OPPOSITION TO EMERGENCY APPLICATION FOR ORIGINAL WRIT OF INJUNCTION[edit]
The Solicitor General, on behalf of respondents George W.
Bush, President of the United States, et al., respectfully files
this opposition to the emergency application for an original writ
of injunction.
STATEMENT
Applicant Abu Abdul Rauf Zalita (a/k/a Abdul Ra’ouf Omar
Mohammed Abu Al Qassim) (ISN 709) (applicant), a Libyan citizen,
was designated an enemy combatant by a Combatant Status Review Tribunal
(CSRT) and has been detained by the Department of Defense
(DoD) at Guantanamo. See Sept. 14, 2005 Factual Return (dkt. no.
4). The unclassified summary of the evidence presented to the CSRT
explains that applicant was a member of a known terrorist
organization, received weapons training by that group, traveled to
Tora Bora, Afghanistan, in December 2001, and then fled to
Pakistan, where he was captured. Exh. G to App. Motion, Enc. 1, at 1. The classified material further supports the CSRT conclusion
that applicant is an enemy combatant. See id. at Enc. 2, at 1-3
(summarizing the classified evidence).
In June 2005, applicant filed a habeas petition in the United
States District Court for the District of Columbia. See dkt. no.
1. On July 25, 2005, the district court issued an order (dkt. no.
3) requiring DoD to provide thirty days’ advance notice of any
intended removal of applicant from Guantanamo. Respondents filed
such a notice on December 8, 2006 (dkt. no. 31), stating that the
United States “intend[ed] to release [applicant] from the custody
of the United States and [to] repatriate him to Libya.” The notice
explained that applicant was to be “transferred to the control of
his home government for continued detention, investigation, and/or
prosecution as that country deems appropriate, consistent with the
policies and practices pertaining to such transfers as outlined in
the declarations of Ambassador Pierre-Richard Prosper and Deputy Assistant Secretary of Defense for Detainee AffairsMatthew C. Waxman.” Ibid.; see also Declarations of Ambassador Pierre-Richard
Prosper and Deputy Assistant Secretary of Defense for Detainee
Affairs Matthew C. Waxman (dkt. no. 35) (hereinafter Prosper Decl.
and Waxman Decl.) (attached as Exhibit 1 and Exhibit 2,
respectively).
Applicant successfully sought an injunction from the district
court prohibiting the planned transfer absent an additional sixty
days’ notice. See dkt. no. 36; Minute Order (Feb. 15, 2007). On
February 20, 2007 -- approximately ten weeks after the initial
notice -- in compliance with that order, respondents provided the
additional sixty days’ re-notice of transfer. See dkt. no. 42.
Approximately seven weeks later, applicant filed a motion in
the district court to enjoin the planned transfer altogether. The
district court denied the motion. The court explained that
“[s]ection 7(b) of the Military Commissions Act of 2006, Pub. L.
No. 109-366, 120 Stat. 2600 (2006) [(MCA)], strip[ped the] court of
jurisdiction to hear [applicant’s] habeas claim and section 7(a)
strip[ped the] court of jurisdiction to hear [applicant’s]
non-habeas claims.” D. Ct. Op. 1 (citing Boumediene v. Bush, 476
F.3d 981 (D.C. Cir. 2007), cert. denied, 127 S. Ct. 1478 (2007)).
Applicant appealed the district court’s denial of his motion
to enjoin transfer and concurrently sought from the district court,
inter alia, an injunction barring his transfer pending his appeal.
The district court denied such relief, but on April 20, 2007, it
granted applicant a temporary injunction barring his transfer until
April 23, 2007, so that the D.C. Circuit could consider his motion
to enjoin his transfer pending consideration of his appeal. On
April 23, the D.C. Circuit issued an “administrative injunction”
enjoining applicant’s transfer to Libya until further order. The
United States responded to applicant’s motion on April 24, and the
following day the D.C. Circuit denied applicant’s motion and
dismissed his appeal for lack of jurisdiction.
On April 25, 2007, applicant filed the instant emergency
application for an original writ of injunction.
As a general matter, when an applicant seeks a stay of a court
of appeals’ judgment pending the filing of a petition for a writ of
certiorari, the applicant has the substantial burden of
demonstrating (1) “a reasonable probability that certiorari will be
granted,” (2) “a significant possibility that the judgment below
will be reversed,” and (3) “a likelihood of irreparable harm
(assuming the correctness of the applicant’s position) if the
judgment is not stayed.” Barnes v. E-Systems, Inc. Group Hosp.
