                     UNITED STATES DISTRICT COURT
                         DISTRICT OF COLUMBIA




      KHAN v. OBAMA                           )      Civil Case No. 05-1010 (RJL)




                            MEMORANDUM ORDER
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                              (November     tl-'
                                        2009)

       Petitioners Sofian Ebrahim Hamad Hamoodah ("Hamoodah"), Muhammad

Abdallah Mansur Al Futuri Rimi ("Rimi"), Abdullah Bin Omar Al Hajji ("AI

Hajji"), and Mohabat Khan ("Khan") ask this Court to adjudicate their habeas

corpus petitions, notwithstanding their transfer out of Guantanamo Bay, Cuba. On

July 30, 2008, this Court ordered petitioners to show cause why their petitions

should not be dismissed as moot. A briefing schedule was set the same day, and on

August 12, 2008, petitioners and the Government filed briefs in support of their

respective positions. One week later, both sides filed responsive pleadings.

       Petitioners argue that their cases are not moot because: (1) they are in the

constructive custody of the United States; and (2) they continue to suffer collateral

consequences from their detention in Guantanamo. The Government contends

these petitions are moot and should be dismissed. For the following reasons, I agree

with the Government and will DISMISS the petitions with prejudice.
       The petitioners are former detainees at the United States Naval Base at

Guantanamo Bay, Cuba. Before this Court could adjudicate their habeas claims, the

Government transferred Hamoodah and Rimi to Libya, Al Hajji to Tunisia, and

Khan to Afghanistan. Hamoodah and Rimi are apparently being detained by the

Libyan government. (Pet's Consolidated Mem. at 3, 5.) Al Hajji is in prison in

Tunisia, serving a sentence for an earlier conviction in that country. (ld. at 6-7.)

Khan's current whereabouts is unknown, but his counsel suspects he may be in

custody in Afghanistan. (ld. at 8.)

       The federal habeas statute confers jurisdiction on District Courts if a

petitioner is "in custody under or by the color of the authority of the United States."

28 U.S.C. § 2241(c). Ifa petitioner is released from custody, the claim is mooted

unless petitioner can demonstrate a concrete and continuing injury - some

"collateral consequence" - to continue the suit. Spencer v. Kemna, 523 U.S. 1, 7

(1998). Petitioners, not surprisingly, argue that they are being held "by color of the

authority of the United States," and, therefore, that they remain "in custody."

Second, petitioners claim that even if they have been released from U.S. custody,

they continue to suffer collateral consequences - specifically, their continued

detention at the hands of foreign governments - and therefore are entitled to pursue

their petitions. I disagree as to both positions.




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            First, petitioners' constructive custody argument fails because their

contention that these former detainees are being held under the authority of the

United States is nothing more than rank speCUlation. Simply stated, each petitioner

must establish that his custody is "the result of the respondent's actions from which

he seeks habeas corpus relief." Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 47 (D.D.C.

2004) (quoting Steinberg v. Police Court       0/ Albany, N. Y, 610 F.2d 449, 453 (6th
Cir. 1979)). They have not done so here.

            To the contrary, the Government has represented that any detention by a

foreign government after a detainee's release is "pursuant to [the foreign

government's] own laws and not on behalf of the United States." (Declaration of

Deputy Assistant Secretary of Defense for Detainee Affairs Sandra L. Hodgkinson ~
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5.    )   And the Supreme Court, in Muna/v. Geren, and the D.C. Circuit, in Kiyemba

v. Obama, have specifically provided that our Courts are "not suited to second-

guess" such Government representations. To do so "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." Munaf, 128 S. Ct. 2207, 2226 (2008); Kiyemba,

561 FJd 509, 514 (D.C. Cir. 2009). As such, the Court has no basis on this record

to conclude that petitioners are in the constructive custody of the United States.




I Sandra Hodgkinson's Declaration is appended as Exhibit 1 to Respondent's Status Report
in Response to the Court's July 3, 2008 Order.



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        For similar reasons, petitioners' argument that they are suffering from

collateral consequences is equally unpersuasive. First of all, collateral

consequences that are "based on the discretionary decisions of' someone other than

respondents, alone, effectively render this case moot. Al Joudi v. Bush, 2008 WL

821884 at *1 (D.D.C. Mar. 26, 2008) (quoting Spencer, 523 U.S. at 13 (internal

quotations omitted)); Idema v. Rice, 478 F. Supp. 2d 47,51 (D.D.C. 2007).

Moreover, even if this were not the case, the harm petitioners complain of is not

redressable by a judicial action. Simply put, this Court has no authority over the

foreign governments currently holding petitioners. See Kiyemba, 561 F .3d at 515

("Muna/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.") Thus, dismissal is both a legal and practical necessity.2




2 Petitioners also allege that their transfer was unlawful under the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 3, Dec. 10,
1984, S. Treaty Doc. No.1 00-20. However, their habeas petitions already have been
rendered moot by their transfers, and the addition of this claim at this stage is not enough
to prevent dismissal. Moreover, Kiyemba forecloses this argument with the same force as
it does petitioners' first two arguments. See 561 F.3d at 514-15 (citing 8 U.S.C. §
1252(a)( 4), the statutory provision which limits judicial review under the Convention to
claims raised in a challenge to a final order of removal and brought in an appropriate Court
of Appeals).




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      Accordingly, for all of the foregoing reasons, it is hereby

      ORDERED that the habeas petitions of Sofian Ebrahim Hamad Hamoodah,

Muhammad Abdallah Mansur Al Futuri Rimi, Abdullah Bin Omar Al Hajji, and

Mohabat Khan are DISMISSED with prejudice.
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      SO ORDERED.


                                                      ~ United States District Judge




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