Kiyemba v. Obama - Opposition

No. 09-581

In the Supreme Court of the United States

JAMAL KIYEMBA, ET AL., PETITIONERS

v.

BARACK H. OBAMA, PRESIDENT OF THE
UNITED STATES OF AMERICA, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
ROBERT M. LOEB
JONATHAN H. LEVY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether a district court hearing a habeas corpus action may enjoin the Executive from releasing a de tainee from military detention and sending him to a for eign country, where the Executive has submitted sworn declarations establishing that a detainee will neither be sent to any country where he likely will be tortured nor be detained at the behest of the United States.

In the Supreme Court of the United States

No. 09-581

JAMAL KIYEMBA, ET AL., PETITIONERS

v.

BARACK H. OBAMA, PRESIDENT OF THE
UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-35a) is reported at 561 F.3d 509. The order of the district court (Pet. App. 36a-39a) is unreported.

1 JURISDICTION

The judgment of the court of appeals was entered on April 7, 2009. A petition for rehearing was denied on July 27, 2009 (Pet. App. 43a-46a). On October 22, 2009, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including No vember 10, 2009, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioners are members of the Uighur ethnic group in China. They previously were held in military deten tion as enemy combatants at the United States Naval Base at Guantanamo Bay, Cuba. After petitioners filed for writs of habeas corpus, the government concluded that it would no longer seek to hold them as enemy com batants.

Petitioners do not want to return to China because they reasonably fear torture there. Consistent with es tablished policy, the United States has committed not to return petitioners to China or to any country that would repatriate them to China or that would be likely to tor ture them. The government has engaged in sustained diplomatic efforts to locate appropriate alternate coun tries for resettlement. Of the 22 Uighurs originally at Guantanamo, five have been resettled in Albania, four in Bermuda, and six in Palau, where they live peacefully with no allegations of mistreatment. Two others have agreed to be resettled in Switzerland. The remaining five Uighurs at Guantanamo Bay have each previously received offers of resettlement from two different coun tries, including Palau.

In addition to filing petitions for writs of habeas cor pus, petitioners sought an order from the district court requiring the government to provide 30 days' notice to the court and to them before transferring them from Guantanamo Bay. The district court granted petitioners a preliminary injunction requiring that the government provide such notice. The court of appeals reversed.

1. a. The situation involving the Uighurs arises in the broader context of military detention at Guantanamo Bay. In Executive Order No. 13,492, issued on January 22, 2009, 74 Fed. Reg. 4897 (E.O. 13,492), the President determined that the "significant concerns" raised by the remaining detentions at Guantanamo Bay justified a focused effort to review the status of each person in mili tary detention there. Id. § 2(b). Accordingly, the Presi dent directed Executive Branch officials to undertake "a prompt and thorough review" of each detainee in order to determine whether transfer, release, prosecution, or other disposition of the individual was consistent with the national security and foreign policy interests of the United States and the interests of justice. Id. preamble, §§ 1(c), 2(d), 3. And for those individuals whom the re view determined should be returned home or resettled, the President instructed the Secretary of State to "ex peditiously pursue and direct such negotiations and dip lomatic efforts with foreign governments as are neces sary and appropriate." Id. § 5. On May 15, 2009, the Secretary of State appointed a Special Envoy, Daniel Fried, to intensify diplomatic efforts to repatriate or resettle individuals cleared for transfer.

The President issued another Executive Order on January 22, 2009, that is significant in this case. See Executive Order No. 13,491, 74 Fed. Reg. at 4893. In that Executive Order, the President directed that "indi viduals detained in any armed conflict * * * shall in all circumstances be treated humanely and shall not be sub jected to violence to life and person * * *, nor to out rages upon personal dignity." Id. § 3. The President further directed the formation of a "Special Task Force on Interrogation and Transfer Policies * * * to review interrogation and transfer policies." Id. § 5(a). As rele vant here, the Task Force was instructed "to study and evaluate the practice of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of persons to other nations to face torture." Ibid.

The Task Force made several recommendations aimed at clarifying and strengthening U.S. procedures for obtaining and evaluating assurances of humane treatment. See Special Task Force on Interrogations and Transfer Policies Issues Its Recommendations to the President (Aug. 24, 2009) <http://www.justice.gov/ opa/pr/2009/August/09-ag-835.html>. These included a recommendation that the State Department be involved in evaluating assurances in all cases and a recommenda tion that the Inspectors General of the Departments of State, Defense, and Homeland Security prepare annu ally a coordinated report on transfers conducted by each of their agencies in reliance on assurances. See ibid. The Task Force also made several recommendations for improving the United States' ability to monitor the treatment of individuals transferred to other countries, including a recommendation that agencies obtaining assurances from foreign countries insist on a monitoring mechanism, or otherwise establish a monitoring mecha nism, to ensure consistent private access to the individ ual who has been transferred, with minimal advance notice to the detaining government. See ibid. The gov ernment is currently implementing Task Force recom mendations.

