Kiyemba v. Obama

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2008 Decided April 7, 2009

No. 05-5487

JAMAL KIYEMBA, NEXT FRIEND, ET AL.,
APPELLEES

v.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLANTS

Consolidated with
05-5489

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.
 2
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, 128 S.
Ct. 2207 (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
 3
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, No. 05-5487 (Mar. 22, 2007). In
Boumediene v. Bush, however, the Supreme Court held §
2241(e)(1) “effects an unconstitutional suspension of the
writ” of habeas corpus. 128 S. Ct. 2229, 2274 (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).*

*
After oral argument in the court of appeals, the Government
acknowledged in the district court that it no longer views any of the
present petitioners as enemy combatants, whereupon the district
court ordered them released into the United States. See In re
Guantanamo Bay Detainee Litig., 581 F. Supp. 2d 33 (D.D.C.
2008). The Government appealed that order, which this court
reversed on the ground that the political branches have “the
exclusive power ... to decide which aliens may, and which aliens
may not, enter the United States, and on what terms.” Kiyemba v.
Obama, 555 F.3d 1022, 1025 (2009).
 4
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 (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 (internal quotation marks omitted).
 5
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.* 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.**

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’

*
The Court actually referred to § 7 without specifying a particular
subsection of § 2241(e) but its discussion of the Suspension Clause
clearly indicates it was referring only to that part of § 7 codified at
§ 2241(e)(1).
**
Thus, the Court necessarily restored the status quo ante, in which
detainees at Guantanamo had the right to petition for habeas under
§ 2241. See Rasul v. Bush, 542 U.S. 466 (2004); see also
Boumediene, 128 S. Ct. at 2266 (identifying § 2241 as “the habeas
statute that would govern in MCA § 7's absence”). There is,
therefore, no need to decide today whether the present petitions
come within “the contours and content of constitutional habeas,”
Dis. Op. at 2. See INS v. St. Cyr, 533 U.S. 289, 301 n.13 (2001)
(noting that “what the Suspension Clause protects” is a “difficult
question”).
 6
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
(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 (2001) (detailing long history of reviewing
deportations per petition for habeas); In re Bonner, 151 U.S.
242, 255-56 (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 (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
 7
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.*

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
*
The detainees argue the district court in Kiyemba correctly issued
the injunction – regardless of their ability to make a showing on the
four factors for granting preliminary relief – in order to protect the
court’s jurisdiction over their underlying claims of unlawful
detention. In defense of the district court’s rationale, the detainees
rely upon the All Writs Act, 28 U.S.C. § 1651 (federal courts “may
issue all writs necessary or appropriate in aid of their respective
jurisdictions”), and upon our opinion in Belbacha, but they
overstate the holding in that case. In Belbacha, we held that “when
the Supreme Court grants certiorari to review this court’s
determination that the district court lacks jurisdiction, a court can,
pursuant to the All Writs Act ... and during the pendency of the
Supreme Court’s review, act to preserve the status quo,” but only,
we added, “if a party satisfies the [four] criteria for issuing a
preliminary injunction.” 520 F.3d at 457. Belbacha therefore
provides no basis for relieving the detainees of the need to satisfy
the standard for a preliminary injunction, which, as discussed
below, they have failed to do.
 8
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.*

A. Fear of Torture

Like the detainees here, the petitioners in Munaf asked
the district court to enjoin their transfer because they feared
they would be tortured in the recipient country. The Court
recognized the petitioners’ fear of torture was “of course a
matter of serious concern,” but held “in the present context
that concern is to be addressed by the political branches, not
the judiciary.” Id. at 2225. The context to which the Court
referred was one in which – as here – the record documents
the policy of the United States not to transfer a detainee to a
country where he is likely to be tortured. Id. at 2226. Indeed,
as the present record shows, the Government does everything
in its power to determine whether a particular country is
likely to torture a particular detainee. Decl. of Pierre-Richard
Prosper, United States Ambassador-at-Large for War Crimes
Issues ¶¶ 4, 7-8, Mar. 8, 2005.

*
For present purposes, we assume arguendo these alien detainees
have the same constitutional rights with respect to their proposed
transfer as did the U.S. citizens facing transfer in Munaf. They are
not, in any event, entitled to greater rights.
 9
The upshot is that the detainees are not liable to be cast
abroad willy-nilly without regard to their likely treatment in
any country that will take them. Under Munaf, however, the
district court may not question the Government’s
determination that a potential recipient country is not likely to
torture a detainee. 128 S. Ct. at 2226 (“The Judiciary is not
suited to second-guess such determinations — determinations
that would require federal courts to pass judgment on foreign
justice systems and undermine the Government’s ability to
speak with one voice in this area”). In light of the
Government’s policy, a detainee cannot prevail on the merits
of a claim seeking to bar his transfer based upon the
likelihood of his being tortured in the recipient country.*

The detainees seek to distinguish Munaf on the ground
that the habeas petitioners in that case did not raise a claim
under the Convention Against Torture, as implemented by the
Foreign Affairs Reform and Restructuring (FARR) Act, 8
U.S.C. § 1231 note. See Munaf, 128 S. Ct. at 2226 n.6. That
distinction is of no help to them, however, because the
Congress limited judicial review under the Convention to
claims raised in a challenge to a final order of removal. 8
U.S.C. § 1252(a)(4) (“Notwithstanding any other provision of
law ... including section 2241 of Title 28, or any other habeas
corpus provision, ... a petition for review [of an order of
removal] shall be the sole and exclusive means for judicial
review of any cause or claim” arising under the Convention).
Here the detainees are not challenging a final order of

