Obaydullah v. Obama

• Decision Date: 18 June 2010
• Docket Number: No. 09-5328.,09-5328.
• Citation: 609 F.3d 444
• Parties: OBAYDULLAH, Detainee, Guantanamo Bay and Sami Al Hajj, as next friend of Obaydullah, Appellantsv.Barack OBAMA, President of the United States and Robert M. Gates, Secretary of Defense of the United States of America, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

609 F.3d 444

OBAYDULLAH, Detainee, Guantanamo Bay and Sami Al Hajj, as next friend of Obaydullah, Appellantsv.Barack OBAMA, President of the United States and Robert M. Gates, Secretary of Defense of the United States of America, Appellees.

No. 09-5328.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 23, 2010.

Decided June 18, 2010.

Appeal from the United States District Court for the District of Columbia (No. 1:08-cv-01173-RJL).

Ranjana Natarajan argued the cause for appellant Obaydullah. With her on the briefs were Kristine A. Huskey, Anne Richardson, Dan Stormer, and Pardiss Kebriaei.

Robert M. Loeb, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Sydney Foster, Attorney. August E. Flentje, Attorney, entered an appearance.

Before: GINSBURG and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

In July 2008 the Appellant, known only as Obaydullah, petitioned the district court for a writ of habeas corpus, challenging the lawfulness of his detention at the Naval Station at Guantanamo Bay, Cuba. In December the district court stayed Obaydullah's petition because military commission charges had been sworn against him. Although no military commission proceeding had yet begun-indeed, still has not begun-the district court twice denied Obaydullah's motions to vacate the stay of his habeas petition. Obaydullah appeals from the second of those denials. Because we agree with Obaydullah that this prolonged delay in adjudicating his petition is inconsistent with the Supreme Court's teaching in Boumediene v. Bush that a detainee at Guantanamo Bay is “entitled to a prompt habeas corpus hearing,” 553 U.S. 723, 128 S.Ct. 2229, 2275, 171 L.Ed.2d 41 (2008), we reverse the order of the district court and remand this matter for that court to proceed with Obaydullah's habeas corpus petition.

I. Background

The Military Commissions Act of 2009, Pub.L. No. 111-84, tit. XVIII, 123 Stat. 2190, 2574-614, specifies the “procedures governing the use of military commissions to try alien unprivileged enemy belligerents for violations of the laws of war and other offenses triable by military commission.” 10 U.S.C. § 948b(a). The MCA, along with the Rules for Military Commissions promulgated by the Secretary of Defense to “govern the procedures and punishments in all trials by military commissions under [that Act],” Rule 101(a), establish a two-step process for initiating a trial before a military commission. First, any person subject to the Uniform Code of Military Justice may swear a charge against a defendant. 10 U.S.C. § 948q; Rule 307. Second, the “convening authority”-either the Secretary of Defense or his designee-decides whether the charge should be dismissed or referred to a military commission for trial. 10 U.S.C. § 948h; Rules 401(b), 407, 601. There is no deadline for making this determination.^*

Obaydullah has been detained at Guantanamo Bay since October 2002. He petitioned the district court for a writ of habeas corpus in July 2008, shortly after the Supreme Court determined the writ is available to detainees held at Guantanamo see Boumediene, 128 S.Ct. at 2262. In September Obaydullah was charged with conspiracy to provide and providing material support for terrorism, both crimes triable before a military commission. The Government then filed a motion to dismiss without prejudice Obaydullah's habeas petition or, in the alternative, to hold the petition in abeyance pending completion of the military commission proceeding. Obaydullah opposed dismissal but consented to the court holding his petition in abeyance. The district court stayed the habeas petition in December 2008.

As of January 22, 2009 no convening authority had decided whether to refer the charges against Obaydullah to a military commission for trial. On that day the President issued Executive Order No. 13,492, in which he directed the Attorney General immediately to oversee a “review of the status of each individual currently detained at Guantanamo,” and to determine “whether ... to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution.” §§ 4(a), (b), (c)(3), 74 Fed.Reg. 4897 at 4898-99. The President also directed the Secretary of Defense “to ensure that during the pendency of the Review described in ... this order, no charges are ... referred to a military commission.” § 7, 74 Fed.Reg. at 4899.

