Case 1:05-cv-01506-RMC Document 284 Filed 01/17/17 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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SUFYIAN BARHOUMI,
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Petitioner,
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v.
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BARACK OBAMA, et al.,
:
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Respondents.
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––––––––––––––––––––––––––––––––––––––––– x

Civil Action No. 05-cv-1506 (RMC)

REPLY BRIEF IN SUPPORT OF
EMERGENCY MOTION FOR ORDER EFFECTING RELEASE

Shayana D. Kadidal (D.D.C. Bar No. 454248)
Omar Farah (pursuant to LCvR 83.2(g))
J. Wells Dixon (pursuant to LCvR 83.2(g))
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, New York 10012
(212) 614-6438
kadidal@ccrjustice.org
ofarah@ccrjustice.org
wdixon@ccrjustice.org
Attorneys for Petitioner Barhoumi

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Sufyian Barhoumi has been detained without charge at Guantánamo for fourteen years—
longer than the duration of any prior military conflict in U.S. history or, to our knowledge, the
history of modern warfare. His detention has gone on for too long, and is arbitrary and perpetual
by any reasonable measure. This is particularly so where, as here, the individual whose liberty
has been restrained has been approved for transfer but remains in custody because of bureaucratic delay rather than what he allegedly did or who he allegedly associated with more than a decade ago, and where—as the government does not dispute—he will likely remain detained, at
minimum for the next four years, but perhaps for life absent a timely judicial order effectuating
his release from Guantánamo.
Far from offering a persuasive opposition to Petitioner’s motion, the government concedes his essential arguments warranting relief. The government does not dispute that Petitioner
has been approved for transfer because his detention is “no longer necessary,” and no longer
serves the only ostensible basis for his initial capture and detention, i.e., to prevent his return to
the battlefield. The government’s response confirms that the government intends, and has been
trying, to transfer him to Algeria; that Algeria wants him back; that he wants to go back to Algeria; and that he has not yet been transferred because the Secretary of Defense has refused to sign
the certification paperwork “at this time” due to factors including those “not related to Petitioner
himself.” Nor does the government dispute that absent a judicial order effecting release, Petitioner will suffer substantial prejudice because the incoming administration intends to end all transfers immediately. He will, in the estimation of all parties, become a victim of the calendar. The
certification-and-notice requirement will have cost Petitioner his chance at freedom—a chance
which, as is uncontested by the government, may not recur for four or more years. In that regard
his detention will be classically arbitrary, perpetual, and unlawful.

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Argument
As an initial matter, it does not appear from the government’s brief that it has made preparations to transfer Petitioner in the event that the Court grants his motion, as required by the
Court’s Order to Show Cause dated January 13, 2017 (dkt. no. 280). If that is correct, it could
possibly warrant a contempt order, but in any event, if the Court grants the motion and orders
Petitioner’s release from Guantánamo before noon on Friday, the government should not be
heard to complain that it did not know how to set about preparing for Petitioner’s transfer when
it has transferred hundreds of Guantanamo detainees over the years, including ten over the weekend, or that it would be unduly burdensome at this late date to do so because of the government’s
own dilatory actions.
I.

The Government Response to Petitioner’s Request for an Order Declaring
that He Falls Within the Court-Order Exception of NDAA Is Meritless
In his motion, Petitioner argues that the Court should issue an order declaring that he falls

within the court-order exception to the NDAA, and thus shall not be subject to the certification
and notice provisions in the NDAA, which form of order would have the practical effect of removing a significant obstacle to his transfer. The government cites the transfer restrictions as an
obstacle to Petitioner’s transfer, and essentially admits that the Secretary of Defense’s refusal to
transfer Petitioner at this time is due to the onerous certification requirement. See Response at 56. The government also does not dispute that placing Petitioner within the court-order exception
would hasten his transfer. 1 But the government claims that the NDAA does not create any new
authority for the Court to enter an order of release. It contends that reading the NDAA to confer

1

The government contends that it is speculative whether removing the NDAA transfer restrictions would accomplish anything given the Secretary’s decision. But that argument is circular; again, counsel understand that the Secretary’s reluctance is because of those restrictions, and
that understanding is consistent with the presentation in their brief, see Response at 4-6.
2

