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No. 06A1005





The Solicitor General, on behalf of respondents George W. Bush, President of the United States, et al., respectfully files this opposition to the emergency application for an original writ of injunction. STATEMENT


Applicant Abu Abdul Rauf Zalita (a/k/a Abdul Ra’ouf Omar Mohammed Abu Al Qassim) (ISN 709) (applicant), a Libyan citizen, was designated an enemy combatant by a Combatant Status Review Tribunal (CSRT) and has been detained by the Department of Defense (DoD) at Guantanamo. See Sept. 14, 2005 Factual Return (dkt. no. 4). The unclassified summary of the evidence presented to the CSRT explains that applicant was a member of a known terrorist organization, received weapons training by that group, traveled to Tora Bora, Afghanistan, in December 2001, and then fled to Pakistan, where he was captured. Exh. G to App. Motion, Enc. 1, at 1. The classified material further supports the CSRT conclusion that applicant is an enemy combatant. See id. at Enc. 2, at 1-3 (summarizing the classified evidence).

In June 2005, applicant filed a habeas petition in the United States District Court for the District of Columbia. See dkt. no. 1. On July 25, 2005, the district court issued an order (dkt. no. 3) requiring DoD to provide thirty days’ advance notice of any intended removal of applicant from Guantanamo. Respondents filed such a notice on December 8, 2006 (dkt. no. 31), stating that the United States “intend[ed] to release [applicant] from the custody of the United States and [to] repatriate him to Libya.” The notice explained that applicant was to be “transferred to the control of his home government for continued detention, investigation, and/or prosecution as that country deems appropriate, consistent with the policies and practices pertaining to such transfers as outlined in the declarations of Ambassador Pierre-Richard Prosper and Deputy Assistant Secretary of Defense for Detainee Affairs Matthew C. Waxman.” Ibid.; see also Declarations of Ambassador Pierre-Richard Prosper and Deputy Assistant Secretary of Defense for Detainee Affairs Matthew C. Waxman (dkt. no. 35) (hereinafter Prosper Decl. and Waxman Decl.) (attached as Exhibit 1 and Exhibit 2, respectively).

Applicant successfully sought an injunction from the district court prohibiting the planned transfer absent an additional sixty days’ notice. See dkt. no. 36; Minute Order (Feb. 15, 2007). On February 20, 2007 -- approximately ten weeks after the initial notice -- in compliance with that order, respondents provided the additional sixty days’ re-notice of transfer. See dkt. no. 42.

Approximately seven weeks later, applicant filed a motion in the district court to enjoin the planned transfer altogether. The district court denied the motion. The court explained that “[s]ection 7(b) of the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006) [(MCA)], strip[ped the] court of jurisdiction to hear [applicant’s] habeas claim and section 7(a) strip[ped the] court of jurisdiction to hear [applicant’s] non-habeas claims.” D. Ct. Op. 1 (citing Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), cert. denied, 127 S. Ct. 1478 (2007)).

Applicant appealed the district court’s denial of his motion to enjoin transfer and concurrently sought from the district court, inter alia, an injunction barring his transfer pending his appeal. The district court denied such relief, but on April 20, 2007, it granted applicant a temporary injunction barring his transfer until April 23, 2007, so that the D.C. Circuit could consider his motion to enjoin his transfer pending consideration of his appeal. On April 23, the D.C. Circuit issued an “administrative injunction” enjoining applicant’s transfer to Libya until further order. The United States responded to applicant’s motion on April 24, and the following day the D.C. Circuit denied applicant’s motion and dismissed his appeal for lack of jurisdiction.

On April 25, 2007, applicant filed the instant emergency application for an original writ of injunction.


As a general matter, when an applicant seeks a stay of a court of appeals’ judgment pending the filing of a petition for a writ of certiorari, the applicant has the substantial burden of demonstrating (1) “a reasonable probability that certiorari will be granted,” (2) “a significant possibility that the judgment below will be reversed,” and (3) “a likelihood of irreparable harm (assuming the correctness of the applicant’s position) if the judgment is not stayed.” Barnes v. E-Systems, Inc. Group Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301, 1302 (1991) (Scalia, J., in chambers).

