                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



   JOHN DOE,

                           Petitioner,

                           v.                                         No. 17-cv-2069 (TSC)

   GEN. JAMES N. MATTIS,
    in his official capacity as SECRETARY OF
    DEFENSE,

                           Respondent.




                                  MEMORANDUM OPINION

       Petitioner—a United States citizen—remains in Iraq in the custody of U.S. armed forces.

While Petitioner now has access to counsel in order to pursue this habeas petition, the

Department of Defense (“Defense Department”) may seek to transfer him prior to this court’s

decision on his petition. The Defense Department is unable to provide a timeline for when this

transfer might take place. Petitioner has requested that this court enjoin the Defense Department

from transferring him to another country during the pendency of this litigation. Upon

consideration of the parties’ filings, the oral arguments of counsel, and for the reasons stated

herein, Petitioner’s Motion Regarding Continued Interim Relief will be GRANTED in part and

DENIED in part. The court will not enjoin the Defense Department from transferring the

Petitioner, but will require the Defense Department to provide the court and Petitioner’s counsel

seventy-two hours’ notice prior to any such transfer.




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  I.   BACKGROUND

       On December 23, 2017, this court entered an order (1) denying the Defense Department’s

Motion to Dismiss (ECF No. 11), (2) requiring the Defense Department to permit the American

Civil Liberties Union Foundation (“ACLUF”) immediate and unmonitored access to Petitioner to

determine whether he wanted the ACLUF to pursue this action on his behalf, and (3) requiring

the Defense Department to “refrain from transferring the detainee until the ACLUF informs the

court of the detainee’s wishes.” (ECF No. 30). On January 5, 2018, the ACLUF informed the

court that Petitioner wanted the ACLUF to represent him in this action. (ECF No. 32 (“Mot.”) at

1). The ACLUF also requested that the court extend the interim relief provided in its December

23 Order, and order the Defense Department not to transfer Petitioner until the court renders its

decision on Petitioner’s habeas petition. (Id. at 2).

       On January 18, 2018, the court held a hearing on Petitioner’s motion for continued relief.

In response to the court’s inquiry as to whether the Defense Department intended to transfer the

Petitioner within the next forty-eight hours, Department counsel indicated that it had no basis to

believe that a transfer would take place within that timeframe. Counsel added, however, that it is

the Defense Department’s position that it has the authority to transfer Petitioner as soon as

another country is ready to receive him. Given the Defense Department’s position, and the

court’s impending ruling on Petitioner’s motion, the court ordered the Defense Department to

refrain from transferring Petitioner until Tuesday, January 23, 2018. (ECF No. 43).

       At the January 18 hearing, the Defense Department also offered to provide the court with

a classified declaration which would provide more detail regarding the Department’s position as

to Petitioner. On January 19, 2018, the Defense Department filed a classified ex parte

declaration through a Classified Information Security Officer. (See ECF No. 44). That evening,



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the Defense Department filed a redacted, sealed version of the same declaration. (ECF No. 45-1

(“Classified Declaration”)).

        On January 22, 2018, the court held a status hearing, during which the court asked the

parties whether they opposed an order requiring the Defense Department to provide the court and

Petitioner’s counsel notice prior to transferring Petitioner. The Defense Department indicated

that it would object to such an order. Petitioner’s counsel informed the court that Petitioner

would not object to such an order, as long as he had the opportunity to contest his transfer.

 II.    LEGAL STANDARD

        In order to prevail on a motion for a preliminary injunction, the movant must show that:

“[1] he is likely to succeed on the merits, [2] . . . he is likely to suffer irreparable harm in the

absence of preliminary relief, [3] . . . the balance of equities tips in his favor, and [4] . . . an

injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20

(2008). A preliminary injunction is an “extraordinary remedy” that is “never awarded as of

right.” Id. at 24 (citing Munaf v. Geren, 553 U.S. 674, 689–90 (2008)). The D.C. Circuit has

applied a sliding scale approach to evaluating preliminary injunctions, such that an unusually

strong showing on one factor could make up for a weaker showing on another. See, e.g., Davis

v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009). It has been suggested

that a movant’s showing of a likelihood of success, however, is a “‘free-standing requirement for

a preliminary injunction.’” Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (quoting

Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring)).




