Case 1:17-cv-02069-TSC Document 51 Filed 01/23/18 Page 1 of 8

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JOHN DOE,
Petitioner,
No. 17-cv-2069 (TSC)

v.
GEN. JAMES N. MATTIS,
in his official capacity as SECRETARY OF
DEFENSE,
Respondent.

MEMORANDUM OPINION
Petitioner—a United States citizen—remains in Iraq in the custody of U.S. armed forces.
While Petitioner now has access to counsel in order to pursue this habeas petition, the
Department of Defense (“Defense Department”) may seek to transfer him prior to this court’s
decision on his petition. The Defense Department is unable to provide a timeline for when this
transfer might take place. Petitioner has requested that this court enjoin the Defense Department
from transferring him to another country during the pendency of this litigation. Upon
consideration of the parties’ filings, the oral arguments of counsel, and for the reasons stated
herein, Petitioner’s Motion Regarding Continued Interim Relief will be GRANTED in part and
DENIED in part. The court will not enjoin the Defense Department from transferring the
Petitioner, but will require the Defense Department to provide the court and Petitioner’s counsel
seventy-two hours’ notice prior to any such transfer.

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I.

BACKGROUND
On December 23, 2017, this court entered an order (1) denying the Defense Department’s

Motion to Dismiss (ECF No. 11), (2) requiring the Defense Department to permit the American
Civil Liberties Union Foundation (“ACLUF”) immediate and unmonitored access to Petitioner to
determine whether he wanted the ACLUF to pursue this action on his behalf, and (3) requiring
the Defense Department to “refrain from transferring the detainee until the ACLUF informs the
court of the detainee’s wishes.” (ECF No. 30). On January 5, 2018, the ACLUF informed the
court that Petitioner wanted the ACLUF to represent him in this action. (ECF No. 32 (“Mot.”) at
1). The ACLUF also requested that the court extend the interim relief provided in its December
23 Order, and order the Defense Department not to transfer Petitioner until the court renders its
decision on Petitioner’s habeas petition. (Id. at 2).
On January 18, 2018, the court held a hearing on Petitioner’s motion for continued relief.
In response to the court’s inquiry as to whether the Defense Department intended to transfer the
Petitioner within the next forty-eight hours, Department counsel indicated that it had no basis to
believe that a transfer would take place within that timeframe. Counsel added, however, that it is
the Defense Department’s position that it has the authority to transfer Petitioner as soon as
another country is ready to receive him. Given the Defense Department’s position, and the
court’s impending ruling on Petitioner’s motion, the court ordered the Defense Department to
refrain from transferring Petitioner until Tuesday, January 23, 2018. (ECF No. 43).
At the January 18 hearing, the Defense Department also offered to provide the court with
a classified declaration which would provide more detail regarding the Department’s position as
to Petitioner. On January 19, 2018, the Defense Department filed a classified ex parte
declaration through a Classified Information Security Officer. (See ECF No. 44). That evening,

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the Defense Department filed a redacted, sealed version of the same declaration. (ECF No. 45-1
(“Classified Declaration”)).
On January 22, 2018, the court held a status hearing, during which the court asked the
parties whether they opposed an order requiring the Defense Department to provide the court and
Petitioner’s counsel notice prior to transferring Petitioner. The Defense Department indicated
that it would object to such an order. Petitioner’s counsel informed the court that Petitioner
would not object to such an order, as long as he had the opportunity to contest his transfer.
II.

LEGAL STANDARD
In order to prevail on a motion for a preliminary injunction, the movant must show that:

“[1] he is likely to succeed on the merits, [2] . . . he is likely to suffer irreparable harm in the
absence of preliminary relief, [3] . . . the balance of equities tips in his favor, and [4] . . . an
injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). A preliminary injunction is an “extraordinary remedy” that is “never awarded as of
right.” Id. at 24 (citing Munaf v. Geren, 553 U.S. 674, 689–90 (2008)). The D.C. Circuit has
applied a sliding scale approach to evaluating preliminary injunctions, such that an unusually
strong showing on one factor could make up for a weaker showing on another. See, e.g., Davis
v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009). It has been suggested
that a movant’s showing of a likelihood of success, however, is a “‘free-standing requirement for
a preliminary injunction.’” Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (quoting
Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring)).