Where, as here, an applicant seeks an injunction rather than a stay, the applicant faces an even greater burden. “Unlike a stay, which temporarily suspends judicial alteration of the status quo, an injunction grants judicial intervention that has been withheld by the lower courts.” Turner Broadcasting Sys., Inc. v. Fed. Communications Comm’n, 507 U.S. 1301, 1301 (1993) (Rehnquist, C.J., in chambers) (internal quotation marks omitted). For that reason, it is “clear that such power should be used sparingly and only in the most critical and exigent circumstances.” Fishman v. Schaffer, 429 U.S. 1325, 1326 (1976) (Marshall, J., in chambers) (internal quotation marks omitted).

An injunction is appropriate only if (1) it is “necessary or appropriate in aid of [the Court’s] jurisdictio[n],” and (2) “only where the legal rights at issue are indisputably clear.” Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Comm’n, 479 U.S. 1312, 1312 (1986) (Scalia, J., in chambers) (internal quotation marks omitted). This Court should be still more reluctant to grant an injunction pending the filing of a petition for a writ of certiorari where the central issue is whether there is subject matter jurisdiction over the case and where the courts below held that jurisdiction is lacking. Entry of an injunction requires the exercise of jurisdiction and Article III power, neither of which exists here. Because applicant has not satisfied the stringent standard for obtaining an injunction or even for obtaining a stay, his application should be denied.


Applicant Has Not Satisfied The Heightened Standard For An Injunction Pending Consideration Of A Petition For A Writ Of Certiorari


Applicant cannot establish that an injunction is “necessary or appropriate” to aid the Court’s jurisdiction because, as the D.C. Circuit held, the MCA “could not be clearer” in removing federal court jurisdiction over legal challenges by aliens detained as enemy combatants. Boumediene v. Bush, 476 F.3d 981, 987 (2007). This Court has declined to review that decision on two separate occasions. See Boumediene v. Bush, 127 S. Ct. 1478 (2007); Hamdan v. Gates, No. 06-1169, 2007 WL 606477 (Apr. 30, This Court also has denied a request by the [1] That action alone seriously if not fatally undermines 1 applicant’s request for extraordinary relief.

