United States Court of Appeals
F O R T H E D ISTR IC T OF C O LUM BIA C IR C U IT
____________
No. 05-5224 September Term 2010
04cv01254
Filed On: January 11, 2011
Mahmoad Abdah, Detainee, Camp Delta, et
al.,
Appellees
v.
Barack Obama, President of the United
States, et al.,
Appellants
------------------------------
Consolidated with 05-5225, 05-5227, 05-5229,
05-5230, 05-5232, 05-5235, 05-5236,
05-5237, 05-5238, 05-5239, 05-5242,
05-5243, 05-5244, 05-5246, 05-5248,
05-5337, 05-5338, 05-5374, 05-5390,
05-5398, 05-5479, 05-5484, 05-5486,
06-5037, 06-5041, 06-5043, 06-5062,
06-5065, 06-5094
BEFORE: Sentelle, Chief Judge, and Ginsburg, Henderson, Rogers, Tatel,
Garland, Brown, Griffith, and Kavanaugh, Circuit Judges
ORDER
Appellees’ petition for initial en banc hearing and the response thereto were
circulated to the full court, and a vote was requested. Thereafter, a majority of the judges
eligible to participate did not vote in favor of the petition. Upon consideration of the
foregoing, it is
ORDERED that the petition be denied.
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk
* Circuit Judges Rogers, Tatel, and Griffith would grant the petition.
* A statement by Circuit Judge Griffith, with whom Circuit Judges Rogers and Tatel join,
dissenting from the denial of initial en banc hearing, is attached.
GRIFFITH , Circuit Judge, with whom Circuit Judges
ROGERS and TATEL join, dissenting: I dissent from the
denial of en banc hearing because I believe the
Suspension Clause, as construed by the Supreme Court
in Boumediene v. Bush, 553 U.S. 723 (2008), entitles
detainees at Guantanamo Bay to notice of transfers that
will take them beyond the reach of the writ of habeas
corpus. The petitioners ask us to reexamine our ruling to
the contrary in Kiyemba v. Obama (Kiyemba II), 561
F.3d 509 (D.C. Cir. 2009). We should oblige.
As I expressed in my dissent in Kiyemba II, faithful
application of Boumediene compels us to provide
Guantanamo detainees the fundamental procedural
protections that characterized the Great Writ in 1789. Id.
at 522-23 (Griffith, J., dissenting); see also INS v. St.
Cyr, 533 U.S. 289, 301 (2001) (“[A]t an absolute
minimum, the Suspension Clause protects the writ ‘as it
existed in 1789’ . . . .” (quoting Felker v. Turpin, 518 U.S.
651, 663-64 (1996))). Among those procedural
safeguards was the long-established right of a prisoner
to question his jailer’s authority to transfer him to a place
where it would be difficult or impossible to execute the
writ. Boumediene, 553 U.S. at 845-46 (Scalia, J.,
dissenting); Kiyemba II, 561 F.3d at 523 (Griffith, J.,
dissenting). Kiyemba II eviscerated that right by denying
the detainees notice of transfers beyond the reach of the
writ.
The court’s reasoning was fundamentally flawed in
at least two respects. First, the court failed to account
for the right of a prisoner to challenge his transfer.
Second, the court denied detainees the notice
necessary to exercise this right based on the judgment
that any transfer away from Guantanamo was likely to
be lawful. In reaching that conclusion, the court misread
then misapplied the Supreme Court’s decision in Munaf
v. Geren, 553 U.S. 674 (2008).
If Kiyemba II is allowed to stand, the government
will be able to transfer detainees away from
Guantanamo without affording them “a meaningful
opportunity” to argue that the transfers would be
2
unlawful. Boumediene, 553 U.S. at 779. Such a practice
would violate the habeas protections Boumediene
conferred.