b. For any transfer, a key concern of the United States is whether the foreign government will treat the detainee humanely and in a manner consistent with its international obligations. Prior to transfer of a detainee, the Executive (typically through the Department of State) assesses issues concerning humane treatment of the detainee in the country of proposed transfer. The United States has provided sworn declarations to the courts below setting out the process utilized to make a determination of humane treatment prior to the transfer of a detainee. See Decl. of Pierre-Richard Prosper, Ambassador-at-Large for War Crimes Issues ¶¶ 3-9 (Mar. 8, 2005) (C.A. App. 99-107) (Prosper Decl.); Decl. of Matthew C. Waxman, Deputy Assistant Secretary of Defense for Detainee Affairs ¶¶ 3-8 (June 2, 2005) (C.A. App. 108-112) (Waxman Decl.); Decl. of Sandra L. Hodgkinson, Deputy Assistant Secretary of Defense for Detainee Affairs ¶¶ 3-8 (July 9, 2008) (Hodgkinson Decl.) (Gov't Resp. to Pet. for Reh'g En Banc Exh. 1); Decl. of Clint Williamson, Ambassador-at-Large for War Crimes Issues ¶¶ 3-9 (July 7, 2008) (Gov't Resp. to Pet. for Reh'g En Banc Exh. 2) (Williamson Decl.). Each of those declarations explained that it is the longstanding 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 tor tured. Prosper Decl. ¶ 4; Waxman Decl. ¶ 6; Hodgkin son Decl. ¶ 6; Williamson Decl. ¶ 3. The government also has recently filed a declaration of Ambassador Fried in several cases involving transfers to reaffirm that policy and update the courts on the Executive's ef forts concerning transfers and humane treatment. See Decl. of Daniel Fried ¶¶ 3-4, 6-8 (Nov. 25, 2009) (Fried Decl.).1

2. Petitioners are four Chinese nationals who are members of the Uighur ethnic group, a Turkic Muslim minority group in the far-western region of China. Pet. 5; Pet. App. 68a.2 Prior to September 11, 2001, petition ers traveled to Afghanistan, where Uighur camps had been established in the Tora Bora mountains. Id. at 69a. After the onset of hostilities in Afghanistan, petitioners were captured by Pakistan or coalition forces, trans ferred to U.S. military custody, and brought to the Guantanamo Bay Naval Base for detention under the Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (50 U.S.C. 1541 note). Pet. App. 68a-69a; see Boumediene v. Bush, 128 S. Ct. 2229, 2240-2241 (2008). In all, 22 Uighurs were brought there; four of them are petitioners here.

Habeas petitions were filed challenging the lawful ness of petitioners' detention. Pet. App. 69a. In 2008, the government determined that it would no longer seek to hold any of the remaining Uighur detainees at Guan tanamo Bay as enemy combatants. Ibid.; see id. at 4a n.*.

3. When a person is released from military detention based on enemy status, the assumption is that he will be returned to his country of citizenship. China has repeat edly asked the United States to return the Uighurs. But petitioners have opposed return to China, because they reasonably fear "persecution, torture or death if repatri ated to China." Pet. 5.

The United States assesses humane treatment con cerns in determining destinations for detainees at Guan tanamo Bay, and follows a policy of not repatriating or transferring a detainee to a country where he more like ly than not would be tortured. See pp. 4-5, supra; see also Munaf v. Geren, 128 S. Ct. 2207, 2226 (2008). Ac cordingly, the United States has agreed not to return petitioners to China and not to transfer them to any other country that would repatriate them to China.

The United States has undertaken significant diplo matic efforts to resettle the Uighurs elsewhere. Those diplomatic efforts have been successful. All of the 22 Uighurs originally at Guantanamo Bay have now either been resettled or received offers of resettlement from other countries. The United States resettled five Uighurs to Albania in May 2006,3 resettled four addi tional Uighur detainees in Bermuda in June 2009,4 and resettled six Uighurs in Palau in October 2009.5

Seven Uighurs thus remain at Guantanamo Bay. On February 3, 2010, the government of Switzerland an nounced that it would accept two additional Uighurs for resettlement.6 The remaining five Uighurs-four of whom are petitioners here-previously received an offer of resettlement in Palau, but did not accept it. All five also recently received an offer of resettlement from an other country, but they did not accept that offer either, and it was withdrawn after several months. The United States continues its efforts to identify an additional ap propriate country in which to resettle these five Uig hurs.

4. Petitioners sought an order from the district court barring the government from transferring them from Guantanamo Bay without 30 days' prior notice to the court and to their counsel. Pet. App. 2a. The dis trict court granted petitioners a preliminary injunction. Id. at 36a-39a; see id. at 40a-42a. It stated that a re striction on petitioners' transfer was necessary because "the government may remove the petitioners from [Guantanamo Bay] in the near future, thereby divesting * * * the court of jurisdiction" over petitioners' habeas petitions. Id. at 37a.

5. The government appealed, and the court of ap peals initially directed that the case be dismissed for lack of subject-matter jurisdiction on the basis of Sec tion 7(a) of the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120 Stat. 2636 (28 U.S.C. 2241(e)(2)). That Section provides that "[n]o court, jus tice, 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." See Pet. App. 3a.

This Court subsequently held in Boumediene v. Bush, 128 S. Ct. 2229 (2008), that Section 7(a) of the MCA effected an unconstitutional suspension of the writ of habeas corpus as applied to detainees at Guantanamo Bay. Id. at 2274. The court of appeals therefore va cated its judgment of dismissal and reinstated the gov ernment's appeal of the district court's order. Pet. App. 3a-4a.