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authority for the Court to issue orders of release would conflict with its AUMF detention authority. The government misses the point entirely, and on that basis the Court should grant Petitioner’s actual request for relief absent objection.
First, although Petitioner surely seeks an order granting his habeas petition, he does not
seek that relief pursuant to the NDAA. He requests an order declaring that he falls within the
NDAA court-order exception in the alternative to his request for an order of release. The Court
plainly has lawful authority to grant the limited relief requested.
As set forth in Petitioner’s motion, the plain language of the NDAA court-order exception authorizes a court to enter an order declaring that the transfer restrictions do not apply to an
individual detainee based on the particular facts and circumstances of his case. There is no serious dispute that the exception encompasses more than orders granting habeas petitions. The statute does not reference habeas petitions. It applies broadly to orders “affecting the disposition” of
a detainee, which surely include but are not limited to habeas grants. Indeed, nothing about that
language indicates that it is limited to orders resolving cases on their merits, or that that was
Congress’s intention in drafting the exception. Arguments about Congress’s intentions are irrelevant as a matter of law given the plain language of the statute, see United States v. Ron Pair Enters., 489 U.S. 235, 241 (1989), but it would be entirely reasonable to conclude that Congress
drafted the exception to allow for flexibility in circumstances where a court (rather than the Executive) concludes it is necessary to declare the transfer restrictions inapplicable to a particular
detainee. See 28 U.S.C. § 2243.
As further indication that the statute applies to more than habeas grants, the exception
references not only orders issued by a “court” but also orders issued by a “competent tribunal.”
What is meant by “competent tribunal” is unspecified; the government may believe that this re-

3

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fers to military commissions, or something else, but that is merely speculation because nothing in
the relevant text or legislative history refers to any particular form of tribunal. What is clear is
that the exception applies to more than habeas grants. If Congress had intended to limit the statute to habeas grants, it would have done so in clear terms. Cf. Detainee Treatment Act of 2005,
Pub. L. No. 109–148, § 1005(e), 119 Stat. 2680, 2741-42 (attempting to strip habeas jurisdiction); Military Commission Act of 2006, Pub. L. No. 109-366, § 7(a), 120 Stat. 2600, 2635-36
(same). The government’s opposition does not address these points, however.
Nor does the government seriously dispute that separate and apart from the legal authority supplied by the NDAA itself, the Court may exercise its independent, equitable habeas authority to enter an order declaring that Petitioner falls within the court-order exception without actually ordering him released. If anything, the government appears to misapprehend the broad scope
of the Court’s equitable habeas authority, including its authority to fashion a practical remedy
that may not have been applied previously but is necessary and appropriate based on the particular facts and circumstances of the case.
It bears emphasis that, above all, habeas ensures that “errors [are] corrected and ‘justice
should be done’ ... even where law ha[s] not previously provided the means to do so. ... There
was and is another word for this vast authority to do justice, even in the absence of previously
existing rules or remedies: equity.” Paul D. Halliday, Habeas Corpus: From England to Empire
87 (2010) (emphasis added); Boumediene v. Bush, 553 U.S. 723, 780 (2008) (habeas courts not
constrained by black-letter rules from providing greater protection in cases of non-criminal detention). Equity is a concept “associated with the provision of mercy [and] attention to the specifics of every case.” Halliday, supra, at 89-90. “The key to making judgments about infinitely variable circumstances [is] the consideration of details about why, when, how and by whom people

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[are] imprisoned.” Id. at 102. The point is that habeas is an adaptable remedy, the application and
scope of which change depending on the totality of facts and circumstances of a case.
Boumediene, 553 U.S. at 779; Jones v. Cunningham, 371 U.S. 236, 243 (1963) (habeas is not a
“static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose”). This
makes sense in the separation of powers context, too, of course, because judicial power must include authority to impose a remedy disposing of a matter as law and justice require.
As set forth in Petitioner’s motion, the law is equally clear that courts have habeas authority to enter any form of order, including declaratory relief, where, as here, the requested relief directly compels or indirectly “affects” or hastens the petitioner’s release from custody. 2
Here, again, the government does not seriously dispute that an order declaring that Petitioner
falls within the NDAA exception would hasten his release. The Court should therefore fashion