I
Since at least the seventeenth century, the writ of
habeas corpus has guaranteed prisoners the very right
the Kiyemba II court failed to protect: the right to
challenge transfers beyond the reach of the writ. This
element of habeas corpus developed as a means of
preventing the King’s officers from sending prisoners
away to evade habeas jurisdiction. Justice Scalia
described this component of the writ in his dissent in
Boumediene: “The possibility of evading judicial review
through such spiriting-away was eliminated, not by
expanding the writ abroad, but by forbidding . . . the
shipment of prisoners to places where the writ did not
run or where its execution would be difficult.” 553 U.S. at
845-46 (Scalia, J., dissenting).
In 1679, Parliament codified the habeas rights that
had been developed at common law in what has come
to be known as the Habeas Corpus Act of 1679, a
legislative achievement that Blackstone described as the
“stable bulwark of our liberties.” 1 W ILLIAM BLACKSTONE,
COMMENTARIES *137. The full title of the Act
acknowledged that protection from transfer beyond the
writ’s reach was an integral component of habeas
corpus: “An Act for the better securing of the Liberty of
the Subject and for the Prevention of Imprisonment
beyond the Seas.” 31 Car. 2, c. 2 (Eng.). With three
limited exceptions,1 prisoners entitled to invoke the writ
1
The Act allowed transfers to places beyond the reach of
the writ only if a prisoner had contracted to work abroad as
an indentured servant, id. § 13, a court permitted a felon
to choose transportation to a penal colony in lieu of
execution, id. § 14, or the Crown transferred a prisoner to
another of the King’s dominions to be tried for a crime he
was alleged to have committed there, id. § 16.
3
could not be transferred “beyond the seas” or to any
other place where it would be difficult to execute the writ.
Id. § 12 (“[N]o subject . . . may be sent prisoner into
Scotland, Ireland, Jersey, Guernsey, Tangier, or into any
parts, garrisons, islands, or places beyond the seas
which are or at any time hereafter shall be within or
without the dominions of his Majesty . . . and . . . every
such imprisonment is hereby . . . illegal . . . .”). A jailer
who violated this ban on unlawful transfers could be
imprisoned, fined upwards of five hundred pounds
payable to the prisoner, and “disabled from thenceforth
[bearing] any office of trust or profit” in England or any of
the King’s other dominions. Id. The 1679 Act allowed
prisoner transfers within England, but only in specifically
enumerated circumstances.2 A jailer who transferred a
prisoner under other circumstances was subject to
punishment. Id. § 9.3
2
The relevant portion of the Act provided: “[I]f any person
. . . shall be committed to any prison or in custody of any
officer . . . whatsoever for any criminal . . . matter . . . the
said person shall not be removed from the said prison and
custody into the custody of any other officer . . . unless it
be by habeas corpus or some other legal writ or where the
prisoner is delivered to the constable . . . to carry such
prisoner to some common jail or where any person is sent
by order of any Judge of Assize or Justice of the Peace to
any common . . . house of correction or where the prisoner
is removed from one prison . . . to another within the same
county in order to his or her trial or discharge in due
course of law or in case of sudden fire or infection or other
necessity . . . .” Id. § 9.
3
A jailer who repeatedly defied the Act and transferred
prisoners outside these enumerated scenarios was subject
to a two hundred pound fine and “made incapable to hold
or execute his . . . office” any further. Id. § 5.
4
Concern over unlawful transfers had been voiced in
Parliament some years before the Act. For example, in
1667 Lord Chancellor Edward Hyde was impeached in
part because he had “advised and procured divers of his
Majesty’s subjects to be imprisoned against law, in
remote islands, garrisons, and other places, thereby to
prevent them from the benefit of the law.” 6 COBBETT ’S
COMPLETE COLLECTION OF STATE TRIALS 330 (Thomas B.
