USCA Case #10-5021 Document #1408656 Filed: 12/06/2012 Page 1 of 9 [NOT SCHEDULED FOR ORAL ARGUMENT] IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT MOHAMMAD RIMI, et al., ) Appellants, ) ) No. 10-5021 v. ) ) BARACK OBAMA, et al., ) Appellees. ) ) APPELLEES REPLY ON THEIR RENEWED MOTION FOR SUMMARY AFFIRMANCE In his response to appellees motion for summary affirmance and reply on his motion for remand, petitioner Rimi alleges only one collateral consequence of his detention. 1 Rimi explains that, after he was transferred to Libya by the United States in 2006, convicted by a Libyan court, and sentenced to 25 years in a Libyan prison, he was not released from prison in Libya, but instead escaped during a jailbreak that occurred during the recent revolution in Libya. In his view, then, his Libyan conviction and sentence were never satisfied nor vacated, and the existence of his prior Libyan conviction itself is a collateral consequence of his detention by the United States. Because that consequence flows entirely from his conviction by 1 That response, like Rimi s initial motion, was filed in a classified form. This reply does not reference or rely on any classified material. 1
USCA Case #10-5021 Document #1408656 Filed: 12/06/2012 Page 2 of 9 a foreign government, it is plainly insufficient under this Court s precedent to prevent the mootness of his case. The district court order in his case should be summarily affirmed. 1. Rimi contends that his case is not moot because he may at some point in the future suffer the negative collateral effects of a foreign conviction and sentence, imposed by the Libyan government pursuant to Libyan law. He does not suggest that he currently suffers any negative consequences. And, of course, any potential future consequence of foreign criminal sentence is completely speculative. But even assuming for the purposes of argument that such speculative future foreign enforcement of that foreign sentence were likely to occur, such an outcome would not implicate Rimi s United States habeas case and does not alter the fact that his United States habeas case is moot. Whether the Libyan government enforces a Libyan criminal sentence is beyond the control of the United States and this Court. Rimi contends that he was not released from United States custody upon his transfer to Libya. As appellees have previously explained, when Rimi was transferred to Libya, he was released from United States custody and control. Gul v. Obama, 652 F.3d 12, 18 (D.C. Cir. 2011) (crediting government declarations that transferred detainees are no longer in the custody and control of the United States and rejecting argument that Gul and Hamad s transfer agreements, which 2
USCA Case #10-5021 Document #1408656 Filed: 12/06/2012 Page 3 of 9 require the receiving Government to monitor the former detainees, somehow contradict the fact that once they are transferred the detainees are no longer in the custody of the United States ). Moreover, Rimi s statement that he was actually held in a Libyan prison pursuant to a Libyan criminal conviction belies his argument that he was not released from United States custody upon transfer. In any event, Rimi is not in custody today, and the only consequence Rimi has identified is the possibility that he will be placed in custody in the future by the Libyan government. But Rimi does not and could not argue that the United States has control over the continuing significance of his prior Libyan conviction to the Libyan government. As this Court held in Gul, an alleged restriction imposed by a foreign government against a former detainee does not meet the case-or-controversy requirement because it is caused not by a party before the court but by a stranger to the case, and is therefore beyond the power of the court to redress. 652 F.3d at 18 (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41 43 (1976)). Whether Rimi s Libyan criminal conviction is enforced against him in the future is within the authority of the new government of Libya. Therefore, any criminal sentence or other restrictions that may be imposed upon Rimi are traceable to the act of a foreign sovereign, and that any decision to lift those restrictions will depend upon an exercise of broad and legitimate discretion [a] court[] cannot presume either to control or to predict. Id. (quoting Lujan v. 3
