## Facts

- Six Bahraini nationals were detained at Guantánamo Bay and designated “enemy combatants.”
- They petitioned for habeas corpus alleging unlawful detention under the Constitution, treaties, and federal law.
- While the habeas cases were pending, they moved for a preliminary injunction under Rule 65 and the All Writs Act to bar any transfer from Guantánamo without 30 days’ advance written notice to the court and counsel, including the destination.
- Petitioners asserted they learned from media reports that the United States intended to reduce the Guantánamo detainee population and transfer detainees to other countries, including places alleged to use abusive interrogation methods.
- Petitioners claimed transfer could subject them to torture, sexual violence, or indefinite detention, and they sought advance notice to permit judicial challenge before removal.
- The government submitted declarations stating that transfers were screened through interagency processes to avoid torture or inhumane treatment, that diplomatic assurances could be sought when needed, and that transfers would not occur if mistreatment concerns were unresolved.
- The government represented that more than 200 detainees had already been transferred, all to their home countries, and argued the injunction would interfere with foreign affairs and wartime detention decisions.

## Issues

1. Whether petitioners met the requirements for a preliminary injunction requiring 30 days’ advance notice before any transfer from Guantánamo.
2. Whether the All Writs Act justified an advance-notice regime to protect pending habeas jurisdiction from being mooted or evaded by transfer.
3. How separation-of-powers concerns and the Executive’s foreign affairs and military responsibilities affected the availability and scope of injunctive relief.

## Decision

- The court denied the requested preliminary injunction requiring 30 days’ advance written notice of any transfer.
- The court found petitioners failed to show irreparable harm that was actual and imminent, concluding their asserted risk of transfer to torture or unlawful detention was speculative on the record presented.
- The court determined that the broad advance-notice order would improperly intrude into Executive discretion in military and foreign affairs.
- As a limited safeguard, the court required the government, after any transfer, to file a declaration notifying the court of the transfer and certifying it was not undertaken to continue detention on behalf of the United States or to extinguish the court’s jurisdiction for reasons unrelated to a determination that U.S. detention was no longer warranted.

## Legal Principles

- Preliminary injunctions require a showing of likelihood of success, irreparable harm, balance of harms, and consistency with the public interest; irreparable harm must be actual and imminent, not speculative.
- Courts are reluctant to impose broad injunctive constraints on Executive transfer and repatriation decisions for wartime detainees absent a clear legal basis, given foreign affairs and national security implications.
- The All Writs Act may support limited measures to protect a court’s jurisdiction, but it does not automatically justify advance judicial control over Executive transfer decisions.
- A narrowly tailored certification requirement may be used to deter transfers intended to defeat habeas jurisdiction without conditioning transfers on pre-approval by the court.

## Conclusion

The court refused to require advance notice before transferring Guantánamo detainees because petitioners did not establish imminent irreparable harm and the requested order would intrude on Executive control of detainee transfers, but it imposed a post-transfer reporting and certification requirement to reduce the risk that transfers would be used to sidestep habeas jurisdiction.


Almurbati v. Bush, 366 F. Supp. 2d 72 (D.D.C. 2005)