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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 


MOHAMEDOU OULD SALAHI, 
Petitioner, 

v. Civil Action No. 05-0569 (RCL)

BARACK H. OBAMA, et al., 
Respondents. 

MEMORANDUM OPINION

 

This case comes before the Court on petitioner?s Motion [453] for an Order to Show Cause
as to why an Order should not issue requiring the Department of Defense to (1) 
provide petitioner a hearing before a Periodic Review Board; (2) cease interfering with petitioner?s
access to this habeas Court; and (3) cease imposing arbitrary and severe restrictions on petitioner?s
conditions of con?nement.

Upon consideration of petitioner?s Motion, respondents? response and petitioner?s reply
thereto, the arguments made in open court on November 24, 2015, the entire record in this case,
and the applicable law, the petitioner?s Motion is DENIED for the reasons provided below.

I. BACKGROUND

Petitioner has been detained without charge since November 2001. Salahi v. Obama, 710
F. Supp. 2d 1, 3 (D.D.C. 1010), vacated and remanded, 625 F.3d 745 (DC. Cir. 2010). The
United States government moved him to Guantanamo Bay Naval Base in 2002, where he
remains to this day. Salahi, 710 F. Supp. 2d at 3. In 2005 he filed a habeas petition, id, which
this Court, Judge Robertson presiding, granted in 2010. Id. at 16. The government appealed,
and the DC. Circuit vacated that decision and remanded for review in the light of decisions such

as Awad v. Obama, 608 F.3d 1 (DC. Cir. 2010), Bensaya v. Obama, 610 F.3d 718 (DC. Cir.

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2010), and Al?Adahi v. Obama, 613 F.3d 1102 (DC. Cir. 2010). Salahi v. Obama, 625 F.3d 745,
752?53 (DC. Cir. 2010).

In March 2011, the President created an interagency administrative process ?to review on
a periodic basis? whether continued detention of certain Guantanamo detainees was ?necessary
to protect against a signi?cant threat to the security of the United States.? Executive Order
13567, 76 Fed. Reg. 13277. Each detainee is to get a full hearing every three years from the
Periodic Review Board entity DOD created for this purpose?plus a review of his
?le for new information every six months, which may lead to a recommendation for a full PRB
hearing, even if such a hearing would fall before the triennial one. See Deputy Secretary of
Defense, Directive-Type Memorandum (DTM) 12-005 (May 9, 2012). Respondents have yet to
inform petitioner of the date of his PRB hearing.

II. JURISDICTION

Congress withdrew jurisdiction from the federal courts over habeas and non-habeas claims
?led by or on behalf of, among others, Guantanamo detainees. See 22 U.S.C. 2241(e). In
Boumediene v. Bush, the Supreme Court struck down withdrawal of habeas
jurisdiction as an unconstitutional suspension of the writ. 553 U.S. 723, 733 (2008). The DC.
Circuit subsequently clari?ed that 2241(e)(2) remains in force, which means ?actions other than
habeas? are still unavailable to detainees. Al?Zahram' v. Rodriguez, 669 F.3d 315, 319 (DC. Cir.
2012). The ?rst question presented in this case is therefore whether or not petitioner?s claim that
the government must ?x a date for his PRB hearing sounds in habeas.

Petitioner argues that INS v. St. Cyr?which dealt with habeas, though in the context of
immigration?controls this case. See 533 U.S. 289 (2001). In St. Cyr, the habeas petitioner (St.

Cyr) was an alien who had been admitted to the United States as a lawful permanent resident but

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had rendered himself deportable by pleading guilty to selling a controlled substance. Id. at 293.
St. brought a habeas petition arguing that the Attorney General of the United States had
discretion to waive deportation under the law in effect at the time of his conviction. Id. The
Attorney General, however, interpreted the statutes in effect at the time of St. Cyr?s removal as
divesting him of such discretion. Id. The parties in St. also disputed the threshold issue of
jurisdiction. The government argued that the Antiterrorism and Effective Death Penalty Act of
1996, 401(6), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8
U.S.C. 1252(a)(1), and barred habeas jurisdiction over ?the question of law
presented by? St. Cyr?s petition. 533 US. at 298. But the Court declined to so read those statutes,
in part because the government?s interpretation would raise a serious question as to whether the
jurisdictional statutes at issue violated the Suspension Clause, ?even assuming that the Suspension
Clause protects only the writ as it existed in 1789.? Id. at 304?05.