Howell ed., London, R. Bagshaw 1816); see also
ROBERT SEARLES W ALKER , THE CONSTITUTIONAL AND
LEGAL DEVELOPMENT OF HABEAS CORPUS AS THE W RIT OF
LIBERTY 82 & n.151 (photo. reprint 2006) (1960)
(describing the “practice of removing prisoners
altogether out of the jurisdiction of the royal courts” as
“absolutely fatal” to habeas corpus and “one of the
principal charges” against Hyde). In 1669, Sir Anthony
Cope took to the floor of the House of Commons to
declare that he “[w]ould have no man out of the reach of
Westminster-hall,” the location from which the King’s
courts issued writs of habeas corpus. 1 ANCHITELL GREY,
DEBATES OF THE HOUSE OF COMMONS 237 (London
1769). In turn, Sir Thomas Lee worried that “[h]e that is
sent to Jersey or Guernsey,” islands in the English
Channel, “may be sent to Tangier,” a more distant
dominion, “and so never know what his crimes are, and
no Habeas Corpus can reach him.” Id.; see also Helen
A. Nutting, The Most Wholesome Law—The Habeas
Corpus Act of 1679, 65 AM . HIST . REV. 527, 534 (1960)
(observing that proponents of what became the Habeas
Corpus Act of 1679 “charged that men were being sent
to the plantations and to Tangier so that writs from
Westminster could not reach them”).
By 1679, experience had taught that some limit on
transfers was needed to prevent the King’s officers from
“avoiding the writ by moving the prisoners.” W ALKER ,
supra, at 84. In the notorious case of Robert Overton,
the prominent parliamentarian was arrested for his part
in a plot against the restored monarchy of Charles II
and, in 1664, sent to the island of Jersey, see 42
OXFORD DICTIONARY OF NATIONAL BIOGRAPHY 174
5
(H.C.G. Matthews & Brian Harrison eds., 2004), a place
where the authority of the writ was still very much in
doubt, see PAUL D. HALLIDAY, HABEAS CORPUS: FROM
ENGLAND TO EMPIRE 227-28 (2010) (describing a Jersey
prisoner’s unsuccessful attempt to invoke the writ in the
1650s). King’s Bench, the common law court that issued
the writ most often, sent multiple writs to Overton’s
Jersey jailers, but for seven years they refused to give
any return. Id. at 267-68, 437 n.33. The 1679 Act was
designed to protect prisoners like Overton by expressly
prohibiting the King’s officers from sending prisoners to
Jersey or any other place where it was difficult to
execute the writ. See 31 Car. 2, c. 2, § 12.
English cases from this time and over the next
century demonstrate that courts readily exercised their
power to review the lawfulness of transfers beyond the
reach of the writ. In 1677, the Crown twice imprisoned
Robert Murray for defamation and other crimes, and
both times the King’s Bench ordered his release to
prevent his deportation to Scotland, where the writ did
not run. HALLIDAY, supra, at 236 (discussing Murray’s
Case). During the second half of the eighteenth century,
habeas courts regularly ordered the release of
wrongfully impressed seamen rather than permitting the
King’s navy to take them abroad. Paul D. Halliday & G.
Edward White, The Suspension Clause: English Text,
Imperial Contexts, and American Implications, 94 VA. L.
REV. 575, 605 & n.72 (2008). And in a celebrated case
that foreshadowed the abolition of slavery in England,
Lord Mansfield issued the writ to stop the transportation
of an African bound to slavery in Jamaica, where the writ
could not help him. Somerset v. Stewart, (1772) 98 Eng.
Rep. 499 (K.B.); 20 How. St. Tr. 1, 79-82; see also King
v. Inhabitants of Thames Ditton, (1785) 99 Eng. Rep.
891 (K.B.) 892; 4 Dougl. 300, 301 (Mansfield, J.)
(observing in a habeas suit that even if slavery were
legal in England, a slave owner could not “by force
compel [a slave] to go out of the kingdom”); HALLIDAY,
supra, at 274 (noting that while white Jamaicans could
invoke the writ by this time, “habeas corpus would never
6
be available to their slaves”); Daniel J. Hulsebosch,
Nothing But Liberty: Somerset’s Case and the British
Empire, 24 LAW & HIST . REV. 647, 657 (2006) (observing
that the rule of Somerset did not apply to slaves in
Jamaica).