*
As in Munaf, we need not address what rights a detainee might
possess in the “more extreme case in which the Executive has
determined that a detainee is likely to be tortured but decides to
transfer him anyway.” 128 S. Ct. at 2226.
 10
removal. As a consequence, they cannot succeed on their
claims under the FARR Act, and Munaf controls.*

B. Prosecution or Continued Detention

To the extent the detainees seek to enjoin their transfer
based upon the expectation that a recipient country will detain
or prosecute them, Munaf again bars relief. After their release
from the custody of the United States, any prosecution or
detention the petitioners might face would be effected “by the
foreign government pursuant to its own laws and not on
behalf of the United States.” Decl. of Matthew C. Waxman,
Deputy Assistant Secretary of Defense for Detainee Affairs ¶
5, June 2, 2005. It is a longstanding principle of our
jurisprudence that “[t]he jurisdiction of [a] nation, within its
own territory, is necessarily exclusive and absolute.”
Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 136
(1812). As the Supreme Court explained in Munaf, the “same
principles of comity and respect for foreign sovereigns that
preclude judicial scrutiny of foreign convictions necessarily
render invalid attempts to shield citizens from foreign
prosecution.” 128 S. Ct. at 2224 (quoting Brown, J.,
dissenting in part in Omar v. Harvey, 479 F.3d 1, 17 (D.C.
Cir. 2007)). Munaf therefore bars a court from issuing a writ
of habeas corpus to shield a detainee from prosecution and
detention by another sovereign according to its laws.

*
Munaf concerned a specific transfer, but the transferee sovereign’s
likely treatment of the petitioners was not material to its holding.
Contrary to the statement in the dissent, the Court gave not merely
“substantial weight to the [G]overnment’s determination that the
proposed transfer was lawful,” Dis. Op. at 7; it held the judiciary
cannot look behind the determination made by the political
branches that the transfer would not result in mistreatment of the
detainee at the hands of the foreign government. 128 S. Ct. at
2225, 2226.
 11
Judicial inquiry into a recipient country’s basis or
procedures for prosecuting or detaining a transferee from
Guantanamo would implicate not only norms of international
comity but also the same separation of powers principles that
preclude the courts from second-guessing the Executive’s
assessment of the likelihood a detainee will be tortured by a
foreign sovereign. See id. at 2225 (“Even with respect to
claims that detainees would be denied constitutional rights if
transferred, we have recognized that it is for the political
branches, not the judiciary, to assess practices in foreign
countries and to determine national policy in light of those
assessments”). Furthermore, the requirement that the
Government provide pre-transfer notice interferes with the
Executive’s ability to conduct the sensitive diplomatic
negotiations required to arrange safe transfers for detainees.
Prosper Decl. ¶ 10 (“Later review in a public forum of the
Department’s dealings with a particular foreign government
regarding transfer matters would seriously undermine our
ability to investigate allegations of mistreatment or torture ...
and to reach acceptable accommodations with other
governments to address those important concerns”).*

*
Our dissenting colleague agrees the detainees cannot prevail on a
claim based upon their likely treatment by a foreign sovereign
acting pursuant to its own laws. See Dis. Op. at 5 (“[T]he
[G]overnment has submitted sworn declarations assuring the court
that any transfer will result in release from U.S. authority. If the
[G]overnment’s representations are accurate, each transfer will be
lawful.”). Nor can they prevail on the ground that the foreign
sovereign is an agent of the United States merely because, with
respect to detainees who are — unlike the present petitioners —
regarded as enemy combatants, the Government engages in a
dialogue “to ascertain or establish what measures the receiving
government intends to take pursuant to its own domestic laws and
independent determinations that will ensure that the detainee will
not pose a continuing threat to the United States and its allies,”
 12

In short, “habeas is not a means of compelling the United
States to harbor fugitives from the criminal justice system of a
sovereign with undoubted authority to prosecute them.”
Munaf, 128 S. Ct. at 2223. Therefore, the district court may
not issue a writ of habeas corpus to shield a detainee from
prosecution or detention at the hands of another sovereign on
its soil and under its authority. As a result, the petitioners
cannot make the required showing of a likelihood of success
on the merits necessary to obtain the preliminary relief they
here seek.

Waxman Decl. ¶ 5. The dissent takes note of the Government’s
statement that “under appropriate circumstances,” it transfers
detainees “to the control of other governments for continued
detention,” see Dis. Op. at 6, but, as the Government explains, “[i]n
all such cases ... the individual is detained, if at all, by the foreign
government pursuant to its own laws and not on behalf of the
United States,” Waxman Decl. ¶ 5. Whether, acting pursuant to its
own laws, a “foreign nation will continue detention of the
petitioners,” Dis. Op. at 6, is precisely the inquiry Munaf forbids
this court from undertaking.
This case involves the Government’s proposed release from
U.S. custody of detainees whom the Government no longer regards
as enemy combatants. It does not involve — and therefore, unlike
our dissenting colleague, we express no opinion concerning — the
transfer of detainees resulting in their “continued detention on
behalf of the United States in places where the writ does not
extend,” Dis. Op. at 4. The Government represents that it is trying
to find a country that will accept the petitioners and, in the absence
of contrary evidence, we presume public officers “have properly
discharged their official duties.” See United States v. Chem.
Found., Inc., 272 U.S. 1, 15 (1926). In view of the Government’s
sworn declarations, and of the detainees’ failure to present anything
that contradicts them, we have no reason to think the transfer
process may be a ruse — and a fraud on the court — designed to
maintain control over the detainees beyond the reach of the writ.
 13
IV. Conclusion

