IN THESUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2010

FARHI SAEED BIN MOHAMMED, ET AL.,

Petitioners,V.

BARACK OBAMA, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

Jerry CohenBURNS & LEVINSON LLP125 Summer StreetBoston, MA 02110

Stewart EisenbergWEINBERG & GARBER, P.C.71 King StreetNorthampton, MA 01060

David H. RemesCounsel of Record

APPEAL FOR JUSTICE1106 Noyes DriveSilver Spring, MD 20910(202) 669-6508remesdh@gmail.com

Stephen I. Vladeck4801 Mass. Avenue, NWWashington, DC 20016

Counsel for Petitioners

QUESTION PRESENTED

Whether, in a habeas corpus action brought by anindividual held in United States territory, includingGuant6namo,

(a) Munaf v. Geren, 553 U.S. 674 (2008), requires,and

(b) Bournediene v. Bush, 553 U.S. 723 (2008), theSuspension Clause, and the Due Process Clause per-mit,

the district court to give conclusive effect to the gov-ernment’s assertion that the individual is unlikely tobe tortured if transferred to a particular country,disabling the individual from challenging his trans-fer on the ground that he will likely be tortured, andthe court from fashioning an equitable remedy.

PARTIES TO THE PROCEEDING

Petitioners in this Court and in the court below:

Farhi Saeed Bin Mohammed and Moazzam Begg,as next friend of Farhi Saeed bin Mohammed.

Respondents in this Court and the court below:

Barack Obama, President of the United States;Robert M. Gates, Secretary of Defense; Tom Cope-man, Commander, Joint Task Force, GTMO; DonnieThomas, Commander, Joint Detention OperationsGroup, JTF-GTMO.

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TABLE OF CONTENTS

DECISIONS BELOW ............................................................1

JURISDICTION .....................................................................1

RELEVANT PROVISIONS OF LAW ..................................1

STATEMENT OF THE CASE ..............................................1

REASONS FOR GRANTING THE WRIT .........................11

1. The D.C. Circuit’s misreading of Munaf ........................12

2. A due process fight to challenge transfer to fearedtorture ..............................................................................16

3. Inconsistency with Boumediene and SuspensionClause ..............................................................................17

CONCLUSION ....................................................................19

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TABLE OF AUTHORITIES

CASES

Abdah v. Obama,D.D.C. No. 04-1254 ........................................................3

Abdah v. Obama, D.C. Cir. No. 05-5224 ................12., 15, 19

Afriyie v. Holder,613 F.3d 924 (9th Cir. 2010) .........................................15

Boumediene v. Bush,553 U.S. 723 (2008) .......................................3, 12, 17,18

Khouzam v. Attorney General,549 F.3d 235 (3d Cir. 2008) ..........................................16

Kiyemba v. Obama, ’555 F.3d 1022 (D.C. Cir. 2009)("Kiyemba/") ........................................................3, 5, 18

Kiyemba v. Obama,561 F.3d 509 (D.C. Cir. 2009) ("Kiyemba I/") ...... passim

Kiyemba v. Obama,605 F.3d 1046 (D.C. Cir. 2010)("Kiyemba II1") ................................................................3

Landon v Plasencia,459 U.S. 21 (1982) ........................................................16

Munaf v. Geren,553 U.S. 674 (2008) ...............................................passim

STATUTES

8 U.S.C. § 1252(a) ...........................................: ...................15

28 U.S.C. § 1254(1) ...............................................................1

28 U.S.C. § 2241(c)(1) and (3) ..............................................1

OTHER AUTHORITIES

8 C.F.R. § 208.16(a)(1) .......................................................15

Court, Rule 10(c) .................................................................12

U.S. Const., Amdt. V .............................................................1

U.S. Const., Art. I, § 9, cl. 2: .................................................1

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DECISIONS BELOW

The court of appeals’ decision (Pet. la), issued onJuly 8, 2010, and its order denying petitioner’s mo-tion to stay the mandate, issued on July 10, 2010,are unreported. The district court’s decision (Pet. 8a),issued on June 29, 2010, is also unreported. On July16, 2010, this Court denied Mr. Mohammed’s appli-cation for a stay pending the filing of a petition forcertiorari. (No. 10A52.) On September 19, 2010, theChief Justice extended the time for filing the petitionto November 5, 2010.

