1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

No. 17-cv-2069 (TSC)

MEMORANDUM OPINION Petitioner—a United States citi zen—remains in Iraq in the cust ody of U.S. armed forces. While Petitioner now has access to counsel in order to pursue t his habeas petition, the Department of Defense (“Defense Department”) may seek to transf er him prior to this court’s decision on his petition. The Def ense Department is unable to provide a timeline for when this transfer might take place. Petit ioner has requested that this court enjoin the D efense Department from transferring him to anothe r country during the pendency of this litigation. Upon consideration of the parties’ fi lings, the oral arguments of co unsel, and for the reasons stated herein, Petitioner’s Motion Regar ding Continued Interim Relief will be GRANTED in part and DENIED in part. The court will not enjoin the Defense Departme nt from transferring the Petitioner, but will require the D efense Department to provide the court and Petitioner’s counsel seventy-two hours’ notice prior to any such transfer. JOHN DOE,
Petitioner ,

v. GEN. JAMES N. MATTIS,

in his official capacity as SECRETARY OF DEFENSE, Respondent

.2 I. BACKGROUND On December 23, 2017, this court entered an order (1) denying t he Defense Department’s Motion to Dismiss (ECF No. 11), (2) requiring the Defense Depar tment to permit the American Civil Liberties Union Foundation (“ACLUF”) immediate and unmoni tored access to Petitioner to determine whether he wanted t he ACLUF to pursue this action on his behalf, and (3) requiring the Defense Department to “refr ain from transferring the detain ee until the ACLUF informs the court of the detainee’s wish es.” (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 tha t the court extend the interim relief provided in its December 23 Order, and order the Defense Department not to transfer Peti tioner 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 m otion for continued relief. In response to the court’s inquiry as to whether the Defense De partment intended to transfer the Petitioner within the next forty -eight hours, Department counse l indicated that it had no basis to believe that a transfer would tak e place within that timeframe. Counsel added, however, that it is the Defense Department’s positi on that it has the authority to transfer Petitioner as soon as another country is ready to rec eive him. Given the Defense Dep artment’s position, and the court’s impending ruling on Petit ioner’s motion, the court orde red the Defense Department to refrain from transferring Petitioner until Tuesday, January 23, 2018. (ECF No. 43). At the January 18 hearing, the Def ense Department also offered to provide the court with a classified declaration whic h would provide more detail regard ing the Department’s position as to Petitioner. On January 19, 2018, t he Defense Department fil ed a classified ex parte declaration through a Classifie d Information Security Officer. ( See ECF No. 44). That evening,3 the Defense Department filed a redacted, seale d version of the same declaration. (ECF No. 45-1 (“Classified Declaration”)). On January 22, 2018, the court held a status hearing, during w hich the court asked the parties whether they opposed an or der requiring the Defense Dep artment to provide the court and Petitioner’s counsel notice prio r to transferring Petitioner. The Defense Department indicated that it would object to such an or der. Petitioner’s counsel in formed the court that Petitioner would not object to such an order, as long as he had the opport unity to contest his transfer.

II. LEGAL STANDARD In order to prevail on a moti on for a preliminary injunction, t he movant must show that: “[1] he is likely to succeed on t he merits, [2] . . . he is lik ely to suffer irreparable harm in the absence of preliminary relief, [3] . . . the balance of equitie s 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 approac h to evaluating preliminary inju nctions, such that an unusually strong showing on one factor could ma ke 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 suggest ed 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)).4 III. DISCUSSION
A. Likelihood of Success on the Merits Petitioner has shown a likelihood of success on the merits of h is claim that there should be some restriction on the Defense Department’s ability to tran sfer him during the pendency of this litigation. Prior to transferring Petit ioner, the Defense Department must present “positive legal authority” f or his transfer. See Omar v. McHugh , 646 F.3d 13, 24 (D.C. Cir. 2011) (“None of this means that the Executiv e Branch may detain or transfer Americans or individuals in U.S. territory at will, wit hout 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 c onfided to the Executive in th e absence of treaty or legislative provision”). The court has reviewed the cla ssified information provided by t he Defense Department and finds that it does not present “positive legal authority” f or Petitioner’s tr ansfer. Neither does the Defense Department’s asserti on that “international relation s” with the receiving country would be harmed should the court pr ohibit his transfer at this time. Despite its failure t o present legal author ity for Petitioner’s transfer, such as an extradition request or an alle gation of criminal conduct commit ted in the receiving country, the Defense Department maintains t hat 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 cour t is barred from restricting Pet itioner’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.5 Nothing in Munaf or Kiyemba II restrains this court from restricting the Defense Department’s ability to transfe r Petitioner in this case. In Munaf , two U.S. citizens—charged by the Iraqi government for crimes committed on Iraqi soil—were de tained in Iraq by U.S. military forces as part of a multi-nati onal force acting on behalf of th e Iraqi government. 553 U.S. at
681 –685 . The detainees filed petitions for writs of habeas corpus, se eking to enjoin the multinational forces from transf erring them to Iraqi custody. Id. The Supreme Court held that the district court did not have the pow er to enjoin the transfers, explaining that “[h]abeas corpus does not require the United States to shelter . . . fugitives from t he 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 prosecuti on in another country; or (3) i s being held on anot her country’s behalf. Therefore, this case doe s not implicate another countr y’s “sovereign right” to punish offenses within its borders. Id. at 693.
In Kiyemba II , the Court held that a distri ct court did not have the power t o enjoin the transfer of detained non-citizens or to require the government to provide 30 days’ notice prior to their transfer “based upon the expe ctation that a recipient cou ntry” will detain, prosecute or torture them. 561 F.3d at 514