2

See Preiser v. Rodriguez, 411 U.S. 475, 487 (1973) (noting that habeas courts have the
“power to fashion appropriate relief other than immediate release.”); Carafas v. LaVallee, 391
U.S. 234, 239 (1968) (emphasizing that habeas statute “does not limit the relief that may be
granted to discharge of the applicant from physical custody. Its mandate is broad with respect to
the relief that may be granted.”); see also, e.g., Edwards v. Balisok, 520 U.S. 641 (1997) (after
determining that true nature of relief sought is speedier release from imprisonment, Court assumes that habeas court had authority to adjudicate claim); Brownwell v. Tom We Shung, 352
U.S. 180, 181 (1956) (non-citizen may test legality of inadmissibility determination in declaratory judgment action or through habeas corpus); Chatman-Bey v. Thornburgh, 864 F.2d 804, 809
(D.C. Cir. 1988) (holding that habeas is available for petitioner challenging parole eligibility
even though he is “not laying claim to immediate release or release in the near future”); Bourke
v. Hawk-Sawyer, 269 F.3d 1072, 1074 (D.C. Cir. 2001) (holding that habeas is appropriate remedy for petitioner seeking to challenge his eligibility for a sentence reduction); cf. Davis v. U.S.
Sentencing Comm’n, 716 F.3d 660, 665 (D.C. Cir. 2013) (suggesting that habeas may not be
available for claims that have only a “probabilistic” impact on custody). See generally Halliday,
supra, at 101 (common law habeas judgments “did not just happen; they were made. Judges, not
rules, made them. . . . By negotiating settlements, by constraining – sometimes undermining –
the statutes or customs on which other magistrates acted, and by chastising those who wrongfully
detained others, the justices defined what counted as jurisdiction and what counted as liberties.”).
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appropriate relief in order to effectuate the result sought by all parties – Petitioner’s transfer to
Algeria – and end his Guantánamo nightmare. 3
II.

The Government Does Not Contend that Recognition of a Due Process Limit on the
Duration of Petitioner’s Indefinite Detention Would Be Impractical or Anomalous,
and D.C. Circuit Precedent Does Not Preclude This Court From Granting Relief
In his motion for judgment, Petitioner contends that the Due Process Clause applies at

Guantánamo and limits the duration of his detention, which the government appears to believe
3