Med. & Surgical Ins. Plan, 501 U.S. 1301, 1302 (1991) (Scalia, J.,
in chambers).
Where, as here, an applicant seeks an injunction rather than
a stay, the applicant faces an even greater burden. “Unlike a stay,
which temporarily suspends judicial alteration of the status quo,
an injunction grants judicial intervention that has been withheld
by the lower courts.” Turner Broadcasting Sys., Inc. v. Fed.
Communications Comm’n, 507 U.S. 1301, 1301 (1993) (Rehnquist, C.J.,
in chambers) (internal quotation marks omitted). For that reason,
it is “clear that such power should be used sparingly and only in
the most critical and exigent circumstances.” Fishman v. Schaffer,
429 U.S. 1325, 1326 (1976) (Marshall, J., in chambers) (internal
quotation marks omitted).
An injunction is appropriate only if (1) it is “necessary or
appropriate in aid of [the Court’s] jurisdictio[n],” and (2) “only
where the legal rights at issue are indisputably clear.” Ohio
Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Comm’n,
479 U.S. 1312, 1312 (1986) (Scalia, J., in chambers) (internal
quotation marks omitted). This Court should be still more
reluctant to grant an injunction pending the filing of a petition
for a writ of certiorari where the central issue is whether there
is subject matter jurisdiction over the case and where the courts
below held that jurisdiction is lacking. Entry of an injunction
requires the exercise of jurisdiction and Article III power,
neither of which exists here. Because applicant has not satisfied
the stringent standard for obtaining an injunction or even for
obtaining a stay, his application should be denied.
I.
Applicant Has Not Satisfied The Heightened Standard For An
Injunction Pending Consideration Of A Petition For A Writ Of
Certiorari
A.
Applicant cannot establish that an injunction is
“necessary or appropriate” to aid the Court’s jurisdiction because,
as the D.C. Circuit held, the MCA “could not be clearer” in
removing federal court jurisdiction over legal challenges by aliens
detained as enemy combatants. Boumediene v. Bush, 476 F.3d 981,
987 (2007). This Court has declined to review that decision on two
separate occasions. See Boumediene v. Bush, 127 S. Ct. 1478
(2007); Hamdan v. Gates, No. 06-1169, 2007 WL 606477 (Apr. 30,
This Court also has denied a request by the [1] That action alone seriously if not fatally undermines 1
applicant’s request for extraordinary relief.
The MCA provides that “[n]o court, justice, or judge shall
have jurisdiction to hear or consider an application for a writ of
habeas corpus filed by or on behalf of an alien detained by the
United States who has been determined by the United States to have
been properly detained as an enemy combatant or is awaiting such
determination.” MCA § 7(a)(1). The MCA further states that “no
court, justice, or judge shall have jurisdiction to hear or
consider any other action against the United States or its agents
relating to any aspect of the detention, transfer, treatment,
trial, or conditions of confinement of an alien who is or was
detained by the United States and has been determined by the United
States to have been properly detained as an enemy combatant or is
awaiting such determination.” MCA § 7(a)(2) (emphasis added). 2
This application stems from an appeal of the district court’s
7
denial of applicant’s motion to enjoin his transfer to Libya and
the D.C. Circuit’s decision dismissing his appeal for lack of
jurisdiction. In seeking injunctive relief, applicant directly
challenges an “aspect of the * * * transfer * * * of an
alien who is * * * detained by the United States and has been
determined by the United States to have been properly detained as
an enemy combatant.” MCA § 7(a)(2). Thus, the district and
circuit courts correctly held that they lacked jurisdiction.
Applicant’s reliance (App. 10) on the dissent from the denial
of certiorari in Boumediene and the statement of Justice Stevens
and Justice Kennedy respecting the denial of certiorari in that
case is misplaced. The petitioners in Boumediene asked the Court
to consider “whether the [MCA] deprive[d] courts of jurisdiction to
consider their habeas claims, and, if so, whether that deprivation
is constitutional.” 127 S. Ct. at 1479 (Breyer, J., dissenting)
(emphasis added). But applicant is endeavoring to block his
transfer out of United States custody. Thus, he is in no sense
seeking habeas relief, and no Suspension Clause issues are
implicated by his extraordinary request for injunctive relief.
