United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2008 Decided April 7, 2009 

No. 05-5487 

JAMAL KIYEMBA, NEXT FRIEND, ET AL., 

APPELLEES

v. 

BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL., 

APPELLANTS

Consolidated with 

05-5489 

Appeals from the United States District Court 

for the District of Columbia 

(No. 05cv01509) 

(No. 05cv01602) 

Robert M. Loeb, Attorney, U.S. Department of Justice, 

argued the cause for appellants. With him on the briefs were 

Gregory G. Katsas, Assistant Attorney General, Jonathan F. 

Cohn, Deputy Assistant Attorney General, and Douglas N. 

Letter, Jonathan H. Levy, Catherine Y. Hancock, and Sameer 

Yerawadekar, Attorneys. 
2 

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 Government 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, 128 S. 

Ct. 2207 (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 
3 

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 as an enemy combatant 

or is awaiting such determination. 

Pub. L. No. 109-366, 120 Stat. 2600, 2635-36 (2006) 

(codified at 28 U.S.C. § 2241(e)(1)). Accordingly, we 

dismissed the cases for lack of subject matter jurisdiction. 

Kiyemba v. Bush, No. 05-5487 (Mar. 22, 2007). In 

Boumediene v. Bush, however, the Supreme Court held § 

2241(e)(1) “effects an unconstitutional suspension of the 

writ” of habeas corpus. 128 S. Ct. 2229, 2274 (2008). In 

light of that decision, we vacated our judgment of dismissal 

and reinstated the Government’s appeal. Kiyemba, No. 05-

5487 (July 31, 2008).*

 

*

 After oral argument in the court of appeals, the Government 

acknowledged in the district court that it no longer views any of the 

present petitioners as enemy combatants, whereupon the district 

court ordered them released into the United States. See In re 

Guantanamo Bay Detainee Litig., 581 F. Supp. 2d 33 (D.D.C. 

2008). The Government appealed that order, which this court 

reversed on the ground that the political branches have “the 

exclusive power ... to decide which aliens may, and which aliens 

may not, enter the United States, and on what terms.” Kiyemba v. 

Obama, 555 F.3d 1022, 1025 (2009). 
4 

II. Subject Matter Jurisdiction 

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, 28 U.S.C. § 2241(e)(1), unconstitutional only insofar 

as it purported to deprive the district court of jurisdiction to 

hear a claim falling within the “core” of the constitutional 

right to habeas corpus, such as a challenge to the petitioner’s 

detention or the duration thereof. According to the 

Government’s theory, because the right to challenge a transfer 

is “ancillary” to and not at the “core” of habeas corpus relief, 

§ 2241(e)(1) still bars the district court from exercising 

jurisdiction over the instant claims. In support of its 

argument, the Government invokes the rule that ordinarily a 

court should invalidate as little of an unconstitutional statute 

as necessary to bring it into conformity with the Constitution. 

See Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 

320, 329 (2006) (“[W]e try not to nullify more of a 

legislature’s work than is necessary .... Accordingly, the 

normal rule is that partial, rather than facial, invalidation is 

the required course.” (internal quotation marks omitted)). 

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 linedrawing is inherently complex, may call for a far more 

serious invasion of the legislative domain than we ought to 

undertake.” Id. at 330 (internal quotation marks omitted). 
5 

We think the detainees have the better of the argument. 

The Court in Boumediene did not draw (or even suggest the 

existence of) a 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.*

 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.**

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. 28 U.S.C. § 2241(e)(2). This 

case does not come within the reach of § 2241(e)(2), 

however. That provision applies by its terms to “any other 

action” – meaning other than a petition for a writ of habeas 

corpus, which is the subject of § 2241(e)(1). The detainees’ 

 

*

 The Court actually referred to § 7 without specifying a particular 

subsection of § 2241(e) but its discussion of the Suspension Clause 

clearly indicates it was referring only to that part of § 7 codified at 

§ 2241(e)(1). 