6. After reinstatement of the appeal, the court of appeals vacated the preliminary injunction. Pet. App. 1a-35a.

a. The court of appeals first held that the district court had jurisdiction to consider petitioners' request for injunctive relief. Pet. App. 4a-7a. The court rejected the argument that Boumediene involved only "core" habeas relief and left the MCA's preclusion of "ancil lary" habeas jurisdiction intact. Id. at 4a-6a. The court also held that the second sentence of Section 7(a) of the MCA, which eliminates jurisdiction over "any other ac tion against the United States or its agents relating to any aspect of the * * * transfer" of a detainee, was inapplicable here because "other action" referred to ac tions other than a petition for a writ of habeas corpus. Id. at 6a-7a (quoting 28 U.S.C. 2241(e)(2)).

On the merits, the court of appeals held that the dis trict court had improperly issued a preliminary injunc tion. Pet. App. 14a. In reaching that conclusion, the court relied on this Court's recent decision in Munaf. In Munaf, the Court vacated an injunction barring the transfer to the Iraqi government for criminal prosecu tion of an American citizen who was detained in Iraq by the United States military. 128 S. Ct. at 2220. The peti tioners in Munaf sought an injunction prohibiting trans fer because they alleged a fear of torture by the receiv ing government. Id. at 2214-2215, 2225. The Court re jected that claim, explaining that while torture "allega tions are * * * a matter of serious concern, * * * in the present context that concern is to be addressed by the political branches, not the judiciary." Id. at 2225. The Court noted the United States' statements that it would not transfer the petitioners it if believed that they would likely be tortured and that the State Department had determined that the Iraqi Justice Ministry (which would have authority over the petitioners) and its pris on and detention facilities have generally met interna tionally accepted standards for basic prisoner needs. Id . at 2226. The Court held that judicial review of the Executive's determination respecting the likelihood of torture would be improper, observing that "[t]he Judi ciary is not suited to second-guess such determina tions-determinations that would require federal courts to pass judgment on foreign justice systems and under mine the Government's ability to speak with one voice in this area." Ibid.

In this case, the court. of appeals concluded that "Munaf precludes a court from issuing a writ of habeas corpus to prevent a transfer on the grounds asserted by the petitioners here." Pet. App. 8a-9a. The court noted that "the record documents the policy of the United States not to transfer a detainee to a country where he is likely to be tortured," and shows that "the Govern ment does everything in its power to determine whether a particular country is likely to torture a particular de tainee." Id. at 9a. For that reason, the court observed, petitioners "are not liable to be cast abroad willy-nilly without regard to their likely treatment in any country that will take them." Ibid.

The court of appeals further held that "Munaf * * * bars a court from issuing a writ of habeas corpus to shield a detainee from prosecution and detention by an other sovereign according to its laws." Pet. App. 11a- 12a; see id. at 13a-14a. That rule, the court explained, is rooted in "norms of international comity" as well as "separation of powers principles." Id. at 12a. The court noted that the requirement that the government provide pre-transfer notice "interferes with the Executive's abil ity to conduct the sensitive diplomatic negotiations re quired to arrange safe transfers for detainees." Ibid. Any prosecution or detention that the petitioners would face after their transfer, the court explained, would be by the transferee government and not on behalf of the United States. See id. at 11a. The court observed that this case "does not involve" the transfer of detainees to a country where they would be subject to continued de tention on behalf of the United States, because the Ex ecutive is no longer holding petitioners as enemy com batants and the Executive is diligently seeking their resettlement. Id. at 12a-13a n.*.

In light of Munaf and the government's "declared * * * policy not to transfer a detainee to a country that likely will torture him," the court of appeals concluded that petitioners' "claims do not state grounds for which habeas relief is available," and it therefore rejected their request for preliminary injunctive relief. Pet. App. 14a.

b. Judge Kavanaugh concurred. Pet. App. 14a-26a. He emphasized that "the Government has represented that no detainee in this case will be transferred to a country where the Government believes it likely the de tainee would be tortured," just as the government had represented with respect to the detainees in Munaf. Id. at 16a n.2. And he explained that here, as in Munaf, "the political branches are well situated to consider sen sitive foreign policy issues, such as whether there is a serious prospect of torture at the hands of an ally." Id. at 22a (quoting Munaf, 128 S. Ct. at 2226).

c. Judge Griffith concurred in part and dissented in part. Pet. App. 27a-35a. He acknowledged that the pro posed injunction could "limit[] the government's flexibil ity in a sensitive matter of foreign policy." Id. at 27a. But he expressed concern that detainees could be de tained on behalf of the United States after they were transferred. Id. at 29a. Judge Griffith acknowledged that "the government has submitted sworn declarations assuring the court that any transfer will result in release from U.S. authority." Id. at 31a. And he stated that "[i]f the government's representations are accurate," then "each transfer will be lawful." Ibid. But rather than defer to those sworn statements, id. at 32a, Judge Griffith would have upheld an injunction for the limited purpose of allowing petitioners "an opportunity to chal lenge the government's assurances that their transfers will not result in continued detention on behalf of the United States," id. at 35a.

