What’s a habeas petitioner to do, if 1) current and former U.S. military officials believe that he no longer poses a significant threat, and that his law of war detention is no longer necessary; but 2) a Periodic Review Board (“PRB”) hearing---at which the petitioner could make his case for immediate release---has not yet been scheduled?
For Tariq Mahmoud Alsawam, a Guantanamo detainee, the solution was to seek emergency relief from the district court---specifically, an order calling for Alsawam’s release, pending his hearing before the PRB or the resolution of his habeas petition. Last Monday, Judge Kollar-Kotelly denied that request.
From her Memorandum Opinion and Order:
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 514-516. 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.
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 4874564, *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. 1814 (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 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.