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Case 1:04-cv-01254-HHK Document 4 Filed 08/04/04 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



GEORGE WALKER BUSH,

v.

v.

SHAFIQ RASUL, et al.

Petitioners,

FAWZI KHALID ABDULLAH FAHAD

AL ODAH, et al.

President of the United States,
et al.,

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President of the United States,
et al.,

UNITED STATES OF AMERICA,

MAMDOUH HABIB, et al.

Petitioners,

Plaintiffs,

v.

et al.,

Defendants.

GEORGE WALKER BUSH,

Respondents.

Respondents.

Civil Action No. 02-CV-0299 (CKK)

Civil Action No. 02-CV-0828 (CKK)

Civil Action No. 02-CV-1130 (CKK)

Case 1:04-cv-01254-HHK Document 4 Filed 08/04/04 Page 2 of 19



Civil Action No. 04-CV-1135 (ESH)

Civil Action No. 04-CV-1136 (JDB)

Civil Action No. 04-CV-1137 (RMC)

Respondents.

OMAR KHADR, et al.

Petitioners,

GEORGE W. BUSH,

Respondents.

GEORGE W. BUSH,

MURAT KURNAZ, et al.

Petitioners,

v.

v.

v.

President of the United States,
et al.,

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President of the United States,
et al.,

President of the United States,
et al.,

MOAZZAM BEGG, et al.

Petitioners,

GEORGE W. BUSH,

Respondents.

Case 1:04-cv-01254-HHK Document 4 Filed 08/04/04 Page 3 of 19



Civil Action No. 04-CV-1142 (RJL)

Civil Action No. 04-CV-1144 (RWR)

Civil Action No. 04-CV-1164 (RBW)

Petitioners,

Respondents.

GEORGE W. BUSH,

JAMIL EL-BANNA, et al.

Petitioners,

v.

v.

v.

MOURAD BENCHELLALI, et al.

President of the United States,
et al.,

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President of the United States,
et al.,

FALEN GHEREBI, et al.

Petitioners,

GEORGE WALKER BUSH,

et al.,

Respondents.

GEORGE W. BUSH,

Respondents.

Case 1:04-cv-01254-HHK Document 4 Filed 08/04/04 Page 4 of 19

Petitioners,

Respondents.

GEORGE W. BUSH,

SUHAIL ABDUL ANAM, et al.

Petitioners,



LAKHDAR BOUMEDIENE, et al.

v.

v.

v.

GEORGE WALKER BUSH,

President of the United States,
et al.,

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President of the United States,
et al.,

President of the United States,
et al.,

ISA ALI ABDULLA ALMURBATI, et al.

GEORGE WALKER BUSH,

Respondents.

Petitioners,

Respondents.

Civil Action No. 04-CV-1166 (RJL)

Civil Action No. 04-CV-1194 (HHK)

Civil Action No. 04-CV-1227 (RBW)

Case 1:04-cv-01254-HHK Document 4 Filed 08/04/04 Page 5 of 19



Petitioners,

v.

GEORGE W. BUSH,

MAHMOAD ABDAH, et al.

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President of the United States,
et al.,

Respondents.

Civil Action No. 04-CV-1254 (HHK)

RESPONDENTS’ MOTION FOR JOINT CASE MANAGEMENT CONFERENCE,

ENTRY OF COORDINATION ORDER, AND REQUEST FOR EXPEDITION

Respondents hereby request a Joint Case Management Conference involving each of the

judges presiding over complaints or petitions for habeas corpus brought on behalf of foreign

nationals detained or taken into custody by United States authorities as enemy combatants in

connection with hostilities involving al Qaeda, the Taliban, and their supporters, and held at the

United States Naval Base at Guantanamo Bay, Cuba. The requested Joint Case Management

Conference would allow the Court to develop and enter a coordination order to allow for the

orderly and efficient resolution of the many common questions of law presented by these

petitions. While the petitions have not been consolidated, the Court’s inherent authority to

manage its docket permits coordinated consideration of legal issues where judicial economy

would be served, and where – as here – consistent resolution of those legal issues is desirable.