The power of a court in habeas to pass on the
lawfulness of transfers was part of the reception of
English common law in the American colonies. See A.H.
Carpenter, Habeas Corpus in the Colonies, 8 AM . HIST .
REV. 18, 26 (1902) (explaining how, even in the absence
of statutory habeas, the common law extended the writ
to the American colonies). Around the time of the
Founding, many of the original thirteen states enacted
habeas laws that either expressly adopted the 1679 Act
or otherwise followed its prohibitions. See, e.g., GA.
CONST . art. LX (1777) (“The principles of the habeas-
corpus act shall be a part of this constitution.”); Act of
Mar. 16, 1785, 1 MASS. GEN . LAW S ch. 72, § 10 (1823)
(prohibiting “any person [from] transport[ing] . . . any
subject of this Commonwealth . . . to any part or place
without the limits of the same . . . except [if] such person
be sent by due course of law, to answer for some
criminal offense committed in some other of the United
States of America”); Act of Mar. 11, 1795, § 11, DIGEST
OF THE LAW S OF NEW JERSEY 378 (4th ed., Newark,
Martin R. Dennis & Co. 1868) (providing that “no citizen
of this state . . . may be sent prisoner to any place
whatsoever out of this state” except where he is sent to
another state to be tried for a crime he allegedly
committed there); Act of Feb. 18, 1785, § 12, DIGEST OF
THE LAW S OF PENNSYLVANIA 573 (7th ed., Philadelphia,
Davis 1847) (imposing two hundred pound fine on
anyone who transfers a prisoner without legal authority
to do so); Act of 1779, 11 VA. STAT . 410 (Richmond,
Cochran 1823) (prohibiting transfers of prisoners out of
the state except “where the prisoner shall be charged by
affidavit with treason or felony, alleged to be done in any
of the other United States of America, in which . . . case
he shall be sent thither in custody” by order of a Virginia
court); see also Act of Dec. 12, 1712, 2 S.C. STAT . 399-
7
401 (Columbia, Johnston 1837) (adopting the Habeas
Corpus Act of 1679). As evidenced by these laws, by the
time Congress conferred habeas jurisdiction on the
newly created lower federal courts in the Judiciary Act of
1789, § 14, 1 Stat. 73, 81, the right to challenge an
unlawful transfer was an established and indispensable
feature of the American law of habeas corpus.
American courts have always heard challenges to
transfers that could deprive the prisoner of the benefits
of habeas corpus. For example, in the nineteenth
century, habeas courts in free states sometimes issued
the writ to block a slave’s forcible removal to a slave
state. See, e.g., Commonwealth v. Aves, 35 Mass. (18
Pick.) 193 (1836) (Shaw, C.J.); Lemmon v. People, 20
N.Y. 562 (1860); see also Dallin H. Oaks, Habeas
Corpus in the States—1776-1865, 32 U. CHI. L. REV.
243, 279 & n.194 (1965) (citing additional cases). The
exercise of this authority was sufficiently well known that
in 1855 a ship captain docking in Cincinnati moved his
human cargo across the river to the commonwealth of
Kentucky to avoid an Ohio judge’s issuance of the writ.
An Attempt to Detain Sixteen Slaves on a Writ of
Habeas Corpus, N.Y. TIMES, Mar. 23, 1855, at 5. As
Chief Justice Shaw explained in Aves, unless some law
authorized a slave’s removal from the state, transfer was
illegal and could be enjoined by a habeas court. 35
Mass. (18 Pick.) at 217 (holding that a habeas court
could intervene to stop the transfer of slaves where
“there [was] no law which [would] warrant . . . their
forcible detention or forcible removal”); see also State v.
