Case 1:05-cv CKK Document 295 Filed 11/19/12 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:05-cv CKK Document 295 Filed 11/19/12 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TARIQ MAHMOUD ALSAWAM, Petitioner, v. BARACK OBAMA, President of the United States, et al., Civil Action No (CKK) Respondents. MEMORANDUM OPINION AND ORDER (November 19, 2012) Before the Court is an Emergency Motion for Interim Relief filed by Petitioner Tariq Mahmoud Al Sawah (ISN 535), a detainee at the United States Naval Base at Guantanamo Bay, Cuba. See Pet r s Emergency Mot. for Interim Relief and Mem. of P. & A. in Supp. Thereof ( Pet r s Mem. ), ECF No. [291]. Petitioner s motion seeks an order from this Court directing Respondents to release Petitioner from detention on an interim basis pending a hearing before the Periodic Review Board or this Court s determination on the merits of his habeas petition. Respondents have filed an opposition, and Petitioner has filed a reply. See Resp ts Mem. in Opp n to Pet r s Emergency Mot. for Interim Relief ( Resp ts Opp n ), ECF No. [293]; Pet r s Reply to Resp ts Opp n to Pet r s Emergency Mot. for Interim Relief ( Pet r s Reply ), ECF No. [294]. Petitioner s motion is therefore fully briefed and ripe for a decision. Upon careful consideration of the parties submissions, the relevant authorities, and the record as a whole, the Court shall deny Petitioner s Emergency Motion for Interim Relief.

2 Case 1:05-cv CKK Document 295 Filed 11/19/12 Page 2 of 9 I. BACKGROUND On June 22, 2005, Petitioner, an Egyptian national detainee at the United States Naval Base at Guantanamo Bay, Cuba ( Guantanamo ), filed a petition for writ of habeas corpus with this Court. See Petition for Writ of Habeas Corpus, ECF No. [1]. The action was shortly thereafter stayed pending resolution of relevant issues by the United States Court of Appeals for the District of Columbia Circuit, see Order (Aug. 4, 2005), ECF No. [3], and has subsequently been delayed for various reasons, including Respondents contemplated prosecution of Petitioner before a military commission, Petitioner s own requests for multiple extensions of time to file his traverse, and most recently, the lodging by both parties of several extensive discovery motions. On November 18, 2008, Respondents filed their Statement of Legal Justification for Detention, asserting Petitioner s status as an enemy combatant and the President s authority to lawfully detain enemy combatants pursuant to the laws of war and the Authorization for Use of Military Force ( AUMF ), 115 Stat. 224 (2001). See ECF No. [76]. To date, Respondents continue to ground Petitioner s detention in his enemy combatant status and the AUMF, as informed by the principles of the laws of war. See Resp ts Opp n at 2. Petitioner s habeas petition is presently in the final stages of discovery; Petitioner also anticipates the scheduling of proceedings before the Periodic Review Board (PRB), which was created pursuant to Executive Order to provide a process for reviewing the justifications for continued law of war detention of Guantanamo detainees. See Exec. Order No , 76 Fed. Reg (Mar. 7, 2011). As of the date of this Order, no PRB hearing has been scheduled for Petitioner. Pet r s Mem at 3; Resp ts Opp n at 7 n.4. Petitioner s instant motion seeks an order directing Respondents to release him from detention on an interim basis, pending a hearing before the PRB or the resolution of his habeas 2

3 Case 1:05-cv CKK Document 295 Filed 11/19/12 Page 3 of 9 petition. While Petitioner s motion specifically requests the Court to direct Respondents to return him to his native country of Egypt, see Pet r s Emergency Mot. for Interim Relief, Petitioner subsequently clarifies in his reply brief that he does not ask that the Court order his release to a specific country, but asks only that the Court direct the government to release him. Pet r s Reply at In support of his motion, Petitioner attaches letters from several current and former United States military officials which Petitioner describes as certif[ying] [that] it is highly unlikely that Petitioner would establish ties with al-qa ida, the Taliban, or other associated forces if released. Pet r s Mem. at 3 (emphasis in original). Petitioner also relies upon certain classified information set forth in a supplemental filing to sustain his contention that he could not join enemy forces and thus his continued law of war detention is unnecessary. Pet r s Mem. at 4. See Notice of Filing, ECF No. [292]. In brief, the mainstay of Petitioner s request for interim relief is that due to the overwhelming evidence that he is not a security threat and that his continued law of war detention is therefore unnecessary, Petitioner is substantially likely to succeed before both the PRB and on the merits of his habeas petition before this Court. See generally Pet r s Mem.; Pet r s Reply. Thus, Petitioner argues, absent injunctive relief ordering his immediate release pending these proceedings, he will continue to suffer the irreparable harm of continued unjustified detention. See generally id. The emergency giving rise to this motion, in Petitioner s view, is the undisputed fact of his continual imprisonment for no legitimate purpose. Pet r s Reply at 1, n.1 ( Unlawfully and unreasonably deprived of his liberty, every day that passes is any emergency for Mr. El Sawah ). 1 In light of this clarification, Respondents arguments regarding the Court s lack of authority to issue an order directing Respondents to release Petitioner to a specific foreign country, on an interim basis or otherwise, are moot and therefore shall not be addressed in this Memorandum Opinion and Order. See Resp ts Opp n at 4. 3