– 1 5. But Kiyemba II involved non-citizens who, by virtue of their classification as wartime alie n detainees, could not be release d into the United States. Here, Petitioner—a U.S. citizen—seeks to enjoin transfer solely to en sure that he is able to pursue his habeas petition. He does not ar gue fear of detention, prosecut ion or torture in a nother country. The court finds that Petitione r has shown a likelihood of succ ess on his claim that this court may temporarily restrict th e Defense Department’s ability to transfer him to another country. The court does not fi nd, however, that the specific r elief Petitioner seeks—prohibition6 of his transfer for the duration of these proceedings—is warran ted at this time. Transferring the Petitioner is just one of the opti ons 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 consider ation.”)). Providing the relief Petitioner seeks would require t he court to prohibit an action that the Defense Department has not yet decided to take. The c ourt finds it more prudent to re quire the Defense Department to provide notice prior to transfe rring 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 P etitioner 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 pet ition, and without providing any notice to this court or Petitioner’s counsel. Were that to occur, Pet itioner 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 Detent ions 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 controve rsy is clear sin ce he is att empting to secure his release from the United States Government. . . . For a petitioner released from United States custody, the caseor-controversy requirement is pr oblematic because the remedy so ught 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 a nd injunctive relief moot because7 they had been released from U. S. custody and did not show a col lateral 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 har m to the government’s international relations with another country, a nd the court r ecognizes the go vernment’s significant interest in maintaining fruitful, diplomatic relations. But the court is n ot convinced—based on the record here—that these diplomatic int erests override the Petitioner’s well-established right “to contest the factual basis for [his] de tention” through a habeas petitio n. Hamdi v. Rumsfeld , 542 U.S. 507, 509 (2004). Absent an articulate d legal reason for the tr ansfer, such as an extradition request or an allegation of criminal conduct committed in the r eceiving country, Pet itioner’s right to habeas relief does not yield to the government’s desire to m aintain good diplomatic relations. Balancing the equities in Petit ioner’s favor here is particular ly appropriate, given that this court’s decision merely requires the Defense Department to prov ide notice prior to any transfer. The Defense Department is not pr evented from continuing negotia tions or discussions regarding the transfer, or from obtaining f urther information that might support a transfer. Absent a showing that the government—for i nternational re lations reasons or otherwise—needs to transfer Petitioner now , the court does not find that th e government’s interests outwe igh the Petitioner’s right to challenge his detenti on without fear of his transfer t o another country. The Defense Department’s Classified Declara tion does not convince the court otherwise.
D. Public Interest Judicial authority to review ha beas corpus petitions derives f rom U.S. citizens’ rights to “freedom from arbitrary and unlawful restraint.” Boumediene v. Bush , 553 U.S. 723, 797 (2008).8 While this court is mindful of t he government’s right to conduc t diplomacy and foreign relations as it sees fit, this right must be balanced again st United Stat es citizens’ rights to contest the lawfulness of their detentions a nd transfers at the hands of th e Executive.
IV. CONCLUSION For the foregoing reasons, Petit ioner’s motion for continued r elief will be GRANTED in part and DENIED in part. The Defen se Department will be ordere d to provide the court and Petitioner’s counsel seventy-tw o hours’ notice prior to transfe rring Petitioner, at which time Petitioner may file an emergency motion contes ting his transfer . A corresponding order will issue separately.

Date: January 23, 2018 

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