JURISDICTION

The jurisdiction of this Court rests on 28 U.S.C.§ 1254(1). The jurisdiction of the district court restedon 28 U.S.C. § 2241(c)(1) and (3),. the SuspensionClau~e, and the Fifth Amendment.

RELEVANT PROVISIONS OF LAW

Suspension Clause, U.S. Const., Art. I, § 9, cl. 2:

The Privilege of the Writ of Habeas Corpus shallnot be suspended, unless when in Cases of Rebellionor Invasion the public Safety may require it.

Due Process Clause, U.S. Const., Amdt. V,

No person shall * * * be deprived of life, liberty, orproperty, without due process of law * * *

STATEMENT OF THE CASE

1. Petitioner, Farhi Saeed Bin Mohammed, is anAlgerian held at the Guant6namo Bay detention fa-cility. He left Algeria about twenty years ago, after athreatening encounter with terrorists. After living inEurope for about ten years, he left in 2001. He was

seized in Pakistan later that year, and was broughtto Guant6namo in early 2002.

The Government intends to repatriate Mr. Mo-hammed to Algeria, but the district court found that"[t]he.re is no question" that Mr. Mohammed wouldlikely suffer irreparable injury if he is repatriated.(Pet. 21a.) The district court stated:

The record shows that the Government is mov-ing forward in its efforts to transfer Moham-med to Algeria and that there is certainly alikelihood of his suffering irreparable injuryfrom such a transfer, as has already been dis-cussed. Petitioner has demonstrated that "ir-reparable injury is likely in the absence of aninjunction."

(Pet. 21a) (citation omitted) (emphasis in ~riginal).)The district court specifically found "reasonable, andwell founded" Mr. Mohammed’s stated fear that hewill be in ’great danger’ from Islamic militants if heis returned to Algeria." (Pet. 18a.)

In July 2005, Mr. Mohammed filed a petition for awrit of habeas corpus in the United States DistrictCourt for the District of Columbia. (D.D.C. No. 05-1347.) While Mr. Mohammed’s habeas case waspending, review bodies established by the Bush andObama administrations cleared him for transfer.(Pet. 11a.) In November 2009, the district courtgranted Mr. Mohammed the writ and ordered theGovernment to "take all necessary and appropriatediplomatic steps to facilitate Petitioner’s releaseforthwith." (Pet. 20a.) The Government appealed; inJune 2010, on the Government’s motion, the D.C.Circuit held the appeal in abeyance.

2. Beginning in March 2005, the various districtcourt judges handling Guant~namo habeas cases is-sued orders in many of the cases requiring the Gov-ernment to provide detainee counsel with 30-days’advance notice of any intended transfer of a detaineefrom Guant6namo, to permit counsel to contest thetransfer. See, e.g., Abdah v. Bush, D.D.C. No. 04-1254 (March 29, 2005) (Docs. 146 & 147). The Gov-ernment appealed all of these orders.

After this Court decided Boumediene v. Bush, 553U.S. 723 (2008), Judge Thomas F. Hogan, acting co-ordinating judge, issued 30-day notice orders in all ofthe habeas cases. (Pet. 27a.) The Government ap-pealed each such order. The D.C. Circuit held theappeals in abeyance pending its decision in KiyembaII. That case was to be the first in which the D.C.Circuit would decide the validity of the 30-day noticeorders. 1

Judge Hogan also preliminarily enjoined the Gov-ernment from repatriating Mr. Mohammed to Aloe-ria ~endin~ Ki~emba II. (Pet. 29a.)

overnmentThe D.C. Circuit iso held

I "Kiyemba It’ refers to the second in a triad of appeals takenby the Government in Uighur cases. At issue in Kiyemba I andKiyemba III is the court’s power to order the transfer ofGuant~namo detainees. Kiyemba v. Obama, 555 F.3d 1022(D.C. Cir. 2009) ("Kiyemba ~’), and Kiyemba v. Obama, 605 F.3d1046 (D.C. Cir. 2010) ("Kiyemba II~’). The D.C. Circuit held inthose two cases that the court has no power to order release.The petitioners in those cases expect to file a petition for certio-rari seeking review of the two decisions. Their petition is due inearly December.

those appeals in abeyance pending Kiyemba II, be-cause although the immediate issue in Kiyemba IIwas the validity of the 30-day notice orders, the ul-timate issue was the court’s power to enjoin thetransfer of Guant6namo detainees--the issue alsopresented in this case.

