Hani Abdullah v. Barack Obama , 753 F.3d 193 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 21, 2014 Decided April 4, 2014
No. 13-5203
HANI SALEH RASHID ABDULLAH, DETAINEE, CAMP DELTA,
APPELLANT
RAMI BIN SAAD AL-OTEIBI, DETAINEE, CAMP DELTA,
APPELLEE
YOSRA SALEH RASHID ABDULLAH, NEXT FRIEND OF HANI
SALEH RASHID ABDULLAH,
APPELLANT
v.
BARACK HUSSEIN OBAMA, PRESIDENT OF THE UNITED STATES,
ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-00023)
Stephen M. Truitt argued the cause for the appellant.
Charles H. Carpenter was on brief.
Sharon Swingle, Attorney, United States Department of
Justice, argued the cause for the appellees. Stuart F. Delery,
Assistant Attorney General, and Dana L. Kaersvang, Attorney,
were on brief.
2
Before: HENDERSON, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
Concurring opinion filed by Senior Circuit Judge
RANDOLPH, with whom Circuit Judge HENDERSON joins.
KAREN LECRAFT HENDERSON, Circuit Judge: Hani Saleh
Rashid Abdullah (Abdullah) is a Yemeni national who has
been detained by the United States at the United States Naval
Station Guantanamo Bay (Guantanamo) since 2002 as an
enemy combatant. In 2005, Abdullah filed a petition for a
writ of habeas corpus in the United States District Court for the
District of Columbia challenging his detention. Abdullah
eventually sought preliminary injunctive relief in 2010, when
he asked the court to enjoin the United States from holding him
in violation of a 1946 executive agreement between Yemen
and the United States (Yemen Agreement or Agreement).
The district court denied his motion. For the reasons that
follow, we affirm.
I
Abdullah’s motion for a preliminary injunction recounts
that Abdullah traveled from Yemen to Afghanistan in the
months before September 11, 2001, to attend a terrorist
“training camp.” Mot. for Prelim. Inj. 7, Abdullah v. Obama,
Civ. No. 05-0023 (D.D.C. Oct. 8, 2010). Abdullah left the
camp following the September 11, 2001 attacks to defend an
airstrip in southern Afghanistan against the impending United
States invasion. In December 2001, Abdullah abandoned his
post at the airstrip and fled to nearby Pakistan. Pakistani
authorities arrested Abdullah in Karachi, Pakistan, on
September 11, 2002, and he was transferred to United States
custody shortly thereafter. After brief stints of detention in
3
Kabul and at the Bagram Airfield Military Base, both locations
in Afghanistan, the United States moved Abdullah to
Guantanamo in October 2002. Abdullah remains detained at
Guantanamo as an enemy combatant pursuant to the
Authorization for Use of Military Force (AUMF), Pub. L. No.
107-40, 115 Stat. 224, 224 (2001), which confers on the
President the authority to detain enemy combatants “for the
duration of the particular conflict in which they were
captured.” Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004)
(plurality opinion); id. at 588-89 (Thomas, J., dissenting); see
also Boumediene v. Bush, 553 U.S. 723, 733 (2008); Janko v.
Gates, 741 F.3d 136, 138 (D.C. Cir. 2014); Maqaleh v. Hagel,
738 F.3d 312, 317 (D.C. Cir. 2013).
On January 7, 2005, Abdullah petitioned the United States
District Court for the District of Columbia for habeas corpus
relief. Although the United States Supreme Court has held
that a Guantanamo detainee can petition for habeas corpus
relief in federal court, see Boumediene, 553 U.S. at 771(Suspension Clause, Art. I, § 9, cl. 2, “has full effect at
Guantanamo Bay”), the district court did not act on Abdullah’s
petition. Abdullah then sought preliminary injunctive relief.
In his motion, Abdullah asserted that he has been indefinitely
detained by the United States in violation of the Yemen
Agreement, under which he claims protection as a Yemeni
national. The Yemen Agreement provides, in relevant part,
that
Subjects of His Majesty the King of the Yemen in the
United States of America and nationals of the United
States of America in the Kingdom of Yemen shall be
received and treated in accordance with the requirements
and practices of generally recognized international law.
Agreement between the United States of America and the
Kingdom of Yemen respecting friendship and commerce, art.
4
III, May 4, 1946, 60 Stat. 1782. According to Abdullah, the
Yemen Agreement incorporated the Third Geneva Convention,
Article 87 of which provides:
[p]risoners of war may not be sentenced by the military
authorities and courts of the Detaining Power to any
penalties except those provided for in respect of members
of the armed forces of the said Power who have committed
the same acts.
