Kiyemba v. Obama

• Decision Date: 07 April 2009
• Docket Number: No. 05-5487.,No. 05-5489.,05-5487.,05-5489.
• Citation: 561 F.3d 509
• Parties: Jamal KIYEMBA, Next Friend, et al., Appellees v. Barack OBAMA, President of the United States, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

561 F.3d 509

Jamal KIYEMBA, Next Friend, et al., Appellees v. Barack OBAMA, President of the United States, et al., Appellants.

No. 05-5487.

No. 05-5489.

United States Court of Appeals, District of Columbia Circuit.

Argued September 25, 2008.

Decided April 7, 2009.

Appeals from the United States District Court for the District of Columbia, (No. 05cv01509), (No. 05cv01602).

Robert M. Loeb, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Gregory G. Katsas, Assistant Attorney General, Jonathan F. Cohn, Deputy Assistant Attorney General, and Douglas N. Letter, Jonathan H. Levy, Catherine Y. Hancock, and Sameer Yerawadekar, Attorneys.

Christopher P. Moore argued the cause for appellees. With him on the briefs were Jonathan I. Blackman, Rahul Mukhi, Aaron Marr Page, Susan Baker Manning, P. Sabin Willett, Rheba Rutkowski, Neil McGaraghan, Jason S. Pinney, and Gitanjali Gutierrez.

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

Opinion for the Court filed by Circuit Judge GINSBURG.

Concurring opinion filed by Circuit Judge KAVANAUGH.

Opinion concurring in the judgment in part and dissenting in part filed by Circuit Judge GRIFFITH.

GINSBURG, Circuit Judge:

Nine Uighurs held at Guantanamo Bay, in order to challenge their detention, petitioned the district court for a writ of habeas corpus. Asserting that they feared being transferred to a country where they might be tortured or further detained, they also sought interim relief requiring the Government to provide 30 days' notice to the district court and to counsel before transferring them from Guantanamo. The district court entered the requested orders. Kiyemba v. Bush, No. 1:05cv1509 (Sept. 13, 2005); Mamet v. Bush, No. 1:05cv1602 (Sept. 30, 2005). The Government appealed each of the orders and we consolidated its appeals. In light of the Supreme Court's recent decision in Munaf v. Geren, ___ U.S. ___, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008), we now reverse.

I. Background

In granting the request for 30 days' notice of any planned transfer, the district court in Mamet noted the detainee's fear of being tortured. In Kiyemba the district court did not advert to the detainees' fear of harm but entered an order requiring pre-transfer notice lest removal from Guantanamo divest the court of jurisdiction over the detainees' habeas petitions.

While this appeal was pending, the Congress passed the Military Commissions Act (MCA), § 7 of which provided:

No court ... shall have jurisdiction to hear or consider an 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.

Pub.L. No. 109-366, 120 Stat. 2600, 2635-36 (2006) (codified at 28 U.S.C. § 2241(e)(1)). Accordingly, we dismissed the cases for lack of subject matter jurisdiction. Kiyemba v. Bush, 219 Fed.Appx. 7 (D.C.Cir.2007). In Boumediene v. Bush, however, the Supreme Court held § 2241(e)(1) "effects an unconstitutional suspension of the writ" of habeas corpus. ___ U.S. ___, 128 S.Ct. 2229, 2274, 171 L.Ed.2d 41 (2008). In light of that decision, we vacated our judgment of dismissal and reinstated the Government's appeal. Kiyemba, No. 05-5487 (July 31, 2008).^*

II. Subject Matter Jurisdiction

We begin with the Government's argument that the MCA bars the district court from exercising jurisdiction in their ongoing habeas cases over claims related to the detainees' potential transfer. The Government contends the Supreme Court in Boumediene held the first provision of § 7 of the MCA, 28 U.S.C. § 2241(e)(1), unconstitutional only insofar as it purported to deprive the district court of jurisdiction to hear a claim falling within the "core" of the constitutional right to habeas corpus, such as a challenge to the petitioner's detention or the duration thereof. According to the Government's theory, because the right to challenge a transfer is "ancillary" to and not at the "core" of habeas corpus relief, § 2241(e)(1) still bars the district court from exercising jurisdiction over the instant claims. In support of its argument, the Government invokes the rule that ordinarily a court should invalidate as little of an unconstitutional statute as necessary to bring it into conformity with the Constitution. See Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) ("[W]e try not to nullify more of a legislature's work than is necessary.... Accordingly, the normal rule is that partial, rather than facial, invalidation is the required course." (internal quotation marks omitted)).