The government cites to the Intelligence Authorization Act of 2012 (IAA), Intelligence
Authorization Act for Fiscal Year 2012, Pub. L. No. 112-87, § 308, 125 Stat. 1876, 1883 (2012),
which required advance notice to Congress of transfers and contains no judicial order exemption.
(See Respondents’ Response at 6, 13.) But the IAA does not impose a separate requirement, independent of the series of certification-and-notice requirements in the various NDAA enactments
over the years; it is by its own terms part of that series of restrictions, starting with the prior 2012
NDAA, Pub. L. 112-81, § 1028 (2011), and has long been superseded by subsequent iterations of
the transfer restrictions in the 2013, 2014, and 2016 NDAAs. As noted in Petitioner’s motion, the
currently-operative certification-and-notice provision of the 2016 NDAA is entitled “Reenactment and Modification of Certain Prior Requirements for Certifications Relating to Transfer of
Detainees at United States Naval Station, Guantanamo Bay, Cuba, to Foreign Countries and Other Foreign Entities,” a clear sign that Congress believed it was creating a single operative set of
notice-and-certification requirements. The IAA itself says that it was not meant to “supersede or
otherwise affect” the 2012 NDAA, see IAA § 308(d), a strong indication that it was meant to
stand in line with the succession of NDAA restrictions rather than stand separate and apart from
them.
Notably, when this administration defended its May 2014 transfer of five Afghan prisoners in exchange for Army Sgt. Bowe Bergdahl, nothing in the extensive analyses provided by the
administration (both NSC and DOD) and the Government Accountability Office (Congress’ investigative arm) after the transfers, see https://www.documentcloud.org/documents/1697125gitmo-transfer-bergdahl-notice-law-dispute.html, makes any reference to the Intelligence Authorization Act; both political branches of government deemed its provisions a dead letter in relation to that otherwise quite contentious transfer. Instead, both sets of analyses treat the 2014
NDAA as the sole source of the operative certification and notification requirements. And the
2014 NDAA is clearly modified and superseded by the 2016 NDAA provisions cited in our motion—the only operative restrictions here, which are clearly drawn up in a manner that allows
them to be overridden by judicial order.
In any event, even if the IAA were otherwise applicable, the Court could exercise it’s equitable habeas authority to declare the IAA provisions inapplicable in the unique circumstances
of this case. Indeed, a congressional notice provision (and one that would be at most duplicative
of the NDAA) can no more suspend or limit this Court’s broad habeas authority to fashion relief
to remedy unlawful detention than a king could dictate when or how or under what circumstances he would comply with a writ of habeas corpus issued by a court at common law requiring the
immediate release of a prisoner from the dungeon at the Tower of London.
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may last for his lifetime despite the undisputed fact he remains in custody because of its failure
to implement its discretionary decision to transfer him rather than anything he allegedly did or
anyone he allegedly associated with more than a decade ago. He argues that Boumediene v. Bush,
553 U.S. 723, 769-71 (2008), requires a functional analysis to determine whether due process
rights apply at Guantánamo, and that it would not be impractical or anomalous to grant him a due
process liberty right at least to the extent necessary to limit the duration of his indefinite detention. Boumediene did not state a new constitutional rule but rather reaffirmed the Supreme
Court’s longstanding jurisprudence to determine what constitutional standards apply when the
government acts with respect to non-citizens within its sphere of foreign operations. See United
States v. Verdugo-Urquidez, 494 U.S. 259, 277 (1990) (Kennedy, J., concurring) (“The proposition is, of course, not that the Constitution ‘does not apply’ overseas but that there are provisions
in the Constitution which do not necessarily apply in all circumstances in every foreign place.”)
(quoting Reid v. Covert, 354 U.S. 1, 74 (1957) (Harlan, J., concurring)).
The government does not address that body of Supreme Court precedent. It also does not
dispute that due process and habeas corpus are inextricable intertwined, as recognized in
Boumediene and Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In addition, the government does not
argue that it would be impractical or anomalous to grant Petitioner due process rights, or that
there are any practical barriers to the application of due process rights at Guantánamo, at least to
the extent necessary to limit the duration of Petitioner’s detention given the unique facts and circumstances of his case. Petitioner respectfully submits that the Court should deem those issues
conceded.
The government argues instead that D.C. Circuit precedent forecloses recognition of constitutional due process rights at Guantánamo under any circumstance. The government is wrong

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in several respects. First, the government suggests that Boumediene’s functional analysis extending the Suspension Clause to Guantánamo does not apply to other constitutional provisions including the Due Process Clause. But it fails to acknowledge its own concession in Al Bahlul v.
United States that the Ex Post Facto Clause also applies at Guantánamo after Boumediene. See
767 F.3d 1 (D.C. Cir. 2014) (en banc). Indeed, the D.C. Circuit held unanimously in Al Bahlul
that ex post facto rights extend to Guantánamo and foreclose military commission prosecutions
for providing material support for terrorism based on pre-2006 conduct. 4
The cases cited in government’s brief do not foreclose a constitutional due process limit
to the duration of Petitioner’s detention. Contrary to the government’s suggestion, Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009), did not hold that Boumediene limited the extraterritorial
reach of the Constitution to the Suspension Clause. As noted, the government has since conceded
as much in Al Bahlul. Rasul, which was a damages action by former detainees for their torture
and abuse at Guantánamo, was decided on qualified immunity grounds. The court expressly declined to address the plaintiffs’ due process claims, and concluded instead that no reasonable
government official would have been on notice prior to Boumediene that detainees at Guantána-

