You're viewing Docket Item 14 from the case HATIM et al v. BUSH et al. View the full docket and case details.

Download this document:




Case 1:05-cv-01429-UNA Document 14 Filed 08/11/2005 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 05-CV-1429 (RMU)

et al.,

v.



Petitioners,

SAEED MOHAMMED SALEH HATIM,

)
)
)
)
)
)
)
)
)
)
)
)
)
)

President of the United States,
et al.,


GEORGE W. BUSH,

Respondents.

RESPONDENTS’ REPLY MEMORANDUM IN SUPPORT OF

MOTION TO STAY PROCEEDINGS PENDING RELATED APPEALS
AND FOR CONTINUED COORDINATION AND OPPOSITION TO

PETITIONERS’ MOTION FOR WRIT OF HABEAS CORPUS

OR ORDER TO SHOW CAUSE

Respondents hereby submit this reply memorandum in support of their motion to stay

proceedings pending related appeals and for continued coordination and its opposition to

petitioners’ motion for writ of habeas corpus or order to show cause in the above-captioned case.1

ARGUMENT

While petitioners concede that a stay is appropriate in this case, Pets’ Mem. at 1,

petitioners still insist a factual return should be filed in this case and that respondents should be

required to file a factual return prior to August 30, 2005. Petitioners’ dismissive treatment of the

needless expenditure of judicial and litigation resources that would result from submission of

1

Petitioners’ style their August 8, 2005 filing as both a conditional consent to

respondents’ motion to stay and a reply to respondents’ opposition to petitioners’ motion for writ
of habeas corpus or order to show cause. However, respondents had not yet filed an opposition
to petitioners’ motion for writ of habeas corpus or order to show cause at the time petitioners’
memorandum was filed.

Case 1:05-cv-01429-UNA Document 14 Filed 08/11/2005 Page 2 of 6

factual returns, ignores the cascade effect that would follow from not staying the cases.

Presently, there are approximately 115 habeas cases pending on behalf of well over 200 detainees

at Guantanamo Bay; the majority of those cases and petitioners were not subject to the decisions

of Judges Leon and Green in Khalid,, et al. and In re Guantanamo Detainee Cases. A decision to

allow submission of factual returns to go forward pending the resolution of the appeals could

precipitate a chain reaction — the scores of petitioners in other pending and future Guantanamo

Bay detainee habeas cases, seeking parity of treatment, would request the Court to allow access

to factual returns in those cases, perhaps even by lifting or modifying stays that have already been

entered. This scenario is exactly what Judge Green aimed to avoid when she denied petitioners’

motion to reconsider her order granting a stay pending appeal “in light of the substantial

resources that would be expended and the significant burdens that would be incurred should this

litigation go forward.” See Order Denying Motion for Reconsideration of Order Granting Stay

Pending Appeal in In re Guantanamo Detainee Cases (Feb. 7, 2005) (Green, J.). Indeed, the

decision to allow a filing of a factual return would likely need to be revisited or relitigated, and

may be shown to have been altogether unnecessary, once the Court of Appeals provides guidance

regarding handling of the habeas claims of Guantanamo Bay detainees such as petitioners. Thus,

in the interest of efficiency of judicial and litigation resources, as well as to minimize

administrative burdens, this Court should hold proceedings in the above-captioned cases,

including the filing of factual returns, in abeyance pending the outcome of the appeals of the

decisions by Judges of this Court in the other Guantanamo Bay detainee cases.

In the event the Court orders the submission of factual returns, however, it could only be

done pursuant to a coordinated and reasonable schedule, taking account of the fact that

2

Case 1:05-cv-01429-UNA Document 14 Filed 08/11/2005 Page 3 of 6

petitioners in all the recently filed cases are seeking factual returns and given the logistical

burdens posed by an undertaking to produce returns in the cases. Petitioners’ request that factual

returns be filed prior to August 30, 2005, would result in an unnecessary logistical burden for

respondents. See, Pets’ Mem. at 4-5. Each factual return must be obtained from the Department

of Defense (“DoD”), and then reviewed by agencies who provided source information to DoD to

ensure that information disclosed to counsel in the returns is in accordance with all applicable

statutes, regulations and Executive Orders. Respondents must then prepare both public and

classified versions of the factual returns for submission to the Court and counsel. Further,

submission of these returns will increase the risks of inadvertent or other disclosure or

compromise of classified information. Given that the D.C. Circuit will be considering the proper

scope of these proceedings, including whether the claims of petitioners can be dismissed without

reference to specific factual returns for petitioners, there is no justification to incur substantial

burdens on government resources and increase the risk to national security by providing

petitioners’ counsel access to factual returns which may ultimately prove unnecessary.