6. Petitioners sought rehearing and rehearing en banc, which were denied. Pet. App. 43a-46a.

ARGUMENT

Petitioners contend (Pet. 13-14) that this Court should grant review to decide whether a habeas corpus court may require that the government provide 30 days' notice to the court and to counsel before transferring them from Guantanamo Bay. As an initial matter, any suggestion that the United States is contemplating send ing petitioners to a country where they likely would be tortured is refuted both by uncontradicted sworn decla rations and by the government's extensive diplomatic efforts to resettle petitioners and the other Uighur de tainees. Moreover, the court of appeals' decision is cor rect, does not conflict with any decision of this Court- but to the contrary follows from this Court's decision in Munaf v. Geren, 128 S. Ct. 2207 (2008)-and does not conflict with any decision of another court of appeals. This Court's review therefore is not warranted.

1. As an initial matter, there is no basis for believing that petitioners likely would be tortured by any country that will receive them. That factual predicate for the injunction petitioners seek therefore is absent. As the President underscored in Executive Order No. 13,491, it is the policy of the United States not to transfer a de tainee to a country where it is more likely than not that he will face torture, and the Executive works diligently to effectuate that policy with respect to each detainee. That is especially evident with respect to petitioners and the other Uighur detainees: the United States has com mitted not to return them to China, and it has made sig nificant and successful diplomatic efforts to secure of fers of resettlement for them in countries where it has determined-and petitioners do not dispute-that it is not likely that they would be tortured.

a. The United States has submitted a number of sworn declarations from Executive Branch officials de scribing the resettlement process. Each of the declar ants has stated, in no uncertain terms, that it is the pol icy of the United States not to transfer a detainee to a country where the United States determines he more likely than not would be tortured.

Before the district court, the United States sub mitted declarations of Pierre-Richard Prosper, Ambassador-at-Large for War Crimes Issues, and Mat thew C. Waxman, Deputy Assistant Secretary of De fense for Detainee Affairs. Ambassador Prosper's dec laration provided an overview of the process utilized by the Executive Branch (primarily the Department of State) to arrange for transfers and to ensure that inter national obligations and United States policies are prop erly implemented during transfers. Prosper Decl. ¶¶ 1- 9. Ambassador Prosper noted the "longstanding policy of the United States not to transfer a person to a coun try if it determines that it is more likely than not that the person will be tortured," id. ¶ 4, and described the steps taken to ensure humane treatment by the receiv ing country for each transfer, id. ¶¶ 4-8. Ambassador Prosper also noted the sensitive diplomatic nature of that process, explaining that "[l]ater [court] review * * * of the Department[] [of State's] dealings with a particular foreign government regarding transfer mat ters would seriously undermine our ability to investigate allegations of mistreatment or torture that come to our attention and to reach acceptable accommodations with other governments to address those important con cerns." Id. ¶ 10. Mr. Waxman's declaration, which fo cused on transferring a detainee from United States control to the control of a foreign government, Waxman Decl. ¶ 1, confirmed that, with respect to such transfers, "it is the policy of the United States * * * not to repa triate or transfer individuals to other countries where it believes it is more likely than not that they will be tor tured," id. ¶ 6.

Before the court of appeals, the United States pro vided updated declarations to confirm that the Execu tive Branch has procedures in place to effectuate the policy that the government will not transfer a de tainee to a country where he more likely than not would be tortured. The declaration of Clint Williamson, Ambassador-at-Large for War Crimes Issues, again recounted the process utilized by the government to obtain assurances of humane treatment, Williamson Decl. ¶¶ 3-9, and the declaration of Sandra L. Hodgkin son, Deputy Secretary of Defense for Detainee Affairs, addressed the particular context of transfer to the cus tody of another sovereign, Hodgkinson Decl. ¶¶ 5-8. Both declarants again confirmed the "longstanding pol icy of the United States not to transfer a person to a country if it determines that it is more likely than not that the person will be tortured." Williamson Decl. ¶ 4; see Hodgkinson Decl. ¶ 6.

The declaration of Ambassador Daniel Fried (see p. 5 & note 1, supra), who was appointed as Special Envoy in May 2009 to intensify repatriation and resettlement efforts, updates the declarations provided to the courts below and reaffirms that it is the policy of the United States not to repatriate or transfer a detainee to a coun try where he more likely than not would be tortured. Fried Decl. ¶ 3. As Ambassador Fried explains, a key concern in any proposed transfer from the Guantanamo Bay detention facility is whether the receiving govern ment will treat the detainee humanely and in a manner consistent with its international obligations. Id. ¶¶ 3-4. If transfer of a particular detainee is found to be appro priate, a process is undertaken, typically led by the De partment of State, in which appropriate assurances con cerning security and other matters are sought from the country to which the transfer of the detainee is pro posed. Id. ¶ 6. In every transfer case in which deten tion or other security measures by the transferee gov ernment are foreseen, such assurances include assur ances of humane treatment and treatment in accordance with the international obligations of the foreign govern ment accepting transfer. Ibid. Among other things, the Department of State considers whether the nation in question is a party to relevant treaties such as the Con vention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 20, 100th Cong., 2d Sess. (1988), 1465 U.N.T.S. 85, and it ensures that assurances are tailored accordingly if the nation concerned is not a party or if other circumstances warrant. Fried Decl. ¶ 6.

