Detention: Law of

Heel Dragging and Losing Arguments: The Abdullah Briefing

By Raffaela Wakeman
Thursday, November 14, 2013, 10:04 PM

The appellant and appellee briefs in a Guantanamo detainee's habeas-related appeal, Abdullah v. Obama, have been filed with the Court of Appeals for the D.C. Circuit.

First, a short recap of the case: After not getting a decision from the district court on his habeas petition, Hani Saleh Rashid Abdullah (perhaps in an attempt to test whether the district court judge had a pulse) sought a preliminary injunction against his indefinite detention in 2010. Getting no response to that either, he finally petitioned the D.C. Circuit for a writ of mandamus to order the lower court to decide that motion. That appears to have gotten the district court's attention, as a short while later, earlier this year, Judge Richard W. Roberts rejected Abdullah's request, finding that he failed to meet the legal requirements for a preliminary injunction.

It is this most recent district court opinion from which the Guantanamo detainee appeals---though it would be hard to tell he was appealing the denial of preliminary injunction from much of his brief. Abdullah may have a righteous gripe that Judge Roberts has been dragging his feet too long on the habeas. But he's got a weak case before the D.C. Circuit. 

To win a preliminary injunction, he needs to demonstrate that he's likely to succeed on the merits; that he's "likely to suffer irreparable harm" without the relief; that the "balance of equities" tips in his favor; and that the injunction is in the "public interest." His arguments in the D.C. Circuit briefing materials don't really focus on any of these.

On the merits, his arguments center around, as they appear to have in the lower court, the language of the United States' recognition agreement with the Kingdom of Yemen in 1946, which requires that both countries follow international law in their dealings with each other and the other's citizens. His first argument is that the 2001 Authorization for the Use of Military Force (AUMF), and what he categorizes as indefinite detention, violates international law. He points to the Geneva Conventions, the International Covenant of Civil and Political Rights (ICCPR), Ex Parte Quirin, and Hamdan v. Rumsfeld as supporting this line of reasoning, and cites recent remarks by the U.N. High Commissioner for Human Rights and the U.N. Working Group on Arbitrary Detention to further demonstrate that the United States, in detaining the petitioner indefinitely, violates international law. This one is not going anywhere in the D.C. Circuit.

Abdullah's second argument pertains to the 1946 Agreement, which he reads as protecting the rights of Yemeni citizens in the United States under the Geneva Conventions. On that, Abdullah says that the AUMF was an attempt to nullify that text as it pertains to Yemeni citizens' rights, and that the D.C. Circuit's recent decision in Zivotofsky v. Clinton counsels that the executive agreement should take precedent over any legislation passed by Congress (in this case, the AUMF), and that indefinite detention violates that agreement. Good luck with this one, too.

Third, Abdullah says that indefinite or permanent detention is also barred by U.S. domestic law, citing the D.C. Circuit's recent decision in Al Warafi for the conclusion that the Geneva Conventions have been incorporated into domestic U.S. law. Because of that, Abdullah considers that as a matter of domestic law, the U.S. is required to comply with international law. I don't see traction in this argument's future, either.

Abdullah next argues that the district court's ruling on his motion for a preliminary injunction should be overturned. He maintains that the court incorrectly treated his motion as an effort to be released from detention, a "clear blunder" on the court's part: all he was seeking, actually, was an injunction against his "perpetual detention and enforcement of the Third Geneva Convention." Had the court simply found that the U.S. was in violation of the Third Geneva Convention or the laws of war, it wouldn't have had to apply the four-part test required to consider a motion for a preliminary injunction. The district court's ruling also took place before Zivotofsky, a case that supports the arguments Abdullah has been making, he says. To comply with its holdings there, then, the D.C. Circuit should reverse the district court, and order the injunction here.

The government's brief gets right to the point: the detainee failed in the district court to put forth arguments that addressed the four-part test for a preliminary injunction. In fact, he ignored three of them, the government says. And the district court's opinion was fully in line with the standard of review for a motion of that kind.

Detainees are required to apply the four-part preliminary injunction standard in order to succeed on the motion for a preliminary injunction, the government explains. As an initial matter, Abdullah hasn't even made it clear what relief he is seeking through the injunction. All he's said is what it's not---his release from Guantanamo---and even there, he fails to articulate how this unidentified relief will provide him redress. Whatever the relief he seeks, the government explains, it will be addressed in the proceedings on the merits, just as the district court concluded below. And even if the detainee is actually seeking release, the "balance of equities" doesn't weigh in his favor: it is the executive that determines whether a detainee's release would threaten the national security, not the judiciary. And if that's not what he's going for, it's not clear what harm will actually be redressed by a preliminary injunction.

Nor has Abdullah demonstrated that he'd be successful on the merits of the case, says the government: first, the AUMF is consistent, in the government's view, with generally recognized international lawAs to the Geneva Conventions-related arguments, the MCA and related case law bar their invocation in habeas proceedings. Al Warafi, says the government, was a habeas proceeding, while here we're arguing over a failed motion for a preliminary injunction; so the ruling doesn't apply. Setting that detail aside, the government still finds Al Warafi inapposite: the D.C. Circuit there permitted analysis of the Geneva Conventions only when they were "expressly" incorporated into Army regulations. Clearly, the 1946 Agreement doesn't incorporate explicitly the Geneva Conventions, but rather generally refers to the "requirements and practices of generally recognized international law." The government quickly bats away Zivotofsky-related arguments here, too: that case was about the president's recognition power, not Congress's authority to define federal court jurisdiction.

As to Abdullah's arguments about his detention being indefinite, the government disagrees: "Petitioner is being held for the duration of hostilities as authorized by the AUMF, as informed by the laws of war. Wartime detention is 'merely a temporary detention.'" When it comes to the ICCPR, the detainee's arguments also fail, in the government's eyes: the agreement was self-executing, so the idea of a court's permitting an individual to enforce its terms in a federal court is, well, incorrect.

The government has one final thought, as it sums up: "Ultimately, petitioner's main complaint appears to be that he has not been able to challenge the factual basis for his detention." That, says the government, is left to the court considering his habeas petition, and a preliminary injunction can't be exploited as a way around that process.

There's a reply brief due in short course, and then oral arguments are to be held on January 21st, before Circuit Judges Karen LeCraft Henderson and Senior Circuit Judges Stephen F. Williams and A. Raymond Randolph.