The MCA provides that “[n]o court, justice, or judge 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 as an enemy combatant or is awaiting such determination.” MCA § 7(a)(1). The MCA further states that “no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” MCA § 7(a)(2) (emphasis added). 2 This application stems from an appeal of the district court’s 7 denial of applicant’s motion to enjoin his transfer to Libya and the D.C. Circuit’s decision dismissing his appeal for lack of jurisdiction. In seeking injunctive relief, applicant directly challenges an “aspect of the * * * transfer * * * of an alien who is * * * detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant.” MCA § 7(a)(2). Thus, the district and circuit courts correctly held that they lacked jurisdiction. Applicant’s reliance (App. 10) on the dissent from the denial of certiorari in Boumediene and the statement of Justice Stevens and Justice Kennedy respecting the denial of certiorari in that case is misplaced. The petitioners in Boumediene asked the Court to consider “whether the [MCA] deprive[d] courts of jurisdiction to consider their habeas claims, and, if so, whether that deprivation is constitutional.” 127 S. Ct. at 1479 (Breyer, J., dissenting) (emphasis added). But applicant is endeavoring to block his transfer out of United States custody. Thus, he is in no sense seeking habeas relief, and no Suspension Clause issues are implicated by his extraordinary request for injunctive relief. See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 79, 80 (2005) (explaining that the “core” relief afforded by the writ of habeas corpus is “immediate release or a shorter period of detention”) (internal quotation marks omitted); id. at 86 (Scalia, J., concurring) (“It is one thing to say that permissible habeas 8 relief, as our cases interpret the statute, includes ordering a quantum change in the level of custody, such as release from incarceration to parole. It is quite another to say that the habeas statute authorizes federal courts to order relief that neither terminates custody, accelerates the future date of release from custody, nor reduces the level of custody.”) (internal quotation marks and citation omitted). Because the MCA expressly removed jurisdiction over applicant’s legal challenge to his transfer, it would not be appropriate for this Court to issue an injunction in aid of its jurisdiction, especially when the courts below correctly recognized the absence of jurisdiction over applicant’s claim. B. Even assuming that this Court had jurisdiction to issue the relief applicant seeks, he has failed to establish that the legal rights he asserts are “indisputably clear.” In fact, applicant has asserted no judicially enforceable rights that support the relief that he seeks. Applicant’s invocation of the Convention Against Torture and Other Cruel and Degrading Treatment and Punishment (CAT), the United Nations Convention Relating to the Status of Refugees (Refugee Convention), and Common Article 3 of the Geneva Conventions, is unavailing. Applicant ignores Congress’s explicit mandate in the MCA that courts not consider actions, like his, challenging transfers from United States custody at Guantanamo. 9 See MCA § 7(a)(2). Whatever relief those provisions might have afforded him before the MCA, applicant cannot continue to rely on them post-MCA to justify the Court’s exercise of jurisdiction. Moreover, neither the CAT nor the Refugee Convention gives rise to rights individually enforceable in court. See, e.g., Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir. 2003); Foreign Affairs Reform and Restructuring Act (FARR Act), Pub. L. 105-277, § 2242(d), codified at 8 U.S.C. 1231 note (“Nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section * * * except as part of the review of a final order of removal pursuant to [8 U.S.C. 1252].”); see also Al-Anazi v. Bush, 370 F. Supp. 2d 188, 194 (D.D.C. 2005) (rejecting the argument that the FARR Act, which implemented CAT in certain immigration-specific contexts, could serve as a legal basis for prohibiting or limiting transfer of wartime detainees to other countries); 8 U.S.C. 1252(a)(4). Congress specified that the CAT would not be self-executing or privately enforceable. See 136 Cong. Rec. S36,198 (Oct. 27, 1990); Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003). In enacting the FARR Act, Congress also limited jurisdiction over Article 3 CAT claims to “the review of a final order of removal.” FARR Act § 2242(d). And Section 5(a) of the MCA, which provides that “[n]o person may invoke the Geneva Conventions or any protocols thereto 10 in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer * * * is a party as a source of rights” in any civil court proceeding, precludes applicant’s reliance on Common Article 3 as providing a basis for court relief in this matter. See Boumediene, 476 F.3d at 988 n.5. Thus, even assuming jurisdiction existed, applicant has asserted no privately enforceable rights that would support grant of the extraordinary relief he seeks. Because applicant cannot demonstrate an indisputably clear right to relief and cannot show that an injunction would be appropriate in aid of jurisdiction