** Thus, the Court necessarily restored the status quo ante, in which 

detainees at Guantanamo had the right to petition for habeas under 

§ 2241. See Rasul v. Bush, 542 U.S. 466 (2004); see also 

Boumediene, 128 S. Ct. at 2266 (identifying § 2241 as “the habeas 

statute that would govern in MCA § 7's absence”). There is, 

therefore, no need to decide today whether the present petitions 

come within “the contours and content of constitutional habeas,” 

Dis. Op. at 2. See INS v. St. Cyr, 533 U.S. 289, 301 n.13 (2001) 

(noting that “what the Suspension Clause protects” is a “difficult 

question”). 
6 

claims are not in the nature of an action barred by § 

2241(e)(2) because, based upon longstanding precedents, it is 

clear they allege a proper claim for habeas relief, specifically 

an order barring their transfer to or from a place of 

incarceration. See Benson v. McMahon, 127 U.S. 457, 462 

(1888) (reviewing, on petition for writ of habeas corpus, 

claim of unlawful extradition); Ward v. Rutherford, 921 F.2d 

286, 288 (D.C. Cir. 1990) (“[A]ctions taken by magistrates in 

international extradition matters are subject to habeas corpus 

review by an Article III district judge”); INS v. St. Cyr, 533 

U.S. 289, 305-08 (2001) (detailing long history of reviewing 

deportations per petition for habeas); In re Bonner, 151 U.S. 

242, 255-56 (1894); Miller v. Overholser, 206 F.2d 415, 419-

20 (D.C. Cir. 1953) (“We think it has been settled since ... 

Bonner that the writ is available to test the validity not only of 

the fact of confinement but also of the place of 

confinement”). 

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 habeas 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 (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 
7 

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.*

 The detainees here seek to prevent their transfer to any 

country where they are likely to be subjected to further 

detention or to torture. Our analysis of their claims is 

controlled by the Supreme Court’s recent decision in Munaf. 

In that case, two American citizens held in the custody of the 

United States military in Iraq petitioned for writs of habeas 

 

*

 The detainees argue the district court in Kiyemba correctly issued 

the injunction – regardless of their ability to make a showing on the 

four factors for granting preliminary relief – in order to protect the 

court’s jurisdiction over their underlying claims of unlawful 

detention. In defense of the district court’s rationale, the detainees 

rely upon the All Writs Act, 28 U.S.C. § 1651 (federal courts “may 

issue all writs necessary or appropriate in aid of their respective 

jurisdictions”), and upon our opinion in Belbacha, but they 

overstate the holding in that case. In Belbacha, we held that “when 

the Supreme Court grants certiorari to review this court’s 

determination that the district court lacks jurisdiction, a court can, 

pursuant to the All Writs Act ... and during the pendency of the 

Supreme Court’s review, act to preserve the status quo,” but only, 

we added, “if a party satisfies the [four] criteria for issuing a 

preliminary injunction.” 520 F.3d at 457. Belbacha therefore 

provides no basis for relieving the detainees of the need to satisfy 

the standard for a preliminary injunction, which, as discussed 

below, they have failed to do.
8 

corpus, seeking to enjoin the Government from transferring 

them to Iraqi custody for criminal prosecution in the Iraqi 

courts. Id. at 2214-15. The Court held the district court had 

jurisdiction over the petitions, but that it could not enjoin the 

Government from transferring the petitioners to Iraqi 

authorities. Id. at 2213. As we explain below, Munaf

precludes a court from issuing a writ of habeas corpus to 

prevent a transfer on the grounds asserted by the petitioners 

here; therefore the detainees cannot prevail on the merits of 

their present claim and the Government is entitled to reversal 

of the orders as a matter of law.*

 

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. 

 

*

 For present purposes, we assume arguendo these alien detainees 

have the same constitutional rights with respect to their proposed 

transfer as did the U.S. citizens facing transfer in Munaf. They are 

not, in any event, entitled to greater rights.
9 

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.*

 

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, 8 

U.S.C. § 1231 note. See Munaf, 128 S. Ct. at 2226 n.6. That 

distinction is of no help to them, however, because the 

Congress limited judicial review under the Convention to 

claims raised in a challenge to a final order of removal. 8 

U.S.C. § 1252(a)(4) (“Notwithstanding any other provision of 

law ... including section 2241 of Title 28, or any other habeas 

corpus provision, ... a petition for review [of an order of 

removal] shall be the sole and exclusive means for judicial 

review of any cause or claim” arising under the Convention). 

Here the detainees are not challenging a final order of 

 

*

 As in Munaf, we need not address what rights a detainee might 

possess in the “more extreme case in which the Executive has 

determined that a detainee is likely to be tortured but decides to 

transfer him anyway.” 128 S. Ct. at 2226. 
10 

removal. As a consequence, they cannot succeed on their 

claims under the FARR Act, and Munaf controls.*

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 

(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. 