On April 7, 2009, the D.C. Circuit issued its ~deci-sion in Kiyemba II, 561 .F.3d 509 (D.C. Cir. 2009),cert. denied, 130 S. Ct. 1880 (Pet. 31a.). The courtheld that, because the Government’s policy is not totransfer Guant6namo detainees to countries wherethey are more likely than not to be tortured, a courtmay not consider evidence that a particular detainee,if transferred to a particular country, in fact is likelyto be tortured. 561 F.3d at 514-15 (Pet. 58a-64a.) TheD.C. Circuit rested its holding on Munaf v. Geren,553 U.S. 674 (2008), which the court read to precludea court "from second-guessing the Executive’s as-sessment of the likelihood a detainee will be torturedby a foreign sovereign." Id. at 515. (Pet. 43a.) Thecourt stated:

The Supreme Court’s ruling in Munaf pre-cludes the district court from barring thetransfer of a Guantanamo detainee on theground that he is likely to be tortured * * * inthe recipient country. The Government hasdeclared its policy not to transfer a detainee toa country that likely will torture him, and thedistrict court may not second-guess the Gov-ernment’s assessment of that likelihood.

Id. at 516. (Pet. 46a.) The court denied rehearing andrehearing en banc on July 27, 2009 (Pet. 71a), andthis Court denied certiorari on March 22, 2010.

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3. After the appeals court denied rehearing inKiyemba II, the Government moved to dissolve thepreliminary that Judge Hogan issued inMr. Mo~ On Febr, uary 4, 2010, grantedthe Government s motions on the basis of the D.C.Circuit’s decision in Kiyernba II:

(Pet. 76a.)

On April 19, 2010, Judge Hoganfor reconsideration by Mr. Mohammed

(Pet. 78a.) In response to theargument that "new evidence" SUDDorted reinstate-ment of the ~reliminarv Judze Hozandirected

(Pet. 87a.)

On May 24, 2010, Mr. Mohammed filed an emer-ge.ncy motion with Judge Gladys Kessler, the MeritsJudge in his case, for a preliminary injunction en-joining the Government from transferring him to AI-.geria. Among other things, he expressed fear that hewould be targeted by terrorist groups in Algeria, andthat the Algerian government might arrest and tor-ture him simply because the United States hadcalled him an enemy combatant. He argued that anycontrary diplomatic assurances from Algeria--acountry with a dismal human rights record and adocumented history of using torture--were worth-less.

On June 3, 2010, Judge Kessler entered an ad-ministrative stay to prevent Mr. Mohammed’s trans-fer pending her decision on his preliminaryinjunction motion. (Pet. 90a.) On June 17, 2010, theGovernment filed a notice of appeal, seeking expe-dited summary reversal of Judge Kessler’s adminis-trative stay. On June 25, 2010, the D.C. Circuitissued an order directing the distr.ict court to "resolveall outstanding motions in [the] case by Tuesday,June 29, at 4:00 p.m., in a manner consistent withMunaf v. Geren, 553 U.S. 674 (2008), and Kiyemba v.Obama, 561 F.3d 509 (D.C. Cir. 2009) (Kiyemba I/)."(Pet. 91a.)

On June 28, 2010, Mr. Mohammed submitted tothe district court a collection of 33 exhibits, includingwitness declarations, substantiating his fear of mis-treatment by private parties in Algeria as well as po-tential torture and ill-treatment by the Algeriangovernment. The district court held a hearing thatday to consider Mr. Mohammed’s motion for an in-junction. On June 29, 2010, the District Court

granted a preliminary injunction against the transferof Mr. Mohammed to Algeria. (Pet. 8a.)

As an initial matter, the district court concludedthat Munaf and Kiyemba II did not preclude the in-junctive relief sought by Mr. Mohammed. (Pet. 15a-19a.) The court distinguished Munaf on the groundthat it involved alleged criminal conduct committedin the territory of a foreign sovereign, not the poten-tial transfer of an unlawfully detained individual"who now has a legal right to his freedom, to anothercountry where he fears harm," and on the groundthat Munaf did not involve the fear of harm by "non-governmental Islamic terrorists." (Pet. 16a-17a.) Thedistrict court also found that "Kiyemba II cannot con-trol this case" for substantially the same reasons.(Pet. 18a.)