Respondents are presenting this Motion simultaneously to each of the judges to whom a

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Guantanamo habeas petition has been assigned. Given the important concerns that underlie this

Motion, Respondents respectfully request that the Court expedite its consideration.

Although proceedings on all of these petitions are at their inception, and despite the fact

that each petition alleges some facts unique to individual detainees, it is already clear that the

cases present a number of important common questions of law. The common questions include

threshold issues whose resolution will determine the fundamental character of the proceedings

that follow, including: (1) whether, under the U.S. Constitution, the detainees have a right to

consult with Petitioners and their counsel for purposes of prosecuting these habeas petitions, and

for other purposes; (2) whether the Constitution, and other applicable legal principles, permit

Respondents to place conditions on such attorney-detainee consultations, including whether

Respondents may require certain attorney-detainee consultations to be monitored for national

security purposes;1 (3) whether the detainees, who were not captured in the United States or its

territories and are not detained there, are protected by the Due Process Clause of the Fifth

Amendment, and by other provisions of the Constitution; (4) whether the detainees may

challenge their detention under various treaties and conventions to which the United States is

signatory, and under principles of “customary international law”; (5) whether these habeas

proceedings must be deferred pending completion of the Combatant Status Review Tribunal

(“CSRT”) process that the Department of Defense has recently formalized to reach fresh

determinations on the status of the detainees, most particularly whether their circumstances of

1 This issue is presently under consideration by Judge Kollar-Kotelly. See Response to

Complaint in Accordance with Court’s Order of July 25, 2004 filed in Al Odah v. United States,
No. 02-CV-828 (July 30, 2004).

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capture and other factors qualify them as “enemy combatants”;2 and (6) whether and to what

extent the status determinations reached in the CSRT process merit deference in this Court’s

consideration of the habeas petitions. In addition, there are common procedural questions to be

addressed in these cases, including appropriate procedures for handling classified submissions in

the cases, the propriety of and limitations on discovery, and procedures for any hearings in those

matters.

Respondents previously moved for consolidation of all such petitions before a single

judge of this Court pursuant to FED. R. CIV. P. 42. By order dated July 26, 2004, Judge Kollar-

Kotelly (the judge presiding over the lowest-numbered of the Guantanamo Bay cases) declined to

exercise her discretion to consolidate, concluding that “the different circumstances of each

Petitioner’s capture and the individualized reasons offered for that Petitioner’s confinement will

require individualized adjudication.” (Mem. Op. at 3-4.) Respondents do not challenge that

determination in this Motion, but instead respectfully suggest an alternative procedure. Even if

one assumes that the varying circumstances of the Petitioners’ capture may ultimately require

individualized attention by the Court, it will promote judicial economy and convenience for the

parties to order coordinated briefing, argument, and consideration on the important questions of

law and procedure that will shape these habeas proceedings. Absent such coordinated treatment,

all parties will be prejudiced, both by the potential for inconsistent rulings on similar issues

pertaining to Guantanamo Bay detainees, as well as by the practical and logistical difficulties

2 In at least three cases, Petitioners have filed motions seeking to temporarily enjoin the
implementation of the CSRT process and challenging the conduct of hearings without access to
counsel. See Gherebi v. Bush, No. 04-CV-1164; Boumediene v. Bush, No. 04-CV-1166; El-
Banna v. Bush, No. 04-CV-1144.

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presented by briefing and arguing the same legal issues before at least eight separate district

judges.

Accordingly, Respondents urge that the judges presiding over the above-captioned

petitions schedule a Joint Case Management Conference, with all judges present, in order to

identify the common questions of law presented by the pending petitions, and to develop a

schedule for coordinated pretrial proceedings, including briefing and argument on those

questions. A proposed order is attached.

Pursuant to LCvR 7(m), counsel for Respondents have conferred or attempted to confer

by telephone and e-mail with counsel for Petitioners in the related cases regarding this motion.

Counsel for Petitioners in Habib, El-Banna, Gherebi, Anam, Almurbati, Boumediene and Begg

have indicated that they oppose or do not consent to the motion. Counsel for Petitioners in

Benchellali have indicated that they reserve judgment but expect to oppose the motion.

