# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2008 Decided April 7, 2009

No. 05-5487

J AMAL K IYEMBA

, N EXT F RIEND

, ET AL

., A PPELLEES

v.

B ARACK O BAMA

, P RESIDENT OF THE U NITED S TATES

, ET AL

., A PPELLANTS

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 Atto rney 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: G INSBURG , G RIFFITH , and K AVANAUGH

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge G INSBURG

.

Concurring opinion filed by Circuit Judge K AVANAUGH

.

Opinion concurring in the judgment in part and dissenting in part filed by Circuit Judge G RIFFITH

.

G INSBURG

, Circuit Judge : Nine Uighurs held at Guantanamo Bay, in order to challenge their detention, petitioned the district court fo r a writ of habeas corpus. Asserting that they feared be ing 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 it s 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 fear3

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 remova l from Guantanamo divest the court of jurisdiction over the detainees’ habeas petitions.

While this appeal was pe nding, the Congress passed the Military Commissions Act (MCA), § 7 of which provided:

No court ... shall have jurisd iction to hear or consider an application for a writ of habeas corpus filed by or

on behalf of an alien deta ined 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 unconst itutional suspension of the writ” of habeas corpus. 128 S. Ct. 2229, 2274 (2008). In light of that decision, we vaca ted 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 whic h 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 Gove rnment 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 di strict 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 th ereof. 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 littl e of an unconstitutional statute as necessary to bring it into c onformity 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 ne cessary .... Accordingly, the normal rule is that partial, rath er 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 constitu tional context, or where linedrawing is inherently comp lex, may call for a far more serious invasion of the legislat ive 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 unconst itutional 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 argue s the second provision of MCA § 7 stripped the district court of jurisdiction. That provision eliminates court ju risdiction over “an y other action against the United States or its ag ents 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 applie s 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 transf er 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) th e 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 the7

opposing party if an in junction 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 quota tion 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 citi zens 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 approp riate 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 certiora ri 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 pe titions, 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 ca nnot prevail on the merits of their present claim and the Govern ment 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 thei r 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 addresse d 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 que stion 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 cour ts 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 Re structuring (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 revi ew 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 th e 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 cas e 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 jurisd iction 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 respectfor foreign sovereigns that preclude judicial scrutiny of fo reign 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]ove rnment’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 separa tion of powers principles that preclude the courts from s econd-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 sa fe transfers for detainees. Prosper Decl. ¶ 10 (“Later revi ew in a public forum of the Department’s dealings with a particular foreign government regarding transfer matters w ould 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 pursuan t to its own domestic laws and independent determinations that w ill 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 author ity to prosecute them.” Munaf , 128 S. Ct. at 2223. Theref ore, 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 showi ng of a likelihood of success on the merits necessary to obtai n 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 de tained, 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 th e 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 wi ll torture him, and the district court may not second-guess the Government’s

assessment of that likelihood. No r may the district court bar

the Government from releasi ng 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 gr ounds 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

.K AVANAUGH

, 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 cust ody 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 Executi ve’s transfer of wartime detainees to the custody of ot her nations. Congress possesses express constitutional authority to make rules concerning

wartime detainees. See, e.g. , U.S. C ONST

. art. I, § 8 (“Congress shall have Power . . . To . . . make Rules concerning Captures on Land and Wa ter”). The constitutional text, Justice Jackson’s Youngstown opinion, and recent Supreme Court precedents indica te that the President does not possess exclusive, preclusive au thority 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 tran sfer of detainees. In other words, under the relevant preced ents, the President does not have power to trump legislati on 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 judicial ly enforceable restrictions on2

Executive transfers of Guantanamo or other wartime detainees, it has that power.

Second , in the absence of a me ritorious statutory claim, 1
the detainees argue that they ha ve a constitutional due process right against “transfer to tortur e” – and, therefore, to judicial

reassessment of the Executive’s conclusion that transfer to a foreign nation’s custody is unlikel y 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 transf er 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 simila r 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 to rtured 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 cl aim 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 which3

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 th e detainees’ argument. When the Executive seeks extradition pursuant to a request from a foreign nation, the Judiciary does not inquir e into the treatment or procedures the extr adited citizen or alien will

receive in that countr y. “It is the function of the Secretary of

State to determine whether ex tradition 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 C ORNELL L. R EV

. 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 indi vidual 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 mistreatme nt 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 furthe r 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, th e Government’s interest in transferring these deta inees to foreign natio ns 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 aut hority. 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 intere st 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 Unite d States has a very strong interest in returning the aliens to their home countries or safe

third countries so that they will not be deta ined indefinitely in facilities run by the United States – a scenario that can trigger a host of security, foreign polic y, 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 a lien detainees. Transfers are a6

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, a nd it of course may prosecute unlawful enemy combatants. See Hamdi , 542 U.S. at 518-19 (plurality opinion). At the c onclusion of hostilities, the United States ordinarily transfer s or releases lawful combatant

detainees to their home countries. Most relevant in this case,

when the United States determin es 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 c onfinement – 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 Le gal 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 Execu tive has the authority to bring them into the United States, the Ex ecutive 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 pr edictive, expert judgments about conditions in a foreign country and related matters. Given those sensitivities, as well as the delays and burdens associated with obtaining judici al pre-approval of transfersand transfer agreements, it comes as no surprise that warrelated transfers trad itionally have occurr ed 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, th e 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, P ub. 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

, D EP ’ T OF THE A RMY P AMPHLET N O

. 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

A M

. J. I NT ’ L L. 406 (1919); Martin Tollefson, Enemy Prisoners of

War , 32 I OWA L. R EV . 51 (1946); Mark Elliott, The United States and Forced Repatriation of Soviet Citizens, 1944-47