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III.

DISCUSSION

A. Likelihood of Success on the Merits
Petitioner has shown a likelihood of success on the merits of his claim that there should
be some restriction on the Defense Department’s ability to transfer him during the pendency of
this litigation. Prior to transferring Petitioner, the Defense Department must present “positive
legal authority” for his transfer. See Omar v. McHugh, 646 F.3d 13, 24 (D.C. Cir. 2011) (“None
of this means that the Executive Branch may detain or transfer Americans or individuals in U.S.
territory at will, without any judicial review of the positive legal authority for the detention or
transfer.”); see also Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8 (1936) (power to
provide for extradition “is not confided to the Executive in the absence of treaty or legislative
provision”).
The court has reviewed the classified information provided by the Defense Department
and finds that it does not present “positive legal authority” for Petitioner’s transfer. Neither does
the Defense Department’s assertion that “international relations” with the receiving country
would be harmed should the court prohibit his transfer at this time.
Despite its failure to present legal authority for Petitioner’s transfer, such as an
extradition request or an allegation of criminal conduct committed in the receiving country, the
Defense Department maintains that the court nonetheless cannot restrict Petitioner’s transfer
while it considers his claim of unlawful detention. Relying on Munaf v. Geren, 553 U.S. 674
(2008), and Kiyemba v. Obama (“Kiyemba II”), 561 F.3d 509 (D.C. Cir. 2009), the Defense
Department argues that the court is barred from restricting Petitioner’s transfer because of the
“significant national security and foreign relations concerns” surrounding his transfer. (ECF No.
33 (“Opp.”) at 7–8). The court finds this argument unavailing.

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Nothing in Munaf or Kiyemba II restrains this court from restricting the Defense
Department’s ability to transfer Petitioner in this case. In Munaf, two U.S. citizens—charged by
the Iraqi government for crimes committed on Iraqi soil—were detained in Iraq by U.S. military
forces as part of a multi-national force acting on behalf of the Iraqi government. 553 U.S. at
681–685. The detainees filed petitions for writs of habeas corpus, seeking to enjoin the multinational forces from transferring them to Iraqi custody. Id. The Supreme Court held that the
district court did not have the power to enjoin the transfers, explaining that “[h]abeas corpus does
not require the United States to shelter . . . fugitives from the criminal justice system of the
sovereign with authority to prosecute them.” Id. at 705. Here, unlike in Munaf, there is no
evidence in the record that Petitioner: (1) committed crimes in violation of the laws of another
country; (2) is facing prosecution in another country; or (3) is being held on another country’s
behalf. Therefore, this case does not implicate another country’s “sovereign right” to punish
offenses within its borders. Id. at 693.
In Kiyemba II, the Court held that a district court did not have the power to enjoin the
transfer of detained non-citizens or to require the government to provide 30 days’ notice prior to
their transfer “based upon the expectation that a recipient country” will detain, prosecute or
torture them. 561 F.3d at 514–15. But Kiyemba II involved non-citizens who, by virtue of their
classification as wartime alien detainees, could not be released into the United States. Here,
Petitioner—a U.S. citizen—seeks to enjoin transfer solely to ensure that he is able to pursue his
habeas petition. He does not argue fear of detention, prosecution or torture in another country.
The court finds that Petitioner has shown a likelihood of success on his claim that this
court may temporarily restrict the Defense Department’s ability to transfer him to another
country. The court does not find, however, that the specific relief Petitioner seeks—prohibition