Respondents would note that with respect to the previous motion for consolidation, counsel for

Petitioners who expressed a position either opposed or did not consent to the motion.

BACKGROUND

On September 11, 2001, the al Qaeda terrorist network launched a vicious, coordinated

attack on the United States, killing approximately 3,000 persons. In response, the President, as

Commander-in-Chief and with Congressional authorization for the use of force, took steps to

protect the Nation and prevent additional threats. Among these steps, the President dispatched

the armed forces of the United States to Afghanistan to seek out and subdue the al Qaeda terrorist

network and the Taliban regime that had supported and protected that network. In the course of

that campaign – which remains ongoing – the United States and its allies have captured or taken

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control of a large number of individuals, many of whom are foreign nationals. As authorized by,

inter alia, a Military Order of November 13, 2001 issued by the President,3 the United States

military has transferred a number of these alien enemy combatants for detention at the United

States Naval Base at Guantanamo Bay, Cuba, an area within the sovereign territory of Cuba

leased for an indefinite term by the United States, and over which the United States exercises

exclusive control.4 Approximately 600 such aliens are currently detained at Guantanamo Bay.

Pending before this Court are a number of cases brought on behalf of alien detainees in

the control of the Department of Defense and held at Guantanamo Bay. The cases commonly

challenge the legality and conditions of the detention and confinement of the aliens on whose

behalf the cases are brought. Of the cases of which Respondents are now aware, before Judge

Kollar-Kotelly are Rasul v. Bush, No. 02-CV-0299; Al Odah v. United States, No. 02-CV-0828;

and Habib v. Bush, No. 02-CV-1130.5 Before Judge Huvelle is Kurnaz v. Bush, No. 04-CV-

1135. Before Judge Bates is Khadr v. Bush, No. 04-CV-1136.6 Before Judge Collyer is Begg v.

Bush, No. 04-CV-1137. Pending before Judge Leon are Benchellali v. Bush, No. 04-CV-1142

and Boumediene v. Bush, No. 04-CV-1166. Before Judge Roberts is El-Banna v. Bush, No. 04-

3 See 66 Fed. Reg. 57,831 (Nov. 16, 2001).

4 See Rasul v. Bush, 124 S. Ct. 2686, 2690-93 (2004).

5 The Court initially dismissed these cases on jurisdictional grounds, Rasul v. Bush, 215

F. Supp. 2d 55 (D.D.C. 2002), and subsequent appeals led to the Supreme Court’s Rasul
decision.

6 A Guantanamo Bay detainee case dismissed by Judge Bates prior to the Supreme

Court’s decision in Rasul is Sassi v. Bush, No. 04-CV-0547. An appeal is presently pending in
that case. The petitioners in that case are petitioners in either the Benchellali case before Judge
Leon or the Khadr case before Judge Bates.

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Case 1:04-cv-01254-HHK Document 4 Filed 08/04/04 Page 10 of 19

CV-1144. Before Judge Walton are Gherebi v. Bush, No. 04-CV-1164 and Almurbati v. Bush,

04-CV-1227.7 And before Judge Kennedy are Anam v. Bush, No. 04-CV-1194 and Abdah v.

Bush, No. 04-CV-1254. Based on the number of foreign nationals detained at Guantanamo Bay,

it is highly likely that numerous additional petitions will be filed.

Each of these cases is a petition for habeas corpus, or, in one case, a complaint essentially

constituting a habeas petition,8 filed by “next friends” on behalf of alien detainees at Guantanamo

Bay. The cases include as respondents the President, the Secretary of Defense, the commander of

Joint Task Force-GTMO responsible for Guantanamo Bay, and the commander of the particular

camp housing the detainees in Guantanamo Bay, and/or other government officials.9 Allegations

in the petitions typically include that Petitioners were apprehended in connection with hostilities

involving al Qaeda, the Taliban, and their supporters or otherwise and were taken involuntarily to

Guantanamo Bay;10 that Petitioners are not enemy combatants and have not been informed of

7 Gherebi was recently transferred to this District from the Ninth Circuit. The petition
was initially filed by petitioners in the Ninth Circuit Court of Appeals, which transferred the
petition for disposition by the district court for the Central District of California. See Gherebi v.
Bush, 262 F. Supp. 2d 1064 (C.D. Cal. 2003). After the case was appealed, decided, then
vacated by the Supreme Court, the Ninth Circuit transferred the case to the District of Columbia.
See Gherebi v. Bush, 374 F.3d 727, 2004 WL 1534166 (July 8, 2004).