4 Case 1:05-cv CKK Document 295 Filed 11/19/12 Page 4 of 9 II. DISCUSSION When presented with a motion for a preliminary injunction, courts in this Circuit traditionally apply a four-prong test, requiring the moving party to show (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunctive relief were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). As courts have consistently held, because a preliminary injunction is an extraordinary and drastic remedy, it is axiomatic that the one seeking to invoke such stringent relief is obliged to establish a clear and compelling legal right thereto[.] In re Navy Chaplaincy, 841 F. Supp. 2d 336, 345 (D.D.C. 2012), rev d in part on other grounds, --- F.3d ---, 2012 WL (D.C. Cir. Nov. 2, 2012). Further, and of particular importance in the context of this unique Guantanamo habeas litigation, [f]ederal district courts, as courts of limited jurisdiction, possess only such authority as is conferred to them by the Constitution and acts of Congress, and this authority cannot be expanded by judicial decree. Almurbati v. Bush, 366 F. Supp. 2d 72, 74 (D.D.C. 2005) (citations and quotations omitted). Accordingly, before entering into the traditional four-factor analysis, the Court shall first confront the threshold question as to whether it possesses the remedial authority to issue the extraordinary and unprecedented relief Petitioner requests. For the reasons set forth below, the Court concludes that it does not, and Petitioner s motion must therefore be denied. As the Supreme Court firmly established in Boumediene v. Bush, 553 U.S. 723 (2008), Petitioner has a constitutional right to challenge the legality of his military detention before a federal court, a right of which Petitioner has availed himself in pursuit of his habeas petition. The Boumediene Court took care, however, to circumscribe its holding to a guarantee of only the 4

5 Case 1:05-cv CKK Document 295 Filed 11/19/12 Page 5 of 9 fundamental procedural protections of habeas corpus. Id. at 798. Petitioner s most recent request a request for immediate release pending the conclusion of those fundamental habeas procedures constitutes relief contemplated by neither the case law nor the express parameters of the Case Management Order governing this litigation. See Case Management Order (Nov. 6, 2008), ECF No. [68], as amended by Order (Dec. 16, 2008), ECF No. [86]; Order (Dec. 22, 2008) [89] (collectively Case Management Order ). Further, as Respondents properly recount, see Resp ts Opp n at 3, Petitioner s request that the Court order his release without considering whether his pre-detention conduct warrants his lawful detention is inconsistent with the Court s prior determination that the merits of this case shall be resolved in the manner specified in the Case Management Order. See Order (July 10, 2009), ECF No. [203] (denying Petitioner s request to brief the legality of his detention, as well as Respondents request to brief the admissibility of Petitioner s post-detention conduct, prior to the filing by Petitioner of a traverse responding to the allegations in the factual return and ordering the parties to proceed with resolution of this case as provided in Section III of the [Case Management Order] ). What is more, the entry of a court order mandating Respondents to immediately release Petitioner pending a determination on his habeas claim would be entirely unprecedented in the context of Guantanamo habeas litigation. Petitioner points to not a single case ordering interim release of a Guantanamo detainee prior to the Court s consideration of the merits of detainee s habeas petition, and the Court has located no authority even remotely contemplating the prospect of such relief. 2 2 This is not to say that courts do not retain the inherent authority to grant interim release in the traditional context involving a collateral habeas challenge to a criminal conviction; clearly they do. See Baker v. Sard, 420 F.2d 1342 (D.C. Cir. 1969) (A federal court s jurisdiction to order release as a final disposition of a habeas action includes an inherent power to grant relief pendent lite, to grant bail or release, pending determination of the merits). However, as Respondents 5

6 Case 1:05-cv CKK Document 295 Filed 11/19/12 Page 6 of 9 While Petitioner cites the D.C. Circuit s decision in Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009), for the proposition that, as a general matter, the D.C. Circuit has recognized a district court s authority to grant preliminary injunctive relief to Guantanamo detainee habeas petitioners. See Pet r s Mem. at 6; Pet r s Reply at 2, Kiyemba is of only marginal relevance here. The petitioners in Kiyemba moved for an interim order requiring the United States to provide thirty days notice to the Court and to counsel in the event the Government planned to transfer them from Guantanamo, asserting fears that they would be transferred to a country where they might be tortured or further detained. 561 F.3d at 511. While the Court of Appeals did in fact acknowledge the applicability of the traditional four-factor preliminary injunction analysis to the petitioners request for relief, it in the end found that the petitioners were not entitled to such relief, as they could not succeed on the merits of an underlying habeas claim to enjoin their transfer from Guantanamo, because, inter alia, courts are not suited to second guess the Government s determinations as to the suitability of any given recipient country. Id. at Here, Petitioner would be hard pressed to argue that the Kiyemba Court s treatment of a request for interim relief in the form of prior notice of a transfer from Guantanamo provides footing for his entitlement to an order out-and-out releasing him pending resolution of his habeas case. note, even in those cases, interim release can be granted only if the moving party meets a heightened standard and demonstrates that such relief is appropriate because of exceptional circumstances. See Resp ts Opp n at 4, n.1 (citing Baker, 420 F.2d at 1343). Here, Petitioner has not offered and the Court cannot conceive of any circumstances warranting interim release of a non-citizen enemy combatant detained in connection with an ongoing armed conflict. Cf. Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004). Further, this Circuit has explicitly cast off the notion that Guantanamo detainees are entitled to the exact panoply of habeas procedures afforded to petitioners in other contexts. See Al-Bihani, 590 F.3d 866, 876 (D.C. Cir. 2010) ( The Suspension Clause protects only the fundamental character of habeas proceedings, and any argument equating that fundamental character with all the accoutrements of habeas for domestic criminal defendants is highly suspect. ). 6