See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 79, 80 (2005)
(explaining that the “core” relief afforded by the writ of habeas
corpus is “immediate release or a shorter period of detention”)
(internal quotation marks omitted); id. at 86 (Scalia, J.,
concurring) (“It is one thing to say that permissible habeas
8
relief, as our cases interpret the statute, includes ordering a
quantum change in the level of custody, such as release from
incarceration to parole. It is quite another to say that the
habeas statute authorizes federal courts to order relief that
neither terminates custody, accelerates the future date of release
from custody, nor reduces the level of custody.”) (internal
quotation marks and citation omitted). Because the MCA expressly
removed jurisdiction over applicant’s legal challenge to his
transfer, it would not be appropriate for this Court to issue an
injunction in aid of its jurisdiction, especially when the courts
below correctly recognized the absence of jurisdiction over
applicant’s claim.
B. Even assuming that this Court had jurisdiction to issue
the relief applicant seeks, he has failed to establish that the
legal rights he asserts are “indisputably clear.” In fact,
applicant has asserted no judicially enforceable rights that
support the relief that he seeks.
Applicant’s invocation of the Convention Against Torture and
Other Cruel and Degrading Treatment and Punishment (CAT), the
United Nations Convention Relating to the Status of Refugees
(Refugee Convention), and Common Article 3 of the Geneva
Conventions, is unavailing. Applicant ignores Congress’s explicit
mandate in the MCA that courts not consider actions, like his,
challenging transfers from United States custody at Guantanamo.
9
See MCA § 7(a)(2). Whatever relief those provisions might have
afforded him before the MCA, applicant cannot continue to rely on
them post-MCA to justify the Court’s exercise of jurisdiction.
Moreover, neither the CAT nor the Refugee Convention gives rise to
rights individually enforceable in court. See, e.g.,
Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir. 2003);
Foreign Affairs Reform and Restructuring Act (FARR Act), Pub. L.
105-277, § 2242(d), codified at 8 U.S.C. 1231 note (“Nothing in
this section shall be construed as providing any court jurisdiction
to consider or review claims raised under the Convention or this
section * * * except as part of the review of a final order of
removal pursuant to [8 U.S.C. 1252].”); see also Al-Anazi v. Bush,
370 F. Supp. 2d 188, 194 (D.D.C. 2005) (rejecting the argument that
the FARR Act, which implemented CAT in certain immigration-specific
contexts, could serve as a legal basis for prohibiting or limiting
transfer of wartime detainees to other countries); 8 U.S.C.
1252(a)(4).
Congress specified that the CAT would not be self-executing or
privately enforceable. See 136 Cong. Rec. S36,198 (Oct. 27, 1990);
Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003). In enacting
the FARR Act, Congress also limited jurisdiction over Article 3 CAT
claims to “the review of a final order of removal.” FARR Act
§ 2242(d). And Section 5(a) of the MCA, which provides that “[n]o
person may invoke the Geneva Conventions or any protocols thereto
10
in any habeas corpus or other civil action or proceeding to which
the United States, or a current or former officer * * * is a
party as a source of rights” in any civil court proceeding,
precludes applicant’s reliance on Common Article 3 as providing a
basis for court relief in this matter. See Boumediene, 476 F.3d at
988 n.5. Thus, even assuming jurisdiction existed, applicant has
asserted no privately enforceable rights that would support grant
of the extraordinary relief he seeks.
Because applicant cannot demonstrate an indisputably clear
right to relief and cannot show that an injunction would be
appropriate in aid of jurisdiction in light of the absence of any
jurisdiction, the application should be denied.
II. The Application Does Not Satisfy The Standard For A Stay
Pending Consideration Of A Petition For A Writ Of Certiorari
Even if the Court were to evaluate applicant’s request under
the more lenient but still stringent standard governing the
issuance of a stay pending consideration of a petition for a writ
of certiorari, the application still falls far short of meeting the
threshold for such extraordinary relief. Applicant has not
demonstrated a reasonable probability that certiorari will be
granted, a significant possibility that the court of appeals’
judgment would be reversed, or irreparable harm. To secure the
relief sought, applicant must ask this Court (1) to assert
jurisdiction over an action seeking non-habeas relief where
Congress has expressly removed jurisdiction; (2) to disregard, or
11
second guess, the Department of State’s thorough review process for
ensuring that his transfer will comply with United States policy
and practice and its international obligations, and (3) to prohibit
DoD from transferring an enemy combatant from a military base in
reliance upon such a Department of State assessment.