USCA Case #10-5021 Document #1408656 Filed: 12/06/2012 Page 4 of 9 Defenders of Wildlife, 504 U.S. 555, 562 (1992)) (alterations in original); see also Qassim v. Bush, 466 F.3d 1073, 1076 77 (D.C. Cir. 2006) (holding that [t]he Uighurs allege no collateral consequence of their past detention that we can now redress ). Beyond Gul, this Court has also repeatedly held that injuries caused by the independent actions of a foreign government are not redressable by a United States court. See, e.g., Cardenas v. Smith, 733 F.2d 909, 914 (D.C. Cir. 1984); Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258 (1980); American Jewish Congress v. Vance, 575 F.2d 939, 946 (D.C. Cir. 1978). 2. Further, Rimi s Libyan criminal conviction and more specifically, whatever actions served as a basis for it are not at issue in this case. Even if Rimi were to prevail in his habeas action, that would not mean that his criminal conviction by Libya was invalid. A ruling by the district court or this Court on whether Rimi had previously been lawfully held by the United States under United States law, pursuant to the Authorization for the Use of Military Force ( AUMF ), Pub. L. 107-40, 115 Stat. 224 (2001), would not resolve whether Rimi committed any crimes subject to punishment under Libyan law. Nor would it mean that Rimi could not be prosecuted and convicted in the future under the domestic laws of his own country. At bottom, today, Rimi is free in his home country of Libya, outside of United States custody and control. Even if Rimi could demonstrate that there is 4
USCA Case #10-5021 Document #1408656 Filed: 12/06/2012 Page 5 of 9 some future risk of being detained by the Libyan government again pursuant to the old Libyan criminal conviction, that would not implicate the mootness of his United States habeas action. If he obtained a favorable ruling on his United States habeas petition (addressing the lawfulness of his prior detention at Guantanamo), it would not somehow undo that Libyan criminal conviction, nor would it prevent the Libyan government from enforcing that conviction. Any possible future injury he might suffer will come not from the United States, but from the government of Libya. In like circumstances this Court in Gul held that the habeas case of a detainee is moot. The same result is clearly compelled here, and further appellate briefing is unnecessary. 5
USCA Case #10-5021 Document #1408656 Filed: 12/06/2012 Page 6 of 9 CONCLUSION For the foregoing reasons, this Court should summarily affirm the dismissal of Rimi s habeas case as moot. Respectfully submitted, STUART F. DELERY Principal Deputy Assistant Attorney General s/ Robert Mark Loeb ROBERT MARK LOEB (202) 514-4332 s/ Benjamin S. Kingsley BENJAMIN S. KINGSLEY (202) 353-8253 Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W., 7261 Washington, D.C. 20530-0001 Counsel for appellees 6
USCA Case #10-5021 Document #1408656 Filed: 12/06/2012 Page 7 of 9 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES (A) PARTIES AND AMICI Rimi et al. v. Obama et al. (No. 10-5021): Petitioners-appellants: Mohammad Rimi Omar Deghayes, as Next Friend of Rimi Respondents-appellees: Barack Obama, President of the United States Leon E. Panetta, Secretary of Defense Jeffrey Harbeson, Navy Rear Admiral Donnie Thomas, Army Colonel (B) RULINGS UNDER REVIEW Order of the district court: No. 05-2427 (D.D.C.), docket #30 (Rimi). (C) RELATED CASES These cases have not previously been before this Court or any other court. There were thirteen public appeals that are or were pending before this Court and that present or presented the same legal issues as these cases: Gul v. Obama, et al., No. 10-5117 (D.C. Cir.); Adel Hamad v. Obama, et al., No. 10-5118 (D.C. Cir.); i
USCA Case #10-5021 Document #1408656 Filed: 12/06/2012 Page 8 of 9 Khan v. Obama, et al., No. 10-5019 (D.C. Cir.); Rimi v. Obama, et al., No. 10-5021 (D.C. Cir.); Hamoodah, et al. v. Obama, et al., No. 10-5023 (D.C. Cir.); Al Hajji, et al. v. Obama, et al., No. 10-5024 (D.C. Cir.); Chaman v. Obama, et al., No. 10-5130 (D.C. Cir.); Aminullah v. Obama, et al., No. 10-5131 (D.C. Cir.); Hamlily v. Panetta, et al., No. 10-5179 (D.C. Cir.); Habashi et al. v. Obama, et al., No. 10-5182 (D.C. Cir.); Zuhair v. Obama, et al., No. 10-5183 (D.C. Cir.); Barre v. Obama, et al., No. 10-5203 (D.C. Cir.); El-Mashad, et al. v. Obama, et al., No. 10-5232 (D.C. Cir.). s/ Benjamin S. Kingsley Benjamin S. Kingsley Civil Division, Appellate Staff U.S. Department of Justice 950 Pennsylvania Ave., NW, Room 7261 Washington, DC 20530 (202) 353-8253 benjamin.s.kingsley@usdoj.gov ii
USCA Case #10-5021 Document #1408656 Filed: 12/06/2012 Page 9 of 9 CERTIFICATE OF SERVICE I hereby certify that on December 6, 2012, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. s/ Benjamin S. Kingsley Benjamin S. Kingsley Civil Division, Appellate Staff U.S. Department of Justice 950 Pennsylvania Ave., NW, Room 7261 Washington, DC 20530 (202) 353-8253 benjamin.s.kingsley@usdoj.gov iii