8 See Rasul, 215 F. Supp. 2d at 62-64 (D.D.C. 2002) (noting that claims asserted in Al

Odah case are “within the exclusive province of the writ of habeas corpus”).

9 The Gherebi petition names the President, the Secretary of Defense, and “1,000

Unknown Named United States Military Personnel and Government Officers and/or Officials.”
The Al Odah complaint also includes the United States as respondent-defendant.

10 See Rasul First Amended Petition ¶¶ 23-24, 27, 32; Al Odah Amend. Compl. ¶ 16;

Habib Pet. ¶¶ 16-19, 21-22; Kurnaz Pet. ¶¶ 6, 16-17, 19, 23-24; Khadr Pet. ¶¶ 16, 21-22; Begg
Pet. ¶¶ 22-26; Benchellali Pet. ¶¶ 28, 30, 32; El-Banna First Amend. Pet. ¶¶ 19-26, 27-28;
Gherebi Amend. Pet. ¶ 2; Boumediene Pet. ¶¶ 16-18, 20; Anam Pet. ¶¶ 26, 31, 36, 40-41, 44, 46,
52, 58, 61; Almurbati Pet. ¶¶ 8, 10, 12; 19-22; Abdah Pet. ¶¶ 19-20, 22-51.

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charges against them;11 that Petitioners have been housed in inadequate housing, without

meaningful access to families or counsel, and without opportunity to fully exercise their religious

beliefs;12 and that Petitioners have been forced to provide involuntary statements to

interrogators.13 Petitioners challenge their confinement, as well as the Military Order of

November 13, 2001, as contrary to the Constitution14 and international treaties, including the

Third and Fourth Geneva Conventions,15 the International Covenant on Civil and Political Rights

and the American Declaration on the Rights and Duties of Man,16 as well as customary

11 See Rasul First Amended Petition ¶¶ 22, 29-30, 47; Al Odah Amend. Compl. ¶¶ 15, 18;
Habib Pet. ¶¶ 15, 23-24, 44; Kurnaz Pet. ¶¶ 13-15, 34; Khadr Pet. ¶¶ 13, 30; Begg Pet. ¶¶ 17-18,
47, 52; Benchellali Pet. ¶¶ 25-26, 48; El-Banna First Amend. Pet. ¶¶ 15-16, 43; Boumediene Pet.
¶¶ 13-14, 25; Anam Pet. ¶¶ 23, 28, 33, 37, 59, 71, 73, 78; Almurbati Pet. ¶¶ 18, 36, 41; Abdah
Pet. ¶¶ 15-16, 63.

12 See Rasul First Amended Petition ¶¶ 33, 49; Al Odah Amend. Compl. ¶¶ 28-29; Habib
Pet. ¶¶ 27, 44-45; Kurnaz Pet. ¶¶ 8, 34-35; Khadr Pet. ¶ 31; Begg Pet. ¶¶ 47-48; Benchellali Pet.
¶¶ 48-49; El-Banna First Amend. Pet. ¶¶ 43-44; Gherebi Amend. Pet. ¶ 3; Boumediene Pet. ¶ 25;
Anam Pet. ¶¶ 73-74; Almurbati Pet. ¶ 41; Abdah Pet. ¶¶ 63-64.

