Jаmal KIYEMBA, Next Friend, et al., Appellees v. Barack OBAMA, President of the United States, et al., Appellants.
No. 05-5487, 05-5489.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 25, 2008. Decided April 7, 2009.
561 F.3d 509
Christopher P. Moore argued the cause for appellees. With him on the briefs were Jonathan I. Blackman, Rahul Mukhi, Aaron Marr Page, Susan Baker Manning, P. Sabin Willett, Rheba Rutkowski, Neil McGaraghan, Jason S. Pinney, and Gitanjali Gutierrez.
Before: GINSBURG, GRIFFITH, and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
Concurring opinion filed by Circuit Judge KAVANAUGH.
Opinion concurring in the judgment in part and dissenting in part filed by Circuit Judge GRIFFITH.
GINSBURG, Circuit Judge:
Nine Uighurs held at Guantanamo Bay, in order to challenge their detention, petitioned the district court for a writ of habeas corpus. Asserting that they feared being transferred to a country where they might be tortured or further detained, they also sought interim relief requiring the Gоvernment to provide 30 days’ notice to the district court and to counsel before transferring them from Guantanamo. The district court entered the requested orders. Kiyemba v. Bush, No. 1:05cv1509 (Sept. 13, 2005); Mamet v. Bush, No. 1:05cv1602 (Sept. 30, 2005). The Government appealed each of the orders and we consolidated its appeals. In light of the Supreme Court‘s recent decision in Munaf v. Geren, — U.S. —, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008), we now reverse.
I. Background
In granting the request for 30 days’ notice of any planned transfer, the district court in Mamet noted the detainee‘s fear of being tortured. In Kiyemba the district court did not advert to the detainees’ fear of harm but entered an order requiring pre-transfer notice lest removal from Guantanamo divest the court of jurisdiction over the detainees’ habeas petitions.
While this appeal was pending, the Congress passed the Military Commissions Act (MCA), § 7 of which provided:
No court ... shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained аs an enemy combatant or is awaiting such determination.
We begin with the Government‘s argument that the MCA bars the district court from exercising jurisdiction in their ongoing habeas cases over claims related to the detainees’ potential transfer. The Government contends the Supreme Court in Boumediene held the first provision of § 7 of the MCA,
In response, the detainees maintain it was no accident that the Court in Boumediene avoided making just the sort of fine distinction the Government proposes. They point specifically to the Court‘s caution in Ayotte that “making distinctions in a murky constitutional context, or where line-drawing is inherently complex, may call for a far more serious invasion of the legislative domain than we ought to undertake.” Id. at 330, 126 S.Ct. 961 (internal quotation marks omitted).
We think the detainees have the better of the argument. The Court in Boumediene did not draw (or even suggest the existence of) а line between “core” and “ancillary” habeas issues, neither of which terms appears in the opinion (apart from the innocuous observation that “Habeas is, at its core, an equitable remedy“). Rather, the Court stated simply that § 2241(e)(1) “effects an unconstitutional suspension of the writ.” 128 S.Ct. at 2274.1 Accordingly, we read Boumediene to invalidate § 2241(e)(1) with respect to all habeas claims brought by Guantanamo detainees, not simply with respect to so-called “core” habeas claims.2
The Government next argues the second provision of MCA § 7 stripped the district court of jurisdiction. That provision eliminates court jurisdiction over “any other action against the United States or its agents relating to any aspect of the ... transfer” of a detainee.
Because a potential transfer out of the jurisdiction of the court is a proper subject of statutory habeas relief, § 2241(e)(2) does not apply to and therefore does not deprive the court of jurisdiction over the claims now before us. Even “where a habеas court has the power to issue the writ,” however, the question remains “whether this be a case in which [that power] ought to be exercised.” Munaf, 128 S.Ct. at 2221 (quoting Ex parte Watkins, 28 U.S. (3 Pet.) 193, 201, 7 L.Ed. 650 (1830)). We turn, accordingly, to the merits of the petitioners’ claims.