In doing so, the Court rejected the govemment?s argument that common law habeas 
what the Court assumed was the minimum guaranteed by the Suspension Clause) would have been
unavailable where ?an of?cial had statutory authorization to detain the individual . . . but . . . the
of?cial was not properly exercising his discretionary power to determine whether the individual
should be released.? Id. at 303 (citations omitted) (internal quotation marks omitted). Though the
St. Court took care to note that ?courts recognized a distinction between eligibility for
discretionary relief, on the one hand, and the favorable exercise of discretion, on the other hand,?
id. at 307, it pointed out that ?[h]abeas courts . . . regularly answered questions of law that arose
in the context of discretionary relief.? Id. at 307?08 (citing United States ex rel. Accardi v.
Shaughnessy, 347 US. 260 (1954), and United States ex rel. Hintopoulos v. Shaughnessy, 353

US. 72, 77 (1957)).

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The Court also observed, however, that it had ?held that a deportable alien had a right to
challenge the Executive's failure to exercise the discretion authorized by the law? where
?[e]ligibility that was ?governed by speci?c statutory standards? provided ?a right to a ruling on an
applicant's 533 US. at 307~08 (quoting Jay v. Boyd, 351 US. 345, 353?54 (1956)).
Here, unlike St. Cyr, petitioner points to no statute conferring a right to periodic review of the
threat he poses. The only statute that might have?The Authorization for the Use of Military
Force, Pub. L. No. 107?40 115 Stat. 224 (2002)?does not. See Hamdi v. Rumsfeld, 542
US. 507, 521 (2004) (?The United States may detain, for the duration of these hostilities,
individuals legitimately determined to be Taliban combatants who ?engaged in an armed con?ict
against the United States?). And petitioner?s ostensible right to the PRB process cannot be
grounded in the Executive Order which created it. Compare Meyer v. Bush, 981 F.2d 1288, 1297
n.7 (DC. Cir. 1993) (?An Executive Order devoted solely to the internal management of the
executive branch?and one which does not create any private rights?is not, for instance, subject
to judicial review?), with Executive Order 13567 (?This order is not intended to, and does not,
create any right or bene?t, substantive or procedural, enforceable at law or in equity by any party
against the United States, its departments, agencies, or entities, its of?cers, employees, or agents,
or any other person?). As the DC. Circuit noted in Omar v. McHugh, detainees should be wary
of reading St. too broadly; ?St. did not concern extradition or military transfers, but rather
addressed removal of aliens under the immigration laws,? and it ?protected and enforced what [the
Court] determined to be the historical scope of the writ.? 646 F.3d 13, 23 n.10 (DC. Cir. 2011).
St. determined that petitioner?s claim?that he was eligible for discretionary relief from
removal?was one a common-law judge with the power to issue a writ of habeas corpus could

have answered in 1789. See id. Here, by contrast, even if we ignore the distinction between a

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statute which creates rights and an Executive Order which does not, what reSpondents dispute is
not petitioner?s eligibility for PRB consideration, but rather whether he may obtain an order
compelling the government to ?x a date for that consideration.