Geneva Convention Relative to the Treatment of Prisoners of
War (Third Geneva Convention), art. 87, Aug. 12, 1949, 6
U.S.T. 3316. Abdullah argued that, because the Uniform
Code of Military Justice does not provide for indefinite
detention as punishment for members of the United States
Armed Forces, his indefinite detention is contrary to Article 87
and, hence, the Yemen Agreement. Abdullah also alleged
that his conditions of confinement at Guantanamo violate the
Third Geneva Convention because he is not permitted to
purchase personal items, family and friends are not allowed to
send him food or clothing, detainees cannot choose
representatives to air their grievances to their Guantanamo
custodians and copies of the Geneva Convention are not posted
in prominent places.
For relief, Abdullah requested an order “restraining
respondents from continuing to detain him indefinitely,” Mot.
for Prelim. Inj. 1, but he later clarified in his reply to the
Government’s opposition to his motion that he did not seek
immediate release. Instead, Abdullah sought “an injunction
prohibiting [the Government] from detaining him in violation
of the express terms of [the Yemen Agreement].” Reply in
Supp. of Mot. for Prelim. Inj. 1-2, Abdullah v. Obama, Civ.
No. 05-0023 (D.D.C. Jan. 3, 2011). Although Abdullah did
not expressly ask the court to enjoin his allegedly unlawful
conditions of confinement, his request for full compliance with
5
the Yemen Agreement and, consequently, the Third Geneva
Convention, appeared to encompass such relief.1
Abdullah next filed a mandamus petition with this Court
on May 14, 2013, seeking to compel the district court to decide
his motion. One week later, the district court denied
Abdullah’s motion for preliminary relief. 2 The court
concluded that, even if the Yemen Agreement provided a basis
for relief in Abdullah’s underlying habeas proceeding,
Abdullah did not meet the other requisites for preliminary
injunctive relief––that he was likely to suffer irreparable injury
in the absence of relief and that the balance of equities and
public interest weighed in his favor. See Sherley v. Sebelius,
644 F.3d 388, 392-93 (D.C. Cir. 2011). Specifically, the court
found that “[i]f Abdullah seeks pre-adjudication release,” he
has not “shown a lesser harm to the respondents if they cannot
regain his custody should habeas be ultimately found
unwarranted, or likewise that the public interest would favor
the release now on an as-of-yet unadjudicated habeas claim.”
Order 5, Abdullah v. Obama, Civil No. 05-0023 (D.D.C. May
21, 2013). “If Abdullah does not seek pre-adjudicative
release,” the court continued, “he has not explained what
irreparable injury he faces outside of the injuries addressed by
1
Abdullah also sought an order “enjoining respondents’
wrongful and discriminatory refusal to repatriate Yemen subjects.”
Mot. for Prelim. Inj. 1. The ban on the transfer of detainees to
Yemen has since been lifted, however, and Abdullah does not raise
this issue on appeal. See Remarks of President Barack Obama, The
White House (May 23, 2013), available at
http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-pr
esident-barack-obama.
2
Once the district court denied the motion, we dismissed the
mandamus petition as moot.
6
3
the merits of [the] underlying habeas petition.” Id.Abdullah timely appealed.
II
“A preliminary injunction is ‘an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff is
entitled to such relief.’ ” Sherley, 644 F.3d at 392 (quoting
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22
(2008)); see also Mazurek v. Armstrong, 520 U.S. 968, 972
(1997) (“[A] preliminary injunction is an extraordinary and
drastic remedy, one that should not be granted unless the
movant, by a clear showing, carries the burden of persuasion.”
(quotation marks omitted)). “A plaintiff seeking a
preliminary injunction must establish [1] that he is likely to
succeed on the merits, [2] that he is likely to suffer irreparable
harm in the absence of preliminary relief, [3] that the balance
of equities tips in his favor, and [4] that an injunction is in the
public interest.” 4 Aamer v. Obama, 742 F.3d 1023, 1038
(D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392 (quoting
Winter, 555 U.S. at 20)) (quotation marks omitted). “When
seeking a preliminary injunction, the movant has the burden to
3
The district court did not separately address Abdullah’s
request for injunctive relief addressing his conditions of confinement
but it denied Abdullah’s motion in its entirety.
4
Abdullah argues that the traditional four-part preliminary
injunction test does not apply in this case because the Supreme Court
did not apply the test in Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
In Hamdan, the Court ruled on a habeas petition and thus had no
occasion to consider or apply the preliminary injunction factors.