III. Proper Grounds for Habeas Relief
A court considering a request for preliminary relief must examine four factors: (1) the moving party‘s likelihood of success on the merits; (2) irreparable injury to the moving party if an injunction is denied; (3) substantial injury to the opposing party if an injunction is granted; and (4) the public interest. Belbacha v. Bush, 520 F.3d 452, 459 (D.C.Cir.2008). We review for abuse of discretion the district court‘s weighing of these factors; insofar as “the district court‘s decision hinges on questions of law,” however, our review is de novo. Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C.Cir.1998) (internal quotation marks omitted). If the moving party can show no likelihood of success on the merits, then preliminary relief is obviously improper and the appellant is entitled to reversal of the order as a matter of law. See Munaf, 128 S.Ct. at 2220.3
The detainees here seek to prevent their transfer tо any country where they are likely to be subjected to further detention
A. Fear of Torture
Like the detainees here, the petitioners in Munaf asked the district court to enjoin their transfer because they feared they would be tortured in the recipient country. The Court recognized the petitioners’ fear of torture was “of course a matter of serious concern,” but held “in the present context that concern is to be addressed by the political branches, not the judiciary.” Id. at 2225. The context to which the Court referred was one in which—as here—the record documents the policy of the United States not to transfer a detainee to a country where he is likely to be tortured. Id. at 2226. Indeed, as the present record shows, the Government does everything in its power to determine whether a particular country is likely to torture a particular detainee. Decl. of Pierre-Richard Prosper, United States Ambassador-at-Large for War Crimes Issues ¶¶ 4, 7-8, Mar. 8, 2005.
The upshot is that the detainees are not liable to be cast abroad willy-nilly without regard to their likely treatment in any country that will take them. Under Munaf, however, the district court may not question the Government‘s determination that a potential recipient country is not likely to torture a detainee. 128 S.Ct. at 2226 (“The Judiciary is not suited to second-guess such determinations—determinations that 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“). In light of the Government‘s policy, a detainee cannot prevail on the merits of a claim seeking to bar his transfer based upon the likelihood of his being tortured in the recipient country.5
The detainees seek to distinguish Munaf on the ground that the habeas petitioners in that case did not raise a claim under the Convention Against Torture, as implemented by the Foreign Affairs Reform and Restructuring (FARR) Act,
B. Prosecution or Continued Detention
To the extent the detainees seek to enjoin their transfer based upon the expectation that a recipient country will detain or prosecute them, Munaf again bars relief. After their release from the custody of the United States, any prosecution or detention the petitioners might face would be effected “by the foreign government pursuant to its own laws and not on behalf of the United States.” Decl. of Matthew C. Waxman, Deputy Assistant Secretary of Defense for Detainee Affairs ¶ 5, June 2, 2005. It is a longstanding principle of our jurisprudence that “[t]he jurisdiction of [a] nation, within its own territory, is necessarily exclusive and absolute.” Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 136, 3 L.Ed. 287 (1812). As the Supreme Court explained in Munaf, the “same principles of comity and respect for foreign sovereigns that preclude judicial scrutiny of foreign convictions necessarily render invalid attempts to shield citizens from foreign prosecution.” 128 S.Ct. at 2224 (quoting Brown, J., dissenting in part in Omar v. Harvey, 479 F.3d 1, 17 (D.C.Cir.2007)). Munaf 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.
Judicial inquiry into a recipient country‘s basis or procedures for prosecuting or detaining a transferee from Guantanamo would implicate not only norms of international comity but also the same separation of powers principles that preclude the courts from second-guessing the Executive‘s assessment of the likelihood a detainee will be tortured by a foreign sovereign. See id. at 2225 (“Even with respect to claims that detainees would be denied constitutional rights if transferred, we have recognized that it is for the political branches, not the judiciary, to assess practices in foreign countries and to determine national policy in light of those assеssments“). Furthermore, the requirement that the Government provide pre-transfer notice interferes with the Executive‘s ability to conduct the sensitive diplomatic negotiations required to arrange safe transfers for detainees. Prosper Decl. ¶ 10 (“Later review in a public forum of the Department‘s dealings with a particular foreign government regarding transfer matters would seriously undermine our ability to investigate allegations of mistreatment or torture ... and to reach acceptable accommodations with other governments to address these important concerns“).7
In short, “habeas is not a means of compelling the United States to harbor fugitives from the criminal justice system of a sovereign with undoubted authority to prosecute them.” Munaf, 128 S.Ct. at 2223. Therefore, the district court may not issue a writ of habeas corpus to shield a detainee from prosecution or detention at the hands of another sovereign on its soil and under its authority. As a result, the petitioners cannot makе the required showing of a likelihood of success on the merits necessary to obtain the preliminary relief they here seek.