4

See id. at 63 (Kavanaugh, concurring in the judgment in part and dissenting in part) (“Of
the seven judges on the en banc Court for this case, five judges (all but Judge Henderson and
Judge Brown) agree in light of Boumediene v. Bush that the Ex Post Facto Clause applies at
Guantanamo. Indeed, the Government concedes as much. Given the Government’s concession,
all seven judges on the en banc Court (including Judge Henderson and Judge Brown) therefore
apply the Ex Post Facto Clause to analyze the offenses that were charged against Bahlul under
the Military Commissions Act of 2006.”).
The government does not explain why it would concede the application of constitutional
provisions other than the Suspension Clause at Guantánamo, or why the Circuit would accept
such a concession, if Bounediene did not extend beyond the Suspension Clause to protect detainees without presence or property in the United States. Nor does the government explain why numerous panels of the D.C. Circuit have assumed without deciding that detainees have constitutional rights, including due process rights, following the panel decision in Kiyemba I, unless that
decision were limited to the narrow question of whether due process authorizes the entry of a detainee into the United States.
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mo have due process rights. Id. at 530-32. Al Madhwani v. Obama, also cited by the government,
likewise specifically avoided a due process challenge by a Guantánamo detainee (who was not
approved for transfer) to an evidentiary issue that arose during his habeas corpus hearing (and
which the panel deemed “obscure”). 642 F.3d 1071, 1077 (D.C. Cir. 2011). The D.C. Circuit has
never directly addressed a constitutional due process challenge to the duration of detention at
Guantánamo, and certainly not in the context of a case involving unique facts and circumstances
similar to Petitioner’s. See also Hussain v. Obama, 134 S. Ct. 1621 (2014) (statement of Justice
Breyer respecting denial of certiorari) (Supreme Court has not “considered whether, assuming
detention on these bases is permissible, either the AUMF or the Constitution limits the duration
of detention”). 5
The government’s further claim that even if due process principles apply they would not
limit the duration of Petitioner’s detention is meritless. The government’s argument rests on
Hamdi, which it contends authorizes detention for as long as hostilities continue regardless of the
circumstances or length of detention. But Hamdi, which was decided more than a decade ago
under very different circumstances, did not involve a challenge to continuing detention authority,
and certainly not after fourteen years of indefinite detention under circumstances similar to those
here. To the contrary, Hamdi held that “indefinite or perpetual detention” was impermissible.
542 U.S. at 521. 6 Yet that is precisely what the government argues is permitted in this case when
it claims the right to hold Petitioner in non-criminal detention potentially for the remainder of his
lifetime, even though it has concluded his detention no longer serves any ostensible military pur5

Nor have the judges of this Court decided such a challenge to the duration of detention.
Rabbani v. Obama, 76 F. Supp. 3d 21 (D.D.C. 2014), for example, was a force-feeding challenge
by a detainee not approved for transfer.
6
Like Hamdi, Petitioner’s central challenge is “not to the lack of certainty regarding the
date on which the conflict will end, but to the substantial prospect of perpetual detention.” Id. at
520.
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pose and concedes in its brief that it wants to transfer him to Algeria. “The serious constitutional
problem arising out of a statute that, in these circumstances, permits an indefinite, perhaps permanent, deprivation of human liberty without any such protection is obvious.” Zadvydas v. Davis, 533 U.S. 678, 692 (2001).
Whatever the case may be with respect to due process rights to enter the United States,
challenge conditions of confinement at Guantánamo, or challenge the admissibility of evidence
in a habeas hearing, the Court should conclude that Petitioner’s indefinite detention, which now
extends beyond any reasonable time limitation, violates due process and requires his release.
III.

The Government Does Not Address Petitioner’s Constitutional Avoidance Argument Concerning the Narrow Scope of AUMF Detention Authority
In his motion, Petitioner argues that the Court should construe the Authorization for Mili-

tary Force (“AUMF”), Pub. L. 107-40, § 2(a), 115 Stat. 224, 224 (2001), narrowly to limit the
duration of his detention in order to avoid the serious constitutional concerns that would be
raised by a statute that authorizes his non-criminal detention for a period of fourteen years and
potentially for the remainder of his life. 7 The government does not respond directly to Petitioner’s constitutional avoidance arguments. Instead, it claims that it may continue to hold Petitioner
under the AUMF and Hamdi until the end of hostilities, which the government apparently cannot
predict, and all but asserts could last for Petitioner’s lifetime, without limitation on the duration
of his detention. But see Hamdi, 542 U.S. at 536 (“[A] state of war is not a blank check for the
President.”); cf. also Hussain v. Obama, 134 S. Ct. 1621 (2014) (statement of Justice Breyer respecting denial of certiorari).
7

See Zadvydas, 533 U.S. at 689-90 (construing statute authorizing detention of admitted
aliens to contain reasonable time limitation in order to avoid serious constitutional concerns
raised by indefinite detention); Clark v. Martinez, 543 U.S. 371, 380-81 (2005) (construing statute to limit detention of aliens not formally admitted to the United States to avoid constitutional
issues).
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IV.