See id. at 567, 571-72. In addition, as our recent decision in Aamer
v. Obama, 742 F.3d 1023 (D.C. Cir. 2014), makes plain, the
traditional four-factor preliminary injunction test, unsurprisingly,
applies to Guantanamo detainees. See id. at 1038 (applying
four-factor test).
7
show that all four factors, taken together, weigh in favor of the
injunction.” Davis v. Pension Benefit Guar. Corp., 571 F.3d
1288, 1292 (D.C. Cir. 2009). We review the district court’s
balancing of the preliminary injunction factors for abuse of
discretion and review questions of law underlying the district
court’s decision de novo. Aamer, 742 F.3d at 1038 (citing
Sherley, 644 F.3d at 393).
We first clarify the relief Abdullah seeks. Although his
motion sought an order “restraining respondents from
continuing to detain him indefinitely,” Mot. for Prelim. Inj. 1,
Abdullah insists that he does not seek an immediate release
from detention, Appellant’s Br. 17, Abdullah v. Obama, No.
13-5203 (D.C. Cir. Aug. 30, 2013); see also Reply in Supp. of
Mot. for Prelim. Inj. 1-2. It appears that instead he seeks (1) a
declaration that the United States cannot “hold [him] forever,
notwithstanding the state of ‘hostilities’ and at the pleasure of
his captors,” Reply Br. 6, Abdullah v. Obama, No. 13-5203
(D.C. Cir. Nov. 21, 2013), and (2) an order enjoining violations
of the Third Geneva Convention regarding his conditions of
confinement.5 Abdullah’s opening brief fails to explicate the
conditions of confinement that allegedly violate the Third
Geneva Convention but in his reply brief he submits that the
United States violates the Convention on a daily basis by
preventing Guantanamo detainees from selecting a
representative to voice their complaints to authorities, by
denying them access to packages sent to them from family
members and friends and by failing to publish the Geneva
Convention in prominent places at Guantanamo.
5
In Aamer, we clarified that “a [detainee] may, in a federal
habeas corpus petition, ‘challenge the conditions of his
confinement.’ ” 742 F.3d at 1038 (quoting United States v. Wilson,
471 F.2d 1072, 1081 (D.C. Cir. 1972)). Aamer also made clear that
a detainee can challenge his conditions of confinement by seeking
preliminary injunctive relief. See id. at 1038-1044.
8
In support of his request for declaratory relief, Abdullah
argues only that he is being “indefinitely detained” in violation
of the Yemen Agreement. Abdullah’s notion that he is
indefinitely detained stems from his unconfirmed belief that
the Guantanamo Review Task Force, convened by executive
order in 2009 to classify Guantanamo detainees, designated
him as “too dangerous to transfer but not feasible for
prosecution.” Appellant’s Br. 2-3; see Final Report at ii,
Guantanamo Review Task Force (Jan. 22, 2010), available at
http://www.justice.gov/ag/guantanamo-review-final-report.pdf.
Abdullah renews his claim that his detention violates the
Yemen Agreement because the Agreement incorporates
provisions of the Third Geneva Convention that bar indefinite
detention.6 He does not, however, contest the factual basis of
his detention.
Abdullah has not made a “clear showing” that he is
entitled to the requested declaration. Sherley, 644 F.3d at 392.