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III.   DISCUSSION

   A. Likelihood of Success on the Merits

       Petitioner has shown a likelihood of success on the merits of his claim that there should

be some restriction on the Defense Department’s ability to transfer him during the pendency of

this litigation. Prior to transferring Petitioner, the Defense Department must present “positive

legal authority” for his transfer. See Omar v. McHugh, 646 F.3d 13, 24 (D.C. Cir. 2011) (“None

of this means that the Executive Branch may detain or transfer Americans or individuals in U.S.

territory at will, without any judicial review of the positive legal authority for the detention or

transfer.”); see also Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8 (1936) (power to

provide for extradition “is not confided to the Executive in the absence of treaty or legislative

provision”).

       The court has reviewed the classified information provided by the Defense Department

and finds that it does not present “positive legal authority” for Petitioner’s transfer. Neither does

the Defense Department’s assertion that “international relations” with the receiving country

would be harmed should the court prohibit his transfer at this time.

       Despite its failure to present legal authority for Petitioner’s transfer, such as an

extradition request or an allegation of criminal conduct committed in the receiving country, the

Defense Department maintains that the court nonetheless cannot restrict Petitioner’s transfer

while it considers his claim of unlawful detention. Relying on Munaf v. Geren, 553 U.S. 674

(2008), and Kiyemba v. Obama (“Kiyemba II”), 561 F.3d 509 (D.C. Cir. 2009), the Defense

Department argues that the court is barred from restricting Petitioner’s transfer because of the

“significant national security and foreign relations concerns” surrounding his transfer. (ECF No.

33 (“Opp.”) at 7–8). The court finds this argument unavailing.



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       Nothing in Munaf or Kiyemba II restrains this court from restricting the Defense

Department’s ability to transfer Petitioner in this case. In Munaf, two U.S. citizens—charged by

the Iraqi government for crimes committed on Iraqi soil—were detained in Iraq by U.S. military

forces as part of a multi-national force acting on behalf of the Iraqi government. 553 U.S. at

681–685. The detainees filed petitions for writs of habeas corpus, seeking to enjoin the multi-

national forces from transferring them to Iraqi custody. Id. The Supreme Court held that the

district court did not have the power to enjoin the transfers, explaining that “[h]abeas corpus does

not require the United States to shelter . . . fugitives from the criminal justice system of the

sovereign with authority to prosecute them.” Id. at 705. Here, unlike in Munaf, there is no

evidence in the record that Petitioner: (1) committed crimes in violation of the laws of another

country; (2) is facing prosecution in another country; or (3) is being held on another country’s

behalf. Therefore, this case does not implicate another country’s “sovereign right” to punish

offenses within its borders. Id. at 693.

       In Kiyemba II, the Court held that a district court did not have the power to enjoin the

transfer of detained non-citizens or to require the government to provide 30 days’ notice prior to

their transfer “based upon the expectation that a recipient country” will detain, prosecute or

torture them. 561 F.3d at 514–15. But Kiyemba II involved non-citizens who, by virtue of their

classification as wartime alien detainees, could not be released into the United States. Here,

Petitioner—a U.S. citizen—seeks to enjoin transfer solely to ensure that he is able to pursue his

habeas petition. He does not argue fear of detention, prosecution or torture in another country.

       The court finds that Petitioner has shown a likelihood of success on his claim that this

court may temporarily restrict the Defense Department’s ability to transfer him to another

country. The court does not find, however, that the specific relief Petitioner seeks—prohibition



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of his transfer for the duration of these proceedings—is warranted at this time. Transferring the

Petitioner is just one of the options the Defense Department is currently considering. (See Opp.

at 7 (“Releasing Petitioner from U.S. custody into the custody of another country with a

legitimate interest in him is one of the options under consideration.”)). Providing the relief

Petitioner seeks would require the court to prohibit an action that the Defense Department has

not yet decided to take. The court finds it more prudent to require the Defense Department to

provide notice prior to transferring Petitioner, and to afford Petitioner the opportunity to contest

his transfer should he decide to do so.