The district court then applied the traditionalfour-part test for a preliminary .injunction and de-termined that Mr. Mohammed satisfied the test.Under the likelihood of success prong, the court con-cluded that Mr. Mohammed was likely to establishthat, as a prevailing habeas petitioner, he has a rightnot to be transferred to a country where he reasona-bly fears that he will be tortured or physicallyharmed by the receiving government or non-governmental actors. The court found this right ira-plicit in a prevailing habeas petitioner’s "legal rightto * * * freedom" and enforceable by a court. (Pet.16a.) The court concluded that Mr. Mohammed alsohad established "certainly a likelihood" that hewould suffer such torture or harm if he is transferredto Algeria. (Pet. 21a.)

Turning to the balance of harms, the districtcourt found that "[t]here is no question" that there is

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a likelihood that Mr. Mohammed would suffer tor-ture or mistreatment by the.Algerian government ornon-governmental actors if he is transferred to Alge-ria:

The record shows that the Government is mov-ing forward in its efforts to transfer Moham-med to Algeria and that there is certainly alikelihood of his suffering irreparable injuryfrom such a transfer, as has already been dis-cussed. Petitioner has demonstrated that "it-reparable injury is likely in the absence of aninjunction."

(Pet. 21a. (citation omitted; emphasis in original).)The court specifically concluded that Mr. Mohammedhad expressed "reasonable, and well founded fearsthat he will be in ’great danger’ from Islamic mili-tants if he is returned to Algeria." (Pet. 18a.) Thecourt added~that the Government’s evidence was "in-adequate to support the government’s contention * *¯ that Petitioner will not be subject to any inhumanetreatment if transferred to Algeria." (Pet. 19a.)

The Government claimed that granting the in-iunction would cause it substantial harm

thedistrict court notec that "Petitioners have not con-tested this point, and probably are not in a positionto do so because of their lack of knowledge about theclassified diplomatic processes in which the Govern-ment is engaged. Consequently, the Court will as-sume that the Government will in fact suffersubstantial harm if injunctive relief is granted." (Id.)

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Finally, the district court found that the publicinterest warranted preliminary relief:

There is no question that an enormous publicinterest exists in determining the fate of themany detainees left at Guantanamo Bay. TheCourt is well aware of the public efforts theGovernment has made to accomplish this endand the importance of accomplishing it asquickly as possible. On the other hand, thepublic interest is also served by ensuring thatindividuals who the Government has unlaw-fully detained, as in this case, are not trans-ferred to countries where there is asubstantial likelihood of their facing harm, in-cluding torture and possibly execution, fromeither private terrorist groups or from thecountry’s Government. As a country, we prideourselves on our Constitutional guaranteesthat individual rights will be protected. Forthat reason, the Court concludes that the pub-lic interest is better served by ensuring thatno errors are made in the transfer of an un-lawfully detained person that could result inirreparable harm even though there may wellbe some delays in reaching the very importantgoal of transferring detainees to appropriatecountries.

(Pet. 22a-23a.) After considering this fourth factor,the Court concluded that Mr. Mohammed had estab-lished under the four-part test that he was entitledto a preliminary injunction, and granted his motion.(Pet. 23a.)

4. The Government moved for expedited summaryreversal, which the D.C. Circuit granted. (Pet. la.)

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The D.C. Circuit held that the district court erred asa matter of law in enjoining Mr. Mohammed’s repa-triation, because, in the circumstances of the case,Kiyemba II foreclosed such relief:

[T]he district court may not prevent the. trans-fer of a Guantanamo detainee when the gov-ernment has determined that it is more likelythan not that the detainee will not be torturedin the recipient country. 561 F.3d 509, 516(D.C. Cir. 2009); see Munaf v. Geren, 128 S. Ct.2207, 2226 (2008). The government’s represen-tations in this case satisfy that standard.