13 See Rasul First Amended Petition ¶ 32; Habib Pet. ¶¶ 26, 44; Kurnaz Pet. ¶¶ 34-35;
Khadr Pet. ¶¶ 30-31; Begg Pet. ¶ 48; Benchellali Pet. ¶ 49; El-Banna First Amend. Pet. ¶ 44;
Boumediene Pet. ¶ 25; Anam Pet. ¶ 73-74; Almurbati Pet. ¶ 41; Abdah Pet. ¶¶ 63-64.

14 Constitutional provisions relied upon typically include the Due Process Clause of the
Fifth Amendment, the War Powers Clause, and Article I, section 9, regarding suspension of the
Privilege of the Writ of Habeas Corpus. See Rasul First Amended Petition ¶¶ 52-54, 62-64; Al
Odah Amend. Compl. ¶ 37; Habib Pet. ¶¶ 48-51, 59-61; Kurnaz Pet. ¶¶ 39-41, 63-65; Khadr Pet.
¶¶ 35-37, 59-61; Begg Pet. ¶¶ 54-56, 64-66, 71; Benchellali Pet. ¶¶ 53-56, 77-79; El-Banna First
Amend. Pet. ¶¶ 48-50, 72-74; Gherebi Amend. Pet. ¶ 3; Boumediene Pet. ¶¶ 33-35, 43-45; Anam
Pet. ¶¶ 80-82, 90-92, 97; Almurbati Pet. ¶¶ 43, 45, 53, 55; Abdah Pet. ¶¶ 73, 75, 83, 85.

15 See Habib Pet. ¶¶ 56-57; Kurnaz Pet. ¶ 61; Khadr Pet. ¶ 57; Begg Pet. ¶¶ 22, 73;

Benchellali Pet. ¶ 75; El-Banna First Amend. Pet. ¶ 70; Gherebi Amend. Pet. ¶ 3; Boumediene
Pet. ¶ 41; Anam Pet. ¶ 88; Almurbati Pet. ¶ 51; Abdah Pet. ¶¶ 77, 79, 81.

16 See Kurnaz Pet. ¶¶ 43-45; Khadr Pet. ¶¶ 39, 41; Begg Pet. ¶¶ 58, 60; Benchellali Pet.

¶¶ 57, 59; El-Banna First Amend. Pet. ¶¶ 52-54; Boumediene Pet. ¶¶ 37, 39; Anam Pet. ¶¶ 84-86;

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international law.17 Some of the petitions additionally assert claims under the Alien Tort Statute,

28 U.S.C. § 1350, and the Administrative Procedure Act (APA), 5 U.S.C. § 702-706.18

Petitioners commonly seek relief in the form of release,19 orders permitting access to counsel and

barring interrogations, and declarations that Petitioners’ detention and the November 13, 2001

military order violate the Constitution, treaties, and laws of the United States, as well as

international law.20 Indeed, aside from specific allegations regarding the circumstances of each

Petitioners’ capture, the petitions are substantially alike. Furthermore, many of the cases involve

the same litigation counsel or coordinating counsel.21

In Al-Odah, briefing is underway concerning whether Respondents may require certain

attorney-detainee consultations to be monitored for national security purposes. In Gherebi, the

Court has established a briefing schedule for a motion to dismiss by Respondents. And in El-

Almurbati Pet. ¶¶ 47, 49; Abdah Pet. ¶ 77, 79.

17 See Rasul First Amended Petition ¶¶ 56-60; Habib Pet. ¶¶ 52-55; Kurnaz Pet. ¶¶ 43-45;
Khadr Pet. ¶¶ 39, 41; Begg Pet. ¶¶ 58, 60; Benchellali Pet. ¶¶ 57, 59; El-Banna First Amend. Pet.
¶¶ 52-54; Boumediene Pet. ¶ 37; Anam Pet. ¶¶ 84-86; Almurbati Pet. ¶ 51; Abdah Pet. ¶¶ 77, 79,
81.

18 See Al Odah Amend. Compl. ¶¶ 38-39; Kurnaz Pet. ¶¶ 48, 53, 57, 67; Khadr Pet. ¶¶ 44,
49, 53, 63; Begg Pet. ¶ 68; Benchellali Pet. ¶¶ 62, 67, 71, 81; El-Banna First Amend. Pet. ¶¶ 57,
62, 66, 76; Anam Pet. ¶ 94; Almurbati Pet. ¶¶ 57-59, 61-64, 66; Abdah Pet. ¶ 87.

