdullah's underlying habeas proceeding, Abdullah did not meet the other requisites for preliminary injunctive relief—that he was likely to suffer irreparable injury in the absence of relief and that the balance of equities and public interest weighed in his favor. See Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C.Cir.2011). Specifically, the court found that “[i]f Abdullah seeks pre-adjudication release,” he has not “shown a lesser harm to the respondents if they cannot regain his custody should habeas be ultimately found unwarranted, or likewise that the public interest would favor the release now on an as-of-yet unadjudicated habeas claim.” Order 5, Abdullah v. Obama, Civil No. 05–0023 (D.D.C. May 21, 2013). “If Abdullah does not seek pre-adjudicative release,” the court continued, “he has not explained what irreparable injury he faces outside of the injuries addressed by the merits of [the] underlying habeas petition.” ³Id. Abdullah timely appealed.

II

“A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’ ” Sherley, 644 F.3d at 392 (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)); see also Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” (quotation marks omitted)). “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” ⁴Aamer v. Obama, 742 F.3d 1023, 1038 (D.C.Cir.2014) (quoting Sherley, 644 F.3d at 392 (quoting Winter, 555 U.S. at 20, 129 S.Ct. 365)) (quotation marks omitted). “When seeking a preliminary injunction, the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C.Cir.2009). We review the district court's balancing of the preliminary injunction factors for abuse of discretion and review questions of law underlyingthe district court's decision de novo. Aamer, 742 F.3d at 1038 (citing Sherley, 644 F.3d at 393).

We first clarify the relief Abdullah seeks. Although his motion sought an order “restraining respondents from continuing to detain him indefinitely,” Mot. for Prelim. Inj. 1, Abdullah insists that he does not seek an immediate release from detention, Appellant's Br. 17, Abdullah v. Obama, No. 13–5203 (D.C.Cir. Aug. 30, 2013); see also Reply in Supp. of Mot. for Prelim. Inj. 1–2. It appears that instead he seeks (1) a declaration that the United States cannot “hold [him] forever, notwithstanding the state of ‘hostilities' and at the pleasure of his captors,” Reply Br. 6, Abdullah v. Obama, No. 13–5203 (D.C.Cir. Nov. 21, 2013), and (2) an order enjoining violations of the Third Geneva Convention regarding his conditions of confinement.⁵ Abdullah's opening brief fails to explicate the conditions of confinement that allegedly violate the Third Geneva Convention but in his reply brief he submits that the United...