Recommendations by the Department of State con cerning proposed transfers "are decided at senior levels through a process involving Department officials most familiar with international legal standards and obliga tions and the conditions in the countries concerned." Fried Decl. ¶ 7. Thus, in determining whether it is more likely than not that an individual will be tortured in the proposed transfer country, the Department consults internally with its Bureau of Democracy, Human Rights, and Labor (which drafts the Department of State's an nual Country Reports on Human Rights Practices) and the relevant Department of State regional bureau, coun try desk, or U.S. Embassy. Ibid. It also considers ex pressed commitments of officials of the foreign govern ment. In evaluating assurances, Department of State officials consider the identity, position, or other informa tion concerning the official relaying the assurances; po litical and legal developments in the relevant foreign country that provide context for the assurances; and the foreign government's incentives and capacity to fulfill its assurances to the United States. Id. ¶ 8. In an appro priate case, the Department of State may consider vari ous monitoring mechanisms for verifying that assur ances are honored after transfer. Ibid.

If a case arises in which the assurances obtained from the receiving government are not sufficient when balanced against treatment concerns, the United States will not transfer a detainee to the control of that govern ment unless the concerns are satisfactorily resolved. Fried Decl. ¶ 8. Indeed, circumstances have arisen in the past in which the United States decided not to trans fer detainees to their country of origin or to another country because of mistreatment concerns. Ibid.; see id . at ¶ 3.

b. Notably, petitioners do not contend that the United States plans to repatriate them to China or to transfer them to any nation where they likely would be tortured or would be detained on behalf of the United States. Indeed, they acknowledge that the Executive has stated since 2005 that it would not return them to China. Pet. 6 (citing Pet. App. 20a n.5); see Pet. 20. The numerous sworn declarations described above make plain the commitment of the United States not to trans fer petitioners to any country where they more likely than not would be tortured. See Prosper Decl. ¶ 4; Waxman Decl. ¶ 6; Hodgkinson Decl. ¶ 6; Williamson Decl. ¶ 4; Fried Decl. ¶¶ 3-4.

The court of appeals recognized that commitment, explaining that sworn declarations "document[] the pol icy of the United States not to transfer a detainee to a country where he is likely to be tortured." Pet. App. 9a (citing Munaf, 128 S. Ct. at 2226). Indeed, the court explained, they establish that "the Government does everything in its power to determine whether a particu lar country is likely to torture a particular detainee." Ibid. And the court observed that the government's sworn declarations setting forth the firm policy against transfer to a country in which torture is likely provide the same assurance that this Court pointed to with re spect to the petitioners in Munaf. Ibid.; see id. at 16a n.2 (Kavanaugh, J., concurring) (finding "no meaning ful distinction" between the declarations here and in Munaf ).

The court of appeals specifically noted petitioners' "failure to present anything that contradicts" the govern ment's sworn declarations. Pet. App. 13a n.*. Petition ers do not provide such evidence or even assertions now. Instead, they note that the declarants have left their posts since the time the declarations were filed. Pet. 25 n.18. But that provides no basis to question the Uni ted States' longstanding policy. The policy statement articulated in the original declarations (by Ambassa dor Prosper and Mr. Waxman) was reaffirmed in subse quent declarations (by Ambassador Williamson and Ms. Hodgkinson) that were filed in all of the detainee cases-including these cases-and were appended to the government's response to petitioners' petition for re hearing before the court of appeals. And Ambassador Fried's declaration reiterates the Executive's firm com mitment not to transfer detainees where the U.S. Gov ernment has determined that the transferee is more likely than not to be tortured.

The government's uncontradicted sworn statements are confirmed by its actions with respect to these very petitioners. The government has long committed not to return them to China and has pursued extensive diplo matic efforts to secure resettlement offers from other countries where Uighurs who have already been trans ferred now live peacefully and where there has been no claim that torture would occur.

Petitioners' failure to allege a fear of mistreatment abroad, combined with the government's specific efforts to find safe homes for these petitioners, and its long standing policy not to transfer a detainee to a country where he more likely than not would be tortured makes plain that this Court's review is not warranted.

2. In addition, the court of appeals correctly held that this case "is controlled by the Supreme Court's re cent decision in Munaf." Pet. App. 8a.

As an initial matter, Munaf held that "a party seek ing a preliminary injunction must demonstrate, among other things, 'a likelihood of success on the merits.'_ 128 S. Ct. at 2219 (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006)). For that reason, it was "an abuse of discretion" for the district court in Munaf to grant a preliminary injunction "without even considering the merits of the underlying habeas petition." Ibid. The same is true here: the dis trict court order granting petitioners preliminary in junctive relief included no consideration of petitioners' likelihood of success on the merits. See Pet. App. 36a- 39a. To the contrary, the district court entered the in junction based solely on the possibility that a transfer could divest the court of jurisdiction, id. at 37a-38a-the same basis that this Court held insufficient in Munaf, see 128 S. Ct. at 2219. That fact alone warranted rever sal of the district court's decision.