The Supreme Court’s ruling in Munaf precludes the
district court from barring the transfer of a Guantanamo
detainee on the ground that he is likely to be tortured or
subject to further prosecution or detention in the recipient
country. The Government has declared its policy not to
transfer a detainee to a country that likely will torture him,
and the district court may not second-guess the Government’s
assessment of that likelihood. Nor may the district court bar
the Government from releasing a detainee to the custody of
another sovereign because that sovereign may prosecute or
detain the transferee under its own laws. In sum, the
detainees’ claims do not state grounds for which habeas relief
is available. The orders of the district court barring their
transfer without notice during the pendency of their habeas
cases therefore must be and are
Vacated.
 KAVANAUGH, Circuit Judge, concurring: I agree with
and join the persuasive opinion of the Court. Under current
law, the U.S. Government may transfer Guantanamo
detainees to the custody of foreign nations without judicial
intervention – at least so long as the Executive Branch
declares, as it has for the Guantanamo detainees, that the
United States will not transfer “an individual in circumstances
where torture is likely to result.” Munaf v. Geren, 128 S. Ct.
2207, 2226 (2008).

I write separately to emphasize three points.

First, our disposition does not preclude Congress from
further regulating the Executive’s transfer of wartime
detainees to the custody of other nations. Congress possesses
express constitutional authority to make rules concerning
wartime detainees. See, e.g., U.S. CONST. art. I, § 8
(“Congress shall have Power . . . To . . . make Rules
concerning Captures on Land and Water”). The constitutional
text, Justice Jackson’s Youngstown opinion, and recent
Supreme Court precedents indicate that the President does not
possess exclusive, preclusive authority over the transfer of
detainees. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006);
Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J.,
concurring). Except perhaps in a genuine, short-term
emergency, the President must comply with legislation
regulating or restricting the transfer of detainees. In other
words, under the relevant precedents, the President does not
have power to trump legislation regarding wartime transfers
in a Youngstown category-three situation. To be sure, there
are weighty policy reasons why Congress may not seek to
restrict the Executive’s transfer authority or to involve the
Judiciary in reviewing war-related transfers. That presumably
explains why Congress has not done so. But to the extent
Congress wants to place judicially enforceable restrictions on
 2
Executive transfers of Guantanamo or other wartime
detainees, it has that power.

Second, in the absence of a meritorious statutory claim,1
the detainees argue that they have a constitutional due process
right against “transfer to torture” – and, therefore, to judicial
reassessment of the Executive’s conclusion that transfer to a
foreign nation’s custody is unlikely to result in torture. But
both Munaf and the deeply rooted “rule of non-inquiry” in
extradition cases require that we defer to the Executive’s
considered judgment that transfer is unlikely to result in
torture. Those precedents compel us to reject the detainees’
argument that the court second-guess the Executive’s
conclusion in this case.

In Munaf, in response to a similar due process claim, the
Supreme Court unanimously held that the Judiciary may not
“second-guess” the Executive’s assessment that transferred
detainees are unlikely to be tortured by the receiving nation
(in that case, by Iraq, where the detainees were to be
prosecuted in Iraqi courts). 128 S. Ct. at 2226.2 The Munaf

1
The detainees advance a claim under the Foreign Affairs
Reform and Restructuring Act, but that argument is unavailing. See
Maj. Op. at 9-10.
2
There is no meaningful distinction between (i) the
Executive’s declaration in this case that no Guantanamo detainees
will be transferred to the custody of a foreign country where the
Executive believes they would likely be tortured, and (ii) a similar
Executive declaration with respect to a specific transfer (as in
Munaf). The former encompasses the latter. In other words, for
our purposes, the Government has represented that no detainee in
this case will be transferred to a country where the Government
believes it likely the detainee would be tortured. It bears emphasis
that neither Munaf nor this case is the “more extreme case in which
 3
decision applies here a fortiori: That case involved transfer of
American citizens, whereas this case involves transfer of alien
detainees with no constitutional or statutory right to enter the
United States.

Similarly, the longstanding rule of non-inquiry in
extradition cases undermines the detainees’ argument. When
the Executive seeks extradition pursuant to a request from a
foreign nation, the Judiciary does not inquire into the
treatment or procedures the extradited citizen or alien will
receive in that country. “It is the function of the Secretary of
State to determine whether extradition should be denied on
humanitarian grounds.” Ahmad v. Wigen, 910 F.2d 1063,
1067 (2d Cir. 1990); see also Neely v. Henkel, 180 U.S. 109,
122-23 (1901); Hoxha v. Levi, 465 F.3d 554, 563 (3d Cir.
2006); United States v. Kin-Hong, 110 F.3d 103, 110-11 &
nn. 11-12 (1st Cir. 1997); Lopez-Smith v. Hood, 121 F.3d
1322, 1326-27 (9th Cir. 1997); Jacques Semmelman, Federal
Courts, the Constitution, and the Rule of Non-Inquiry in
International Extradition Proceedings, 76 CORNELL L. REV.
1198 (1991).3

Therefore, with respect to international transfers of
individuals in U.S. custody, Munaf and the extradition cases
have already struck the due process balance between the
competing interests of the individual and the Government.

the Executive has determined that a detainee is likely to be tortured
but decides to transfer him anyway.” 128 S. Ct. at 2226.
3
The rule of non-inquiry traditionally has not required an
express executive declaration regarding the prospect of abuse by
the foreign nation. After Munaf, courts in extradition cases
presumably may require – but must defer to – an express executive
declaration that the transfer is not likely to result in torture.
 4
That balance controls here.4 The detainees’ interest in
avoiding torture or mistreatment by a foreign nation is the
same “matter of serious concern” at issue in Munaf and the
extradition cases. Munaf, 128 S. Ct. at 2225. And on the