A. There Is No Reasonable Probability That Certiorari Would
Be Granted Or Significant Possibility That The Court Of
Appeals’ Judgment Would Be Reversed
Because the MCA’s removal of jurisdiction is clear and the
Suspension Clause does not apply to the non-habeas relief applicant
seeks (even assuming that it could otherwise apply to habeas
actions brought by aliens detained at Guantanamo), he cannot
establish a reasonable probability that certiorari would be granted
or a significant possibility that the court of appeals’ judgment
would be reversed. Apart from the dispositive jurisdictional
obstacles, as explained above, applicant has no judicially
enforceable rights to support the extraordinary relief he seeks.
And even assuming applicant could overcome those problems, this
Court would be highly unlikely to inject itself into sensitive
diplomatic processes and block applicant’s transfer in accordance
with long-standing Executive Branch policy. See, e.g., Department
of Navy v. Egan, 484 U.S. 518, 529 (1988) (“[F]oreign policy [is]
the province and responsibility of the Executive.”); Chicago &
Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111
(1948) (“[T]he very nature of executive decisions as to foreign
12
policy is political, not judicial.”); United States v.
Curtiss-Wright Corp., 299 U.S. 304, 319-321 (1932).
The Executive’s efforts to ensure that another country
provides adequate assurances regarding its treatment of transferees
is a quintessential foreign affairs function within the sole
province of the Executive. The process is “delicate, complex, and
involve[s] large elements of prophecy. [It] should be undertaken
only by those directly responsible to the people.” Chicago &
Southern Air Lines, Inc., 333 U.S. at 112.
As explained in great detail in the sworn declarations of
Ambassador Pierre-Richard Prosper and Deputy Assistant Secretary of
Defense for Detainee Affairs Matthew C. Waxman, the United States
has developed an elaborate, inter-agency process to govern the
transfer of an enemy combatant from the Guantanamo Bay Naval Base
in Cuba to the control of another country, typically the enemy
combatant’s home country. See generally Prosper Decl. and Waxman
Decl.
For every transfer, a key concern is whether the foreign
government will treat the detainee humanely and in a manner
consistent with its international obligations. Prosper Decl. ¶ 4;
Waxman Decl. ¶¶ 6-7. It is the policy of the United States not to
repatriate or transfer a detainee to a country where the United
States believes it is more likely than not that the individual will
be tortured. Prosper Decl. ¶ 4; Waxman Decl. ¶ 6. If a transfer
13
is deemed appropriate, a process is undertaken, typically involving
the Department of State, in which appropriate assurances regarding
the detainee’s treatment are sought from the country to which the
transfer of the detainee is proposed. Waxman Decl. ¶ 6; Prosper
Decl. ¶ 5.
The determination whether it is more likely than not that an
individual would be tortured by a receiving foreign government,
including, where applicable, evaluation of foreign government
assurances, is made by senior Executive officials. The process
takes into account a number of considerations, including whether
the nation concerned is a party to certain treaties; the expressed
commitments of officials of the foreign government accepting
transfer; the particular circumstances of the transfer, the
country, and the individual concerned; and any concerns regarding
torture that may arise. Prosper Decl. ¶¶ 6-8; Waxman Decl. ¶ 7.
In an appropriate case, the State Department may implement various
monitoring mechanisms to verify that assurances are being honored.
Prosper Decl. ¶ 8. Recommendations by the State Department are
developed through a process involving the Bureau of Democracy,
Human Rights, and Labor (which drafts the State Department’s annual
Country Reports on Human Rights Practices) and the relevant State
Department regional bureau, country desk, or United States Embassy.
Prosper Decl. ¶ 7.
If the assurances obtained from the receiving government are
14
not sufficient when balanced against treatment concerns, the United
States does not transfer a detainee to the control of that
government. Waxman Decl. ¶ 7; Prosper Decl. ¶ 8. Indeed, DoD has
decided in the past not to transfer detainees to their country of
origin because of mistreatment concerns. Waxman Decl. ¶ 7; Prosper
Decl. ¶ 8.