The Government Misconstrues Petitioner’s Law of War Arguments
Petitioner contends that he must be released under the AUMF, as construed by Hamdi,

because his detention violates the laws of war. He contends that regardless of the nature of the
armed conflict pursuant to which he is detained, if any, there could scarcely be a clearer case of
arbitrary and perpetual detention than one such as this in which, absent judicial relief, Petitioner
will become a victim of the calendar, and remain imprisoned due to the next administration’s
craven political promise to end all transfers regardless of their facts and circumstances, but not
because anyone thinks that he should continue to be held, possibly for the duration of his life. In
this context, the practical circumstances of Petitioner’s detention have now reached the point
where any traditional law-of-war detention authority that once may have justified his detention
has unraveled. See Hamdi, 542 U.S. at 521 (“If the practical circumstances of a given conflict are
entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.”).
As in initial matter, the government largely ignores Petitioner’s law of war arguments.
But where it does allude to them, it appears to conflate his unraveling argument with an argument that the conflict in which he was captured has ended – something he agrees with but the
Court need not resolve here – or otherwise misconstrues his arguments. In his motion for judgment, Petitioner argues that his continuing detention violates the laws of war because the government has decided to release him and made efforts to send him to Algeria, but he has remained
in custody due solely to the paperwork required by the NDAA transfer restrictions (which again
appears to be the sole basis for the Secretary of Defense’s recent decision to delay his transfer).
He argues this is so regardless of whether the armed conflict in which he is detained, if any, is
international or non-international in nature. Indeed, Petitioner maintains – and the government

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does not dispute – that any continuing armed conflict is non-international in nature. As such, Petitioner’s detention is properly governed by Common Article 3 and Additional Protocol II of the
Geneva Conventions, which set forth minimum baseline human rights protections but do not
specifically authorize detention or prescribe extensive regulations governing detention in the
same fashion as the Third and Fourth Geneva Conventions applicable in international armed conflict. Nonetheless, although there are fewer non-international armed conflict rules governing detention, there are certain customary international law rules and principles applicable in noninternational armed conflict that are binding on the United States. As cited in Petitioner’s motion,
for example, Customary International Humanitarian Law Rule 128(C) applies in noninternational armed conflict and limits the duration of non-criminal detention. The government
ignores such principles entirely, however. 8
V.

Petitioner Has Standing to Challenge His Detention
Rather than respond directly to many of Petitioner’s arguments, including in particular

his NDAA arguments, the government asserts (at page 10) that he lacks standing to “challenge
the lawfulness of those statutory provisions.” In support of this argument, it cites the Ahjam and
Al-Wirghi decisions by another judge of this Court. But the government misconstrues Petitioner’s arguments. First, unlike Ahjam, he does not challenge the lawfulness of the NDAA transfer
restrictions; he simply asks the Court to declare them inapplicable in the unique context of this