Respondents argue that petitioner?s claim does not sound in habeas and is therefore barred
because the relief he seeks (a hearing which would allow the government to exercise its discretion
to release him) would only possibly result in his release. Though respondents have not attempted
to distinguish St. Cyr, they offer cases more recent than St. supporting their proposition. In
Skinner v. Switzer, for example, the Supreme Court considered whether a prisoner who had filed
a civil rights claim under 42 U.S.C. 1983 seeking DNA testing of crime?scene evidence was
barred from doing so by a doctrine which requires certain claims attacking con?nement be brought
via habeas. See 562 U.S. 521, 524 (2011). The Skinner Court decided that the petitioner?s claim
need not have been brought via habeas because it would not ?necessarily imply? the wrongness of
his conviction. Id. at 534 (quoting Wilkinson v. Dotson, 544 U.S. 74 (2005)). Most importantly
for our purposes, Skinner also noted that the petitioner ?has found no case, nor has the dissent, in
which the Court has recognized habeas as the sole remedy, or even an available one, where the
relief sought would ?neither terminat[e] custody, accelerat[e] the future date of release from
custody, nor reduc[e] the level of custody,? 562 U.S. at 534 (quoting Dotson, 544 U.S. at 86
(Scalia, ., concurring)), and that ?Dotson declared . . . that when a prisoner's claim would not
?necessarily spell speedier release,? that claim does not lie at ?the core of habeas corpus,? and may
be brought, if at all, under 1983.? 562 U.S. at 535 (citation omitted).

The DC. Circuit followed suit in Davis v. U.S. Sentencing Comm 716 F.3d 660 (DC.
Cir. 2013). In Davis, a prisoner whose convictions involved powder and crack cocaine brought an

Equal Protection challenge against the U.S. Sentencing Commission?s decision to reduce the

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sentencing disparities between the two, because that the reduction did not apply to offenses that,
like his, involved 15 kg or more of crack cocaine. Id. at 662. The prisoner sought relief under,
among other things, the Declaratory Judgment Act, 28 U.S.C. ?2201(a), but the district court
denied relief on that basis because it concluded that it lacked ?jurisdiction to entertain an action
for a declaratory judgment when, as here, an adequate remedy is available by petitioning the
sentencing court for a writ of habeas corpus.? Davis, 812 F. Supp. 2d at 2. On appeal, the DC.
Circuit decided that Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371 (DC. Cir. 2000)?which held
that ?a federal prisoner must still bring his claim in habeas even when success on the merits ?would
have a merely probabilistic impact on the duration of custody,? id. at 373?must be recognized
as overturned in light of, among other things, Skinner. Davis, 16 F.3d at 665?6 
claims may not even lie within the bounds of habeas, much less at its core. If habeas is not even
?proper? for claims with only a probabilistic impact on custody, . . . it could not be the case that
Congress intended that prisoners asserting such claims should be limited to habeas?).

In rebutting this, petitioner relies on Aamer v. Obama, in which the DC. Circuit recognized
statutory habeas jurisdiction over claims challenging certain conditions of con?nement, namely,
the practice of force-feeding Guantanamo detainees engaged in a hunger strike. See 742 F.3d
1023, 1026 (DC. Cir. 2014). Petitioner argues that Aamer demonstrates that habeas jurisdiction
?encompasses any challenge where a ?petitioner contends that some aspect of his con?nement has
deprived him of a right to which he is entitled while in custody.?? Pet?r?s Mot. 8, ECF No. 453
(quoting Aamer, 742 F.3d at 1036). He also argues that this Court should disregard habeas-
channeling cases like Skinner and Davis because they ?turn[] on whether claim for relief is at
the ?core of habeas?? and do not describe the full scope of statutory habeas jurisdiction. Pet?r?s

Reply Supp. Mot. 5, ECF No. 472. The Court disagrees with both arguments. First, while Aamer

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does show that claims not relating to release may sound in habeas, it does not show that
?probabilistic? or ?discretionary? claims relating to release do so. Second, Skinner and Davis
clearly do make statements about the scope of statutory habeas in general, namely, ?Switzer has
found no case, nor has the dissent, in which the Court has recognized habeas as the sole remedy,
or even an available one, where the relief sought would ?neither terminat[e] custody, accelerat[e]
the future date of release from custody, nor reduc[e] the level of custody,? Skinner, 562 US. at
534 (citation omitted), and ?probabilistic? claims may not even lie within the bounds of habeas,
much less at its core,? Davis, 716 F.3d at 665. Finally, the fact that Skinner and Davis seem to
except probabilistic claims from the category of habeas?and did not consider St. controlling
contrary authority?fatally undermines petitioner?s assertion that Aamer held that habeas
encompasses literally any claim that some aspect of executive detention violates the law.