Hoppess, 1 Ohio Dec. Reprint 105, 1845 WL 2675, at
*11 (Ohio 1845) (observing that a habeas court may
intervene to prevent a transfer where “there is no law
authorizing the master to force [the slave] back to the
state which recognizes and enforces the relation of
master and slave”). The authority to enjoin unlawful
transfers remains a feature of habeas jurisdiction in the
modern era. See Ex parte Endo, 323 U.S. 283, 307
(1944) (observing that a habeas court may act to ensure
that a prisoner’s habeas rights are not “impaired or
8
defeated by the removal of the prisoner from the
territorial jurisdiction of the District Court”).
The right to challenge transfers was inherent in
Boumediene’s extension of the protections of habeas
corpus to the Guantanamo detainees. Of course, this
right is meaningless if the detainee is not told where the
government plans to send him. Nevertheless, the court
in Kiyemba II gave the Executive permission to spirit
away a detainee without warning, thereby denying him
the protections of an essential component of the Great
Writ and making the right to habeas corpus “subject to
manipulation by those whose power it is designed to
restrain.” Boumediene, 553 U.S. at 766.
II
The Kiyemba II court based its decision on Munaf v.
Geren, 553 U.S. 674, which held that a habeas court
should not block the transfer to Iraqi authorities of two
American citizens held in U.S. custody in Iraq on behalf
of Iraq. See Kiyemba II, 561 F.3d at 516. But the
Kiyemba II court overlooked a crucial distinction
between Munaf and Kiyemba II. Munaf was about the
lawfulness of a transfer, not about the procedures by
which a transfer could be challenged. Whether the
Munaf prisoners were entitled to notice was never at
issue, because the prisoners already had notice of their
proposed transfers and a meaningful opportunity to
challenge them in an Article III court. By denying these
fundamental procedural rights, Kiyemba II went well
beyond the holding of Munaf.
The Munaf petitioners were American citizens who
allegedly committed crimes in Iraq. Although the
government of Iraq held “ultimate responsibility for [their]
arrest and imprisonment,” the petitioners were in the
custody of the U.S. military because “many of Iraq’s
prison facilities ha[d] been destroyed.” 553 U.S. at 680.
They sought an injunction to keep them in U.S. custody
on the grounds that a transfer to Iraqi custody would not
only subject them to unfair prosecution, but would also
9
put them at risk of torture. Id. at 694. A unanimous
Supreme Court rejected the petitioners’ challenge on the
merits. The Court reasoned that blocking the transfers
would be an affront to Iraqi sovereignty. Id. After all, the
petitioners had been accused of committing crimes in
Iraq and were being held in that country on behalf of the
Iraqi government. Furthermore, the petitioners’ claims
called on the judiciary to “second-guess” a determination
by the political branches that torture at the hands of Iraq
was unlikely. Id. at 702. Finally, the form of relief
sought—continued detention to shelter the petitioners
from foreign prosecution—was not traditionally available
in habeas. Id. at 693.
In Kiyemba II, the detainees sought the notice that
would give them a meaningful opportunity to object to a
transfer that might be unlawful. In response, the
government cautioned that judicial involvement in the
transfer of the detainees away from Guantanamo would
undermine sensitive negotiations with foreign states and
adversely affect American foreign policy. In any event,
the government asserted, it would not undertake any
unlawful transfer from Guantanamo. Deferring to the
Executive’s judgment, the court concluded that the
detainees had no right to know of their transfers in
advance because they were unlikely to prevail on a
claim that their transfers would be unlawful. See 561
F.3d at 514; see also id. at 516-17 (Kavanaugh, J.,
concurring).