 

* Munaf concerned a specific transfer, but the transferee sovereign’s 

likely treatment of the petitioners was not material to its holding. 

Contrary to the statement in the dissent, the Court gave not merely 

“substantial weight to the [G]overnment’s determination that the 

proposed transfer was lawful,” Dis. Op. at 7; it held the judiciary 

cannot look behind the determination made by the political 

branches that the transfer would not result in mistreatment of the 

detainee at the hands of the foreign government. 128 S. Ct. at 

2225, 2226.
11 

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 

assessments”). 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 those important concerns”).*

 

*

 Our dissenting colleague agrees the detainees cannot prevail on a 

claim based upon their likely treatment by a foreign sovereign 

acting pursuant to its own laws. See Dis. Op. at 5 (“[T]he 

[G]overnment has submitted sworn declarations assuring the court 

that any transfer will result in release from U.S. authority. If the 

[G]overnment’s representations are accurate, each transfer will be 

lawful.”). Nor can they prevail on the ground that the foreign 

sovereign is an agent of the United States merely because, with 

respect to detainees who are — unlike the present petitioners — 

regarded as enemy combatants, the Government engages in a 

dialogue “to ascertain or establish what measures the receiving 

government intends to take pursuant to its own domestic laws and 

independent determinations that will ensure that the detainee will 

not pose a continuing threat to the United States and its allies,” 
12 

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 make the required showing of a likelihood of success 

on the merits necessary to obtain the preliminary relief they 

here seek. 

 

Waxman Decl. ¶ 5. The dissent takes note of the Government’s 

statement that “under appropriate circumstances,” it transfers 

detainees “to the control of other governments for continued 

detention,” see Dis. Op. at 6, but, as the Government explains, “[i]n 

all such cases ... the individual is detained, if at all, by the foreign 

government pursuant to its own laws and not on behalf of the 

United States,” Waxman Decl. ¶ 5. Whether, acting pursuant to its 

own laws, a “foreign nation will continue detention of the 

petitioners,” Dis. Op. at 6, is precisely the inquiry Munaf forbids 

this court from undertaking. 

This case involves the Government’s proposed release from 

U.S. custody of detainees whom the Government no longer regards 

as enemy combatants. It does not involve — and therefore, unlike 

our dissenting colleague, we express no opinion concerning — the 

transfer of detainees resulting in their “continued detention on 

behalf of the United States in places where the writ does not 

extend,” Dis. Op. at 4. The Government represents that it is trying 

to find a country that will accept the petitioners and, in the absence 

of contrary evidence, we presume public officers “have properly 

discharged their official duties.” See United States v. Chem. 

Found., Inc., 272 U.S. 1, 15 (1926). In view of the Government’s 

sworn declarations, and of the detainees’ failure to present anything 

that contradicts them, we have no reason to think the transfer 

process may be a ruse — and a fraud on the court — designed to 

maintain control over the detainees beyond the reach of the writ.
13 

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 persuasive 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 detainees, that the 

United States will not transfer “an individual in circumstances 

where torture is likely to result.” Munaf v. Geren, 128 S. Ct. 

2207, 2226 (2008). 

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., U.S. CONST. art. I, § 8 

(“Congress shall have Power . . . To . . . make Rules 

concerning Captures on Land and Water”). The constitutional 

text, Justice Jackson’s Youngstown opinion, and recent 

Supreme Court precedents indicate that the President does not 

possess exclusive, preclusive authority over the transfer of 

detainees. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006);

Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Youngstown Sheet 

& Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., 

concurring). Except perhaps in a genuine, short-term 

emergency, the President must comply with legislation 

regulating or restricting the transfer of detainees. In other 

words, under the relevant precedents, the President does not 

have power to trump legislation regarding wartime transfers 

in a Youngstown category-three situation. To be sure, there 

are weighty policy reasons why Congress may not seek to 

restrict the Executive’s transfer authority or to involve the 

Judiciary in reviewing war-related transfers. That presumably 

explains why Congress has not done so. But to the extent 

Congress wants to place judicially enforceable restrictions on 
2 

Executive transfers of Guantanamo or other wartime 

detainees, it has that power. 

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 rooted “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 

 1

 The detainees advance a claim under the Foreign Affairs 

Reform and Restructuring Act, but that argument is unavailing. See

Maj. Op. at 9-10. 