19 In Al Odah, plaintiffs previously disclaimed seeking release, but the Court determined
that plaintiffs “plainly challenge the lawfulness of their custody.” Rasul, 215 F. Supp. 2d at 62.

20 See Rasul First Amended Petition § VI; Al Odah Amend. Compl. (Prayer for Relief);

Habib Pet. § V; Kurnaz Pet. § V; Khadr Pet. § V; Begg Pet. § V; Benchellali Pet. § V; El-Banna
First Amend. Pet. § V; Gherebi Amend. Pet. ¶¶ 5-6; Boumediene Pet. § VI; Anam Pet. (Prayer for
Relief); Almurbati Pet. (Prayer for Relief); Abdah Pet. (Prayer for Relief).

21 For example, in a significant number of the cases Petitioners are represented by counsel

from the Center for Constitutional Rights.

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Banna, a hearing on a TRO sought by Petitioners is scheduled for August 6, 2004, with a return

to the petition currently due on August 12, 2004.

ARGUMENT

District courts have both express and inherent authority to coordinate proceedings on

cases pending before them in the interest of justice and in the service of judicial economy. It has

long been recognized that there is a “‘power inherent in every court to control the disposition of

the causes on its docket with economy of time and effort for itself, for counsel, and for

litigants.’” Airline Pilots Ass’n v. Miller, 523 U.S. 866, 880, n.6 (1998) (quoting Landis v. North

American Co., 299 U.S. 248, 254-255 (1936)). One specific codification of this authority is FED.

R. CIV. P. 42(a), a provision that recognizes not only the notion of formal consolidation, but also

the power of the Court to “order a joint hearing . . . o[n] any or all the matters in issue,” and to

“make such orders concerning proceedings [in the several actions] as may tend to avoid

unnecessary costs or delay.” FED. R. CIV. P. 42(a).22

Moreover, the district courts’ inherent authority to manage their dockets goes beyond the

measures expressed in Rule 42. As the Federal Judicial Center’s Manual for Complex Litigation

(Fourth) explains, even when cases sharing common issues are pending in different judicial

districts, “judges can coordinate proceedings in their respective courts to avoid or minimize

duplicative activity and conflicts.” MOORE’S FED. PRACTICE, MANUAL FOR COMPLEX

LITIGATION (FOURTH) 227 (2004). Coordination measures that district courts can employ

22 Petitions for a writ of habeas corpus are civil in nature, see Hilton v. Braunskill, 481

U.S. 770, 775-76 (1987), though different in respects from general civil litigation. See id. at 776
(“[w]here . . . the need is evident for principles to guide the conduct of habeas proceedings, it is
entirely appropriate to use . . . [general civil] rules by analogy or otherwise.”) (internal quotation
marks and citation omitted).

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include “joint hearings or conferences” on common legal issues, followed by “joint or parallel

orders by the several courts in which the cases are pending.” Id.23 In addition, the Judicial Panel

on Multidistrict Litigation, in exercising its discretion to deny pretrial consolidation of multiple

actions pending in different districts under 28 U.S.C. § 1407, has recognized that the goals of

judicial economy and minimization of “inconsistent pretrial rulings” can at times be achieved

simply through “consultation and coordination between the . . . concerned district courts[.]” In re

Royal Am. Indus., Inc. Sec. Litig., 407 F. Supp. 242, 244 (J.P.M.L. 1976).

The reach of district courts’ authority to manage their own dockets is illustrated by the

procedures adopted by the District Court for the Central District of California in resolving

constitutional challenges to the Sentencing Reform Act of 1984, and the sentencing guidelines

promulgated thereunder by the U.S. Sentencing Commission. There, the district court convened

an en banc panel of the court to consider the common question of the Sentencing Guidelines’

constitutionality – a question that had surfaced in 22 separate criminal cases. The court ordered

the common issue “transferred . . . from each of the [separate] cases . . . to the Court as a whole,”

and accepted joint briefing, conducted a joint hearing, and issued an en banc opinion on the

constitutional challenge, from which a number of district judges dissented. See United States v.

