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Case 1:05-cv-01429-UNA Document 12 Filed 08/03/2005 Page 1 of 6




Civil Action No. 05-01429 (RMU)




HATIM, et al.



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





1. Petitioners Do Not Oppose The Stay Motion In Its Entirety.

If the matter were one of first impression, Petitioners would oppose Respondents’ stay

motion in its entirety. But Judge Green stayed the Guantánamo detainee cases under her super-

vision; other Judges of this Court have stayed the cases assigned to them; and this Court has

stayed Zalita v. Bush, 05-CV-01220 (D.D.C. July 25, 2005), Al-Hela v. Bush, 05-CV-01048

(D.D.C. June 3, 2005), Al-Oshan v. Bush, 05-CV-00520 (D.D.C. Mar. 31, 2005), Qayed v. Bush,

05-CV-00454 (D.D.C. Apr. 6, 2005), and Tumani v. Bush, 05-CV-00526 (D.D.C. Apr. 6, 2005).

In these circumstances, Petitioners do not ask the Court to deny Respondents’ stay motion in its


Any stay, however, should not excuse Respondents from providing Petitioners’ factual

returns to counsel promptly. Judge Green ordered Respondents to provide factual returns despite

the pendency of their motions to dismiss, which were the practical equivalent of Respondents’

pending appeals. In Zalita, Al-Hela, Al-Oshan, Qayed, and Tumani, this Court ordered Respon-

dents to provide factual returns, even though the Court also stayed those cases. At least five

Case 1:05-cv-01429-UNA Document 12 Filed 08/03/2005 Page 2 of 6

other Judges of this Court, although staying detainee cases, have ordered Respondents to provide

factual returns. (See Mot. & Memo. in Support of Mot. for Writ of Habeas Corpus or Order To

Show Cause at 2 & n.1 (citing orders).)

Those returns have been critical. They have enabled counsel to interview their clients,

their clients’ families and others on a focused and informed basis, and otherwise to investigate

and prepare their clients’ cases – and to do so while memories are still fresh, witnesses and docu-

ments still available, and other evidence still within reach. See Al-Mohammed v. Bush, 05-CV-

00247, slip op. at 2–3 (D.D.C. Apr. 30, 2005). As Judge Kennedy stated in Al-Mohammed, “pe-

titioners’ counsel must have access to [the returns] in order to develop a meaningful understand-

ing of the basic factual allegations . . . and prepare for consultation with their clients.” Id. at 2.

For these reasons, the Court should not stay Respondents’ obligation to provide the return in this


2. Respondents’ Arguments Against Providing Returns In This Case Fall Short.

Respondents complain that providing Petitioners’ returns would confront them with “an

immense logistical burden.” (Mot. to Stay at 11.) Any such “burden” to Respondents, however,

does not outweigh Petitioners’ interest in ensuring the investigation and preparation of their

cases before the trail – cool as it might be now – becomes completely cold, and in being able to

proceed without delay if the Court of Appeals allows these cases to proceed.

Respondents’ asserted “burden,” moreover, is vastly overblown. The factual return is

simply the record of proceedings before the Combatant Status Review Tribunal. See id. at 11

n.10. It already exists. Classification decisions regarding the information in the record of those

proceedings were made before the proceedings began, and the entirety of the proceedings un-

derwent legal review upon their completion. See, e.g., Memo. from Bree A. Ermintrout, to Di-

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Case 1:05-cv-01429-UNA Document 12 Filed 08/03/2005 Page 3 of 6

rector, Combatant Status Review Tribunal, Jan. 18, 2005, in Factual Return for Petitioner Abdul-

salam Ali Abdulrahman Al-Hela, Al-Hela v. Bush, 05-CV-01048 (RMU) (D.D.C. June 15, 2005)

(attached as Exhibit A). The only “burden” facing Respondents now is photocopying, sorting

and stapling. Respondents were able to produce the classified versions of approximately 60 re-

turns in little more than a week when Judge Green ordered them to do so in the cases under her


Respondents claim that the returns would be useless to Petitioners’ counsel because coun-

sel could not share with Petitioners the classified information in the returns. (Mot. to Stay at 10.)

But not all the information in the returns is classified. The allegations against Petitioners, which

are set forth in the returns, are not classified; until Petitioners’ counsel have seen the returns, they

will not know what Petitioners are accused of having done, and cannot meaningfully interview

Petitioners or begin to investigate or prepare their cases.

The returns also include (1) an unclassified discussion of the classified information in the

returns; (2) an unclassified summary of the transcripts of the CSRT hearings, including any

statement or testimony by Petitioners or their “personal representatives”; and (3) other unclassi-

fied information that counsel have found highly useful in their representation of other detainees.

And, although counsel may not disclose classified information in the returns to Petitioners,

knowing that information enables counsel to focus their investigation and preparation of Peti-

tioners’ cases and to seek from Petitioners and others facts pertinent to their “enemy combatant”


Finally, Respondents speculate that providing the returns in this case would increase the

risk of inadvertent disclosure – or other compromise – of classified information. (Id. at 11–12.)