IV. Conclusion
The Supreme Court‘s ruling in Munaf precludes the district court from barring the transfer of a Guantanamo detainee on the ground that he is likely to be tortured or subject to further prosecution or detention in the recipient country. The Government has declared its policy not to transfer a detainee to a country that likely will torture him, and the district court may not second-guess the Government‘s assessment of that likelihood. Nor may the district court bar the Government from releasing a detainee to the custody of another sovereign because that sovereign may prosecute or detain the transferee under its own laws. In sum, the detainees’ claims do not state grounds for which habeas relief is available. The orders of the district court barring their transfer without notice during the pendency of their habeas cases therefore must be and are
Vacated.
KAVANAUGH, Circuit Judge, concurring:
I agree with and join the pеrsuasive opinion of the Court. Under current law, the U.S. Government may transfer Guantanamo detainees to the custody of foreign nations without judicial intervention—at least so long as the Executive Branch declares, as it has for the Guantanamo de-
I write separately to emphasize three points.
First, our disposition does not preclude Congress from further regulating the Executive‘s transfer of wartime detainees to the custody of other nations. Congress possesses express constitutional authority to make rules concerning wartime detainees. See, e.g.,
Second, in the absence of a meritorious statutory claim,1 the detainees argue that they have a constitutional due process right against “transfer to torture“—and, therefore, to judicial reassessment of the Executive‘s conclusion that transfer to a foreign nation‘s custody is unlikely to result in torture. But both Munaf and the deeply roоted “rule of non-inquiry” in extradition cases require that we defer to the Executive‘s considered judgment that transfer is unlikely to result in torture. Those precedents compel us to reject the detainees’ argument that the court second-guess the Executive‘s conclusion in this case.
In Munaf, in response to a similar due process claim, the Supreme Court unanimously held that the Judiciary may not “second-guess” the Executive‘s assessment that transferred detainees are unlikely to be tortured by the receiving nation (in that case, by Iraq, where the detainees were to be prosecuted in Iraqi courts). 128 S.Ct. at 2226.2 The Munaf decision applies here a fortiori: That case involved transfer of American citizens, whereas this case in-
Similarly, the longstanding rule of non-inquiry in extradition cases undermines the detainees’ argument. When the Executive seeks extradition pursuant to a request from a foreign nation, the Judiciary does not inquire into the treatment or procedures the extradited citizen or alien will receive in that country. “It is the function of the Secretary of State to determine whether extradition should be denied on humanitarian grounds.” Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir.1990); see also Neely v. Henkel, 180 U.S. 109, 122-23, 21 S.Ct. 302, 45 L.Ed. 448 (1901); Hoxha v. Levi, 465 F.3d 554, 563 (3d Cir.2006); United States v. Kin-Hong, 110 F.3d 103, 110-11 & nn. 11-12 (1st Cir.1997); Lopez-Smith v. Hood, 121 F.3d 1322, 1326-27 (9th Cir.1997); Jacques Semmelman, Federal Courts, the Constitution, and the Rule of Non-Inquiry in International Extradition Proceedings, 76 CORNELL L.REV. 1198 (1991).3
Therefore, with respect to international transfers of individuals in U.S. custody, Munaf and the extradition cases have already struck the due process balance between the competing interests of the individual and the Government. That balance controls here.4 The detainees’ interest in avoiding torture or mistreatment by a foreign nation is the same “matter of serious concern” at issue in Munaf and the extradition cases. Munaf, 128 S.Ct. at 2225. And on the other side of the ledger, the Government‘s interest in transferring these detainees to foreign nations without judicial second-guessing is at least as compelling as in those cases. Cf. id. at 2224-25 (noting significant governmental interest in detainee transfers connected to “the Executive‘s ability to conduct military operations abroad“).