Even accepting arguendo, first, his claim that indefinite
detention violates the Yemen Agreement and, second, that he
may enforce the protections of the Agreement in court, he has
not demonstrated he is likely to succeed on his habeas petition
because he has not shown that his detention is indefinite or
otherwise illegal. Contrary to Abdullah’s assertions, the
6
Abdullah also argues that the Yemen Agreement incorporates
Articles 9 and 14 of the International Covenant on Civil and Political
Rights (ICCPR). We do not consider this argument because it was
not raised below. See District of Columbia v. Air Florida, Inc., 750
F.2d 1077, 1084 (D.C. Cir. 1984) (“It is well settled that issues and
legal theories not asserted at the District Court level ordinarily will
not be heard on appeal.”). Nor do we consider Abdullah’s claim
that “international law” protections are incorporated in American
military regulations as that argument was also not raised in district
court. See id.9
Government does not claim the right to detain him indefinitely
but instead only “for the duration of hostilities.” Appellees’
Br. 17, Abdullah v. Obama, No. 13-5203 (D.C. Cir. Oct. 31,
2013). And, as noted, the AUMF permits the President to
detain enemy combatants “for the duration of the particular
conflict in which they were captured.” Hamdi, 542 U.S. at
518 (plurality opinion); id. at 588-89 (Thomas, J., dissenting);
see also Boumediene, 553 U.S. at 733; Janko, 741 F.3d at 138;
Maqaleh, 738 F.3d at 317. Further, a plurality of the Supreme
Court has recognized, as have we, that such detention is
sanctioned by international law. See Hamdi, 542 U.S. at 518(“The capture and detention of lawful combatants and the
capture, detention, and trial of unlawful combatants, by
‘universal agreement and practice,’ are ‘important incident[s]
of war.’ ” (quoting Ex parte Quirin, 317 U.S. 1, 28, 30 (1942));
id. at 520 (“It is a clearly established principle of the law of war
that detention may last no longer than active hostilities.” (citing
Third Geneva Convention, art. 118, 6 U.S.T. 3316 (“Prisoners
of war shall be released and repatriated without delay after the
cessation of active hostilities.”))); Al-Bihani v. Obama, 590
F.3d 866, 874 (D.C. Cir. 2010) (Third Geneva Convention
“codif[ies] what common sense tells us must be true: release is
only required when the fighting stops”). Abdullah was
captured during the conflict in Afghanistan, and it is
undeniable that the conflict persists. See Maqaleh, 738 F.3d
at 330 (political branches have exclusive authority to mark end
of conflicts and neither has indicated Afghanistan conflict has
ended). Absent a challenge to the fact of his detention on
appeal, we can only conclude, then, that the duration of
Abdullah’s detention is consistent with the AUMF and with
international law and, consequently, that he is unlikely to
succeed on his underlying habeas petition.7
7
The fact that Abdullah is not “indefinitely” detained casts
doubt on whether the declaratory relief he seeks is even cognizable
10
Nor has Abdullah demonstrated that the remaining
preliminary injunction factors weigh in his favor. To begin
with, Abdullah has forfeited any argument related to
irreparable injury, the balance of equities and the public
interest because he did not address these factors until his reply
brief. See Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001
(D.C. Cir. 2008) (argument raised for first time in reply brief is
forfeited). But even if Abdullah had not forfeited his
arguments, it is plain that none of the remaining factors
supports the requested relief. Most notably, Abdullah has not
shown that he will suffer an irreparable injury if the Court
withholds a declaration proscribing indefinite detention. A
declaration prohibiting Abdullah’s indefinite detention would
have no practical effect because the Government plans to
detain him not indefinitely but, under the AUMF, until
hostilities in Afghanistan conclude. See supra at p. 9.
Abdullah concedes as much in his opening brief. See
Appellant’s Br. 3-4.
Abdullah’s request for relief enjoining his allegedly
unlawful conditions of confinement has also been forfeited.
Abdullah’s opening brief presses this request for injunctive
relief with only the bare and conclusory assertion that
“Respondents are now, and have been for a decade, violating
sections 3, 25, 70-72, and 78-79” of the Third Geneva
Convention. Appellant’s Br. 16. He does not fully explain
the nature of the alleged violations until his reply brief. His
efforts fail to preserve the claim. See Bryant v. Gates, 532
F.3d 888, 898 (D.C. Cir. 2008) (if party’s argument consists of
“single, conclusory statement,” argument is forfeited); accord
N.Y. Rehab. Care Mgmt., LLC v. NLRB, 506 F.3d 1070, 1076
(D.C. Cir. 2007) (“It is not enough merely to mention a
––that is, a declaration prohibiting Abdullah’s indefinite detention
does not redress anything as he is not being detained indefinitely.
11
possible argument in the most skeletal way, leaving the court to
do counsel’s work.” (quotation marks omitted)). Moreover,
Abdullah does not argue in his opening brief that the
irreparable injury, balance-of-equities and public interest
prongs warrant granting the injunction, with the result that
Abdullah has forfeited his request for injunctive relief on these
bases as well. See Kempthorne, 530 F.3d at 1001; see also
Davis, 571 F.3d at 1292 (“[T]he movant has the burden to
show that all four factors, taken together, weigh in favor of the
injunction.”).
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.
RANDOLPH, Senior Circuit Judge, concurring, with whom
HENDERSON, Circuit Judge, joins:
I concur in the court’s opinion but if the slate were clean I
would be with Judge Williams and would hold that a habeas
corpus petition cannot be used to challenge conditions of
confinement at Guantanamo. See Aamer v. Obama, 742 F.3d
1023, 1044 (D.C. Cir. 2014) (Williams, J., dissenting).