When DoD releases or transfers detainees to other governments,
the detainees are no longer subject to the custody or control of
the United States, and any subsequent confinement in the receiving
country is based on the receiving government’s independent
decision, based on its domestic laws, that the individual should be
detained. In some circumstances, the United States may believe
that continued detention and/or prosecution by the transferee
country would be appropriate. Waxman Decl. ¶ 3. In all such
cases, however, a detainee “once transferred, is no longer in the
custody and control of the United States; the individual is
detained, if at all, by the foreign government pursuant to its own
laws and not on behalf of the United States.” Id. ¶ 5.
“[T]ransfers of detainees are extremely sensitive matters that
involve diplomatic relations with other countries, as well as the
law enforcement and intelligence interests of other countries.”
Waxman Decl. ¶ 8. “The Department of State’s ability to seek and
obtain assurances from a foreign government depends in part on the
Department’s ability to treat its dealings with the foreign
15
government with discretion.” Prosper Decl. ¶ 9. “There also may
be circumstances where it may be important to protect sources of
information (such as sources within a foreign government) about a
government’s willingness or capability to abide by assurances
concerning humane treatment or relevant international obligations.”
Ibid. Lastly, “[c]onfidentiality is often essential to ensure that
the advice and analysis provided by [United States Embassies and
other State Department offices] are useful and informative for the
decision-maker. If those offices are expected to provide candid
and useful assessments, they normally need to know that their
reports will not later be publicly disclosed.” Id. ¶ 11 Thus,
“the Department of State does not unilaterally make public the
specific assurances or other precautionary measures obtained in
order to avoid the chilling effects of making such discussions
public and the possible damage to [its] ability to conduct foreign
relations.” Id. ¶ 9.
“In situations such as this, ‘[t]he controlling considerations
are the interacting interests of the United States and of foreign
countries, and in assessing them [the courts] must move with the
circumspection appropriate when [a court] is adjudicating issues
inevitably entangled in the conduct of our international
relations.’” Holmes v. Laird, 459 F.2d 1211, 1215 (D.C. Cir. 1972)
(quoting Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 383
(1959)); Chicago & Southern Air Lines, Inc., 333 U.S. at 111 (“It
16
would be intolerable that courts, without the relevant information,
should review and perhaps nullify actions of the Executive taken on
information properly held secret. Nor can courts sit in camera in
order to be taken into executive confidences. * * * [E]ven if
courts could require full disclosure, the very nature of executive
decisions as to foreign policy is political, not judicial. Such
decisions are wholly confided by our Constitution to the political
departments of the government, Executive and Legislative.”).
Entertaining applicant’s claim to a right to contest
repatriation or removal from Guantanamo would require the Court to
insert itself into extremely sensitive diplomatic matters.
Judicial review of a transfer or repatriation decision would
involve scrutiny or second-guessing of United States officials’
judgments and assessments on the likelihood of torture in a foreign
country, including judgments regarding the state of diplomatic
relations with a foreign government, the reliability of information
concerning and representations from a foreign government, the
adequacy of assurances provided and a foreign government’s
capability to fulfill them. Prosper Decl. ¶ 8; id. ¶¶ 9-12. And
“[r]equiring the United States to unilaterally disclose information
about proposed transfers and negotiations outside of appropriate
executive branch agencies could adversely affect the relationship
of the United States with other countries and impede our country’s
ability to obtain vital cooperation from concerned governments with
17
respect to military, law enforcement, and intelligence efforts,
including with respect to our joint efforts in the war on
terrorism.” Waxman Decl. ¶ 8.
Because of these foreign relations implications, courts have
uniformly eschewed inquiry into “the fairness of a requesting
nation’s justice system” and “the procedures or treatment which
await a surrendered fugitive in the requesting country” in the
analogous context of extradition. United States v. Kin-Hong, 110
F.3d 103, 110 (1st Cir. 1997) (quoting Arnbjornsdottir-Mendler v.
United States, 721 F.2d 679, 683 (9th Cir. 1983)); see Al-Anazi,
370 F. Supp. 2d at 194 (holding that this “well-established line of
cases in the extradition context” “counsel[s] even further against
judicial interference”). This principle is sometimes called the
Rule of Non-Inquiry.