In response, the detainees maintain it was no accident that the Court in Boumediene avoided making just the sort of fine distinction the Government proposes. They point specifically to the Court's caution in Ayotte that "making distinctions in a murky constitutional context, or where line-drawing is inherently complex, may call for a far more serious invasion of the legislative domain than we ought to undertake." Id. at 330, 126 S.Ct. 961 (internal quotation marks omitted).

We think the detainees have the better of the argument. The Court in Boumediene did not draw (or even suggest the existence of) a line between "core" and "ancillary" habeas issues, neither of which terms appears in the opinion (apart from the innocuous observation that "Habeas is, at its core, an equitable remedy"). Rather, the Court stated simply that § 2241(e)(1) "effects an unconstitutional suspension of the writ." 128 S.Ct. at 2274.¹ Accordingly, we read Boumediene to invalidate § 2241(e)(1) with respect to all habeas claims brought by Guantanamo detainees, not simply with respect to so-called "core" habeas claims.²

The Government next argues the second provision of MCA § 7 stripped the district court of jurisdiction. That provision eliminates court jurisdiction over "any other action against the United States or its agents relating to any aspect of the ... transfer" of a detainee. 28 U.S.C. § 2241(e)(2). This case does not come within the reach of § 2241(e)(2), however. That provision applies by its terms to "any other action"—meaning other than a petition for a writ of habeas corpus, which is the subject of § 2241(e)(1). The detainees' claims are not in the nature of an action barred by § 2241(e)(2) because, based upon longstanding precedents, it is clear they allege a proper claim for habeas relief, specifically an order barring their transfer to or from a place of incarceration. See Benson v. McMahon, 127 U.S. 457, 462, 8 S.Ct. 1240, 32 L.Ed. 234 (1888) (reviewing, on petition for writ of habeas corpus, claim of unlawful extradition); Ward v. Rutherford, 921 F.2d 286, 288 (D.C.Cir.1990) ("[A]ctions taken by magistrates in international extradition matters are subject to habeas corpus review by an Article III district judge"); INS v. St. Cyr, 533 U.S. 289, 305-08, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (detailing long history of reviewing deportations per petition for habeas); In re Bonner, 151 U.S. 242, 255-56, 14 S.Ct. 323, 38 L.Ed. 149 (1894); Miller v. Overholser, 206 F.2d 415, 419-20 (D.C.Cir.1953) ("We think it has been settled since ... Bonner that the writ is available to test the validity not only of the fact of confinement but also of the place of confinement").

Because a potential transfer out of the jurisdiction of the court is a proper subject of statutory habeas relief, § 2241(e)(2) does not apply to and therefore does not deprive the court of jurisdiction over the claims now before us. Even "where a habeas court has the power to issue the writ," however, the question remains "`whether this be a case in which [that power] ought to be exercised.'" Munaf, 128 S.Ct. at 2221 (quoting Ex parte Watkins, 28 U.S. (3 Pet.) 193, 201, 7 L.Ed. 650 (1830)). We turn, accordingly, to the merits of the petitioners' claims.

III. Proper Grounds for Habeas Relief

A court considering a request for preliminary relief must examine four factors: (1) the moving party's likelihood of success on the merits; (2) irreparable injury to the moving party if an injunction is denied; (3) substantial injury to the opposing party if an injunction is granted; and (4) the public interest. Belbacha v. Bush, 520 F.3d 452, 459 (D.C.Cir.2008). We review for abuse of discretion the district court's weighing of these factors; insofar as "the district court's decision hinges on questions of law," however, our review is de novo. Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C.Cir.1998) (internal quotation marks omitted). If the moving party can show no likelihood of success on the merits, then preliminary relief is obviously improper and the appellant is entitled to reversal of the order as a matter of law. See Munaf, 128 S.Ct. at 2220.³

The detainees here seek to prevent their transfer to any country where they are likely to be subjected to further detention or to torture. Our analysis of their claims is controlled by the Supreme Court's recent decision in Munaf. In that case, two American citizens held in the custody of the United States military in Iraq petitioned for writs of habeas corpus, seeking to enjoin the Government from transferring them to Iraqi custody for criminal prosecution in the Iraqi courts. Id. at 2214-15. The Court held the district court had jurisdiction over the petitions, but that it could not enjoin the Government from transferring the petitioners to Iraqi authorities. Id. at 2213. As we explain below, Munaf precludes a court from issuing a writ of habeas corpus to prevent a transfer on the grounds asserted by the petitioners here; therefore the detainees cannot prevail on the merits of their present claim and the Government is entitled to reversal of the orders as a matter of law.⁴

A. Fear of Torture

Like the detainees here, the petitioners in Munaf asked the district court...