Belbacha v. Bush

• Decision Date: 14 March 2008
• Docket Number: No. 07-5258.,07-5258.
• Parties: Ahmed BELBACHA, Appellant v. George W. BUSH, President of the United States, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

520 F.3d 452

Ahmed BELBACHA, Appellant v. George W. BUSH, President of the United States, et al., Appellees.

No. 07-5258.

United States Court of Appeals, District of Columbia Circuit.

Argued December 6, 2007.

Decided March 14, 2008.

Appeal from the United States District Court for the District of Columbia, (No. 05cv02349).

David H. Remes argued the cause for appellant. With him on the briefs was Zachary Katznelson. James W. Beane, Jr. entered an appearance.

Catherine Y. Hancock, Attorney, U.S. Department of Justice, argued the cause for appellees. On the brief were Peter D. Keisler, Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, and Douglas N. Letter, Robert M. Loeb, and Lowell V. Sturgill, Jr., Attorneys, U.S. Department of Justice. Jonathan F. Cohn, Deputy Assistant Attorney General, and R. Craig Lawrence, Assistant U.S. Attorney, entered appearances.

Before: GINSBURG, RANDOLPH, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Dissenting opinion filed by Circuit Judge RANDOLPH.

GINSBURG, Circuit Judge:

In 2005 Ahmed Belbacha, an Algerian national, petitioned the district court for a writ of habeas corpus in order to challenge his detention at Guantánamo Bay, Cuba. In July 2007, with his petition still pending, he sought interim relief barring his transfer to Algeria on the ground that he is likely to be tortured by the government of Algeria and by an extremist organization that has threatened him in the past. The district court declined preliminarily to bar Belbacha's transfer on the ground it lacked the power so to do, Belbacha v. Bush, No. 05-2349, 2007 WL 2422031 (July 27, 2007), citing the Military Commissions Act of 2006(MCA), Pub.L. No. 109-366, 120 Stat. 2600, and our decision in Boumediene v. Bush, 476 F.3d 981 (2007), cert. granted, ___ U.S. ___, 127 S.Ct. 3078, 168 L.Ed.2d 755 (June 29, 2007), in which we upheld the constitutionality of the MCA provision removing the courts' jurisdiction over detainees' habeas petitions.

Belbacha noticed an appeal and simultaneously asked this court to bar his transfer pending its resolution. A motions panel denied Belbacha's request for a stay but ordered the case heard on an expedited basis. Belbacha, No. 07-5258 (Aug. 2, 2007). After hearing oral argument, this panel temporarily enjoined his transfer in order to preserve our jurisdiction over the appeal. We now remand this matter to the district court for further proceedings.

I. Appellate Jurisdiction

We have jurisdiction to entertain Belbacha's interlocutory appeal. Although the district court characterized the relief he seeks as a "temporary restraining order," that court's order dismissing his motion "effectively foreclose[s]" Belbacha "from pursuing further interlocutory relief in the form of a preliminary injunction," and is therefore "tantamount to denial of a preliminary injunction," appealable under 28 U.S.C. § 1292(a)(1). See Levesque v. Maine, 587 F.2d 78, 80 (1st Cir.1978). Moreover, because Belbacha sought a stay of his transfer pending the Supreme Court's decision in Boumediene and it was clear the Court would take more than 20 days to decide that case, preserving the status quo required a preliminary injunction rather than a temporary restraining order. See FED.R.CIV.P. 65(b)(2) (imposing time limitation upon a temporary restraining order). We review de novo the legal question whether the district court has the authority to enjoin Belbacha's transfer.

II. Background

Belbacha filed a petition for a writ of habeas corpus in the district court in 2005. In 2006 the Congress passed the Military Commissions Act, § 7(a)(1) of which, 28 U.S.C. § 2241(e)(1), provides the courts shall not have jurisdiction over any "application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination," and § 7(a)(2) of which, 28 U.S.C. § 2241(e)(2), provides the courts shall not have jurisdiction over "any other action ... relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of" such an alien, "[e]xcept as provided in" § 1005(e) of the Detainee Treatment Act (DTA), Pub.L. No. 109-148, 119 Stat. 2680 (2005), 10 U.S.C. § 801 note.^*

In Boumediene we held that § 7(a)(1) of the MCA does not violate the Suspension Clause of the Constitution, U.S. CONST, art. I, § 9, cl. 2, on the ground that the constitutional guarantee of habeas corpus does not apply to a foreign national without presence or property in the sovereign territory of the United States. 476 F.3d 981. The Supreme Court initially denied Boumediene's petition for a writ of certiorari, ___ U.S. ___, 127 S.Ct. 1478, 167 L.Ed.2d 578 (Apr. 2, 2007), but upon rehearing granted the petition. ___ U.S. ___, 127 S.Ct. 3078, 168 L.Ed.2d 755 (June 29, 2007).