2

 There is no meaningful distinction between (i) the 

Executive’s declaration in this case that no Guantanamo detainees 

will be transferred to the custody of a foreign country where the 

Executive believes they would likely be tortured, and (ii) a similar 

Executive declaration with respect to a specific transfer (as in 

Munaf). The former encompasses the latter. In other words, for 

our purposes, the Government has represented that no detainee in 

this case will be transferred to a country where the Government 

believes it likely the detainee would be tortured. It bears emphasis 

that neither Munaf nor this case is the “more extreme case in which 
3 

decision applies here a fortiori: That case involved transfer of 

American citizens, whereas this case involves transfer of alien 

detainees with no constitutional or statutory right to enter the 

United States. 

 

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 (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. 

 

the Executive has determined that a detainee is likely to be tortured 

but decides to transfer him anyway.” 128 S. Ct. at 2226. 

3

 The rule of non-inquiry traditionally has not required an 

express executive declaration regarding the prospect of abuse by 

the foreign nation. After Munaf, courts in extradition cases 

presumably may require – but must defer to – an express executive 

declaration that the transfer is not likely to result in torture. 
4 

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 

 4

 In Boumediene v. Bush, the Supreme Court held that the 

Guantanamo detainees possess constitutional habeas corpus rights. 

128 S. Ct. 2229, 2262 (2008). This Court has since stated that the 

detainees possess no constitutional due process rights. Kiyemba v. 

Obama, 555 F.3d 1022, 1026-27 (D.C. Cir. 2009). The detainees 

argue that they must possess due process rights if they have habeas 

rights. See Hamdi, 542 U.S. at 525-26 (plurality opinion) 

(discussing interaction of habeas and procedural due process); id. at 

555-58 (Scalia, J., dissenting) (explaining linked origins of habeas 

and due process). And they further contend that the due process 

balancing test from Mathews v. Eldridge, 424 U.S. 319, 335 (1976), 

applies here – rather than a test based solely on history and 

tradition. See Hamdi, 542 U.S. at 529 (plurality opinion) (applying 

Mathews test); see also Boumediene, 128 S. Ct. at 2283-92 

(Roberts, C.J., dissenting) (applying Mathews test as articulated in 

Hamdi); but see Hamdi, 542 U.S. at 575-77 (Scalia, J., dissenting) 

(criticizing application of Mathews test); Medina v. California, 505 

U.S. 437, 446-48 (1992) (applying history-based test). That 

Mathews/Hamdi test requires “weighing the private interest that 

will be affected by the official action against the Government’s 

asserted interest, including the function involved and the burdens 

the Government would face in providing greater process.” Hamdi, 

542 U.S. at 529 (plurality opinion) (citation and internal quotation 

marks omitted). 

But as explained in the opinion of the Court and in this 

concurring opinion, the detainees do not prevail in this case even if 

they are right about the governing legal framework: Even assuming 

that the Guantanamo detainees, like the U.S. citizens in Munaf, 

possess constitutionally based due process rights with respect to 

transfers and that the Mathews/Hamdi balancing test applies, Munaf 

and other precedents preclude judicial second-guessing of the 

Executive’s considered judgment that a transfer is unlikely to result 

in torture. 
5 

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 (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. 8 C.F.R. §§ 241.13, 241.14. That governmental interest 

applies at least as strongly in the case of these Guantanamo 

detainees. 

In addition, and more fundamentally, this is a case 

involving transfer of wartime alien detainees. Transfers are a 
6 

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 

(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 confinement – 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 

 5

 The factual complication in this case arises because the 

United States will not send these Uighur detainees back to their 

home country of China, apparently because the Executive has 

concluded there is a likelihood of torture by China. See John B. 

Bellinger, III, U.S. State Dep’t Legal Advisor, Prisoners in War: 

Contemporary Challenges to the Geneva Conventions (Dec. 10, 

2007). The detainees do not want to return to China for that same 

reason and thus support the Executive’s decision. Yet these alien 

detainees also have no constitutional or statutory right to enter the 

United States. Assuming the Executive has the authority to bring 

them into the United States, the Executive has thus far declined to 

do so. And the Executive apparently has not yet found a safe third 

country willing to accept them. 
7 

detainees – some of whom had been held in America – back 

to their home countries or, in some cases, to other nations.6 

Those transfer and exchange decisions rested then – as they 

do now – on confidential information, promises, and 

negotiations. They involved predictive, expert judgments 

about conditions in a foreign country and related matters. 