Ortega Lopez, 684 F. Supp. 1506, 1508 (C.D. Cal. 1988), abrogated by United States v. Brady,

895 F.2d 538 (9th Cir. 1990).

23 Indeed, district courts have used such cooperative approaches even in matters where

related cases are pending simultaneously in state and federal court, “jointly presid[ing] over
hearings on pretrial motions, based on a joint motions schedule,” relying on “coordinated briefs
so that one set of briefs can be used in both state and federal courts . . . .” MOORE’S FED.
PRACTICE, MANUAL FOR COMPLEX LITIGATION (FOURTH) at 236.

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This court’s local rules include provisions premised on similarly broad principles of

inherent authority as to case management issues. Under LCvR 40.5(e), this court’s Calendar

Committee has the authority to refer “two or more cases assigned to different judges” to “one

judge” for a “specific purpose . . . in order to avoid duplication of judicial effort,” so long as the

assignment is “with the consent of the judge to whom the cases will be referred” and the “scope

of authority of said judge” is identified. More broadly, LCvR 40.7(h) recognizes the authority of

the Chief Judge to “take such other administrative actions, after consultation with appropriate

committees of the Court, as in his/her judgment are necessary to assure the just, speedy and

inexpensive determination of cases, and are not inconsistent with these Rules.”

The habeas petitions before the Court here present a number of common legal questions

that would plainly benefit from coordinated consideration and resolution, whether in a “joint

hearing” under FED. R. CIV. P. 42(a) or under a coordinated schedule determined jointly by all of

the district judges presiding over the cases. These issues include: (1) whether the detention, as

described in the pleadings, violates the Constitution and laws cited in the petitions, and,

underlying this question, whether detainees have rights under the Constitution notwithstanding

the alleged facts that they are not United States citizens, that they were captured outside the

United States, and are currently detained outside the United States and its territories; (2) whether,

based on the factual allegations in the petitions, the detainees may challenge their detention under

various treaties and conventions to which the United States is signatory, and under principles of

“customary international law,” and, underlying this question, whether the cited treaties and

conventions are self-executing and claims thereunder cognizable in a habeas proceeding; (3)

whether these habeas proceedings must, or should in the exercise of the Court’s discretion, be

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deferred pending completion of the CSRT hearings on the status of the detainees, which will

produce formal determinations (and factual records) by the Department of Defense on the

circumstances of the detainees’ capture and whether those circumstances qualify them as “enemy

combatants,” see Hamdi, 124 S. Ct. at 2648-50 (plurality opinion) (describing contours of

acceptable military process for determining the status of United States citizens detained as

“enemy combatants”);24 and (4) whether and to what extent the status determinations reached in

the CSRT process merit deference in this Court’s consideration of the habeas petitions. See id. at

2649 (plurality opinion) (stating that, in military review process, government’s evidence

concerning circumstances of capture should be entitled to “presumption” of validity). Moreover,

Petitioners in at least three cases have filed motions seeking to temporarily enjoin the

implementation of the CSRT hearings. See supra note 2.

In addition, there are common procedural questions that must be addressed at the outset

of these proceedings. These include whether, under the U.S. Constitution, the detainees have a

right to consult with Petitioners and their counsel for purposes of prosecuting these habeas

petitions, and for other purposes, and whether Respondents may place conditions on such

attorney-detainee consultations, including whether Respondents may require certain attorney-

detainee consultations to be monitored for national security purposes. Other common procedural

questions involve appropriate procedures for the handling of any classified factual or other

submissions that may be required in these cases, the propriety of and limitations on discovery,

and hearing procedures.