in light of the absence of any jurisdiction, the application should be denied. II. The Application Does Not Satisfy The Standard For A Stay Pending Consideration Of A Petition For A Writ Of Certiorari Even if the Court were to evaluate applicant’s request under the more lenient but still stringent standard governing the issuance of a stay pending consideration of a petition for a writ of certiorari, the application still falls far short of meeting the threshold for such extraordinary relief. Applicant has not demonstrated a reasonable probability that certiorari will be granted, a significant possibility that the court of appeals’ judgment would be reversed, or irreparable harm. To secure the relief sought, applicant must ask this Court (1) to assert jurisdiction over an action seeking non-habeas relief where Congress has expressly removed jurisdiction; (2) to disregard, or 11 second guess, the Department of State’s thorough review process for ensuring that his transfer will comply with United States policy and practice and its international obligations, and (3) to prohibit DoD from transferring an enemy combatant from a military base in reliance upon such a Department of State assessment. A. There Is No Reasonable Probability That Certiorari Would Be Granted Or Significant Possibility That The Court Of Appeals’ Judgment Would Be Reversed Because the MCA’s removal of jurisdiction is clear and the Suspension Clause does not apply to the non-habeas relief applicant seeks (even assuming that it could otherwise apply to habeas actions brought by aliens detained at Guantanamo), he cannot establish a reasonable probability that certiorari would be granted or a significant possibility that the court of appeals’ judgment would be reversed. Apart from the dispositive jurisdictional obstacles, as explained above, applicant has no judicially enforceable rights to support the extraordinary relief he seeks. And even assuming applicant could overcome those problems, this Court would be highly unlikely to inject itself into sensitive diplomatic processes and block applicant’s transfer in accordance with long-standing Executive Branch policy. See, e.g., Department of Navy v. Egan, 484 U.S. 518, 529 (1988) (“[F]oreign policy [is] the province and responsibility of the Executive.”); Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (“[T]he very nature of executive decisions as to foreign 12 policy is political, not judicial.”); United States v. Curtiss-Wright Corp., 299 U.S. 304, 319-321 (1932). The Executive’s efforts to ensure that another country provides adequate assurances regarding its treatment of transferees is a quintessential foreign affairs function within the sole province of the Executive. The process is “delicate, complex, and involve[s] large elements of prophecy. [It] should be undertaken only by those directly responsible to the people.” Chicago & Southern Air Lines, Inc., 333 U.S. at 112. As explained in great detail in the sworn declarations of Ambassador Pierre-Richard Prosper and Deputy Assistant Secretary of Defense for Detainee Affairs Matthew C. Waxman, the United States has developed an elaborate, inter-agency process to govern the transfer of an enemy combatant from the Guantanamo Bay Naval Base in Cuba to the control of another country, typically the enemy combatant’s home country. See generally Prosper Decl. and Waxman Decl. For every transfer, a key concern is whether the foreign government will treat the detainee humanely and in a manner consistent with its international obligations. Prosper Decl. ¶ 4; Waxman Decl. ¶¶ 6-7. It is the policy of the United States not to repatriate or transfer a detainee to a country where the United States believes it is more likely than not that the individual will be tortured. Prosper Decl. ¶ 4; Waxman Decl. ¶ 6. If a transfer 13 is deemed appropriate, a process is undertaken, typically involving the Department of State, in which appropriate assurances regarding the detainee’s treatment are sought from the country to which the transfer of the detainee is proposed. Waxman Decl. ¶ 6; Prosper Decl. ¶ 5. The determination whether it is more likely than not that an individual would be tortured by a receiving foreign government, including, where applicable, evaluation of foreign government assurances, is made by senior Executive officials. The process takes into account a number of considerations, including whether the nation concerned is a party to certain treaties; the expressed commitments of officials of the foreign government accepting transfer; the particular circumstances of the transfer, the country, and the individual concerned; and any concerns regarding torture that may arise. Prosper Decl. ¶¶ 6-8; Waxman Decl. ¶ 7. In an appropriate case, the State Department may implement various monitoring mechanisms to verify that assurances are being honored. Prosper Decl. ¶ 8. Recommendations by the State Department are developed through a process involving the Bureau of Democracy, Human Rights, and Labor (which drafts the State Department’s annual Country Reports on Human Rights Practices) and the relevant State Department regional bureau, country desk, or United States Embassy. Prosper Decl. ¶ 