Moreover, the court of appeals correctly recognized that this Court's decision in Munaf "precludes the dis trict court from barring the transfer of a Guantanamo detainee on the ground that he is likely to be tortured or subject to further prosecution or detention in the recipi ent country" where, as here, "[t]he Government has de clared its policy" not to do so. Pet. App. 14a. In Munaf, this Court vacated an injunction barring the transfer of an American citizen detained in Iraq by the United States military to the Iraqi government for criminal prosecution. The petitioners in Munaf, like petitioners here, were in military detention. 128 S. Ct. 2214-2215. They, like petitioners, contended that an injunction pro hibiting transfer was necessary because of the prospect of torture by the receiving government. Id. at 2225. In Munaf, as here, the government had declared its com mitment not to transfer the petitioners in circumstances where torture was likely to result. Id. at 2226. This Court held that judicial review of that determination by the Executive respecting the likelihood of torture by the receiving country would be improper. The Court ex plained that while torture "allegations are * * * a mat ter of serious concern, * * * in the present context that concern is to be addressed by the political branches, not the judiciary." Id. at 2225. The Court observed that "[t]he Judiciary is not suited to second-guess such de terminations-determinations that would require fed eral courts to pass judgment on foreign justice systems and undermine the Government's ability to speak with one voice in this area." Id. at 2226.

That judgment is appropriate, and never more so than with respect to petitioners and the other Uighurs. As Ambassador Fried has explained, the Department's "ability to seek and obtain assurances from a foreign government depends in part on the Department's ability to treat its dealings with foreign governments with dis cretion." Fried Decl. ¶ 9. The task of resettling detain ees requires a "delicate diplomatic exchange" that "can not occur effectively except in a confidential setting." Id . ¶ 10. That has proven especially so with regard to the Uighurs because of their relationship with China and the potential difficulties that poses for other countries. It therefore is important for the Executive to have the latitude to manage resettlement efforts free of judicial second-guessing, because as Ambassador Fried ex plains, "[j]udicial review of the diplomatic dialogue be tween the U.S. Government and other governments con cerning the terms of transfer, or of the ultimate decision to effect a transfer to a given country, risks undermin ing the ability of the U.S. Government to speak with one voice on Guantanamo transfer issues." Id. ¶ 12.7

3. Petitioners attempt to distinguish Munaf on sev eral grounds, none of which has merit.

a. Petitioners suggest (Pet. 22-23) that the result here should be different from the result in Munaf be cause the petitioners in Munaf challenged their pro posed transfer to a specific country (Iraq), while peti tioners here do not know to which country they may be transferred. That factual distinction does not support a different result. The Munaf petitioners claimed that they would be tortured and possibly killed if transferred to the custody of the Iraqi government. Petitioners here seek a 30-day notice requirement in order to raise the same type of challenge. In Munaf, as here, the govern ment had documented its commitment not to transfer the petitioners to a country where torture is likely to result. While noting that allegations of torture were "a matter of serious concern," the Munaf Court concluded that "in the present context that concern is to be ad dressed by the political branches and not the judiciary." 128 S. Ct. at 2255. The Court reasoned that the Execu tive is "well situated" to determine "whether there is a serious prospect of torture" upon transfer "and what to do about it if there is," and that "the Judiciary is not suited to second-guess such determinations." Id. at 2225, 2226. That conclusion applies regardless of the proposed country of transfer.

b. Petitioners also suggest that the injunction here "merely provided notice, and did not enjoin any specific transfer contemplated by the Executive," Pet. 23, and therefore is less onerous than the injunctions in Munaf, which barred transfer of the detainees to Iraq. But the reason petitioners seek notice is so that they can litigate the Executive's determination that they would not be likely to face torture in the receiving country and, ulti mately, to obtain an injunction barring transfer. Pet. 2, 13-14, 18-20, 22, 26. Munaf made clear that "[t]he Judi ciary is not suited to second-guess" Executive Branch determinations about "whether there is a serious pros pect of torture" upon transfer "and what to do about it if there is." 128 S. Ct. at 2226. And the United States has established, through numerous uncontested sworn statements, that a court-ordered notice requirement would in fact interfere with the Executive's resettlement efforts. Pet. App. 12a ("the requirement that the Gov ernment provide pre-transfer notice interferes with the Executive's ability to conduct the sensitive diplomatic negotiations required to arrange safe transfers for de tainees") (citing Prosper Decl. ¶ 10); see also Fried Decl. ¶¶ 9-12. Indeed, the injunction was more than a notice requirement; it forbade transfer before or within 30 days after notice. See Pet. App. 38a.

c. Petitioners also incorrectly suggest that the pres ent case implicates two questions left open by Munaf. First, they note (Pet. 23) that the Court left open the question whether judicial inquiry would be proper in "a more extreme case in which the Executive has deter mined that a detainee is likely to be tortured but decides to transfer him anyway." Munaf, 128 S. Ct. at 2226. The court of appeals correctly recognized (Pet. App. 10a n.*) that that question is not implicated here. The Exec utive has not decided to transfer petitioners to a country where they more likely than not would be tortured; it has long determined to the contrary. E.g., id. at 9a.

Second, petitioners suggest (Pet. 23-24) that the holding in Munaf is limited to its precise facts. As the court of appeals recognized, however, the rationale of Munaf is not so limited. Pet. App. 11a-12a. The peti tioners in Munaf, like petitioners here, were detained by the military and sought to enjoin transfer because of a fear of torture, and this Court determined that "it is for the political branches, not the judiciary, to assess prac tices in foreign countries and to determine national pol icy in light of those assessments." 128 S. Ct. at 2225. That holding is directly applicable here.