The detainees counter that the Government‘s transfer interest in this case involves non-enemy combatants and is therefore less important than in Munaf and the extradition cases; they further hint that transfer without their consent would be without legal authority. Those arguments are incorrect for two separate reasons.
To begin with, even if this were just a standard immigration case involving inadmissible aliens at the U.S. border, the governmental interest in transfer would be compelling. Like Guantanamo detainees, inadmissible aliens at the border or a U.S. port of entry have no constitutional right to enter the United States. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210-13, 73 S.Ct. 625, 97 L.Ed. 956 (1953); see also id. at 222-23 (Jackson, J., dissenting) (agreeing with majority that there is no constitutional right for an alien to enter the United States); Kiyemba v. Obama, 555 F.3d 1022 (D.C.Cir.2009). In those cases, the United States has a very strong interest in returning the aliens to their home countries or safe third countries so that they will not be detained indefinitely in facilities run by the United States—a scenario that can trigger a host of security, foreign policy, and domestic complications. Cf.
In addition, and more fundamentally, this is a case involving transfer of wartime alien detainees. Transfers are a traditional and lawful aspect of U.S. war efforts. When waging war, the United States captures and detains enemy combatants. The United States may hold enemy combatants for the duration of hostilities, and it of course may prosecute unlawful enemy combatants. See Hamdi, 542 U.S. at 518-19, 124 S.Ct. 2633 (plurality opinion). At the conclusion of hostilities, the United States ordinarily transfers or releases lawful combatant detainees to their home countries. Most relevant in this case, when the United States determines during an ongoing war that an alien no longer needs to be detained or has been mistakenly detained—for example, if he is a non-combatant and not otherwise subject to confinеment—the United States attempts to promptly transfer or release that detainee to his home country or a safe third country. Cf. Army Regulation 190-8 § 1-6(10)(c) (person who is captured and determined to be “innocent civilian should be immediately returned to his home or released“); id. §§ 3-11 to 3-14 (transfer and repatriation of prisoners of war); id. § 6-15 (transfer of civilian internees).5
Throughout the 20th Century, the United States transferred or released hundreds of thousands of wartime alien detainees—some of whom had been held in America—back to their home countries or, in some
In short, Munaf and the extradition cases have already weighed the relevant due process considerations regarding transfers. They have established that “the political branches are well situated to consider sensitive foreign policy issues, such as whether there is a serious prospect of torture at the hands of an ally, and what to do about it if there is.” Munaf, 128 S.Ct. at 2226. And the “Judiciary is not suited to second-guess such determinations.” Id. In light of those precedents, it would be quite anomalous for courts, absent congressional direction, to second-guess such Executive assessments in these war-related transfer cases, where the governmental interest is at least as compelling and the individual interest in avoiding mistreatment is the same. See Al-Anazi v. Bush, 370 F.Supp.2d 188, 194-95 (D.D.C.2005) (Bates, J.); see generally The Supreme Court, 2008 Term—Leading Cases, 122 HARV. L.REV. 415 (2008) (analyzing Munaf and collecting authorities).
Third, I respectfully offer a few comments about the dissent.