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of his transfer for the duration of these proceedings—is warranted at this time. Transferring the
Petitioner is just one of the options the Defense Department is currently considering. (See Opp.
at 7 (“Releasing Petitioner from U.S. custody into the custody of another country with a
legitimate interest in him is one of the options under consideration.”)). Providing the relief
Petitioner seeks would require the court to prohibit an action that the Defense Department has
not yet decided to take. The court finds it more prudent to require the Defense Department to
provide notice prior to transferring Petitioner, and to afford Petitioner the opportunity to contest
his transfer should he decide to do so.
B. Irreparable Harm
The Defense Department does not—because it cannot—argue that Petitioner will not be
irreparably harmed absent some relief from this court. Without a restriction on Petitioner’s
transfer, the Defense Department may transfer Petitioner to the custody of another country prior
to a decision on his habeas petition, and without providing any notice to this court or Petitioner’s
counsel. Were that to occur, Petitioner would no longer be in U.S. custody, and will likely be
unable to pursue his habeas petition. See In re Petitioners Seeking Habeas Corpus Relief in
Relation to Prior Detentions at Guantanamo Bay, 700 F. Supp. 2d 119, 126 (D.D.C. 2010), aff’d
sub nom. Chaman v. Obama, 2012 WL 3797596 (D.C. Cir. Aug. 10, 2012) (“For a petitioner in
United States custody, the controversy is clear since he is attempting to secure his release from
the United States Government. . . . For a petitioner released from United States custody, the caseor-controversy requirement is problematic because the remedy sought is more elusive.”) (citing
Spencer v. Kemna, 523 U.S. 1, 7 (1998)); see also Qassim v. Bush, 466 F.3d 1073, 1076–77
(D.C. Cir. 2006) (finding petitioners’ claims for declaratory and injunctive relief moot because

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they had been released from U.S. custody and did not show a collateral consequence of their
prior detention).
C. Balance of Equities
The balance of equities also weighs in Petitioner’s favor. The government has argued
that a ruling in Petitioner’s favor would result in serious harm to the government’s international
relations with another country, and the court recognizes the government’s significant interest in
maintaining fruitful, diplomatic relations. But the court is not convinced—based on the record
here—that these diplomatic interests override the Petitioner’s well-established right “to contest
the factual basis for [his] detention” through a habeas petition. Hamdi v. Rumsfeld, 542 U.S.
507, 509 (2004). Absent an articulated legal reason for the transfer, such as an extradition
request or an allegation of criminal conduct committed in the receiving country, Petitioner’s right
to habeas relief does not yield to the government’s desire to maintain good diplomatic relations.
Balancing the equities in Petitioner’s favor here is particularly appropriate, given that this
court’s decision merely requires the Defense Department to provide notice prior to any transfer.
The Defense Department is not prevented from continuing negotiations or discussions regarding
the transfer, or from obtaining further information that might support a transfer. Absent a
showing that the government—for international relations reasons or otherwise—needs to transfer
Petitioner now, the court does not find that the government’s interests outweigh the Petitioner’s
right to challenge his detention without fear of his transfer to another country. The Defense
Department’s Classified Declaration does not convince the court otherwise.
D. Public Interest
Judicial authority to review habeas corpus petitions derives from U.S. citizens’ rights to
“freedom from arbitrary and unlawful restraint.” Boumediene v. Bush, 553 U.S. 723, 797 (2008).

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While this court is mindful of the government’s right to conduct diplomacy and foreign relations
as it sees fit, this right must be balanced against United States citizens’ rights to contest the
lawfulness of their detentions and transfers at the hands of the Executive.
IV.

CONCLUSION
For the foregoing reasons, Petitioner’s motion for continued relief will be GRANTED in

part and DENIED in part. The Defense Department will be ordered to provide the court and
Petitioner’s counsel seventy-two hours’ notice prior to transferring Petitioner, at which time
Petitioner may file an emergency motion contesting his transfer. A corresponding order will
issue separately.
Date: January 23, 2018

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

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