For the aforementioned reasons, the Court concludes that it lacks jurisdiction to hear
petitioner?s claim.

LEGAL MATERIALS

Petitioner alleges that he has been deprived of access to his legal materials. Speci?cally,
petitioner says that Guantanamo staff con?scated all of his legal papers in October 2014. Decl. of
Nancy Hollander, Esq. 19. According to petitioner?s counsel, as of their last in-person visit with
petitioner in April 2015, petitioner still lacks access to ?many? of those materials, and though
respondents? counsel informed petitioner?s counsel on May 4, 2015 that petitioner had access to
all of his legal materials, petitioner?s counsel has not yet been able to con?rm that representation.
Id. Petitioner?s counsel requested the return of those of petitioner?s legal materials which were
removed from his cell in October 2014, and requested the removal from his cell of legal materials

that had been marked as un?t to leave with petitioner. Decl. of Nancy Moreno, Esq. 1111 9?10. At

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the hearing on this motion, counsel for the petitioner represented that petitioner, while reviewing
his legal materials in September 2015, discovered a piece of paper in one of his privileged legal
material binders that appeared to be a government form for chain of custody. As a result of this,
petitioner fears that some of his privileged communications with counsel have been exposed to the
government, and mistrusts respondents? status report on his legal materials. Lastly, petitioner says
respondents have failed to return handwritten notes he had taken while reviewing his legal
materials. It is unclear whether these notes comprise, are identical to, or are merely a part of
petitioner?s handwritten notes from his 2009 merits hearing, which petitioner?s counsel likewise
indicated had not been returned.

Respondents represent that petitioner was allowed to see all of his legal materials on
September 17, 2015; (2) petitioner may keep a certain amount of legal materials in his cell, may
ask to review any of his other legal materials, and may swap out the bin of legal materials stored
in his cell for other materials stored outside his cell; and (3) guards and staff judge advocates have
not reviewed the contents of petitioner?s legal materials. Respondents also say they do not know
where petitioner?s handwritten notes are, and that while they may be missing, petitioner may
simply have overlooked them when he reviewed his legal materials on September 17.

Based on this record, the Court is largely satis?ed that petitioner has adequate access to his
legal materials. Other than his handwritten notes, petitioner has identi?ed no legal materials that
appear even potentially inaccessible. Furthermore, to the extent petitioner is asking the Court to
order respondents to ?nd petitioner?s handwritten notes, the Court is reluctant to do so until further
efforts by petitioner (such as a bin-by-bin search) prove fruitless, as ordering respondents to
conduct that search would seem to require breaching the very attomey-client privilege petitioner

ri tly cherishes. Nor will the Court order respondents to remove from petitioner?s cell materials

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marked as inappropriate to leave with petitioner, as petitioner has identi?ed no right that would
entitle him to such an order.

With respect to the privileged binder that contained what appeared to petitioner to be a
chain-of-custody form, the Court is not convinced that this incident is evidence of a breach of his
attorney-client privilege. The most likely explanation would seem to be that the document was
inserted in the course of a contraband inspection, perhaps as a marker that the binder had been
searched. The Court would also not be surprised to learn that Guantanamo staff use careful chain-
of-custody practices when handling detainee legal materials, especially when those materials are
being regularly handled and moved as a result of either a change in detainee housing, or 
swapping legal material bins in and out of a detainee?s cell. The document petitioner saw in his
privileged material may have been inserted blindly by a guard who was ordered to keep the chain
of custody form with the material to which it pertained; or petitioner may have misunderstood
what he saw. Of course, this is all mere supposition by the Court, but because respondents deny
that either the guard force or the staff judge advocates are reviewing petitioner?s legal materials?
the Court assumes this was meant to deny that any government personnel are conducting
substantive review, and not to artfully omit the possibility that non?guards and non-judge?
advocates are doing so?and because petitioner has not submitted the chain of custody form for
the Court?s review, the Court lacks suf?cient grounds to act on petitioner?s allegation.