4
In Boumediene v. Bush, the Supreme Court held that the
Guantanamo detainees possess constitutional habeas corpus rights.
128 S. Ct. 2229, 2262 (2008). This Court has since stated that the
detainees possess no constitutional due process rights. Kiyemba v.
Obama, 555 F.3d 1022, 1026-27 (D.C. Cir. 2009). The detainees
argue that they must possess due process rights if they have habeas
rights. See Hamdi, 542 U.S. at 525-26 (plurality opinion)
(discussing interaction of habeas and procedural due process); id. at
555-58 (Scalia, J., dissenting) (explaining linked origins of habeas
and due process). And they further contend that the due process
balancing test from Mathews v. Eldridge, 424 U.S. 319, 335 (1976),
applies here – rather than a test based solely on history and
tradition. See Hamdi, 542 U.S. at 529 (plurality opinion) (applying
Mathews test); see also Boumediene, 128 S. Ct. at 2283-92
(Roberts, C.J., dissenting) (applying Mathews test as articulated in
Hamdi); but see Hamdi, 542 U.S. at 575-77 (Scalia, J., dissenting)
(criticizing application of Mathews test); Medina v. California, 505
U.S. 437, 446-48 (1992) (applying history-based test). That
Mathews/Hamdi test requires “weighing the private interest that
will be affected by the official action against the Government’s
asserted interest, including the function involved and the burdens
the Government would face in providing greater process.” Hamdi,
542 U.S. at 529 (plurality opinion) (citation and internal quotation
marks omitted).
But as explained in the opinion of the Court and in this
concurring opinion, the detainees do not prevail in this case even if
they are right about the governing legal framework: Even assuming
that the Guantanamo detainees, like the U.S. citizens in Munaf,
possess constitutionally based due process rights with respect to
transfers and that the Mathews/Hamdi balancing test applies, Munaf
and other precedents preclude judicial second-guessing of the
Executive’s considered judgment that a transfer is unlikely to result
in torture.
 5
other side of the ledger, the Government’s interest in
transferring these detainees to foreign nations without judicial
second-guessing is at least as compelling as in those cases.
Cf. id. at 2224-25 (noting significant governmental interest in
detainee transfers connected to “the Executive’s ability to
conduct military operations abroad”).

The detainees counter that the Government’s transfer
interest in this case involves non-enemy combatants and is
therefore less important than in Munaf and the extradition
cases; they further hint that transfer without their consent
would be without legal authority. Those arguments are
incorrect for two separate reasons.

To begin with, even if this were just a standard
immigration case involving inadmissible aliens at the U.S.
border, the governmental interest in transfer would be
compelling. Like Guantanamo detainees, inadmissible aliens
at the border or a U.S. port of entry have no constitutional
right to enter the United States. See Shaughnessy v. United
States ex rel. Mezei, 345 U.S. 206, 210-13 (1953); see also id.
at 222-23 (Jackson, J., dissenting) (agreeing with majority
that there is no constitutional right for an alien to enter the
United States); Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir.
2009). In those cases, the United States has a very strong
interest in returning the aliens to their home countries or safe
third countries so that they will not be detained indefinitely in
facilities run by the United States – a scenario that can trigger
a host of security, foreign policy, and domestic complications.
Cf. 8 C.F.R. §§ 241.13, 241.14. That governmental interest
applies at least as strongly in the case of these Guantanamo
detainees.

In addition, and more fundamentally, this is a case
involving transfer of wartime alien detainees. Transfers are a
 6
traditional and lawful aspect of U.S. war efforts. When
waging war, the United States captures and detains enemy
combatants. The United States may hold enemy combatants
for the duration of hostilities, and it of course may prosecute
unlawful enemy combatants. See Hamdi, 542 U.S. at 518-19
(plurality opinion). At the conclusion of hostilities, the
United States ordinarily transfers or releases lawful combatant
detainees to their home countries. Most relevant in this case,
when the United States determines during an ongoing war that
an alien no longer needs to be detained or has been
mistakenly detained – for example, if he is a non-combatant
and not otherwise subject to confinement – the United States
attempts to promptly transfer or release that detainee to his
home country or a safe third country. Cf. Army Regulation
190-8 § 1-6(10)(c) (person who is captured and determined to
be “innocent civilian should be immediately returned to his
home or released”); id. §§ 3-11 to 3-14 (transfer and
repatriation of prisoners of war); id. § 6-15 (transfer of
civilian internees).5

Throughout the 20th Century, the United States
transferred or released hundreds of thousands of wartime alien

5
The factual complication in this case arises because the
United States will not send these Uighur detainees back to their
home country of China, apparently because the Executive has
concluded there is a likelihood of torture by China. See John B.
Bellinger, III, U.S. State Dep’t Legal Advisor, Prisoners in War:
Contemporary Challenges to the Geneva Conventions (Dec. 10,
2007). The detainees do not want to return to China for that same
reason and thus support the Executive’s decision. Yet these alien
detainees also have no constitutional or statutory right to enter the
United States. Assuming the Executive has the authority to bring
them into the United States, the Executive has thus far declined to
do so. And the Executive apparently has not yet found a safe third
country willing to accept them.
 7
detainees – some of whom had been held in America – back
to their home countries or, in some cases, to other nations.6
Those transfer and exchange decisions rested then – as they
do now – on confidential information, promises, and
negotiations. They involved predictive, expert judgments
about conditions in a foreign country and related matters.
Given those sensitivities, as well as the delays and burdens
associated with obtaining judicial pre-approval of transfers
and transfer agreements, it comes as no surprise that war-
related transfers traditionally have occurred without judicial
oversight. See Boumediene, 128 S. Ct. at 2248-49 (negotiated
exchange of prisoners was “a wartime practice well known to
the Framers,” and “[j]udicial intervention might have
complicated” those negotiations). As both history and
modern practice demonstrate, the capture, detention, possible
trial, and eventual transfer or release of combatants – as well
as the transfer or release of those mistakenly detained during
wartime – are all necessary and traditional incidents of war
implicating compelling governmental interests. See Hamdi,
542 U.S. at 518-19 (plurality opinion); cf. Authorization for
Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224
(2001).