This speculation lacks basis. Only counsel who have been granted security clearances and sub-

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Case 1:05-cv-01429-UNA Document 12 Filed 08/03/2005 Page 4 of 6

mitted themselves to a stringent Protective Order may see the classified information in the re-

turns. “The Government’s decision to grant an individual attorney a security clearance amounts

to a determination that the attorney can be trusted with information at that level of clearance.” Al

Odah v. United States, 346 F. Supp. 2d 1, 14 (D.D.C. 2004). Counsel are unaware of any report

that classified information provided by Respondents to cleared counsel in the detainee cases has

been disclosed or otherwise compromised.

3. Counsel Require Petitioners’ Returns Not Later Than August 30, 2005.

Counsel plan to seek approval from the military to visit Petitioners at Guantánamo during

the first week of September. This will be their second meeting with their clients.

Such visits are difficult to schedule. The timing is governed by considerations involving

more than a dozen other detainees whom counsel also represent. The visits are, moreover, costly

and time-consuming. Counsel pay those costs – including interpreter costs – from their own

pockets. They also forego the fees that they could have earned serving paying clients during the


Respondents note that this Court and other Judges of the Court have issued more ex-

tended schedules in other recently filed cases. In most if not all of those cases, however, counsel

are new, have not received their security clearances, and therefore would not be able to visit their

clients for weeks, if not months. Moreover, in seeking those returns, new counsel were at a dis-

advantage because, unlike counsel here, they had not previously seen returns in these cases and

therefore were unable to explain fully the immediate practical value of having the returns. See

supra at 2–3. Whatever schedules may have been appropriate in those cases, Petitioners’ counsel

have their security clearances and need Petitioners’ factual return for their impending trip to be

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Case 1:05-cv-01429-UNA Document 12 Filed 08/03/2005 Page 5 of 6

truly productive. That is sufficient reason to require Respondents to provide counsel with Peti-

tioners’ full return not later than August 30, 2005.

4. Any Stay Should Bar Respondents From Removing Petitioners From
Guantánamo Without Advance Notice And Explicitly Permit Petitioners To
Seek Emergency Relief.

This Court, and other Judges of the Court in at least 19 other cases, have prohibited Re-

spondents from removing the petitioners in those cases from Guantánamo without providing

counsel and the Court with 30-days’ advance notice of the intended removal. Some of those

Judges have imposed this notice requirement by means of a preliminary injunction.1 Others, in-

cluding this Court, have required advance notice as a condition of issuing a stay.2 This Court

should similarly impose a 30-day advance-notice requirement as a condition of entering a stay in

this case; and the stay, like the stays in the other cases, should explicitly permit Petitioners to

seek emergency relief. A copy of a Proposed Order is attached.

WHEREFORE, this Court should issue the writ or an order to show cause forthwith, re-

turnable by Respondents not later than August 30, 2005. Any stay entered by the Court should

Al-Adahi, v. Bush, 05-CV-00280 (GK) (D.D.C. Apr. 28, 2005); Al Joudi v. Bush, 05-CV-
00301 (GK) (D.D.C. Apr. 4, 2005); Al-Marri v. Bush, 04-CV-2035 (GK) (D.D.C. Apr. 4, 2005);
Al-Mohammed v. Bush, 05-CV-00247 (HHK) (D.D.C. Mar. 30, 2005); Abdah v. Bush, 04-CV-
1254 (HHK) (D.D.C. Mar. 29, 2005).

Al-Hela v. Bush, 05-CV-01048 (RMU) (D.D.C. June 3, 2005); Kurnaz v. Bush, 04-CV-
1135 (ESH) (D.D.C. Apr. 12, 2005); Ameziane v. Bush, 05-CV-00392 (ESH) (D.D.C. Apr. 12,
2005); Abdullah v. Bush, 05-CV-00023 (RWR) (D.D.C. Apr. 8, 2005); Al Rashaidan v. Bush,
05-CV-00586 (RWR) (D.D.C. Apr. 8, 2005); El Banna v. Bush, 04-CV-1144 (RWR) (D.D.C.
Apr. 8, 2005); Tumani v. Bush, 05-CV-00526 (RMU) (D.D.C. Apr. 6, 2005); Qayed v. Bush, 05-
CV-00454 (RMU) (D.D.C. Apr. 6, 2005); Al-Wazan v. Bush, 05-CV-00329 (PLF) (D.D.C. Apr.
1, 2005); Al-Shihry v Bush, 05-CV-00490 (PLF) (D.D.C. Apr. 1, 2005); Al-Oshan v. Bush, 05-
CV-00520 (RMU) (D.D.C. Mar. 31, 2005).

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Case 1:05-cv-01429-UNA Document 12 Filed 08/03/2005 Page 6 of 6

impose a 30-day advance-notice requirement as a condition of its entry, and the stay should ex-

plicitly permit Petitioners to seek emergency relief.

Dated: August 3, 2005

Washington, DC


Respectfully submitted,



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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