   B. Irreparable Harm

       The Defense Department does not—because it cannot—argue that Petitioner will not be

irreparably harmed absent some relief from this court. Without a restriction on Petitioner’s

transfer, the Defense Department may transfer Petitioner to the custody of another country prior

to a decision on his habeas petition, and without providing any notice to this court or Petitioner’s

counsel. Were that to occur, Petitioner would no longer be in U.S. custody, and will likely be

unable to pursue his habeas petition. See In re Petitioners Seeking Habeas Corpus Relief in

Relation to Prior Detentions at Guantanamo Bay, 700 F. Supp. 2d 119, 126 (D.D.C. 2010), aff’d

sub nom. Chaman v. Obama, 2012 WL 3797596 (D.C. Cir. Aug. 10, 2012) (“For a petitioner in

United States custody, the controversy is clear since he is attempting to secure his release from

the United States Government. . . . For a petitioner released from United States custody, the case-

or-controversy requirement is problematic because the remedy sought is more elusive.”) (citing

Spencer v. Kemna, 523 U.S. 1, 7 (1998)); see also Qassim v. Bush, 466 F.3d 1073, 1076–77

(D.C. Cir. 2006) (finding petitioners’ claims for declaratory and injunctive relief moot because




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they had been released from U.S. custody and did not show a collateral consequence of their

prior detention).

   C. Balance of Equities

       The balance of equities also weighs in Petitioner’s favor. The government has argued

that a ruling in Petitioner’s favor would result in serious harm to the government’s international

relations with another country, and the court recognizes the government’s significant interest in

maintaining fruitful, diplomatic relations. But the court is not convinced—based on the record

here—that these diplomatic interests override the Petitioner’s well-established right “to contest

the factual basis for [his] detention” through a habeas petition. Hamdi v. Rumsfeld, 542 U.S.

507, 509 (2004). Absent an articulated legal reason for the transfer, such as an extradition

request or an allegation of criminal conduct committed in the receiving country, Petitioner’s right

to habeas relief does not yield to the government’s desire to maintain good diplomatic relations.

       Balancing the equities in Petitioner’s favor here is particularly appropriate, given that this

court’s decision merely requires the Defense Department to provide notice prior to any transfer.

The Defense Department is not prevented from continuing negotiations or discussions regarding

the transfer, or from obtaining further information that might support a transfer. Absent a

showing that the government—for international relations reasons or otherwise—needs to transfer

Petitioner now, the court does not find that the government’s interests outweigh the Petitioner’s

right to challenge his detention without fear of his transfer to another country. The Defense

Department’s Classified Declaration does not convince the court otherwise.

   D. Public Interest

       Judicial authority to review habeas corpus petitions derives from U.S. citizens’ rights to

“freedom from arbitrary and unlawful restraint.” Boumediene v. Bush, 553 U.S. 723, 797 (2008).



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While this court is mindful of the government’s right to conduct diplomacy and foreign relations

as it sees fit, this right must be balanced against United States citizens’ rights to contest the

lawfulness of their detentions and transfers at the hands of the Executive.

IV.    CONCLUSION

       For the foregoing reasons, Petitioner’s motion for continued relief will be GRANTED in

part and DENIED in part. The Defense Department will be ordered to provide the court and

Petitioner’s counsel seventy-two hours’ notice prior to transferring Petitioner, at which time

Petitioner may file an emergency motion contesting his transfer. A corresponding order will

issue separately.


Date: January 23, 2018


                                               Tanya S. Chutkan
                                               TANYA S. CHUTKAN
                                               United States District Judge          




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