6
See generally George G. Lewis & John Mewha, History of
Prisoner of War Utilization by the United States Army 1776-1945,
DEP’T OF THE ARMY PAMPHLET NO. 20-213, at 46, 177, 201-204,
240-43, 247, 258-60 (1955), http://cgsc.cdmhost.com; Raymond
Stone, The American-German Conference on Prisoners of War, 13
AM. J. INT’L L. 406 (1919); Martin Tollefson, Enemy Prisoners of
War, 32 IOWA L. REV. 51 (1946); Mark Elliott, The United States
and Forced Repatriation of Soviet Citizens, 1944-47, 88 POLITICAL
SCIENCE QUARTERLY 253 (1973); Howard S. Levie, How It All
Started – And How It Ended: A Legal Study of the Korean War, 35
AKRON L. REV. 205 (2002); U.S. DEP’T OF DEFENSE, FINAL
REPORT TO CONGRESS: CONDUCT OF THE PERSIAN GULF WAR 661-
73, 703-08 (1992), http://www.ndu.edu.
 8

In short, Munaf and the extradition cases have already
weighed the relevant due process considerations regarding
transfers. They have established that “the political branches
are well situated to consider sensitive foreign policy issues,
such as whether there is a serious prospect of torture at the
hands of an ally, and what to do about it if there is.” Munaf,
128 S. Ct. at 2226. And the “Judiciary is not suited to second-
guess such determinations.” Id. In light of those precedents,
it would be quite anomalous for courts, absent congressional
direction, to second-guess such Executive assessments in
these war-related transfer cases, where the governmental
interest is at least as compelling and the individual interest in
avoiding mistreatment is the same. See Al-Anazi v. Bush, 370
F. Supp. 2d 188, 194-95 (D.D.C. 2005) (Bates, J.); see
generally The Supreme Court, 2008 Term – Leading Cases,
122 HARV. L. REV. 415 (2008) (analyzing Munaf and
collecting authorities).

Third, I respectfully offer a few comments about the
dissent.

The dissent does not address the fundamental issue raised
in this appeal: whether the Constitution’s Due Process Clause
(or the Foreign Affairs Reform and Restructuring Act, see
Maj. Op. at 9-10) requires judicial reassessment of the
Executive’s determination that a detainee is not likely to be
tortured by a foreign nation – and whether, in order to ensure
such a judicial inquiry, the Government must notify the
district court before transfer. Rather, the dissent discusses a
question that was not raised by the parties and fashions a new
legal rule seemingly out of whole cloth. According to the
dissent, a court must prevent a transfer of an alien detainee to
a foreign nation’s custody if it concludes that prosecution or
detention by the foreign nation would also amount to
 9
continued detention “on behalf of the United States.” Dis.
Op. at 3. The detainees did not advance that position in their
104 pages of briefing in this Court (except perhaps an
ambiguous reference at the tail end of one sentence in a
supplemental brief). Nor did the detainees raise the point
during two lengthy oral arguments in this Court. And because
the detainees did not make the argument, the Government has
not been able to address and respond to the dissent’s novel
approach.

In any event, I respectfully disagree with the dissent’s
theory. The Government represents that a foreign nation’s
prosecution or detention in the wake of a transfer to that
nation’s custody would take place “pursuant to its own laws.”
Waxman Decl. ¶ 5. Under the principles of Munaf, that
declaration suffices to demonstrate that the proposed transfer
of an alien to the custody of a foreign nation is not the same
thing as the U.S. Government’s maintaining the detainee in
U.S. custody.7

The dissent cites no precedent – none – requiring or
allowing a court to review a proposed transfer and assess
whether custody of such an alien by a foreign nation would
somehow also amount to custody “on behalf of the United
States.” The dearth of citations is noteworthy, particularly
given that transfers of inadmissible or removed aliens to the
custody of foreign nations have long occurred in the
immigration context.

7
A quite different issue arises, of course, when the United
States maintains physical custody of an alien detainee but moves
him after he has filed his habeas petition from a place where habeas
applies (such as Guantanamo) to a place where the writ does not
extend for aliens (such as a U.S. military base in Germany). Cf.
Rumsfeld v. Padilla, 542 U.S. 426, 440-41 (2004); Ex parte Endo,
323 U.S. 283, 306 (1944).
 10

Furthermore, the dissent does not define or explain its
proposed standard. What does “on behalf of the United
States” mean in the context of a foreign nation’s custody of an
alien detainee? Does that concept apply to any negotiated
transfer of an alien detainee? Does the dissent mean to
prevent transfer from Guantanamo whenever the United
States seeks or becomes aware of prosecution or detention of
an alien by the receiving country pursuant to that country’s
laws? The dissent does not say.