4. Contrary to petitioners' repeated suggestion (Pet. 13-22), this case does not raise any issue about whether a habeas corpus remedy is available to enjoin a de tainee's transfer to another country when the receiving country would continue to detain the individual on behalf of the United States. As a factual matter, the govern ment has represented that such transfers will not be made, and petitioners have put forward no basis to dis pute that representation. See Pet. App. 9a, 12a-13a n.*; see also Waxman Delc. ¶ 5 ("In all such cases of transfer for detention * * * the detainee is transferred entirely to the custody and control of the other government, and 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."). And in this case, petitioners are well aware that the United States in tends to resettle them abroad-not to transfer them to the control of a foreign sovereign for detention-just as it already has resettled 15 of the 22 original Uighur de tainees and obtained offers of such resettlement for the other seven.

As a legal matter, moreover, petitioners failed to preserve an argument regarding transfer that would result in continued detention. As Judge Kavanaugh ex plained, petitioners "did not advance that position in their 104 pages of briefing in [the court of appeals] (ex cept perhaps an ambiguous reference at the tail end of one sentence in a supplemental brief)" and did not raise the argument at all "during two lengthy oral arguments in [that] [c]ourt." Pet. App. 23a (Kavanaugh, J., concur ring). And because petitioners did not present the argu ment, the court of appeals did not pass on it. In any event, the injunction at issue here is far too broad to be justified on that ground, because it forbids any transfer without 30 days' notice, rather than only transfers in which the United States would effectively maintain cus tody of the detainee. Id. at 38a.8

5. Petitioners contend (Pet. 27-31) that review is warranted to address whether a party must demonstrate a likelihood of success on the merits to obtain relief un der the All Writs Act, 28 U.S.C. 1651. They are mis taken.

The court of appeals correctly determined that, be cause petitioners sought a preliminary injunction to en join transfer, they must satisfy the four-part standard for that relief, including showing a likelihood of success on the merits. Pet. App. 7a-8a & n.*. The court ad dressed petitioners' All Writs Act argument in a foot note. Id. at 8a n.*. The court noted that it had previ ously held that, when a Guantanamo Bay detainee seeks a preliminary injunction to bar transfer, a district court should "balance the four factors in order to decide whether a preliminary injunction is 'necessary or appro priate'" within the meaning of 28 U.S.C. 1651. Belbacha v. Bush, 520 F.3d 452, 459 (D.C. Cir. 2008). Here, the court determined that petitioners were not "reliev[ed] * * * of the need to satisfy the standard for a prelimi nary injunction" simply because they invoked the All Writs Act when the relief they sought was a preliminary injunction. Pet. App. 8a.

That is the same conclusion this Court reached in Munaf. The Munaf petitioners invoked the All Writs Act, Habeas Pets. Br. at 45-46, Munaf, supra (Nos. 07-394 & 06-1666), and this Court nonetheless held that the district courts erred in enjoining transfer "without even considering the merits of the underlying habeas petition," 128 S. Ct. at 2219. To the extent peti tioners suggest that they were entitled to an injunction merely upon showing that the district court had jurisdic tion, Pet. 27, that suggestion is squarely at odds with Munaf, where the district court had jurisdiction, the proposed transfers would have terminated district court jurisdiction, and yet this Court held that injunc tions against those transfers were improper. Munaf, 128 S. Ct. at 2219. And here, as in Munaf, the serious separation-of-powers concerns raised by judicial second- guessing of Executive Branch determinations regarding the likelihood of torture makes a preliminary injunction inappropriate under the All Writs Act.

Petitioners erroneously contend that the decision below conflicts with Klay v. United Healthgroup, Inc., 376 F.3d 1092 (11th Cir. 2004). In Klay, the court of appeals remarked (in the context of an injunction to stop arbitration of doctors' claims against a health mainte nance organization) that "[t]he requirements for a tradi tional injunction do not apply to injunctions under the All Writs Act." Id. at 1100. As the Eleventh Circuit later explained, that statement is dictum, because "the Klay Court struck down the challenged injunctions on the ground that they were not needed to protect the dis trict court's jurisdiction," and the decision "in no way turned on the applicability of the traditional preliminary injunction requirements to injunctions issued pursuant to the All Writs Act." Alabama v. United States Army Corps of Eng'rs, 424 F.3d 1117, 1131-1132 n.20 (2005), cert. denied, 547 U.S. 1192 (2006). In addition, the court observed in Alabama that even if the statement in Klay "were a holding rather than dictum, there would be some doubts as to [its] validity," because, as the Klay court itself recognized, the Eleventh Circuit's cases are "deeply inconsistent on this issue." Id. at 1132 n.20 (cit ing Klay, 376 F.3d at 1100 n.12).

In any event, the court below did not purport to hold that likelihood of success on the merits is always re quired under the All Writs Act; instead, it limited its brief analysis to the situation of a Guantanamo Bay de tainee's request for an injunction to enjoin transfer. Pet. App. 8a n.*. And even if the Eleventh Circuit has different standards for some relief under the All Writs Act, that difference would not be implicated here be cause the Eleventh Circuit would not apply the All Writs Act standard to this case. See Schiavo v. Schiavo, 403 F.3d 1223, 1229 (11th Cir. 2005) ("[W]here the relief sought is in essence a preliminary injunction, the All Writs Act is not available.").