III. Jurisdiction of the District Court

If a case presents a "substantial" jurisdictional question, then under the All Writs Act, 28 U.S.C. § 1651, a district court may act to preserve its jurisdiction while it determines whether it has jurisdiction. United States v. United Mine Workers, 330 U.S. 258, 293, 67 S.Ct. 677, 91 L.Ed. 884 (1947); see also Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); cf. Omar v. Harvey, 479 F.3d 1, 11-14 (D.C.Cir.2007) (court may temporarily enjoin transfer in order to preserve jurisdiction), cert. granted on a different question sub nom., Geren v. Omar, ___ U.S. ___, 128 S.Ct. 741, 169 L.Ed.2d 578 (2007) (citing Ntakirutimana v. Reno, 184 F.3d 419, 423 n. 7 (5th Cir.1999) (stay of extradition pending appeal); Then v. Melendez, 92 F.3d 851, 853 n. 1 (9th Cir.1996) (same)). Accordingly, absent a bar to its remedial powers, the court's authority pursuant to the All Writs Act to grant Belbacha's motion for interim relief depends upon whether Belbacha's claims sound in habeas corpus and, if so, whether our decision in Boumediene renders insubstantial his argument that the district court has jurisdiction. Cf. Bell, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (jurisdiction depends upon colorable claim); see also Adams v. McCann, 317 U.S. 269, 273, 63 S.Ct. 236, 87 L.Ed. 268 (1942) (All Writs Act grants power to issue "all auxiliary writs" as "may be necessary for the exercise of a jurisdiction already existing") (quoting Whitney v. Dick, 202 U.S. 132, 136-37, 26 S.Ct. 584, 50 L.Ed. 963 (1906)). The MCA, of course, leaves intact the presumptive jurisdiction of the federal courts to inquire into the constitutionality of a jurisdiction-stripping statute.

We conclude that Belbacha's petition for a writ of habeas corpus is colorable. Belbacha does not challenge only his transfer to a country that might torture him; he contests also the basis for his detention as an "enemy combatant." Should the Supreme Court hold in Boumediene that a detainee at Guantánamo Bay may petition for a writ of habeas corpus to challenge his detention, and should the district court conclude that Belbacha's detention is unlawful, then the Executive might be without authority to transfer him to Algeria.^* See Omar, 479 F.3d at 10 (holding writ of habeas corpus may be used to challenge transfer of U.S. citizen held in Iraq to custody of Iraqi court for trial); Benson v. McMahon, 127 U.S. 457, 462, 8 S.Ct. 1240, 32 L.Ed. 234 (1888) (extradition); INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (deportation); see also Wang v. Ashcroft, 320 F.3d 130, 141 (2d Cir.2003) (writ of habeas corpus used to challenge deportation in violation of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85); but cf. Mironescu v. Costner, 480 F.3d 664 (4th Cir.2007) (Section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. No. 105-277, 112 Stat. 2681, 8 U.S.C. § 1231 note, renders Convention Against Torture judicially cognizable only in the context of removal by immigration authorities). We need not and do not address the Government's argument that, irrespective of the Supreme Court's holding in Boumediene, § 7(a) of the MCA constitutionally bars Belbacha's underlying claims for relief; the district court has the authority to grant Belbacha preliminary relief because the Suspension Clause colorably protects those claims and, as we explain below, because § 7(a) does not displace its remedial powers.

Our holding in Boumediene does not make Belbacha's argument for the jurisdiction of the district court less than colorable. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), in which the Court made clear that foreclosure by a prior decision of the Supreme Court renders a jurisdictional question insubstantial but said nothing of foreclosure by a decision of a court of appeals; 13B CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3564 (2d ed.2007) (same). Following the grant of certiorari in Boumediene, this court stayed or recalled its mandate in many cases raising the same issues as that case, including some in which the Government proposed to transfer the detainee, and held those cases in abeyance pending the decision of the Supreme Court. E.g., Paracha v. Bush, No. 05-5194; Kiyemba v. Bush, No. 05-5487; Al Ginco v. Bush, No. 06-5191; Zalita v. Bush, No. 07-5129; see also Abdah v. Bush, No. 05-5224, 2007 WL 4952433 (Aug. 9, 2007) (in appeal from grant of order requiring advance notice of transfer, holding in abeyance Government's motion to dismiss habeas petitions in light of grant of certiorari in Boumediene). The district court also has held in abeyance the Government's motions to dismiss detainees' petitions for habeas corpus, and stayed the underlying cases. See, e.g., Hatim v. Bush, No. 05-cv-01429 (RMU) (Oct. 5, 2007); Taker v. Bush, No. 06-cv-01684 (GK)...