24 The Department of Defense recently created a such a process for alien detainees at

Guantanamo Bay. See Department of Defense website at:

http://www.defenselink.mil/releases/2004/nr20040707-0992.html

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Case 1:04-cv-01254-HHK Document 4 Filed 08/04/04 Page 17 of 19

Because these cases share such issues in common, some form of coordinated scheduling

and consideration of these issues, including, where appropriate, a joint hearing, will promote

interests of efficiency and economy for both the Court and the parties. Joint briefing will

conserve the parties’ resources by relieving them of the burden of preparing separate sets of

briefs on the same issues. A joint hearing or argument will provide all of the judges presiding

over these actions with a comprehensive oral presentation on the important, common legal and

procedural questions presented by the petitions. And a joint hearing or another form of

coordinated treatment will minimize delay in the resolution of these questions.

Perhaps most important, coordinated treatment would additionally minimize the risk of

conflicting determinations on the fundamental legal questions that unite the petitions. Even if the

Court were simply to accept coordinated briefing and argument on the common legal questions

presented in these cases, with each district judge reserving the discretion to reach his or her own

conclusion and enter separate orders, the mere fact of coordinated scheduling and joint hearing,

with consequent deliberations among the various judges of the Court, the opportunities for

conflicting rulings would be reduced. The seriousness of the issues raised in these petitions, and

the sensitive national security context in which they arise, make avoidance of conflicting rulings

– if at all possible – imperative.

There can be no serious argument that the coordination sought by Respondents would

prejudice the parties. With respect to Respondents, coordinated presentation and resolution of the

common legal issues in the petitions would help alleviate the logistical burdens Respondents face

in responding to multiple habeas petitions on potentially divergent schedules. Although there are

currently just over a dozen cases filed, and despite the fact that only a handful of those have

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Case 1:04-cv-01254-HHK Document 4 Filed 08/04/04 Page 18 of 19

required any briefing or hearings at this point, the logistical difficulties that lie ahead already are

apparent. For instance, Respondents are presently simultaneously preparing briefs regarding a

TRO challenging the CSRT process, the conditions of access for counsel, and the merits in a

motion to dismiss in different cases. Respondents have already argued two motions for a TRO in

a single day. Furthermore, there are approximately 600 foreign nationals detained at

Guantanamo Bay, so additional petitions are certain to be filed. At some point in the not-too-

distant future, the logistical difficulties presented today will become insurmountable – not only to

Petitioners’ and Respondents’ Counsel, but to this Court and its personnel, Department of Justice

personnel involved in processing security clearances for Petitioners’ counsel, and Department of

Defense personnel who (in addition to being called upon to process requests related to these

cases) have pressing responsibilities related to their core duties in connection with the ongoing

hostilities in Afghanistan and elsewhere. A coordinated schedule would be undeniably

preferable to multiple filings and hearings on overlapping issues in an increasing number of cases

with various schedules. Moreover, once the common legal issues are resolved, and the shape that

these habeas proceedings must therefore take determined, Petitioners can proceed efficiently to

tee up any remaining issues pertaining to individual detainees before the individual judges

presiding over their actions.

CONCLUSION

For the reasons set forth above, the Court should grant this Motion and order a Joint Case

Management Conference for purposes of cataloging the common questions presented by these

petitions, and entering a joint scheduling order allowing for the orderly and coordinated

resolution of these questions.

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Case 1:04-cv-01254-HHK Document 4 Filed 08/04/04 Page 19 of 19

Dated: August 4, 2004

Respectfully submitted,

PETER D. KEISLER
Assistant Attorney General

KENNETH L. WAINSTEIN
United States Attorney

THOMAS R. LEE
Deputy Assistant Attorney General

DAVID B. SALMONS
Assistant to the Solicitor General

ROBERT D. OKUN
D.C. Bar No. 457-078
Chief, Special Proceedings Section
555 Fourth Street, N.W.
Room 10-435
Washington, D.C. 20530
(202) 514-7280

/s/ Terry M. Henry
JOSEPH H. HUNT (D.C. Bar No. 431134)
VINCENT M. GARVEY (D.C. Bar No. 127191)
TERRY M. HENRY
PREEYA M. NORONHA
Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W. Room 7144
Washington, DC 20530
Tel.: (202) 514-4107
Fax: (202) 616-8470

Attorneys for Respondents

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