Though the submission of factual returns should not go forward at all, a schedule for any

such undertaking should be no more restrictive than is necessary; for example, a schedule for the

rolling production of factual returns in these (and potentially other) cases over anything less than

the next 10 to 12 weeks would be burdensome. See e.g., Al-Joudi, No. 05-301 (GK) (dkt. no.

26) (imposing 90-day schedule); Al-Adahi, No. 05-280 (GK) (dkt. no.35) (imposing 90-day

schedule); Ameziane, No. 05-CV-392 (ESH) (dkt. no. 12) (imposing 90-day schedule); Al-

Anazi, No. 05-CV-0345 (JDB) (dkt. no. 21) (imposing 120-day schedule); Qayed, No. 05-CV-

0454 (RMU) (dkt. no. 5) (imposing 90-day schedule); Battayav, No. 05-CV-0714 (RBW) (dkt.

3

Case 1:05-cv-01429-UNA Document 14 Filed 08/11/2005 Page 4 of 6

no. 12) (imposing 120-day schedule). At a minimum, respondents should be given the 45-day

schedule which this Court has approved for other Guantanamo Bay cases. See e.g, Al-Oshan v.

Bush, 05-CV-0520 (RMU) (dkt. no. 16) (imposing 45-day schedule).

The Court should not subject respondents to a requirement to produce factual returns for

the two petitioners in this case in twenty days, i.e., by August 30, 2005. Petitioners seek such an

order based on the claim that they plan to visit petitioners at Guantanamo Bay the first week of

September 2005. Pets’ Mem at 4. As an initial matter, while petitioners’ counsel have sought

permission to visit Guantanamo Bay August 31 - September 1, 2005, it is not certain that the

request can be accommodated. Ultimately, there may be no need for factual returns by August

30. Even if the requested visit goes forward, however, requiring two factual returns by August

30 would, in any event, be unduly burdensome, for the reasons discussed above.

Indeed, it would be unduly burdensome to key any requirement to produce factual returns

to a scheduled or desired visit to Guantanamo Bay by counsel. There are a large number of

newly filed Guantanamo Bay habeas cases, involving scores of petitioners, in which counsel have

or are requesting factual returns and in which counsel visits are being or will likely be requested.

The logistics of making a factual return and the logistics of arranging counsel visits involve two

separate and unrelated undertakings, and the ability to arrange for a visit does not mean that

factual returns pertaining to detainees involved in any particular visit can necessarily be

completed prior to the visit. Furthermore, the possibility of return visits to Guantanamo Bay by

petitioners’ counsel would counter the need for a factual return prior to any particular visit.

4

Case 1:05-cv-01429-UNA Document 14 Filed 08/11/2005 Page 5 of 6

For these reasons, the Court should not order the production of factual returns for

petitioners in this case, and in no event should it require returns to be produced by August 30,

2005.

CONCLUSION

For the reasons stated in respondents’ motion to stay proceedings pending related appeals

and for continued coordination, and in this supporting reply memorandum, this Court should stay

further proceedings in the above-captioned cases pending the appeals of Judge Leon’s decision in

Khalid, et al. and Judge Green’s January 31, 2005 decision in In re Guantanamo Detainee Cases

and deny petitioners’ motion for an order to show cause. For reasons stated in respondents’

separately filed memorandum, respondents oppose petitioners’ request for advance notice of an

intended transfer of petitioners from Guantanamo Bay, whether as a condition of a stay or

otherwise. See Respondents’ Memo. in Opp. to Pets’ Mot. for Temporary Restraining Order and

Prelim. Inj. (dkt no. 13).

Dated: August 11, 2005

Respectfully submitted,

PETER D. KEISLER
Assistant Attorney General

KENNETH L. WAINSTEIN
United States Attorney

DOUGLAS N. LETTER
Terrorism Litigation Counsel

5

Case 1:05-cv-01429-UNA Document 14 Filed 08/11/2005 Page 6 of 6



/s/ James J. Schwartz
JOSEPH H. HUNT (D.C. Bar No. 431134)
VINCENT M. GARVEY (D.C. Bar No. 127191)
TERRY M. HENRY
JAMES J. SCHWARTZ (D.C. Bar No. 468625)
PREEYA M. NORONHA
ROBERT J. KATERBERG
NICHOLAS J. PATTERSON
ANDREW I. WARDEN
EDWARD H. WHITE
Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W. Room 7310
Washington, DC 20530
Tel: (202)616-8267
Fax: (202) 616-8202

Attorneys for Respondents

6