8

The government instead cites various decisions by panels of the D.C. Circuit, which, although they authorize broad detention authority related to the legality of initial capture and detention, do not foreclose relief in the unique circumstances here. The government’s reliance on Almerfedi v. Obama, 654 F.3d 1 (D.C. Cir. 2011), and Ali v. Obama, 736 F.3d 542 (D.C. Cir.
2013), for example, is misplaced. Those cases involved challenges to the legality of initial capture and detention, not continuing detention authority, and neither involved facts or circumstances similar to Petitioner’s, where the government has determined there is no longer any need or
rationale for his continuing detention. The additional language from Ali cited by the government
was also plainly dicta.
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case. Second, both Ahjam and Al-Wirghi were mooted by transfers prior to consideration by the
D.C. Circuit; although those detainees lost their motions, they prevailed in the sense that they
obtained the very relief they sought – prompt release – something that will be denied to Petitioner here absent a court order.
It goes without saying that a habeas petitioner who is detained has standing to challenge
his detention; he is injured as a result of that detention. He has a concrete, particularized injury;
the government essentially contests whether this injury is owing to the NDAA’s notice-andcertification requirements and whether it is redressable by the forms of relief he has asked for.
On the first point—causation—the government ambiguously claims that “DoD represents
that on January 12, 2017, the Secretary of Defense determined that petitioner should not be repatriated at this time based on a variety of substantive concerns, shared by multiple agencies, relevant to Petitioner’s circumstances, including factors not related to Petitioner himself.” (Response at 13.) Nothing in this representation contests that Petitioner’s detention is “no longer
necessary,” and no longer serves the only ostensible basis for his initial capture and detention: to
prevent his return to the battlefield. The response confirms that the government intends, and has
been trying, to transfer him to Algeria; that Algeria wants him back; that he wants to go back to
Algeria; and that he has not yet been transferred because the Secretary of Defense has refused to
sign the certification paperwork “at this time” due to factors including those “not related to Petitioner himself.” Nor does the government dispute that absent a judicial order effecting release,
Petitioner will suffer substantial prejudice because the incoming administration intends to end all
transfers immediately.
The timing of this “determination” is curious. January 12th is two days after Petitioner
first sought consent to the relief sought in this emergency motion from counsel for the govern-

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ment, but is long after the December 21, 2016 deadline for 30-day advance notice of transfers to
go to Congress and still leave time to permit transfer before January 20th. That the determination
was claimed to have been reached on that late date merely confirms that attempts to repatriate
Petitioner had been ongoing until the litigation of this motion began in earnest. Other public
statements indicate that the government fully expected to send Petitioner home to Algeria, the
only place he has wanted to go and the only transfer country that has been under consideration
for him. Indeed, the State Department’s Special Envoy for Guantanamo Closure stated that he
intended and expected to move every cleared prisoner before the end of the summer. See Carol
Rosenberg, Guantánamo population plummets with transfer of 15 to UAE, MIAMI HERALD (August 15, 2016) (“‘We expect to substantially complete our mandate to repatriate or resettle all
approved-for-transfer detainees in the coming weeks,’ said Ambassador Lee Wolosky, soon after
the Defense Department disclosed the [August 15, 2016] release [of detainees to the United Arab
Emirates].), available at http://www.miamiherald.com/news/nation-world/world/americas/ guantanamo/article95829247.html. 9 As noted above, the only sensible implication from the government’s representation (and from the lengthy discussion of the transfer restrictions that precedes
it, Response at 5-6), is that the government was in fact making efforts from the summer onward
(indeed, through potentially as late as last week) to transfer Petitioner to Algeria, and that the
sole reason for its failure to repatriate him is precisely the transfer restrictions at issue in this motion—restrictions that he asks this Court to set aside.
Many cases establish that “loss of chance” through, for example, impairment of a process, is an injury-in-fact sufficient for standing. For example, in Settles v. U.S. Parole Comm’n,
429 F.3d 1098, 1103 (D.C. Cir. 2005), a prisoner challenged parole hearing procedures that fore-

9

Petitioner was formally declared cleared on August 9, 2016
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closed legal representation. The procedures did not foreclose parole, and plaintiff could never
have demonstrated that different procedures would have led, in his case, to a different outcome.
It was enough that the process change made his objective more difficult to obtain. Congress’s
intrusion here is just the same. So, too, in United States v. Lopez, 650 F.3d 952, 960 n.7 (3d Cir.
2011), where prisoners complained that downward departures in their sentencing ranges were
unavailable in the districts where they were prosecuted. The court held that the prisoners had
standing to challenge the Department of Justice’s failure to implement similar procedures in their
districts, without any showing that those procedures would result in shorter sentences in their
cases. Procedural impairment was a concrete injury. In Settles, the D.C. Circuit analogized to
equal protection cases where the government erects barriers that arguably make it more difficult
for a person to obtain a benefit. 429 F.3d at 1102. For example, in Northeast Fla. Chapter, Associated Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 665 (1993), the Supreme Court
held that contractors had standing to challenge an ordinance that gave preferential treatment to
minority-owned businesses. They were not obliged to show that they would have been awarded
contracts without the ordinance. In Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211
(1995), the Supreme Court reaffirmed this principle, noting that “Adarand need not demonstrate
that it has been, or will be, the low bidder on a Government contract.” In Gratz v. Bollinger, 539
U.S. 244, 261-62 (2003), the Supreme Court held that plaintiffs had standing to challenge affirmative action policies because the policies impaired the process by which they might compete
for admission. Similarly, the dilution of a person’s constitutional right to vote produced a cognizable injury, without any showing that, absent the dilution, election outcomes would differ.
Baker v. Carr, 369 U.S. 186, 208 (1962). Similarly, here, Petitioner’s detention is being prolonged because of factors “not related to Petitioner himself,” which can only mean details of the