For example, in Ahmad v. Wigen, 910 F.2d 1063 (2d Cir. 1990),
a United States citizen was extradited from the United States to
Israel to stand trial for an alleged terrorist attack. While the
district court upheld the extradition only after receiving
testimony and extensive documentation concerning Israel’s law
enforcement system and treatment of prisoners, the Second Circuit
held that such inquiry was wholly improper. “The interests of
international comity are ill-served,” the Second Circuit explained,
“by requiring a foreign nation such as Israel to satisfy a United
States district judge concerning the fairness of its laws and the
18
manner in which they are enforced.” Id. at 1067. “It is the
function of the Secretary of State to determine whether extradition
should be denied on humanitarian grounds.” Ibid. Accord Escobedo
v. United States, 623 F.2d 1098, 1107 (5th Cir.) (refusing to bar
extradition based on allegations that appellant “may be tortured or
killed if surrendered to Mexico,” because “the degree of risk to
(Escobedo’s) life from extradition is an issue that properly falls
within the exclusive purview of the executive branch”) (internal
quotation marks omitted), cert. denied, 449 U.S. 1036 (1980).
The separation-of-powers considerations that underlie the Rule
of Non-Inquiry are even stronger in a matter, such as this one,
involving repatriation of alien enemy combatants during an ongoing,
global war against al Qaeda, the Taliban, and associated forces.
If courts cannot, in the context of a conventional extradition,
second-guess on humanitarian grounds transfers of United States
persons to another country for criminal prosecution, they have no
basis to do so with respect to the repatriation of aliens who are
confirmed enemy combatants held abroad in connection with an
ongoing armed conflict, which implicates not only the Executive’s
conduct of foreign policy and diplomacy, but also its war-making
and national defense policies.
For these reasons, applicant cannot establish a reasonable
probability that the Court would grant review, much less a
significant possibility that the Court would reverse the judgment
19
In accordance with the policy and practice discussed above, 3
one other Guantanamo detainee has previously been transferred to
Libya, and aliens have been removed (or are in the process of being
removed) from the United States to Libya for immigration or other
violations of law.
below.
B. The Other Equitable Factors Also Counsel Against The
Extraordinary Relief Applicant Seeks
Applicant asserts without support that the United States
intends to repatriate him notwithstanding a belief that he likely
will be tortured. And, relying on documents that pre-date his
CSRT, applicant implies that the United States intends to (and can)
retain control over him if it transfers him to another country.
However, these allegations are directly refuted by United States
policy and practice described above. And there is no basis to
assume that the government will not follow established practice.
Cf. USPS v. Gregory, 534 U.S. 1, 10 (2001) (“[A] presumption of
regularity attaches to the actions of Government agencies.”);
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415
(1971) (explaining that agencies are “entitled to a presumption of
regularity”). Accordingly, applicant has failed to demonstrate a
likelihood of harm that is either actual or certain, as required to
justify the extraordinary injunctive relief he seeks.3
At the same time, granting the requested injunction would harm
the Executive and the public interest. “[A] court decision to
enjoin a detainee transfer, either altogether or until further
order of the court, would undermine the United States’ ability to
reduce the numbers of individuals under U.S. control and our
effectiveness in eliciting the cooperation of other governments to
bring to justice individuals who are subject to their
jurisdiction.” Prosper Decl. ¶ 12. And “[a]ny judicial decision
to review a transfer decision by the United States Government or
the diplomatic dialogue with a foreign government concerning the
terms of transfer could seriously undermine our foreign relations.”
Ibid.; see Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 381
(2000) (stressing the harms wrought by “compromis[ing] the very
capacity of the President to speak for the Nation with one voice in
dealing with other governments”). The public interest thus does
not favor the relief applicant seeks.
The emergency application for an original writ of injunction
should be denied.
Respectfully submitted.
PAUL D. CLEMENT
Solicitor General
Counsel of Record
APRIL 2007
↑
Boumediene petitioners for an order suspending the order denying
certiorari, because there was no “reasonable likelihood of this
Court’s reversing its previous position and granting certiorari.”
Boumediene v. Bush, Nos. 06-1195, 06-1196, 2007 WL 1225368,
(April 26, 2007) (Roberts, C.J., in chambers) (internal quotation
marks omitted).
A detainee may file a petition for review in the D.C. 2
Circuit under the Detainee Treatment Act of 2005, Pub. L. No. 109-
148, tit. X, §§ 1001-1006, 119 Stat. 2680, 2739 (DTA), challenging
the determination of a CSRT that he is an enemy combatant. See MCA
§ 7(a). Applicant has not filed such a challenge. In any event,
neither the DTA nor traditional habeas would support this
extraordinary effort to enjoin a release from custody.
2007).