Given those sensitivities, as well as the delays and burdens 

associated with obtaining judicial pre-approval of transfers 

and transfer agreements, it comes as no surprise that warrelated transfers traditionally have occurred without judicial 

oversight. See Boumediene, 128 S. Ct. at 2248-49 (negotiated 

exchange of prisoners was “a wartime practice well known to 

the Framers,” and “[j]udicial intervention might have 

complicated” those negotiations). As both history and 

modern practice demonstrate, the capture, detention, possible 

trial, and eventual transfer or release of combatants – as well 

as the transfer or release of those mistakenly detained during 

wartime – are all necessary and traditional incidents of war 

implicating compelling governmental interests. See Hamdi, 

542 U.S. at 518-19 (plurality opinion); cf. Authorization for 

Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 

(2001). 

 6 See generally George G. Lewis & John Mewha, History of 

Prisoner of War Utilization by the United States Army 1776-1945, 

DEP’T OF THE ARMY PAMPHLET NO. 20-213, at 46, 177, 201-204, 

240-43, 247, 258-60 (1955), http://cgsc.cdmhost.com; Raymond 

Stone, The American-German Conference on Prisoners of War, 13 

AM. J. INT’L L. 406 (1919); Martin Tollefson, Enemy Prisoners of 

War, 32 IOWA L. REV. 51 (1946); Mark Elliott, The United States 

and Forced Repatriation of Soviet Citizens, 1944-47, 88 POLITICAL 

SCIENCE QUARTERLY 253 (1973); Howard S. Levie, How It All 

Started – And How It Ended: A Legal Study of the Korean War, 35 

AKRON L. REV. 205 (2002); U.S. DEP’T OF DEFENSE, FINAL 

REPORT TO CONGRESS: CONDUCT OF THE PERSIAN GULF WAR 661-

73, 703-08 (1992), http://www.ndu.edu. 
8 

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 secondguess 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 9-10) 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 whole 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 
9 

continued detention “on behalf of the United States.” Dis. 

Op. at 3. The detainees did not advance that position in their 

104 pages of briefing in this Court (except perhaps an 

ambiguous reference at the tail end of one sentence in a 

supplemental brief). Nor did the detainees raise the point 

during two lengthy oral arguments in this Court. And because 

the detainees did not make the argument, the Government has 

not been able to address and respond to the dissent’s novel 

approach. 

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. 

 7

 A quite different issue arises, of course, when the United 

States maintains physical custody of an alien detainee but moves 

him after he has filed his habeas petition from a place where habeas 

applies (such as Guantanamo) to a place where the writ does not 

extend for aliens (such as a U.S. military base in Germany). Cf. 

Rumsfeld v. Padilla, 542 U.S. 426, 440-41 (2004); Ex parte Endo, 

323 U.S. 283, 306 (1944). 
10 

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 (2003) (“any 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 (1999) (“judicial 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). 
11 

Moreover, the dissent’s theory necessarily would require 

some judicial review of a foreign nation’s legal practices and 

procedures. But that would contravene the longstanding 

principle reiterated by the Supreme Court in Munaf: “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 assessments.” 128 S. Ct. at 2225. 

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 (1988); Dames & 

Moore v. Regan, 453 U.S. 654 (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-bycase 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 
12 

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 

11-12 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 court 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, 128 S. Ct. 2229 

(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 lawfulness of their proposed transfers. Based on its 

reading of Munaf v. Geren, 128 S. Ct. 2207 (2008), the 

majority finds sufficient the government’s representations that 

no transfer will result in continued detention on behalf of the 

United States. I write separately because I do not believe 

Munaf compels absolute deference to the government on this 

matter, and I believe the premise of Boumediene requires that 

the detainees have notice of their transfers and some 

opportunity to challenge the government’s assurances. 

Accordingly, I would affirm the district court orders. 

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, 

Pub. L. No. 109-366, 120 Stat. 2600, and at least three 

Justices were of the view it did not. See Boumediene, 128 S. 
2 

Ct. at 2278 (Souter, J., concurring, joined by Ginsburg & 

Breyer, JJ.) (noting that Congress “eliminated the statutory 

habeas jurisdiction over these claims, so that now there must 

be constitutionally based jurisdiction or none at all”). 

Statutory habeas may in fact exist for these detainees and 

cover claims against unlawful transfer, but for now this 

remains an open question, and the Constitution provides a 

more sure footing for jurisdiction. 