The dissent in places seems to imply that an alien who is
not an enemy combatant is perforce not dangerous, as that
term is used in immigration practice, and that prosecution or
detention by a foreign nation after transfer therefore would be
improper, at least if the United States were aware of or
encouraged it beforehand. But no authority is cited to support
such a conclusion or the extraordinary judicial role it portends
in connection with the Nation’s foreign and immigration
policies and international negotiations. Cf. Munaf, 128 S. Ct.
at 2223 (“Habeas does not require the United States to keep
an unsuspecting nation in the dark when it releases an alleged
criminal insurgent within its borders.”); Demore v. Kim, 538
U.S. 510, 522 (2003) (“any policy toward aliens is vitally and
intricately interwoven with contemporaneous policies in
regard to the conduct of foreign relations, the war power, and
the maintenance of a republican form of government”)
(internal quotation marks omitted); INS v. Aguirre-Aguirre,
526 U.S. 415, 425 (1999) (“judicial deference to the
Executive Branch is especially appropriate in the immigration
context where officials exercise especially sensitive political
functions that implicate questions of foreign relations”)
(internal quotation marks omitted).
 11
Moreover, the dissent’s theory necessarily would require
some judicial review of a foreign nation’s legal practices and
procedures. But that would contravene the longstanding
principle reiterated by the Supreme Court in Munaf: “Even
with respect to claims that detainees would be denied
constitutional rights if transferred, we have recognized that it
is for the political branches, not the judiciary, to assess
practices in foreign countries and to determine national policy
in light of those assessments.” 128 S. Ct. at 2225.

Nor does the dissent explicate how its regime would
work procedurally. For instance, would the Judiciary require
questioning of the American and foreign officials who
negotiated the transfer? Would it mandate disclosure of
confidential nation-to-nation documents? Presumably so.
But absent congressional direction otherwise, courts
traditionally are wary of wading so deeply into this Nation’s
negotiations and agreements with foreign nations. Cf. Dep’t
of Navy v. Egan, 484 U.S. 518, 529-30 (1988); Dames &
Moore v. Regan, 453 U.S. 654 (1981).

Courts have a responsibility to decide war-related cases
with as much clarity and expedition as possible. Especially in
this sensitive area, our holdings and opinions should strive to
be readily understandable to the political branches that have
to make critical wartime decisions. The dissent’s uncertain
“on behalf of” standard likely would create years of case-by-
case litigation as the courts and the political branches grapple
with what it means and how it applies to a given U.S.
negotiation with a foreign nation about transfer of a wartime
alien detainee.

In my respectful judgment, the dissent’s theory does not
advance a proper ground, absent congressional direction, for a
judge to prevent the transfer of Guantanamo detainees to the
 12
custody of a foreign nation. And thus I fully agree with the
opinion of the Court that the dissent’s argument provides no
basis in this case for the court to second-guess the Executive’s
proposed transfer of these alien detainees. See Maj. Op. at
11-12 n.*.

***

The opinion of the Court correctly concludes that, under
current law, the U.S. Government may transfer Guantanamo
detainees to the custody of foreign nations without judicial
intervention – at least so long as the Executive Branch
declares, as it has for the Guantanamo detainees, that the
United States will not transfer “an individual in circumstances
where torture is likely to result.” Munaf, 128 S. Ct. at 2226.
 GRIFFITH, Circuit Judge, concurring in the judgment in
part and dissenting in part: Nine detainees ask us to affirm
district court orders requiring the government to provide thirty
days’ notice of their transfers from Guantanamo Bay. I share
the majority’s concern that requiring such notice limits the
government’s flexibility in a sensitive matter of foreign
policy. Nevertheless, in Boumediene v. Bush, 128 S. Ct. 2229
(2008), the Supreme Court rejected this court’s view of the
reach of the writ of habeas corpus and extended its protections
to those held at Guantanamo Bay. Since at least the
seventeenth century, the Great Writ has prohibited the transfer
of prisoners to places beyond its reach where they would be
subject to continued detention on behalf of the government.
Because this protection applies to the petitioners, the critical
question before us is what process a court must employ to
assess the lawfulness of their proposed transfers. Based on its
reading of Munaf v. Geren, 128 S. Ct. 2207 (2008), the
majority finds sufficient the government’s representations that
no transfer will result in continued detention on behalf of the
United States. I write separately because I do not believe
Munaf compels absolute deference to the government on this
matter, and I believe the premise of Boumediene requires that
the detainees have notice of their transfers and some
opportunity to challenge the government’s assurances.
Accordingly, I would affirm the district court orders.

I.

I agree with the majority that the district court has subject
matter jurisdiction to hear the detainees’ challenges to their
transfers. I am less certain than the majority, however, that
there remains a statutory basis to hear these claims after
Boumediene. The majority opinion in Boumediene said
nothing about whether statutory habeas for the Guantanamo
detainees survived the Military Commissions Act of 2006,
Pub. L. No. 109-366, 120 Stat. 2600, and at least three
Justices were of the view it did not. See Boumediene, 128 S.
 2
Ct. at 2278 (Souter, J., concurring, joined by Ginsburg &
Breyer, JJ.) (noting that Congress “eliminated the statutory
habeas jurisdiction over these claims, so that now there must
be constitutionally based jurisdiction or none at all”).
Statutory habeas may in fact exist for these detainees and
cover claims against unlawful transfer, but for now this
remains an open question, and the Constitution provides a
more sure footing for jurisdiction.

