## Facts

- Yemeni nationals detained at Guantánamo Bay were designated “enemy combatants” and held without traditional criminal charges.
- Petitioners filed habeas petitions in 2004 challenging the factual and legal basis for their detention.
- After *Rasul v. Bush* recognized statutory habeas jurisdiction for Guantánamo detainees, the district court partially denied the government’s motion to dismiss but stayed further habeas proceedings pending appeal.
- While the case was stayed, petitioners sought a temporary restraining order and preliminary injunction requiring the government to provide 30 days’ advance notice to counsel before any transfer from Guantánamo to another country’s custody.
- Petitioners argued that transfer without notice could result in continued detention or mistreatment by foreign authorities and could effectively moot their pending habeas claims.
- The government argued that transfer decisions implicated foreign affairs and national security, and that a notice requirement would interfere with diplomatic arrangements.

## Issues

1. Whether the court should require 30 days’ advance notice to petitioners’ counsel before transferring Guantánamo detainees to foreign custody.
2. Whether transfer without notice would cause irreparable injury by frustrating effective habeas review.
3. Whether a notice injunction would improperly intrude on Executive authority over war powers and foreign affairs.

## Decision

- The district court granted a preliminary injunction requiring the government to provide petitioners’ counsel 30 days’ advance written notice before any transfer to another government’s custody.
- The order did not bar transfers; it imposed a procedural notice requirement to permit detainees to seek judicial review before transfer.
- Applying the four-factor test, the court found: (1) a serious risk of irreparable harm from unreviewable transfer; (2) a viable habeas claim after *Rasul* and the court’s partial denial of dismissal; (3) limited burden on the government from a notice-only requirement; and (4) a public interest in preserving the effectiveness of habeas corpus.
- Separation-of-powers objections did not preclude narrowly tailored relief aimed at preserving the court’s ability to grant meaningful habeas remedies.

## Legal Principles

- Preliminary injunctive relief requires balancing: irreparable injury, likelihood of success (or a substantial case on the merits with strong irreparable harm), harm to the opposing party, and the public interest.
- In habeas-related detention litigation, courts may issue status-quo–preserving measures necessary to prevent actions that would defeat effective judicial review.
- A notice requirement, as distinct from a prohibition on Executive action, can be an appropriate means to protect access to courts when transfer could place detainees beyond the court’s practical reach.

## Conclusion

The court ordered the government to give detainees’ counsel 30 days’ advance notice before any transfer from Guantánamo to foreign custody, reasoning that notice was necessary to prevent irreparable harm to the detainees’ ability to obtain meaningful habeas review and that the limited procedural requirement did not unduly interfere with Executive functions.


Abdah v. Bush, 04-1254 (D.D.C. 2005)