The dissent does not address the fundamental issue raised in this appeal: whether the Constitution‘s Due Process Clause (or the Foreign Affairs Reform and Restructuring Act, see Maj. Op. at 514-15) requires judicial reassessment of the Executive‘s determination that a detainee is not likely to be tortured by a foreign nation—and whether, in order to ensure such a judicial inquiry, the Government must notify the district court before transfer. Rather, the dissent discusses a question that was not raised by the parties and fashions a new legal rule seemingly out of wholе cloth. According to the dissent, a court must prevent a transfer of an alien detainee to a foreign nation‘s custody if it concludes that prosecution or detention by the foreign nation would also amount to continued detention “on behalf of the United States.” Dis. Op. at 518. The detain-
In any event, I respectfully disagree with the dissent‘s theory. The Government represents that a foreign nation‘s prosecution or detention in the wake of a transfer to that nation‘s custody would take place “pursuant to its own laws.” Waxman Decl. ¶ 5. Under the principles of Munaf, that declaration suffices to demonstrate that the proposed transfer of an alien to the custody of a foreign nation is not the same thing as the U.S. Government‘s maintaining the detainee in U.S. custody.7
The dissent cites no precedent—none—requiring or allowing a court to review a proposed transfer and assess whether custody of such an alien by a foreign nation would somehow also amount to custody “on behalf of the United States.” The dearth of citations is noteworthy, particularly given that transfers of inadmissible or removed aliens to the custody of foreign nations have long occurred in the immigration context.
Furthermore, the dissent does not define or explain its proposed standard. What does “on behalf of the United States” mean in the context of a foreign nation‘s custody of an alien detainee? Does that concept apply to any negotiated transfer of an alien detainee? Does the dissent mean to prevent transfer from Guantanamo whenever the United States seeks or becomes aware of prosecution or detention of an alien by the receiving country pursuant to that country‘s laws? The dissent does not say.
The dissent in places seems to imply that an alien who is not an enemy combatant is perforce not dangerous, as that term is used in immigration practice, and that prosecution or detention by a foreign nation after transfer therefore would be improper, at least if the United States were aware of or encouraged it beforehand. But no authority is cited to support such a conclusion or the extraordinary judicial role it portends in connection with the Nation‘s foreign and immigration policies and international negotiations. Cf. Munaf, 128 S.Ct. at 2223 (“Habeas does not require the United States to keep an unsuspecting nation in the dark when it releases an alleged criminal insurgent within its borders.“); Demore v. Kim, 538 U.S. 510, 522, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government“) (internal quotation marks omitted); INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (“[J]udicial deference to the Executive Branch is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations“) (internal quotation marks omitted).
Nor does the dissent explicate how its regime would work procedurally. For instance, would the Judiciary require questioning of the American and foreign officials who negotiated the transfer? Would it mandate disclosure of confidential nation-to-nation documents? Presumably so. But absent congressional direction otherwise, courts traditionally are wary of wading so deeply into this Nation‘s negotiations and agreements with foreign nations. Cf. Dep‘t of Navy v. Egan, 484 U.S. 518, 529-30, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988); Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981).
Courts have a responsibility to decide war-related cases with as much clarity and expedition as possible. Especially in this sensitive area, our holdings and opinions should strive to be readily understandable to the political branches that have to make critical wartime decisions. The dissent‘s uncertain “on behalf of” standard likely would create years of case-by-case litigation as the courts and the political branches grapple with what it means and how it applies to a given U.S. negotiation with a foreign nation about transfer of a wartime alien detainee.
In my respectful judgment, the dissent‘s theory does not advance a proper ground, absent congressional direction, for a judge to prevent the transfer of Guantanamo detainees to the custody of a foreign nation. And thus I fully agree with the opinion of the Court that the dissent‘s argument provides no basis in this case for the court to second-guess the Executive‘s proposed transfer of these alien detainees. See Maj. Op. at 515-16 n.*.
***
The opinion of the Court correctly concludes that, under current law, the U.S. Government may transfer Guantanamo detainees to the custody of foreign nations without judicial intervention—at least so long as the Executive Branch declares, as it has for the Guantanamo detainees, that the United States will not transfer “an individual in circumstances where torture is likely to result.” Munaf, 128 S.Ct. at 2226.
GRIFFITH, Circuit Judge, concurring in the judgment in part and dissenting in part:
Nine detainees ask us to affirm district сourt orders requiring the government to provide thirty days’ notice of their transfers from Guantanamo Bay. I share the majority‘s concern that requiring such notice limits the government‘s flexibility in a sensitive matter of foreign policy. Nevertheless, in Boumediene v. Bush, — U.S. —, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), the Supreme Court rejected this court‘s view of the reach of the writ of habeas corpus and extended its protections to those held at Guantanamo Bay. Since at least the seventeenth century, the Great Writ has prohibited the transfer of prisoners to places beyond its reach where they would be subject to continued detention on behalf of the government. Because this protection applies to the petitioners, the critical question before us is what process a court must employ to assess the lawful-
I.