The bar against transfer beyond the reach of habeas
protections is a venerable element of the Great Writ and
undoubtedly part of constitutional habeas. “[A]t the absolute
minimum, the Suspension Clause protects the writ ‘as it
existed in 1789.’” INS v. St. Cyr, 533 U.S. 289, 301 (2001)
(quoting Felker v. Turpin, 518 U.S. 651, 664 (1996)).
Because the Habeas Corpus Act of 1679 “was the model upon
which the habeas statutes of the 13 American Colonies were
based,” Boumediene, 128 S. Ct. at 2246; see Dallin H. Oaks,
Habeas Corpus in the States, 1776–1865, 32 U. CHI. L. REV.
243, 252 (1965) (explaining the “close conformity of most
state legislation to the English Habeas Corpus Act of 1679”),
the Supreme Court has looked to the 1679 Act to determine
the contours and content of constitutional habeas, see, e.g.,
Boumediene, 128 S. Ct. at 2245–47; Hamdi v. Rumsfeld, 542
U.S. 507, 557–58 (2004) (Scalia, J., dissenting); Peyton v.
Rowe, 391 U.S. 54, 58–59 (1968). Section 12 of the 1679 Act
included a prohibition against the transfer of prisoners to
places where the writ did not run. See Habeas Corpus Act,
1679, 31 Car. 2, c.2, § 12 (Eng.) (“[N]o subject . . . may be
sent . . . into parts, garrisons, islands or places beyond the
seas . . . within or without the dominions of his
Majesty . . . .”); see also Boumediene, 128 S. Ct. at 2304
(Scalia, J., dissenting) (“The possibility of evading judicial
review through such spiriting-away was eliminated, not by
expanding the writ abroad, but by forbidding (in Article XII
 3
of the Act) the shipment of prisoners to places where the writ
did not run or where its execution would be difficult.”); Oaks
at 253 (“The act also prohibited sending persons to foreign
prisons (§ 12).”). Because Boumediene extended
constitutional habeas to the Guantanamo detainees, see 128 S.
Ct. at 2240 (holding that petitioners “have the constitutional
privilege of habeas corpus, a privilege not to be withdrawn
except in conformance with the Suspension Clause”), we
should acknowledge that jurisdiction to hear the petitioners’
claims against unlawful transfer—a fundamental and historic
habeas protection—is grounded in the Constitution.

II.

Transfer to continued detention on behalf of the United
States in a place where the writ does not reach would be
unlawful and may be enjoined. The question we must
consider is what process courts must use to determine whether
the government’s proposed transfers run afoul of that bar. The
majority holds that the district court must defer to the
Executive’s sworn representations that transfer to the physical
custody of a foreign government will not involve continued
detention on behalf of the United States. Majority Op. at 12–
13. But this will leave the petitioners without any opportunity
to challenge the accuracy of the government’s sworn
declarations. Although prudential concerns may justify some
flexibility in fashioning habeas relief, see Boumediene, 128 S.
Ct. at 2267 (noting that “common-law habeas corpus was,
above all, an adaptable remedy”), such innovations must not
strip the writ of its essential protections. See id. at 2276
(“Certain accommodations can be made to reduce the burden
habeas corpus proceedings will place on the military without
impermissibly diluting the protections of the writ.”).
 4
Fundamental to a prisoner’s habeas rights is the
government’s duty to appear in court to justify his detention.
At its most basic level, habeas “protects the rights of the
detained by affirming the duty and authority of the Judiciary
to call the jailer to account.” Id. at 2247; see Peyton, 391 U.S.
at 58 (“The writ of habeas corpus is a procedural device for
subjecting executive, judicial, or private restraints on liberty
to judicial scrutiny. Where it is available, it assures among
other things that a prisoner may require his jailer to justify the
detention under the law.”). To vindicate the detainees’ habeas
rights, Boumediene requires the court to “conduct a
meaningful review” of the government’s reasons for the
detention, which includes, at the very least, the rudimentaries
of an adversary proceeding. 128 S. Ct. at 2268–69 (for the
“writ [to] be effective . . . [t]he habeas court must have
sufficient authority to conduct a meaningful review of both
the cause for detention and the Executive’s power to detain,”
typically through “a fair, adversary proceeding”); see also id.
at 2269 (identifying as a critical deficiency in the CSRT
process the “constraints upon the detainee’s ability to rebut
the factual basis for the Government’s assertion that he is an
enemy combatant”). Calling the jailer to account must include
some opportunity for the prisoner to challenge the jailer’s
account.

Here the nine detainees claim their transfers may result in
continued detention on behalf of the United States in places
where the writ does not extend, effectively denying them the
habeas protections Boumediene declared are theirs. See, e.g.,
Appellees’ Supp. Br. at 4–5 (arguing that habeas “extends to
ensuring that any proposed ‘release’” would not result in
“continued unlawful detention in a location beyond the
jurisdiction of the district court . . . in coordination with[] or
at the behest of the United States”); Appellees’ Supp. Resp.
Br. at 5–6; Application for Prelim. Inj. at 7, 9–10, Kiyemba v.
 5
Bush, No. 05-1509 (D.D.C. Sept. 9, 2005). The stakes of
unlawful custody, which led the Court in Boumediene to
extend habeas protections to the detainees in the first place,
are no higher than the stakes of unlawful transfer. Indeed,
because an unlawful transfer will deny the detainees any
prospect of judicial relief, protecting their habeas rights in this
context is vital.