The decision below likewise does not conflict with In re Johns-Manville Corp., 27 F.3d 48 (2d Cir. 1994), a three-paragraph opinion addressing a series of stays entered by a district court to stop payments from a trust while litigation to restructure the trust was ongoing, id. at 49. In that case, unlike this one, a party was seek ing to "maintain the status quo" through a stay, ibid., not to obtain preliminary injunctive relief. The Second Circuit did not hold that a showing of likelihood of suc cess on the merits may never be required for relief un der the All Writs Act; it simply held that no such show ing was required to support the stays entered in that case. Ibid. There is therefore no disagreement in the circuits warranting this Court's review.

6. Petitioners suggest (Pet. 31-32) that this petition should be held pending the outcome of Kiyemba v. Oba ma, cert. granted, No. 08-1234 (Oct. 20, 2009) (Kiyemba I). But, as petitioners readily admit, Kiyemba I poses an entirely "separate question" from the notice issue here. Pet. 3; see, e.g., ibid. ("[T]he issues presented by this petition are distinct."); Pet. 31 ("the two petitions" are "fundamentally different"). Kiyemba I presents the question whether the federal courts, exercising habeas corpus jurisdiction, may properly order the United States government to bring petitioners into the United States for release, in contravention of the federal immi gration laws and specific statutory bars. The answer to that question would have no effect on the question here, which concerns the district court's authority to prevent the government from resettling petitioners in a foreign country. Accordingly, the petition should not be held pending the outcome of Kiyemba I.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
ROBERT M. LOEB
JONATHAN H. LEVY
Attorneys

FEBRUARY 2010

1 The Fried Declaration of November 25, 2009, was included in a sealed filing in several cases in order to prevent disclosure of the fact that the particular detainees involved in those cases had been approved by the Executive for transfer, when (unlike in this case) that informa tion had not already been made public. A sealed letter filed contempo raneously with this brief in opposition identifies those cases. But the general information in the Fried Declaration about the government's efforts to secure resettlement of detainees and assure humane treat ment is not classified or itself confidential, when it is not associated with a particular detainee for whom the Executive's determination concern ing transfer has not been made public. We have furnished petitioners with a copy of the Fried Declaration and will lodge a copy of the declar ation with the Court upon request.

2 Seventeen Uighur detainees originally filed habeas corpus petitions in the district court. Pet. App. 69a. Nine of those individuals were par ties to this case before the court of appeals. Id. at 2a. Only four of them are petitioners before this Court. Pet. ii. (The other five individ uals have been transferred from Guantanamo Bay. Pet. ii n.2.)

Petitioner Jamal Kiyemba, named in the petition as a next friend, is not a Uighur detainee.

3 See Notice of Transfer of Pet'rs at 1, Mamet v. Bush, No. 05-1886 (EGS) (D.D.C. May 5, 2006).

4 Letter from Solicitor General to Clerk of this Court at 1 (June 11, 2009), Kiyemba v. Obama, No. 08-1234.

5 United States Transfers Six Uighur Detainees from Guantanamo Bay to Palau (Oct. 31, 2009) <http://www.justice.gov/opa/pr/2009/ October/09-ag-1179.html>.

6 See Switzerland Admits Two Uyghurs for Humanitarian Reasons (Feb. 3, 2010) <http://www.news.admin.ch/message/?lang=en&msg-id =31467>.

7 Petitioners' due process claim (Pet. 18-22) adds nothing to their ar gument. As the court of appeals recognized (Pet. App. 9a n.*), this Court held that courts may not second-guess a determination by the Executive that a detainee is not likely to be tortured in the proposed country of transfer. Munaf, 128 S. Ct. at 2225-2226. The hearing peti tioners seek therefore could not provide them any relief. See Estes v. Texas, 381 U.S. 532, 542 (1965) (noting that "in most cases involving claims of due process deprivations we require a showing of identifiable prejudice").

8 Petitioners also suggest more generally (Pet. 16) that the district court injunction must be reinstated because "the Executive may not unilaterally transfer a prisoner out of the jurisdiction." That suggestion presumes that the Executive would continue to detain petitioners sub sequent to transfer. The Uighurs who have already been transferred have not been detained, and there is no suggestion in this case that the petitioners who remain at Guantanamo Bay would be detained in a country of transfer. Moreover, as the government has explained, any post-transfer detention of persons at Guantanamo Bay "would be ef fected 'by the foreign government pursuant to its laws and not on behalf of the United States.'" Pet. App. 11a (quoting Waxman Decl. ¶ 5). In any event, petitioners' suggestion is inconsistent with Munaf, in which this Court held that there was habeas corpus jurisdiction, but ruled that the district court could not review the Executive's determination re garding a detainee's post-transfer treatment, and in which the Court vacated the injunction that purported to maintain the status quo pend ing such a judicial inquiry. The decisions upon which petitioners rely (Pet. 14) significantly pre-date Munaf, and none of them stands for the sweeping propositions suggested by petitioners.