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Case 1:05-cv-01429-UNA Document 10 Filed 08/02/2005 Page 1 of 3

CLEARED FOR PUBLIC FILING
BY COURT SECURITY OFFICER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA







Civil Action No. 05-01429 (RMU)







Petitioners,

v.


____________________________________

)
)
SAEED MOHAMMED SALEH
HATIM, et al.
)

)
)


)
)

GEORGE W. BUSH, President of the
)
United States, et al.,
)

Respondents.
)
____________________________________)






































MOTION AND MEMORANDUM IN SUPPORT OF MOTION

FOR WRIT OF HABEAS CORPUS OR ORDER TO SHOW CAUSE

Petitioners, prisoners of the United States held at Guantánamo, respectfully move for a

writ of habeas corpus or an order to show cause why the writ should not issue, returnable by Re-

spondents not later than August 30, 2005. This Court has previously ordered Respondents to file

a factual return in the habeas cases of identically situated Guantánamo prisoners. See Al-Hela v.

Bush, 05-CV-01048 (RMU) (D.D.C. June 9, 2005) (Ex. A); Tumani v. Bush, 05-CV-00526

(RMU) (D.D.C. Apr. 19, 2005) (Ex. B); Al-Oshan v. Bush, 05-CV-00520 (RMU) (D.D.C. Apr.

7, 2005) (Ex. C). The Court should similarly order Respondents to file a factual return for Peti-

tioners.

As part of their trial preparation, counsel for Petitioners anticipate visiting Guantánamo

during the first week of September. It would greatly help counsel to have the returns – and

greatly prejudice counsel not to have the returns – by the time they leave for Guantánamo, so

they can ask informed questions of Petitioners based on the information in the returns.

The return for each Petitioner, like the returns for the other Guantánamo prisoners, will

consist of the administrative record of the Combatant Status Review Tribunal proceeding that



Case 1:05-cv-01429-UNA Document 10 Filed 08/02/2005 Page 2 of 3



confirmed his status as an “enemy combatant.” Requiring Respondents to produce these records

in the form of returns by August 30 should work no hardship on Respondents, who have done the

same for scores of other petitioners in these habeas cases.

Counsel for Petitioners sought to avoid burdening the Court with this matter, proposing to

Respondents a stipulation in which Respondents would agree to provide the factual returns

within 30 days of the entry of a stay order, and in return Petitioners would agree to a delimited

stay of these proceedings. See Email from David H. Remes to Preeya Noronha, July 27, 2005

(Ex. D).

Regrettably, Respondents summarily rejected counsel’s proposal, see Email from Preeya

Noronha to David H. Remes, July 27, 2005 (Ex. E), forcing Petitioners to burden the Court with

a matter that should have been resolved consensually in view of the Court’s prior orders in Al-

Hela, Tumani and Al-Oshan. At least five of the other Judges of this Court who have been as-

signed detainee cases since Judge Green entered her stay order on February 3, 2005 have ordered

the Government to produce factual returns, even while entering orders otherwise staying those

cases.1


1
Kurnaz v. Bush, 04-CV-01135 (ESH), 2005 WL 839542, at *1 (D.D.C. Apr. 12, 2005)
(Ex. F) (stating that habeas counsel require access to the full factual returns now “to ensure that
the proceedings can continue in an orderly fashion in the event that the detainees prevail on ap-
peal”); Al-Adahi v. Bush, 05-CV-00280 (GK), slip op. at 2 & n.1 (D.D.C. Apr 29, 2005) (Ex. G)
(ordering production of factual returns so petitioners’ counsel “can begin preparing their defense
well in advance of any ruling by the Court of Appeals”); Al-Anazi v. Bush, 05-CV-00345 (JDB),
slip op. at 20 (D.D.C. Apr. 21, 2005) (Ex. H) (staying proceedings but ordering Government to
produce factual returns, noting that “the factual returns appear necessary for petitioners’ counsel
effectively to represent petitioners,” and that “even initial conversations by counsel with their
clients may be very difficult without access to that basic factual information”); see also Al-
Shamri v. Bush, 05-CV-00551 (RWR), slip op. at 4 (D.D.C. May 10, 2005) (Ex. I) (staying pro-
ceedings but ordering the Government to produce factual returns); El-Banna v. Bush, 04-CV-
01144 (RWR), slip op. at 7 (D.D.C. Apr. 8, 2005) (Ex. J) (same); Errachidi v. Bush, No. 05-CV-
00640 (EGS) (D.D.C. Apr. 21, 2005) (minute order) (same).

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Case 1:05-cv-01429-UNA Document 10 Filed 08/02/2005 Page 3 of 3



Petitioners’ counsel are duty-bound to prepare now for the eventuality of a habeas hear-

ing. Ongoing trial preparation is necessary because memories fade, witnesses move, die, or

change jobs, and documentary evidence disappears. Also, in light of counsel’s anticipated visit

to Guantánamo in the first week of September, the returns should be provided promptly. As the

Eight Circuit has explained, “The writ of habeas corpus, challenging illegality of detention, is

reduced to a sham if the trial courts do not act within a reasonable time . . . .” Jones v. Shell, 572

F.2d 1278, 1280 (8th Cir. 1978).

WHEREFORE, Petitioners respectfully request that the writ or an order to show cause be

issued forthwith, returnable by Respondents not later than August 30, 2005.























August 1, 2005



Dated: Washington, D.C.











































































By:














Respectfully submitted,

COVINGTON & BURLING









/s/


David H. Remes
D.C. Bar No. 370782
1201 Pennsylvania Avenue, N.W.
Washington, DC 20004-2401
Tel: (202) 662-5212
Fax: (202) 778-5212

Marc D. Falkoff
D.C. Bar No. 491149
1330 Avenue of the Americas
New York, NY 10019
Tel: (212) 841-1166
Fax: (646) 441-9166

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