7 Case 1:05-cv CKK Document 295 Filed 11/19/12 Page 7 of 9 To the contrary, the Supreme Court has endorsed the principle that, in times of war or insurrection, the United States may detain enemy aliens believ[ed] to be dangerous, without the prospect of interim release. See United States v. Salerno, 481 U.S. 739, 748 (1987) (citing Ludecke v. Watkins, 335 U.S. 160 (1948)). See also Hamdan v. United States, 696 F.3d 1238, 2012 WL , *1 (D.C. Cir. Oct. 16, 2012) ( In war, when the United States captures or takes custody of alien enemy combatants or their substantial supporters, it may detain them for the duration of hostilities. ). Petitioner argues that, by failing to address the overwhelming evidence submitted with his motion, Respondents implicitly concede that Petitioner would pose no security threat if he were released and that therefore his continued detention runs counter to the very purpose of detention, which is to prevent captured individuals from returning to the field of battle and taking up arms once again. Pet r s Reply at 2, 4 n.3, 6, 9-11 (citing Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004)). The Court finds Petitioner s vague reliance on the purpose of detention wholly unavailing. As Respondents accurately contend, Petitioner s arguments run counter to binding precedent precluding this Court from considering a detainee s present threat level in determining whether his detention is lawful. See Resp ts Opp n at 6 (citing Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010) ( Whether a detainee would pose a threat to U.S. interests if released is not at issue in habeas corpus proceedings in federal courts concerning aliens detained under the authority conferred by the AUMF ), cert. denied, 131 S. Ct (2011)). While Petitioner attempts to distinguish Awad on the basis that here, the Government has acknowledged that he does not pose a security threat, see Pet r s Reply at 7-12, the Court has no occasion to address the merits of such argument today It is simply not the case that Respondents have conceded that Petitioner is no longer a threat, as they explicitly cite to Petitioner s enemy combatant status 7

8 Case 1:05-cv CKK Document 295 Filed 11/19/12 Page 8 of 9 and the AUMF as grounds for Petitioner s detention. See Resp ts Opp n at 2. Petitioner s request for interim relief squarely challenges the validity of these grounds and is, in essence, an attempt to expedite the Court s determination on the merits of Petitioner s habeas challenge or to hasten his PRB hearing a misdirection that the Court declines to follow. In the end, while Petitioner most certainly has the right to challenge the fact of his confinement by way of the writ of habeas corpus, Petitioner cites no authority supporting the proposition that he, a non-citizen Guantanamo detainee is eligible for interim release pending the Court s decision on the merits of his habeas case. Nor is the Court the least bit convinced that Petitioner s continued detention, for which Respondents presently articulate the same justification as presented in their Statement of Legal Justification for Detention, filed with this Court in 2008, see supra Part I, constitutes an emergency so exceptional as to warrant a brazen enlargement of the carefully circumscribed right acknowledged by Boumediene and its progeny. Petitioner similarly has provided the Court with no reason warranting departure from the purposeful and detailed procedures set forth in the Case Management Order, which requires the filing of dispositive motions for judgment on the record and an evidentiary hearing to resolve substantial issues of material fact. III. CONCLUSION AND ORDER Because the Court finds that it does not have the authority to grant the interim relief requested by Petitioner, it need not enter into an analysis of the criteria traditionally considered on motions for a preliminary injunction. Further, the Court shall take the opportunity to note that it neither credits nor discounts the exhibits and information submitted by Petitioner in support of his motion, but rather declines to weigh in prematurely on the merits and equities of Petitioner s 8

9 Case 1:05-cv CKK Document 295 Filed 11/19/12 Page 9 of 9 underlying challenge to his confinement without having the benefit of the extensive briefing and evidentiary hearing called for by the Case Management Order. hereby DENIED. Accordingly, for the reasons set forth above, it is, this 19th day of November, 2012, ORDERED that Petitioner s [291] Emergency Motion for Interim Relief shall be SO ORDERED. /s/ COLLEEN KOLLAR-KOTELLY United States District Judge 9