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 (2001) 

(quoting Felker v. Turpin, 518 U.S. 651, 664 (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 (2004) (Scalia, J., dissenting); Peyton v. 

Rowe, 391 U.S. 54, 58–59 (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 dominions 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 
3 

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 jurisdiction to hear the petitioners’ 

claims against unlawful transfer—a fundamental and historic 

habeas protection—is grounded in the Constitution. 

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 determine 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 12–

13. 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.”). 
4 

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 (“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 Government’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. 
5 

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. 

It is significant that the government has submitted sworn 

declarations assuring the court that any transfer will result in 

release from U.S. authority. If the government’s 

representations are accurate, each transfer will be lawful, for 

in habeas the only relevant judicial inquiry about a transfer is 

whether it will result in continued detention on behalf of the 

United States in a place where the writ does not run. But as 

we recently noted in another case involving the scope of 

habeas protections for detainees at Guantanamo Bay, a 

“naked declaration cannot simply resolve the issue.” Al-Odah 

v. United States, No. 05-5117, slip op. at 10 (D.C. Cir. Mar. 6, 

2009) (per curiam) (rejecting “the government’s suggestion 

that its mere certification—that the [classified] information 

redacted from the version of the [document] provided to a 

detainee’s counsel do[es] not support a determination that the 

detainee is not an enemy combatant—is sufficient to establish 

that the information is not material” (internal quotation marks 

omitted)); see id. at 11 (“[I]t is the [habeas] court’s 

responsibility to make the materiality determination itself.”). 

Critical to ensuring the accuracy of the government’s 

representations is an opportunity for the detainees to 

challenge their veracity. The rudimentaries of an adversary 

proceeding demand no less. See Boumediene, 128 S. Ct. at 

2273 (“If a detainee can present reasonably available evidence 

demonstrating there is no basis for his continued detention, he 

must have the opportunity to present this evidence to a habeas 

corpus court.”). When an individual entitled to habeas 
6 

protections faces the prospect of continued detention—be it 

by the United States at Guantanamo Bay or on its behalf after 

transfer to a foreign nation—he must be afforded some 

opportunity to challenge the government’s case. 

Relying solely on the government’s sworn declaration 

and despite the petitioners’ claims to the contrary, the 

majority insists that this case is not about possible continued 

detention by a foreign nation on behalf of the United States. 

Majority Op. at 11–12. 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 do 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

 

 

1

 Because this case should be governed by Boumediene’s extension 

to the detainees of habeas protections that include the bar against 

unlawful transfer, I view the issues of interest to Judge Kavanaugh 

in his concurring opinion as inapposite. For example, whether the 

Due Process Clause of the Fifth Amendment reaches these 

detainees is simply not part of the inquiry required in this case. The 

critical issue is whether the petitioners’ habeas rights permit them 

to offer evidence that their proposed transfers will result in 
7 

Munaf is not to the contrary. The majority makes much of 

its language that courts may not “second-guess” the 

government’s determinations, but it overlooks a significant 

difference between that case and ours: the Munaf petitioners 

knew in advance that the government intended to transfer 

them to Iraqi authorities and had the opportunity to 

demonstrate that such a transfer would be unlawful. There 

was no need for the Munaf Court to consider an issue at the 

center of this dispute: whether notice is required to prevent an 

unlawful transfer. In considering the Munaf petitioners’ 

request to enjoin their transfers, the district court had the 

benefit of competing arguments from the petitioners and the 

government for each specific transfer. See 128 S. Ct. at 2226 

(emphasizing that the government had considered and 

determined that the petitioners, Shawqi Ahmad Omar and 

Mohammad Munaf, would be treated adequately by Iraq’s 

Justice Ministry and the prison where they would be held); 

see also Omar v. Harvey, 416 F. Supp. 2d 19, 28 (D.D.C. 

2006) (stating petitioner’s reasons for seeking an injunction 

barring transfer); Petition for Writ of Habeas Corpus at 7, 

Munaf v. Harvey, No. 06-1455 (D.D.C. Aug. 18, 2006) 

(same). Although the Supreme Court rightly gave substantial 

weight to the government’s determination that the proposed 

transfer was lawful, the petitioners were at least permitted to 

argue otherwise. The Kiyemba petitioners should be afforded 

the same opportunity. 

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 

 

continued detention by a foreign nation on behalf of the United 

States. 
8 

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 the 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 protections 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 
9 

detention on behalf of the United States. Accordingly, I 

respectfully dissent.