(Pet. 2a.) On July 12, 2010, the D.C. Circuit deniedMr. Mohammed’s motion to stay the mandate pend-ing the filing of a petition for a writ of certiorari.(Pet. 93a.) Judge Tatel,in partial dissent, noted thatKiyemba II involved only an allegation of likely tor-ture at the hands of the recipient Government, andnot an allegation of likely torture at the hands ofnon-governmental actors. He then stated:

In an allegation that the district court cred-ited, however, Mohammed also claims that hewill be targeted by non-governmental actors--armed Islamic militants unaffiliated with theAlgerian government if the United Statessends him to Algeria. Even if the logic ofKiyemba II requires deference to the govern-ment’s evaluation of threats from non-governmental entities, that decision still re-quires evidence of a governmental policy not totransfer a detainee where such harm is likely.Notwithstanding several rounds of briefing byMohammed raising the issue, however, thegovernment has never said in its declarations

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whether, as a matter of policy, it even consid-ers threats from non-governmental entities--or whether it receives assurances from the re-cipient government regarding its ability toprotect the detainee from such threats--whenmaking transfer decisions.

Thus, while I agree with my colleagues thatKiyemba II compels us to reverse the districtcourt with respect to Mohammed’s allegationsof torture by the .Algerian government, * * *, Iwould remand to allow the government an op-portunity to submit supplemental declarationsas to whether, in deciding it was safe to sendMohammed to Algeria, it considered potentialthreats posed by non-governmental entities.

(Pet. 6a-7a.)

On July 13, 2010, Mr. Mohammed applied to thisCourt for stay pending the filing of a petition for cer-tiorari. (No: 10A52.) On July 16, 2010, the Court "de-nied Mr. Mohammed’s application. Justice Ginsberg,joined by Justices Breyer and Sotomayor, dissentedfrom the denial of the stay:

I would grant the stay to afford the Court timeto consider, in the ordinary course, importantquestions raised in this case and not resolvedin Munaf v. Geren, 553 U. S. 674 (2008).

REASONS FOR GRANTING THE WRIT

Because the D.C. Circuit in its summary reversalorder relied on Kiyemba II as law of the circuit, that

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decision, effectively, is the decision that Mr. Mo-hammed presents to this Court for review? Reviewshould be granted because, in Kiyemba II, the D.C.Circuit decided important issues of federal law thathave not been, but should be, settled by the Court,Rule 10(c), and because the decision raises Due Proc-ess Clause and Suspension Clause issues, and is atodds with Boumediene, cf. Rule 10(c).

1. The D.C. Circuit’s misreading of Munaf.

In Kiyemba II, the D.C. Circuit treated Munaf assettling issues that Munaf, in fact, did not settle, andwhich this Court should settle.

In Munaf, the Court framed the merits questionas "whether United States district courts may exer-cise their habeas jurisdiction to enjoin our ArmedForces from transferring individuals detained withinanother sovereign’s territory to that sovereign’s gov-ernment for criminal prosecution." 553 U.S. at 689.The Court first explained why, as a matter of thegeneral principles applicable in the case, the peti-tioners were not entitled to the relief they sought--avoiding transfer to Iraqi authorities for prosecution

2 Pending in the D.C: Circuit, in a 30-day notice case involvingmost of the Guant~namo detainees, is a motion for initial enbanc hearing to overrule Kiyemba II. Abdah v. Obama, No. 05-5224. Because the D.C. Circuit’s disposition of that petitioncould materially if not decisively affect Mr. Mohammed’s peti-tion, the Court should consider holding his petition pending theD.C. Circuit’s disposition of the Abdah petition. Also pending inthe D.C. Circuit is a fully briefed appeal from an order barringthe Government from repatriating a Tajik detainee to Tajiki-stan, Abdulayev v. Obama, D.C. Cir. 08-5515.