It is significant that the government has submitted sworn
declarations assuring the court that any transfer will result in
release from U.S. authority. If the government’s
representations are accurate, each transfer will be lawful, for
in habeas the only relevant judicial inquiry about a transfer is
whether it will result in continued detention on behalf of the
United States in a place where the writ does not run. But as
we recently noted in another case involving the scope of
habeas protections for detainees at Guantanamo Bay, a
“naked declaration cannot simply resolve the issue.” Al-Odah
v. United States, No. 05-5117, slip op. at 10 (D.C. Cir. Mar. 6,
2009) (per curiam) (rejecting “the government’s suggestion
that its mere certification—that the [classified] information
redacted from the version of the [document] provided to a
detainee’s counsel do[es] not support a determination that the
detainee is not an enemy combatant—is sufficient to establish
that the information is not material” (internal quotation marks
omitted)); see id. at 11 (“[I]t is the [habeas] court’s
responsibility to make the materiality determination itself.”).
Critical to ensuring the accuracy of the government’s
representations is an opportunity for the detainees to
challenge their veracity. The rudimentaries of an adversary
proceeding demand no less. See Boumediene, 128 S. Ct. at
2273 (“If a detainee can present reasonably available evidence
demonstrating there is no basis for his continued detention, he
must have the opportunity to present this evidence to a habeas
corpus court.”). When an individual entitled to habeas
 6
protections faces the prospect of continued detention—be it
by the United States at Guantanamo Bay or on its behalf after
transfer to a foreign nation—he must be afforded some
opportunity to challenge the government’s case.

Relying solely on the government’s sworn declaration
and despite the petitioners’ claims to the contrary, the
majority insists that this case is not about possible continued
detention by a foreign nation on behalf of the United States.
Majority Op. at 11–12. But the majority makes too much of
what the government has actually said. The government has
stated only that transfer to a foreign nation will result in
release of the detainees from the physical custody of the
United States. See Declaration of Matthew C. Waxman,
Deputy Assistant Sec’y of Def. for Detainee Affairs 2–3 (June
2, 2005). The declaration expressly left open the possibility
that a foreign nation will continue detention of the petitioners.
See id. at 2 (“[T]he United States also transfers GTMO
detainees, under appropriate circumstances, to the control of
other governments for continued detention . . . .”). The
possibility of continued detention by a foreign nation on
behalf of the United States after a transfer is the very issue we
must address. Although the status of these detainees has been
put to an adversarial process, whether their transfers will be
lawful has not. I do not see how the court can safeguard the
habeas rights Boumediene extended to these detainees without
allowing them to challenge the government’s account.1

1
Because this case should be governed by Boumediene’s extension
to the detainees of habeas protections that include the bar against
unlawful transfer, I view the issues of interest to Judge Kavanaugh
in his concurring opinion as inapposite. For example, whether the
Due Process Clause of the Fifth Amendment reaches these
detainees is simply not part of the inquiry required in this case. The
critical issue is whether the petitioners’ habeas rights permit them
to offer evidence that their proposed transfers will result in
 7

Munaf is not to the contrary. The majority makes much of
its language that courts may not “second-guess” the
government’s determinations, but it overlooks a significant
difference between that case and ours: the Munaf petitioners
knew in advance that the government intended to transfer
them to Iraqi authorities and had the opportunity to
demonstrate that such a transfer would be unlawful. There
was no need for the Munaf Court to consider an issue at the
center of this dispute: whether notice is required to prevent an
unlawful transfer. In considering the Munaf petitioners’
request to enjoin their transfers, the district court had the
benefit of competing arguments from the petitioners and the
government for each specific transfer. See 128 S. Ct. at 2226
(emphasizing that the government had considered and
determined that the petitioners, Shawqi Ahmad Omar and
Mohammad Munaf, would be treated adequately by Iraq’s
Justice Ministry and the prison where they would be held);
see also Omar v. Harvey, 416 F. Supp. 2d 19, 28 (D.D.C.
2006) (stating petitioner’s reasons for seeking an injunction
barring transfer); Petition for Writ of Habeas Corpus at 7,
Munaf v. Harvey, No. 06-1455 (D.D.C. Aug. 18, 2006)
(same). Although the Supreme Court rightly gave substantial
weight to the government’s determination that the proposed
transfer was lawful, the petitioners were at least permitted to
argue otherwise. The Kiyemba petitioners should be afforded
the same opportunity.

Other factual and legal differences limit Munaf’s
applicability to our case. Critical to Munaf’s holding was the
need to protect Iraq’s right as a foreign sovereign to prosecute
the petitioners. See 128 S. Ct. at 2221 (“[O]ur cases make

continued detention by a foreign nation on behalf of the United
States.
 8
clear that Iraq has a sovereign right to prosecute Omar and
Munaf for crimes committed on its soil.”). No such interest is
implicated here. The Court also emphasized Iraq’s status as an
ally and the fact that the petitioners had voluntarily traveled to
Iraq to commit crimes during ongoing hostilities. See id. at
2224–25. Again, nothing similar is involved in this case.
Perhaps most important, the Munaf petitioners sought a
unique type of relief, as the Court stressed:

[T]he nature of the relief sought by the habeas petitioners
suggests that habeas is not appropriate in these cases.
Habeas is at its core a remedy for unlawful executive
detention. . . . At the end of the day, what petitioners are
really after is a court order requiring the United States to
shelter them from the sovereign government seeking to
have them answer for alleged crimes committed within
that sovereign’s borders.

Id. at 2221. Given the significant differences between the
circumstances of Munaf and this case, we are not required to
hold that courts are foreclosed from exercising their habeas
powers to enjoin a transfer without some opportunity for a
detainee to challenge the government’s representation that his
transfer will be lawful.

III.

In the end, I would add only one element to the process
the majority concludes is sufficient for considering the
petitioners’ transfer claims. But it is, I believe, a fundamental
element called for by the Great Writ. The constitutional
habeas protections extended to these petitioners by
Boumediene will be greatly diminished, if not eliminated,
without an opportunity to challenge the government’s
assurances that their transfers will not result in continued
 9
detention on behalf of the United States. Accordingly, I
respectfully dissent.