7. If the assurances obtained from the receiving government are 14 not sufficient when balanced against treatment concerns, the United States does not transfer a detainee to the control of that government. Waxman Decl. ¶ 7; Prosper Decl. ¶ 8. Indeed, DoD has decided in the past not to transfer detainees to their country of origin because of mistreatment concerns. Waxman Decl. ¶ 7; Prosper Decl. ¶ 8. When DoD releases or transfers detainees to other governments, the detainees are no longer subject to the custody or control of the United States, and any subsequent confinement in the receiving country is based on the receiving government’s independent decision, based on its domestic laws, that the individual should be detained. In some circumstances, the United States may believe that continued detention and/or prosecution by the transferee country would be appropriate. Waxman Decl. ¶ 3. In all such cases, however, a detainee “once transferred, is no longer in the custody and control of the United States; the individual is detained, if at all, by the foreign government pursuant to its own laws and not on behalf of the United States.” Id. ¶ 5. “[T]ransfers of detainees are extremely sensitive matters that involve diplomatic relations with other countries, as well as the law enforcement and intelligence interests of other countries.” Waxman Decl. ¶ 8. “The Department of State’s ability to seek and obtain assurances from a foreign government depends in part on the Department’s ability to treat its dealings with the foreign 15 government with discretion.” Prosper Decl. ¶ 9. “There also may be circumstances where it may be important to protect sources of information (such as sources within a foreign government) about a government’s willingness or capability to abide by assurances concerning humane treatment or relevant international obligations.” Ibid. Lastly, “[c]onfidentiality is often essential to ensure that the advice and analysis provided by [United States Embassies and other State Department offices] are useful and informative for the decision-maker. If those offices are expected to provide candid and useful assessments, they normally need to know that their reports will not later be publicly disclosed.” Id. ¶ 11 Thus, “the Department of State does not unilaterally make public the specific assurances or other precautionary measures obtained in order to avoid the chilling effects of making such discussions public and the possible damage to [its] ability to conduct foreign relations.” Id. ¶ 9. “In situations such as this, ‘[t]he controlling considerations are the interacting interests of the United States and of foreign countries, and in assessing them [the courts] must move with the circumspection appropriate when [a court] is adjudicating issues inevitably entangled in the conduct of our international relations.’” Holmes v. Laird, 459 F.2d 1211, 1215 (D.C. Cir. 1972) (quoting Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 383 (1959)); Chicago & Southern Air Lines, Inc., 333 U.S. at 111 (“It 16 would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. * * * [E]ven if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative.”). Entertaining applicant’s claim to a right to contest repatriation or removal from Guantanamo would require the Court to insert itself into extremely sensitive diplomatic matters. Judicial review of a transfer or repatriation decision would involve scrutiny or second-guessing of United States officials’ judgments and assessments on the likelihood of torture in a foreign country, including judgments regarding the state of diplomatic relations with a foreign government, the reliability of information concerning and representations from a foreign government, the adequacy of assurances provided and a foreign government’s capability to fulfill them. Prosper Decl. ¶ 8; id. ¶¶ 9-12. And “[r]equiring the United States to unilaterally disclose information about proposed transfers and negotiations outside of appropriate executive branch agencies could adversely affect the relationship of the United States with other countries and impede our country’s ability to obtain vital cooperation from concerned governments with 17 respect to military, law enforcement, and intelligence efforts, including with respect to our joint efforts in the war on terrorism.” Waxman Decl. ¶ 8. Because of these foreign relations implications, courts have uniformly eschewed inquiry into “the fairness of a requesting nation’s justice system” and “the procedures or treatment which await a surrendered fugitive in the requesting country” in the analogous context of extradition. United States v. Kin-Hong, 110 F.3d 103, 110 (1st Cir. 1997) (quoting Arnbjornsdottir-Mendler v. United States, 721 F.2d 679, 683 (9th Cir. 1983)); see Al-Anazi, 370 F. Supp. 2d at 194 (holding that this “well-established line of cases in the extradition context” “counsel[s] even further against judicial interference”). This principle is sometimes called the Rule of Non-Inquiry. For example, in Ahmad v. Wigen, 910 F.2d 1063 (2d Cir. 1990), a United States citizen was extradited from the United States to Israel to stand trial for an alleged terrorist attack. While the