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of crimes they allegedly committed on Iraqi soil. Id~at 692-700. The Court then addressed what it de-scribed as the petitioners’ contention "that thesegeneral principles are trumped in their cases becausetheir transfer to Iraqi custody is likely to result intorture." Id. at 700. The Court viewed the petitioners’torture claim as merely a facet of a general assaulton the Iraqi justice system, all in aid of their quest toavoid transfer for prosecution in Iraq. See id. at 702.("The Judiciary is not suited to second-guessing suchdeterminations [regarding the likelihood of tor-ture]--determinations that would require federalcourts to pass judgment on foreign justice systemsand undermine the Government’s ability to speakwith one voice in this area."). The Court also viewedas highly material the fact that MNF-1, in holdingthe petitioners, was acting as custodian for the Iraqgovernment. See id. at 697, 705.3

The Court stressed that its decision was limitedto "the present context," id. at 700, and to "circum-stances such as those presented here," id. at 680.And the eight "circumstances" that Justice Souteridentified as "essential to the Court’s holding," id. at

3 The Court noted:

MNF-1 forces * * * detain individuals who pose a threatto the security of Iraq. The Government of Iraq retainsultimate responsibility for the arrest and imprisonmentof individuals who violate its laws, but because many ofIraq’s prison facilities have been destroyed, the MNF-1forces agreed to maintain physical custody of many suchindividuals during Iraqi criminal proceedings.

514 U.S. at 680.

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706 (concurring opinion), all pivot on the petitioners’quest to avoid transfer for prosecution. The Court’spreeminent concern was "Iraq’s sovereign right to’punish offenses against its laws committed withinits borders.’" Id. at 692 (citations omitted). That is tosay, it is not just that these cases are factually dis-tinguishable; it is that the facts that are not presenthere were indispensable to the Munaf holding.

The D.C. Circuit mechanically applied the "no in-quiry" rule of Munaf to the circumstances of casessuch as Kiyemba II, and this case, without pausing toexamine whether the "circumstances" and "context"of Kiyemba II were the same as those of Munaf. In-stead, the court flatly stated:

Under Munaf, * * * the district court may notquestion the Government’s determination thata potential recipient country is not likely totorture a detainee. * * * In light of the Gov-ernment’s policy, a detainee cannot prevail onthe merits of a claim seeking to bar his trans-fer based upon the likelihood of his being tor-tured in the recipient country.

(Pet 40a-41a.)

In fact, the "circumstances" and "context" ofKiyemba II and Munaf are entirely different, and theconsiderations that the Court regarded as militatingagainst judicial review of the petitioners’ tortureclaims in Munaf do not apply here.4 It is no answer

4 The Court reserved decision on whether the FAAR act couldsupport a claim for relief in the circumstances of the case. 553U.S. at 703 & n.6. The Farr act question is presented in the(...continued)

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to say that the rationale for Munafs rule of non-inquiry, see 553 U.S. at 702, is not limited by "cir-cumstances" and "context," because in other cases-.specifically, appeals from final orders of deportation,8 U.S.C. 1252(a)--individuals are allowed to chal-lenge the Government’s representation that tortureis unlikely.

Moreover, unlike Mr. Mohammed’s case, neitherMunaf nor Kiyemba II involved a petitioner’s claimthat he faced likely torture at the hands of privateparties.5 Nevertheless, the D.C. Circuit in this caseconcluded that Kiyemba H controlled on the factshere.

In short, Munaf does not as such embody cate-gorical and far-reaching principles, as the D.C. Cir-cuit in Kiyemba II mistakenly supposed, precludingjudicial review of claims such as those of Mr. Mo-hammed in the circumstances here. Those principlesapplied on the facts of Munaf. This Court should de-cide whether those principles apply here.

Abdah and Abdulayev cases pending in the D.C. Circuit. Seenote 2, supra.5 It is well-established by both regulation and decisional lawthat torture by non-state actors can be the basis for relief inremoval cases as much as where the putative abuser is the gov-ernment itself. See, e.g., 8 C.F.R. §§ 208.16(a)(1); 1208.16(a)(1);see also Afriyie v. Holder, 613 F.3d 924, 937 (9th Cir. 2010) (re-manding case to BIA to consider whether prior acquiescence innon-state torture by Ghanian government made it "more likelythan not" that petitioner would be tortured if returned toGhana). Because there was no allegation in Munaf that eitherof the Petitioners feared mistreatment by non-state actorswithin Iraq--rather than by the sovereign government of Iraq--the Court had no reason to address the issue.