I agree with the majority that the district court has subject matter jurisdiction to hear the detainees’ challenges to their transfers. I am less certain than the majority, however, that there remains a statutory basis to hear these claims after Boumediene. The majority opinion in Boumediene said nothing about whether statutory habeas for the Guantanamo detainees survived the Military Commissions Act of 2006,
The bar against transfer beyond the reach of habeas protections is a venerable element of the Great Writ and undoubtedly part of constitutional habeas. “[A]t the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.‘” INS v. St. Cyr, 533 U.S. 289, 301, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (quoting Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996)). Because the Habeas Corpus Act of 1679 “was the model upon which the habeas statutes of the 13 American Colonies were based,” Boumediene, 128 S.Ct. at 2246; see Dallin H. Oaks, Habeas Corpus in the States, 1776-1865, 32 U. CHI. L.REV. 243, 252 (1965) (explaining the “close conformity of most state legislation to the English Habeas Corpus Act of 1679“), the Supreme Court has looked to the 1679 Act to determine the contours and content of constitutional habeas, see, e.g., Boumediene, 128 S.Ct. at 2245-47; Hamdi v. Rumsfeld, 542 U.S. 507, 557-58, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (Scalia, J., dissenting); Peyton v. Rowe, 391 U.S. 54, 58-59, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). Section 12 of the 1679 Act included a prohibition against the transfer of prisoners to places where the writ did not run. See Habeas Corpus Act, 1679, 31 Car. 2, c. 2, § 12 (Eng.) (“[N]o subject may be sent ... into parts, garrisons, islands or places beyond the seas ... within or without the dominiоns of his Majesty ...“); see also Boumediene, 128 S.Ct. at 2304 (Scalia, J., dissenting) (“The possibility of evading judicial review through such spiriting-away was eliminated, not by expanding the writ abroad, but by forbidding (in Article XII of the Act) the shipment of prisoners to places where the writ did not run or where its execution would be difficult.“); Oaks at 253 (“The act also prohibited sending persons to foreign prisons (§ 12).“). Because Boumediene extended constitutional habeas to the Guantanamo detainees, see 128 S.Ct. at 2240 (holding that petitioners “have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause“), we should acknowledge that ju-
II.
Transfer to continued detention on behalf of the United States in a place where the writ does not reach would be unlawful and may be enjoined. The question we must consider is what process courts must use to determinе whether the government‘s proposed transfers run afoul of that bar. The majority holds that the district court must defer to the Executive‘s sworn representations that transfer to the physical custody of a foreign government will not involve continued detention on behalf of the United States. Majority Op. at 516. But this will leave the petitioners without any opportunity to challenge the accuracy of the government‘s sworn declarations. Although prudential concerns may justify some flexibility in fashioning habeas relief, see Boumediene, 128 S.Ct. at 2267 (noting that “common-law habeas corpus was, above all, an adaptable remedy“), such innovations must not strip the writ of its essential protections. See id. at 2276 (“Certain accommodations can be made to reduce the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ.“).
Fundamental to a prisoner‘s habeas rights is the government‘s duty to appear in court to justify his detention. At its most basic level, habeas “protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account.” Id. at 2247; see Peyton, 391 U.S. at 58, 88 S.Ct. 1549 (“The writ of habeas corpus is a procedural device for subjecting executive, judicial, or private restraints on liberty to judicial scrutiny. Where it is available, it assures among other things that a prisoner may require his jailer to justify the detention under the law.“). To vindicate the detainees’ habeas rights, Boumediene requires the court to “conduct a meaningful review” of the government‘s reasons for the detention, which includes, at the very least, the rudimentaries of an adversary proceeding. 128 S.Ct. at 2268-69 (for the “writ [to] be effective ... [t]he habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive‘s power to detain,” typically through “a fair, adversary proceeding“); see also id. at 2269 (identifying as a critical deficiency in the CSRT process the “constraints upon the detainee‘s ability to rebut the factual basis for the Govеrnment‘s assertion that he is an enemy combatant“). Calling the jailer to account must include some opportunity for the prisoner to challenge the jailer‘s account.