district court upheld the extradition only after receiving testimony and extensive documentation concerning Israel’s law enforcement system and treatment of prisoners, the Second Circuit held that such inquiry was wholly improper. “The interests of international comity are ill-served,” the Second Circuit explained, “by requiring a foreign nation such as Israel to satisfy a United States district judge concerning the fairness of its laws and the 18 manner in which they are enforced.” Id. at 1067. “It is the function of the Secretary of State to determine whether extradition should be denied on humanitarian grounds.” Ibid. Accord Escobedo v. United States, 623 F.2d 1098, 1107 (5th Cir.) (refusing to bar extradition based on allegations that appellant “may be tortured or killed if surrendered to Mexico,” because “the degree of risk to (Escobedo’s) life from extradition is an issue that properly falls within the exclusive purview of the executive branch”) (internal quotation marks omitted), cert. denied, 449 U.S. 1036 (1980). The separation-of-powers considerations that underlie the Rule of Non-Inquiry are even stronger in a matter, such as this one, involving repatriation of alien enemy combatants during an ongoing, global war against al Qaeda, the Taliban, and associated forces. If courts cannot, in the context of a conventional extradition, second-guess on humanitarian grounds transfers of United States persons to another country for criminal prosecution, they have no basis to do so with respect to the repatriation of aliens who are confirmed enemy combatants held abroad in connection with an ongoing armed conflict, which implicates not only the Executive’s conduct of foreign policy and diplomacy, but also its war-making and national defense policies. For these reasons, applicant cannot establish a reasonable probability that the Court would grant review, much less a significant possibility that the Court would reverse the judgment 19 In accordance with the policy and practice discussed above, 3 one other Guantanamo detainee has previously been transferred to Libya, and aliens have been removed (or are in the process of being removed) from the United States to Libya for immigration or other violations of law. below. B. The Other Equitable Factors Also Counsel Against The Extraordinary Relief Applicant Seeks Applicant asserts without support that the United States intends to repatriate him notwithstanding a belief that he likely will be tortured. And, relying on documents that pre-date his CSRT, applicant implies that the United States intends to (and can) retain control over him if it transfers him to another country. However, these allegations are directly refuted by United States policy and practice described above. And there is no basis to assume that the government will not follow established practice. Cf. USPS v. Gregory, 534 U.S. 1, 10 (2001) (“[A] presumption of regularity attaches to the actions of Government agencies.”); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971) (explaining that agencies are “entitled to a presumption of regularity”). Accordingly, applicant has failed to demonstrate a likelihood of harm that is either actual or certain, as required to justify the extraordinary injunctive relief he seeks.3 At the same time, granting the requested injunction would harm the Executive and the public interest. “[A] court decision to enjoin a detainee transfer, either altogether or until further order of the court, would undermine the United States’ ability to reduce the numbers of individuals under U.S. control and our effectiveness in eliciting the cooperation of other governments to bring to justice individuals who are subject to their jurisdiction.” Prosper Decl. ¶ 12. And “[a]ny judicial decision to review a transfer decision by the United States Government or the diplomatic dialogue with a foreign government concerning the terms of transfer could seriously undermine our foreign relations.” Ibid.; see Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 381 (2000) (stressing the harms wrought by “compromis[ing] the very capacity of the President to speak for the Nation with one voice in dealing with other governments”). The public interest thus does not favor the relief applicant seeks.


The emergency application for an original writ of injunction should be denied. Respectfully submitted. PAUL D. CLEMENT Solicitor General Counsel of Record APRIL 2007

  1. Boumediene petitioners for an order suspending the order denying certiorari, because there was no “reasonable likelihood of this Court’s reversing its previous position and granting certiorari.” Boumediene v. Bush, Nos. 06-1195, 06-1196, 2007 WL 1225368, (April 26, 2007) (Roberts, C.J., in chambers) (internal quotation marks omitted). A detainee may file a petition for review in the D.C. 2 Circuit under the Detainee Treatment Act of 2005, Pub. L. No. 109- 148, tit. X, §§ 1001-1006, 119 Stat. 2680, 2739 (DTA), challenging the determination of a CSRT that he is an enemy combatant. See MCA § 7(a). Applicant has not filed such a challenge. In any event, neither the DTA nor traditional habeas would support this extraordinary effort to enjoin a release from custody. 2007).