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security arrangement with Algeria required to comprise part of the formal certification to Congress. The certification-and-notice requirement costs Petitioner his chance at freedom—a chance
which, as is uncontested by the government, may not recur for four or more years.
That injury is sharpened by its constitutional context. As a prisoner in executive detention, Petitioner enjoys the privilege of habeas corpus, Boumediene, 553 U.S. at 771, that is, the
right to be released unless the President points to a legal justification for his detention. Id. The
President had previously pointed to Barhoumi’s (contested) status as an enemy belligerent, but
once the President decided to clear him for release through the Periodic Review Board process,
the existence of a Congressional limitation on the release process is a concrete injury, felt presently and particularly. See Kiyemba v. Obama, 561 F.3d 509, 515 (D.C. Cir. 2009) (explaining
that any restriction on detainee transfers makes it more difficult for the President to arrange safe
transfers for detainees and thus ultimately release the detainees); July 26, 2013 White House
Statement (explaining that certification requirements significantly limit the President’s ability to
transfer detainees, even for detainees cleared for release), available at https://www.
whitehouse.gov/the-press-office/2013/07/26/statement-press-secretary-guantanamo-bay
The injury need not flow exclusively or even directly from the challenged action. Tozzi v.
U.S. Dep’t of Health & Human Servs., 27I F.3d 301, 308 (D.C. Cir. 2001). All that is required is
that the challenged conduct plays a substantial role in the resulting injury. Id. On that basis, causation is self-evident. Section 1034 of the 2016 NDAA imposes limits on transfers; it is the purpose of the statute. The injury Petitioner complains of is directly traceable to these transfer restrictions. Redressability, closely entwined with causation, requires only that there be a
“substantial probability” that the relief requested will redress the injury claimed. Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 (1977). As the Supreme Court has ex-

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plained, “a plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.” Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (emphasis in original);
see also Meese v. Keene, 481 U.S. 465, 476 (1987) (finding standing where requested injunction
“would at least partially redress” plaintiff’s injury); Massachusetts v. EPA, 549 U.S. 497, 525-26
(2007) (same). As nothing in the government’s submission can plausibly be read to deny that the
transfer restrictions were irrelevant to the failure to send Petitioner home, this relatively low bar
is clearly met here.
Conclusion
Petitioner has been detained for too long, and for no good reason. The Court should grant
his motion, declare that the NDAA transfer restrictions do not apply here and/or grant the writ of
habeas corpus and order Petitioner’s release to ensure that justice is done.
If the Court grants relief, it should likewise deny the government’s request for a stay
pending appeal on the grounds that, among other things, a stay would cause Petitioner substantial
prejudice and irreparable harm. This is a habeas case, and such cases are particularly ill-suited to
delay. That is because delay is substantive, not merely procedural, causing the very harm that
Petitioner claims is unlawful and inequitable, and which he filed the instant motion in order to
remedy.
Dated: January 17, 2017
Respectfully submitted,
/s/Shayana Kadidal
Shayana D. Kadidal (D.D.C. Bar No. 454248)
Omar Farah (pursuant to LCvR 83.2(g))
J. Wells Dixon (pursuant to LCvR 83.2(g))
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, New York 10012
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(212) 614-6438
kadidal@ccrjustice.org
ofarah@ccrjustice.org
wdixon@ccrjustice.org
Attorneys for Petitioner Sufyian Barhoumi

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