Finally, petitioner?s counsel also expressed dissatisfaction with the inconsistency between
the legal material policies in Exhibits A and to Respondents? Status Report Regarding
Petitioner?s Legal Materials?speci?cally, the rules about the maximum number of legal material
bins a detainee may have (unlimited, according to Andrew Warden?s email; four, according to C01.

David Heath?s declaration). These inconsistencies may simply be due to some change in the legal

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material storage policies at Guantanamo that occurred between February 6, 2014 (the date of
Warden?s email) and June 24, 2014 (the date on which Col. Heath assumed his current position of
responsibility at Guantanamo). As petitioner?s counsel noted, however, four lS-quart bins would
not appear to be suf?cient to hold all of petitioner?s legal materials, and at the hearing, respondents?
counsel indeed seemed to contradict Col. Heath?s declaration by stating that petitioner had nine
such bins of legal materials. The Court will therefore, in a separate ORDER, instruct respondents
to ?le with the Court an explanation of the above-noted inconsistencies between (1) respondents?
counsel?s statements at the November 24, 2015 hearing in this case, (2) Col. Heath?s declaration,
and (3) Andrew Warden?s email.
IV. OTHER CONDITIONS OF CONFINEMENT CLAIMS

Petitioner alleges that respondents have violated his rights by depriving him of access to
several personal possessions he had previously been allowed to keep in his cell, namely, his
computer, books, family photographs, and gifts from prison guards. As respondents note,
however, in order to prevail on such a claim petitioner must ?rst identify what constitutional right
the challenged restrictions offend, see Turner v. Sa?ey, 842 U.S. 78, 89 (1987), and petitioner?s
only proffered source for such a right, the Due Process Clause of the Fifth Amendment, does not
apply to Guantanamo detainees. See Kiyemba v. Obama, 555 F.3d 1022, 1026 (DC. Cir. 2009)
(?Decisions of the Supreme Court and of this court?decisions the district court did not
acknowledge?hold that the Due Process Clause does not apply to aliens without property or
presence in the sovereign territory of the United States?) (footnote omitted), vacated and
remanded, 559 U.S. 131 (2010) (per curiam), reinstated, 605 F.3d 1046 (DC. Cir. 2010).
Petitioner observes that Aamer assumed without deciding ?that the constitutional right to be free

from unwanted medical treatment extends to nonresident aliens detained at Guantanamo,? 742

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F.3d at 103 9, and argues that the Aamer court would only have done so if it disagreed with what
petitioner calls respondents? ?overbroad reading of Kiyemba as categorically and conclusively
foreclosing due process rights at Guantanamo.? Pet?r?s Reply Supp. Mot. 20, ECF No. 472. Their
argument is irrelevant; whether or not the Aamer panel had reservations about Kiyemba, they did
not overrule it. See Aamer, 742 F.3d 1023; see also Bldg. Constr. Trades Dep?t, v.
Allbaugh, 295 F.3d 28, 34 n.1 (DC. Cir. 2002) (stating that a ?panel [of the Court] is bound to
abide by . . . precedent unless it is overturned by the court sitting en banc or by the Supreme
Court?). The Court therefore cannot provide petitioner with his requested relief.
CONCLUSION

For the foregoing reasons, petitioner?s Motion [453] is DENIED. A separate ORDER

consistent with this Memorandum Opinion shall issue this date, December 17, 2015.

Zn?. ?lly/5K

EYHE C. LAMBERTH
United States District Judge

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