Here the nine detainees claim their transfers may result in continued detention on behalf of the United States in places where the writ does not extend, effectively denying them the habeas protections Boumediene declared are theirs. See, e.g., Appellees’ Supp. Br. at 4-5 (arguing that habeas “extends to ensuring that any proposed ‘release‘” would not result in “continued unlawful detention in a location beyond the jurisdiction of the district court ... in coordination with[ ] or at the behest of the United States“); Appellees’ Supp. Resp. Br. at 5-6; Application for Prelim. Inj. at 7, 9-10, Kiyemba v. Bush, No. 05-1509 (D.D.C. Sept. 9, 2005). The stakes of unlawful custody, which led the Court in Boumediene to extend habeas protections to the detainees in the first place, are no higher than the stakes of unlawful transfer. Indeed, because an unlawful transfer will deny the detainees any prospect of judicial relief, protecting their habeas rights in this context is vital.
Relying solely on the government‘s sworn declaration and despite the petitioners’ claims to the contrary, the majority insists that this сase is not about possible continued detention by a foreign nation on behalf of the United States. Majority Op. at 515-16. But the majority makes too much of what the government has actually said. The government has stated only that transfer to a foreign nation will result in release of the detainees from the physical custody of the United States. See Declaration of Matthew C. Waxman, Deputy Assistant Sec‘y of Def. for Detainee Affairs 2-3 (June 2, 2005). The declaration expressly left open the possibility that a foreign nation will continue detention of the petitioners. See id. at 2 (“[T]he United States also transfers GTMO detainees, under appropriate circumstances, to the control of other governments for continued detention....“). The possibility of continued detention by a foreign nation on behalf of the United States after a transfer is the very issue we must address. Although the status of these detainees has been put to an adversarial process, whether their transfers will be lawful has not. I dо not see how the court can safeguard the habeas rights Boumediene extended to these detainees without allowing them to challenge the government‘s account.1
Munaf is not to the contrary. The majority makes much of its language that courts may not “second-guess” the govern-
Other factual and legal differences limit Munaf‘s applicability to our case. Critical to Munaf‘s holding was the need to protect Iraq‘s right as a foreign sovereign to prosecute the petitioners. See 128 S.Ct. at 2221 (“[O]ur cases make clear that Iraq has a sovereign right to prosecute Omar and Munaf for crimes committed on its soil.“). No such interest is implicated here. The Court also emphasized Iraq‘s status as an ally and the fact that the petitioners had voluntarily traveled to Iraq to commit crimes during ongoing hostilities. See id. at 2224-25. Again, nothing similar is involved in this case. Perhaps most important, the Munaf petitioners sought a unique type of relief, as the Court stressed:
[T]he nature of thе relief sought by the habeas petitioners suggests that habeas is not appropriate in these cases. Habeas is at its core a remedy for unlawful executive detention.... At the end of the day, what petitioners are really after is a court order requiring the United States to shelter them from the sovereign government seeking to have them answer for alleged crimes committed within that sovereign‘s borders.
Id. at 2221. Given the significant differences between the circumstances of Munaf and this case, we are not required to hold that courts are foreclosed from exercising their habeas powers to enjoin a transfer without some opportunity for a detainee to challenge the government‘s representation that his transfer will be lawful.
III.
In the end, I would add only one element to the process the majority concludes is sufficient for considering the petitioners’ transfer claims. But it is, I believe, a fundamental element called for by the Great Writ. The constitutional habeas prоtections extended to these petitioners by Boumediene will be greatly diminished, if not eliminated, without an opportunity to challenge the government‘s assurances that their transfers will not result in continued detention on behalf of the United States. Accordingly, I respectfully dissent.