, 88 P OLITICAL
S CIENCE Q UARTERLY 253 (1973); Howard S. Levie, How It All Started – And How It Ended: A Legal Study of the Korean War , 35

A KRON L. R EV . 205 (2002); U.S. D EP ’ T OF D EFENSE

, F INAL

R EPORT TO C ONGRESS : C ONDUCT OF THE P ERSIAN G ULF W AR 661- 73, 703-08 (1992), http://www.ndu.edu.8

In short, Munaf and the extradition cases have already weighed the relevant due pro cess 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 seri ous 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 “Judi ciary is not suited to secondguess such determinations.” Id. In light of t hose 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 H ARV

. L. R EV

. 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 Refo rm and Restructuring Act, see Maj. Op. at 9-10) requires j udicial 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 w hole 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 na tion would also amount to9

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 ra ise 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 demonstrat e 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 pr oposed transfer and assess whether custody of such an a lien by a foreign nation would somehow also amount to custody “on behalf of the United

States.” The dearth of citati ons 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 c oncept 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 pr actice, and that prosecution or detention by a foreign nation afte r transfer therefore would be improper, at least if the Unite d States were aware of or encouraged it beforehand. But no authority is cited to support

such a conclusion or the extraord inary judicial role it portends

in connection with the Natio n’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 forei gn relations, the war power, and the maintenance of a republi can form of government”) (internal quotation marks omitted); INS v. Aguirre-Aguirre

, 526 U.S. 415, 425 (1999) (“judi cial 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 fore ign 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 transfe rred, we have re cognized that it is for the political branches, not the judiciar y, 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 instan ce, would the Judiciary require questioning of the American and foreign officials who negotiated the transfer? Woul d it mandate disclosure of

confidential nation-to-nation do cuments? Presumably so. But absent congressional dire ction 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 expediti on 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 deci sions. 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 the12

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 cour t to second-guess the Executive’s proposed transfer of th ese alien detainees. See Maj. Op. at

11-12 n.*.

* * *

The opinion of the Court co rrectly concludes that, under current law, the U.S. Government may transfer Guantanamo

detainees to the cust ody 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.G RIFFITH

, Circuit Judge , concurring in the judgment in part and dissenting in part: Nine detainees ask us to affirm district court orders requiring th e 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 cor pus and extended its protections to those held at Guantanamo Bay. Since at least the seventeenth century, the Great Wr it 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 pr ocess 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 separate ly 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., concur ring, joined by Ginsburg & Breyer, JJ.) (noting that Congr ess “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 el ement 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. C HI

. L. R EV

. 243, 252 (1965) (explaining the “c lose 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) (Sca lia, J., dissenting); Peyton v.

Rowe , 391 U.S. 54, 58–59 (1968). Section 12 of the 1679 Act included a prohibition against th e 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, garris ons, 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 po ssibility of evading judicial review through such spiriting- away was eliminated, not by expanding the writ abroad, but by forbidding (in Article XII3

of the Act) the shipment of pr isoners to places where the writ

did not run or where its executi on would be difficult.”); Oaks at 253 (“The act also prohibite d 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 jurisdic tion to hear th e 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 wr it 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 transfer s 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 Unite d 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 “comm on-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 prot ections of the writ.”).4

Fundamental to a prisoner’ s habeas rights is the government’s duty to appear in co urt to justify his detention. At its most basic level, hab eas “protects the rights of the detained by affirming the duty a nd 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 pr isoner 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 critic al deficiency in the CSRT process the “constraints upon the detainee’s abili ty to rebut

the factual basis for the Governme nt’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 ‘re lease’” would not result in

“continued unlawful detenti on in a location beyond the jurisdiction of the district cour t . . . in coordination with[] or at the behest of the United States”); Appellees’ Supp. Resp. Br. at 5–6; Application fo r 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, prot ecting their habeas rights in this

context is vital.

It is significant that the government has submitted sworn declarations assuring the court th at any transfer will result in

release from U.S. author ity. If the government’s representations are accurate, each transfer will be lawful, for in habeas the only relevant judici al inquiry about a transfer is

whether it will result in continued detention on behalf of the United States in a place wher e 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 certific ation—that the [class ified] information

redacted from the version of the [document] provided to a detainee’s counsel do[es] not s upport a determination that the

detainee is not an enemy combatant—is sufficient to establish

that the information is not ma terial” (internal quotation marks omitted)); see id. at 11 (“[I]t is the [habeas] court’s responsibility to make the materi ality determination itself.”). Critical to ensuring the accuracy of the government’s representations is an opportunity for the detainees to challenge their veracity. The r udimentaries 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 habeas6

protections faces the prospect of continued detention—be it by the United States at Guantana mo 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 pos sible 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 actua lly 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 Ma tthew C. Waxman, Deputy Assistant Sec’y of Def. for Detainee Affairs 2–3 (June 2, 2005). The declaration expressl y left open the possibility that a foreign nation will contin ue detention of the petitioners.

See id. at 2 (“[T]he United Stat es also transfers GTMO detainees, under appropriate circ umstances, to the control of other governments for continue d detention . . . .”). The possibility of continued de tention 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 thei r 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 th e inquiry required in this case. The critical issue is whether the petitioners’ habeas rights permit them to offer evidence that their pr oposed transfers will result in7

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 transf er 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 transfer s, 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 Cour t rightly gave substantial weight to the government’s de termination 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 petiti oners 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 sovere ign government seeking to have them answer for alleged crimes committed within that sovereign’s borders.

Id. at 2221. Given the significan t 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 governme nt’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 dimini shed, if not eliminated, without an opportunity to challenge the government’s

assurances that their transfer s will not result in continued9

detention on behalf of the United States. Accordingly, I respectfully dissent.