Although Munaf and a host of other authorities urge
deference to the Executive’s considered judgment about
sensitive foreign-policy matters, no case, and especially
not Munaf, directs us to short-circuit the procedures
habeas requires. In its Guantanamo cases, the Supreme
Court has made clear that deference to the Executive on
the merits of habeas petitions does not divest the
judiciary of its duty to hear them. See Boumediene, 553
U.S. at 797; see also Rasul v. Bush, 542 U.S. 466, 487
(2004) (Kennedy, J., concurring). And while there is no
question that our approach to the War on Terror “must
pay keen attention to the particular burdens faced by the
10
Executive in the context of military action, it would turn
our system of checks and balances on its head” to
suggest that a prisoner with habeas rights “could not
make his way to court with a challenge . . . simply
because the Executive opposes making available such a
challenge.” Hamdi v. Rumsfeld, 542 U.S. 507, 536-37
(2004) (plurality opinion); cf. Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,
concurring) (stating that “[a] seizure executed by the
President pursuant to an Act of Congress would be
supported by the strongest of presumptions and the
widest of latitude of judicial interpretation” but would still
be subject to judicial inquiry); Afshar v. Dep’t of State,
702 F.2d 1125 (D.C. Cir. 1983) (holding that where a
FOIA plaintiff seeks sensitive foreign-affairs information,
the court should give “substantial weight” to a
government affidavit that the information is exempt from
FOIA but nevertheless consider contrary evidence
presented by the plaintiff).
In Munaf, the fact that “the political branches are
well suited to consider” sensitive foreign-policy matters
was a reason to give substantial weight to their views on
the merits, 553 U.S. at 702, but it was not a reason to
bar the courthouse door. The petitioners in Munaf lost
their challenge to the lawfulness of their transfers, but
only after having notice of the place the government
wanted to send them and an opportunity to object. The
petitioners in Kiyemba II sought the same notice and
opportunity to object, and the court should have granted
them.
In relying on Munaf’s treatment of the merits of a
transfer claim, the Kiyemba II court was fundamentally
confused. Notice is a necessary element of the right to
challenge a transfer, and this right does not depend on
whether the challenge is likely to succeed. By holding
otherwise, the Kiyemba II court put the detainee in an
impossible position: To receive notice of a transfer, he
must first show that it is likely unlawful. But he cannot
make that showing without knowing any details of his
transfer except that he might be sent some day to some
11
place for some reason. This Catch-22 eliminates any
“meaningful opportunity” to challenge a transfer.
Boumediene, 553 U.S. at 779. In the more familiar
context of the Due Process Clause, a defendant who is
unlikely to prevail is still entitled to know he has been
sued. See Wuchter v. Pizzutti, 276 U.S. 13, 19 (1928)
(requiring that defendant receive notice of lawsuit
without regard to merits of suit). Similarly, Guantanamo
detainees are entitled to notice of a transfer regardless
of how likely they are to persuade a court the transfer
would be unlawful.
It is no response to say that the right to challenge
transfers away from Guantanamo is a mere formality.
Indeed, the court in Kiyemba II allowed for the possibility
that some transfers could be unlawful. See Kiyemba II,
561 F.3d at 514 n.5, 516 n.7; id. at 521 n.7 (Kavanaugh,
J., concurring); see also Al Maqaleh v. Gates, 605 F.3d
84, 98 (D.C. Cir. 2010) (“We do not ignore the
arguments of the detainees that the United States chose
the place of detention and might be able to evade
judicial review of Executive detention decisions by
transferring detainees into active conflict zones, thereby
granting the Executive the power to switch the
Constitution on or off at will.” (internal quotation marks
omitted)). A challenge to a transfer might succeed if, for
example, we had “reason to think the transfer process
may be a ruse . . . designed to maintain control over the
detainees beyond the reach of the writ.” Kiyemba II, 561
F.3d at 516 n.7.
In the end, I do not disagree that the detainees face
a high bar in demonstrating that their transfers would be
illegal. But that is beside the point. The question we face
today is whether Guantanamo detainees are entitled to
notice of a transfer beyond the reach of the writ. If it
seems odd that detainees in the War on Terror should
enjoy such a right, they do so only because Boumediene
extended habeas corpus to Guantanamo. We are bound
to accept the consequences of that decision. For that
reason, I respectfully dissent from the denial of en banc
hearing.