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2. A due process right to challenge transfer tofeared torture

Review is also warranted to establish definitivelythat Guant6namo detainees have a due process rightto challenge their transfers to another country on theground that they are likely to be tortured there. ThatMr. Mohammed is a non-citizen makes no difference;in the deportation context, for example, non-citizens~have been held to have a due process right to chal-lenge a government determination that they are un-likely to face torture if deported to a particularcountry, see Khouzam v. Attorney General, 549 F.3d235 (3d Cir. 2008), and, more generally, a due rightto a fair hearing to challenge their removal, see, e.g.,Landon v Plasencia, 459 U.S. 21 (1982). Due processlikewise does not permit the Government to transfera Guant6namo detainee to feared torture without af-fording him a meaningful opportunity to challengehis transfer on that ground.6

6 As Justice Sourer suggested in his Munaf concurrence, trans-fer to a country in which the government knows or should knowthat the detainee credibly fears torture may also constitute aviolation of substantive due process. Munaf, 553 U.S. at 706(Souter, J., concurring) ("Although the Court rightly points outthat any likelihood of extreme mistreatment at the receivinggovernment’s hands is a proper matter for the politicalbranches to consider, if the political branches did favor transferit would be in order [for this Court] to ask whether substantivedue process bars the Government from consigning its own peo-ple to torture." (citation omitted)).

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3. Inconsistency with. Boumediene andSuspension Clause

The D.C. Circuit’s decision as to judicial review oftorture claims also is in substantial tension with thisCourt’s decision in Boumediene and the SuspensionClause. "Habeas ’is, at its core, an equitable rem-edy,’" Boumediene, 553 U.S. at 723 (citations omit-ted); see also id. ("’common-law habeas was, after all,an adaptable remedy’"(citation omitted).) True tothat principle, the district court in this case fash-ioned an "equitable" remedy. Flouting that principle,the D.C. Circuit gave Munaf a reading that disableshabeas courts from fashioning "equi.table" relief.

As Judge Griffith emphasized in his partial dis-sent in Kiyemba II, the Suspension Clause should beread as protecting the power of the federal courts toconsider ex ante challenges to transfer, invoking insupport the bar on transfers to places where habeasdid not run in the Habeas Corpus Act of 1679. (SeePet. 61a (Griffith, J., concurring in the judgment inpart and dissenting in part).) Judge Griffith madethe point as to a petitioner’s claim that the Govern-ment is unlawfully transferring him to a particularcountry for "proxy detention" on behalf of the UnitedStates, but the rationale also applies in the context ofa petitioner’s claim of transfer to feared torture. AsJudge Griffith concluded, as to transfer to "proxy de-tention," "[t]he constitutional habeas protections ex-tended to these petitioners by Boumediene will begreatly diminished, if not eliminated, without an op-portunity to challenge the government’s assurancesthat their transfers will not i’esult in continued de-tention on behalf of the United States[.]" (Pet. 70a.)

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This Court in Boumediene concluded that Com-batant Status Review Tribunals (CSRTs) were an in-adequate substitute for habeas corpus at least inpart because they lacked the power to effectuate thedetainee’s release. See Boumediene, 553 U.S. at 787-88; see also id. at 787 ("[W]hen the judicial power toissue habeas corpus properly is invoked the judicialofficer must have adequate authority to make a de-termination in light of the relevant law and facts andto formulate and issue appropriate orders for relief,including, if necessary, an order directing the pris-oner’s release."). And yet, the D.C. Circuit’s decisionsin the Uighur cases and in this case effectively divestthe district court of the same authority in the exer-cise of their habeas jurisdiction, barring them fromconsidering whether the detainees have a right not tobe transferred to particular countries. The net effectof these decisions is to surrender to the Executiveauthority that this Court emphasized in Boumedieneis part of the judicial power that the SuspensionClause was intended to preserve.

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CONCLUSION

The Court should grant the petition. Alterna-tively, the Court should hold the petition pending theD.C. Circuit’s disposition of the petition for initial enbanc hearing in Abdah.

Respectfully submitted,

Jerry CohenBURNS &LEVINSON LLP125 Summer StreetBoston, MA 02110

Stewart EisenbergWEINBERG &GARBER, P.C.71 King StreetNorthampton, MA

01060Counsel

David H. RemesCounsel of Record

APPEAL FOR JUSTICE1106 Noyes DriveSilver Spring, MD 20910(202) 669-6508remesdh@gmail.com

Stephen I. Vladeck4801 Mass. Avenue, NWWashington, DC 20016

for Petitioner

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