Because referrals to military commissions were suspended pending the Attorney General's review, Obaydullah filed a motion to vacate the stay of his habeas petition, which motion the Government opposed. The district court denied the motion in April 2009 but required the Government by July to report on the status of Obaydullah's possible trial before a military commission. In that report the Government represented that some progress had been made in reviewing Obaydullah's detention pursuant to the Executive Order, but it did not say when the convening authority would decide whether to try Obaydullah before a military commission.

Shortly before the Government submitted the status report Obaydullah had filed a renewed motion to vacate the stay of his habeas petition and the Government had opposed the motion. After receiving the report the district court denied the motion without making any findings or giving any reason. It is this denial that Obaydullah now appeals.

In its brief on appeal the Government reports the review of Obaydullah's detention has been completed and the Attorney General “has determined that the petitioner's case is appropriate for prosecution and that a military commission is the appropriate venue for such prosecution.” With this review now completed, whether a military commission proceeding will be brought against Obaydullah again depends upon whether the convening authority refers the charges against him. The Government does not represent that such a referral has been made, by a time certain will be made, or is in any other way imminent.

II. Analysis

Obaydullah argues the district court, in continuing the stay, erred as a matter of law and hence abused its discretion see Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (“A district court by definition abuses its discretion when it makes an error of law”), because the stay in the circumstances of this case is inconsistent with the decision in Boumediene that a detainee at Guantanamo Bay is “entitled to a prompt habeas corpus hearing.” 128 S.Ct. at 2275. Before reaching the merits of Obaydullah's argument, we consider the Government's contention that this court does not have jurisdiction to review the order he is challenging.

A. Appellate Jurisdiction

Under 28 U.S.C. § 1291, this court has jurisdiction to review an order of the district court only if that order constitutes a “final decision.” The collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), provides an order is final if it “[1] conclusively determine[s] the disputed question, [2] resolve [s] an important issue completely separate from the merits of the action, and [3] [will] be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).

The Government contests only the first element, arguing the order in this case does not “conclusively determine the disputed question” because the district court is “monitoring the case” and at any time “may lift the stay” should it decide the military commission proceeding is “unlikely to begin in a timely fashion.” Even a collateral order that is technically subject to modification, however, “conclusively determine[s] the disputed question [if] there is no basis to suppose that the District Judge contemplated any reconsideration of his decision.” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12-13, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); see also Lockyer v. Mirant Corp., 398 F.3d 1098, 1103 (9th Cir.2005) (holding a stay, although “theoretically” subject to modification, was a reviewable collateral order because “the district court did not impose a time limit on the stay or note circumstances that might result in its modification”); In re Gen. Motors Corp., 594 F.2d 1106, 1118 (7th Cir.1979) (collateral order doctrine “does not require that the trial court be without power to reverse its ruling; it only requires that no further consideration be likely”).

The district court has twice summarily refused to lift the stay of Obaydullah's habeas petition. When the court did so the second time the Government had reported making some progress in its review of Obaydullah's detention but had not represented that there was a set time within which the convening authority would decide whether to refer the charges against Obaydullah to a military commission. Because the district court's maintenance of the stay in these circumstances provides us “no basis to suppose [it] contemplated any reconsideration of [its] decision,” we have jurisdiction under § 1291 to hear this appeal.

B. The Merits

The district court gave no reason for denying Obaydullah's motion to vacate the stay of his habeas petition, so we shall assume it did so for the reasons advanced at that time by the Government. See Indianapolis Life Ins. Co. v. Herman, 516 F.3d 5, 9 (1st Cir.2008). Finding these reasons inadequate, we are constrained to remand this matter to the district court.

The Government's main argument was that the district court should abstain from hearing Obaydullah's habeas petition pursuant to Schlesinger v. Councilman, in which the Supreme Court held a federal court should generally abstain from...