Shafiiq v. Bush
Civil Action No. 2005-1506
| D.D.C. | Jan 18, 2017Background
- Petitioner Sufyian Barhoumi, detained at Guantanamo Bay under the AUMF, previously lost habeas relief on the merits and was held lawfully detained as part of an al-Qaida-associated force.
- In August 2016 a Periodic Review Board (PRB) recommended his transfer to Algeria as detention was no longer necessary to mitigate a significant threat, subject to pre-conditions.
- On January 13, 2017, fearing an incoming administration might block transfers, Barhoumi filed an emergency motion seeking a court order to effect his immediate release/transfer and to avoid statutory transfer-notice requirements.
- The Department of Defense informed the Court that the Secretary of Defense rejected the PRB recommendation, citing substantive, multi-agency concerns; therefore statutory notice/certification requirements were not the actual impediment to transfer.
- The Court concluded Barhoumi lacks a legally cognizable right to compel transfer: the PRB process and its recommendations do not create enforceable rights, and habeas does not authorize immediate release where detention remains lawful for the duration of the conflict.
- The motion was denied for lack of Article III standing and jurisdiction because the asserted injury (delay in transfer) rests on no legally protected interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to seek court-ordered transfer/release | Barhoumi: the Secretary’s delay is bureaucratic; PRB recommendation and court-order exception to the NDAA permit relief and avoid statutory notice | Government: Secretary rejected PRB recommendation for substantive reasons; PRB recommendation creates no enforceable right; habeas does not mandate release while conflict continues | Denied — Barhoumi lacks legally protected interest; no Article III standing; court lacks jurisdiction |
| Applicability of NDAA court-order exception to bypass 30-day notice | Barhoumi: court-order exception allows transfer to effectuate a judicial disposition | Government: transfer not prevented by NDAA notice because Secretary has not approved transfer; exception is immaterial here | Denied — exception inapplicable because Secretary withheld approval; no legal right to invoke exception |
| Enforceability of PRB recommendation | Barhoumi: PRB recommendation supports a right to transfer | Government: PRB established by Executive Order and Congress is discretionary; Executive Order and NDAA disclaim enforceable rights | Denied — PRB recommendations are discretionary and not legally enforceable |
| Habeas authority to order immediate release despite lawful detention | Barhoumi: habeas should permit relief to effect transfer now | Government: D.C. Circuit and Supreme Court law permit detention for duration of relevant conflict; habeas relief not available for immediate transfer here | Denied — precedent permits continued detention; habeas does not compel transfer now |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires injury in fact, traceability, redressability)
- Raines v. Byrd, 521 U.S. 811 (injury must be legally and judicially cognizable)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (injury-in-fact is primary standing requirement)
- Claybrook v. Slater, 111 F.3d 904 (no standing where asserted injury is to a nonexistent legal right)
- McConnell v. FEC, 540 U.S. 93 (no standing when claim rests on mistaken legal premise)
- Hamdi v. Rumsfeld, 542 U.S. 507 (detainee may be detained for duration of the relevant conflict)
- Boumediene v. Bush, 553 U.S. 723 (habeas jurisdiction at Guantanamo affirmed)
- Al-Bihani v. Obama, 590 F.3d 866 (continued detention justified until political-branch determination that hostilities have ceased)
- Aamer v. Obama, 742 F.3d 1023 (discussing lawful detention framework)
- Ali v. Obama, 736 F.3d 542 (same)
- Pender v. Bank of Am. Corp., 788 F.3d 354 (injury must be invasion of legally protected interest)