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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SALEED MOHAMMED SALEH
HATIM, et al.,
GEORGE W. BUSH et al.,
v. : Civil Action No.:
7, 10, 11
GRANTING RESPONDENT’S MOTION TO STAY; DENYING PETITIONER’S MOTION FOR
PRELIMINARY INJUNCTION; GRANTING PETITIONER’S MOTION FOR ORDER TO SHOW CAUSE
This matter comes before the court on the respondents’ motion to stay, the petitioners’
motion for a temporary restraining order and the petitioners’ motion for order to show cause.
This case presents issues similar to those of other Guantanamo detainees litigating in this court.
In brief, the petitioner seeks a temporary restraining order requiring the respondents to provide 30
days advance notice of any intent to transfer the petitioners from Guantanamo Bay Naval Base in
On January 19, 2005, Judge Leon issued opinions in Khalid v. Bush and Boumediene v.
Bush granting the government’s motion to dismiss petitions for writ of habeas corpus brought by
detainees at the United States Naval Station at Guantanamo Bay, Cuba (“GTMO”). Khalid v.
Bush, 355 F. Supp. 2d 311 (D.D.C. 2005). On January 31, 2005, Judge Green issued an opinion
in In re Guantanamo Cases, granting in part and denying in part the government’s motion to
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dismiss in eleven cases consolidated for the purpose of that motion. In re Guantanamo Detainee
Cases, 355 F. Supp. 2d 443 (D.D.C. 2005). The petitioners in the above cases filed notices of
appeal, and the D.C. Circuit has yet to issue an opinion. Accordingly, the state of the law in this
circuit concerning the habeas rights of GTMO detainees is unclear.
The court is well aware of the petitioners’ concern that the government may remove the
petitioners from GTMO in the near future, thereby divesting (either as a matter of law or de
facto) the court of jurisdiction. Such an outcome would abuse the processes now put in place for
the purpose of adjudicating matters on their merits. See Rasul v. Bush, 124 S.Ct. 2686 (2004).
Accordingly, the court cannot allow such a scenario to unfold; the court will “guard against
depriving the processes of justice of their suppleness of adaptation to varying conditions.”
Landis v. North American Co., 299 U.S. 248, 256 (1936). Coextensive with the district court’s
inherent power to stay proceedings is the court’s power to craft a stay that balances the hardships
to the parties. Id. at 255 (noting concerns regarding the stay causing “even a fair possibility . . .
[of] damage to some one else”); see also Clinton v. Jones, 520 U.S. 681, 707 (1997) (noting that
“burdens [to the parties] are appropriate matters for the District Court to evaluate in its
management of the case”).
Also before the court is the petitioners’ motion for a writ of habeas corpus or an order to
show cause why the writ should not issue. “A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the writ or issue an order directing the
respondent to show cause why the writ should not be granted, unless it appears from the
application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. The
government takes the position that
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[i]t makes no sense for proceedings related to the merits of these cases, such as the
submission of factual returns in response to orders to show cause regarding the
issuance of habeas writs, to go forward when decision from the D.C. Circuit on
the related Guantanamo detainee appeals, which are proceeding in an expedited
fashion, will determine the legal analyses applicable to the cases and, indeed,
whether and how these cases should proceed.
Defs.’ Mot. to Stay at 9. Furthermore, the government argues that requiring submission of
factual returns “burdens the government’s resources and risks the inadvertent disclosure of
classified information.” Id. at 11.
The fact that the D.C. Circuit has not yet issued its decision in the related appeals (or that
this case is stayed pending the D.C. Circuit’s decision on those appeals) does not prevent the
government from processing the returns. On the contrary, the court determines that petitioners’
counsel should be able to review the returns now so that they can develop their case and prepare
for any consultation with their clients. As to the government’s concerns regarding classified
information, the protective order entered in this case will guard against any such inadvertent
disclosures. Finally, the government’s generic references to the expenditure of its resources and
a “logistical burden,” id., does not persuade the court to delay ordering the returns; the court is
confident that the government can handle this task.
Accordingly, it is this 22nd day of August, 2005,
ORDERED that the respondents’ motion for stay is GRANTED; and it is
FURTHER ORDERED that the respondents, their agents, servants, employees,
confederates, and any persons acting in concert or participation with them, or having actual or
implicit knowledge of this Order by personal service or otherwise, may not remove the
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petitioners from GTMO unless this court and counsel for petitioners receive thirty days’ advance
notice of such removal; and it is
ORDERED that, in light of this order, the petitioners’ motion for preliminary injunction
is denied without prejudice as moot, and it is
FURTHER ORDERED that the petitioners’ motion for an order to show cause is
granted, and it is
ORDERED that the respondents shall show cause by Monday, August 29, 2005, why
the writ should not be granted.
RICARDO M. URBINA
United States District Judge
“The person to whom the . . . order is directed shall make a return certifying the true
cause of the detention.” 28 U.S.C. § 2243.