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Case 1:05-cv-01429-UNA Document 28 Filed 10/05/2005 Page 1 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SALEH ABDULLA AL-OSHAN et al.,

Petitioners/
Plaintiffs,

:
:
:
:
:

v. : Civil Action No.:

05-0520 (RMU)

:

Document Nos.:

52, 53

Civil Action No.:

05-1453 (RMU)

Document Nos.:

15, 16

Civil Action No.: 05-1048 (RMU)

Document Nos.: 38, 40

Respondents/
Defendants.

GEORGE W. BUSH et al.,

:
:
:
:
____________________________________:
:
:
:
:
:
:
:

NASSER MAZYAD ABDULLAH
AL-SUBAIY et al.,

Petitioners/
Plaintiffs,

v. :
:

Respondents/
Defendants.

GEORGE W. BUSH et al.,

:
:
:
:
____________________________________:
:
:
:
:
:
:

ABDULSALAM ALI ABDULRAMAN
AL-HELA et al.,

Petitioners/
Plaintiffs,

v. :
:

GEORGE W. BUSH et al.,

:
:
:
:
____________________________________:

Respondents/
Defendants.

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Case 1:05-cv-01429-UNA Document 28 Filed 10/05/2005 Page 2 of 6

SAEED MOHAMMED SALEH HATIM
et al.,

Petitioners/
Plaintiffs,

:
:
:
:
:

v. :
:

Respondents/
Defendants.

GEORGE W. BUSH et al.,

:
:
:
:
____________________________________:
:
SALIM MOHAMMED ADAM BIN AMIR :
et al.,
:
:
:
:

Petitioners/
Plaintiffs,

Civil Action No.: 05-1429 (RMU)

Document Nos.: 21, 23

Civil Action No.: 05-1724 (RMU)

Document Nos.: 2, 7

v. :
:

GEORGE W. BUSH et al.,

:
:
:
:
____________________________________:

Respondents/
Defendants.

MEMORANDUM ORDER

DENYING WITHOUT PREJUDICE THE PETITIONERS’ MOTION TO COMPEL

This matter comes before the court on the petitioners’ motion to compel the respondents

to provide petitioners’ counsel with access to the petitioners and for information regarding the

petitioners’ health. Petitioners’ counsel claim that the petitioners have been engaged in an

“open-ended refusal of both food and water.” Pet’rs’ Mot. to Compel (“Pet’rs’ Mot.”) ¶ 3. For

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this reason, petitioners’ counsel request access to their clients and medical records regarding their

clients’ health. Because this case is presently stayed and because the petitioners fail to persuade

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A colloquialism, the court presumes, for the term “hunger strike.”

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Case 1:05-cv-01429-UNA Document 28 Filed 10/05/2005 Page 3 of 6

the court that they are entitled to the relief they seek at this time, the court denies without

prejudice the petitioners’ motion to compel.

I. BACKGROUND

The petitioners are all detainees at Camp Delta at the United States Naval Station in

Guantanamo Bay, Cuba (“GTMO”). Pet’rs’ Mot. ¶ 1. The petitioners all filed writs of habeas

corpus claiming that their detention violates the Constitution, laws, and treaties of the United

States. Id. ¶ 2. The circumstances surrounding the petitioners’ capture and transfer to GTMO

are unclear.

Pursuant to 28 U.S.C. § 2243, the court ordered the respondents to file factual returns for

all petitioners providing the factual justifications for their ongoing imprisonment at GTMO, and

stayed the cases pending guidance from the D.C. Circuit.

On September 16, 2005, the petitioners filed a collective motion to compel information

related to medical treatment. Because that motion cited no case law in support of the relief

sought, the court ordered the petitioners to re-file their motion “with pertinent authority included

therein (including pincites) by no later than September 23, 2005.” Minute Order (Sept. 21,

2005). Furthermore, because the petitioners styled their motion as an “emergency motion to

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The court reminds the parties of their obligation to provide the court with the authority in
support of its position. “Judges are not expected to be mindreaders . . . [it is the] litigant
[that] has an obligation to spell out its arguments squarely and distinctly, or else forever
hold its peace.” Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988) (citations
and quotations omitted). For this reason, though the court charitably granted the
petitioners an opportunity to resubmit their motion, the parties are hereby on notice that
the court will decline extending this gratuity regarding future filings made without
pertinent legal authority in support of the position espoused.

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Case 1:05-cv-01429-UNA Document 28 Filed 10/05/2005 Page 4 of 6

compel access,” the court set forth an expedited briefing schedule. The court now turns to the

merits of the petitioners’ motion.



II. ANALYSIS

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 GTMO. Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005); Boumediene v. Bush

No. 05-5062 (D.D.C. March 10, 2005). On January 31, 2005, Judge Green issued an opinion in

In re Guantanamo Detainee Cases, granting in part and denying in part the government’s motion

to 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, because the

state of the law in this circuit concerning the habeas rights of GTMO detainees is unclear, this

court issued a stay of proceedings pending the D.C. Circuit decisions in those cases.

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Case 1:05-cv-01429-UNA Document 28 Filed 10/05/2005 Page 5 of 6

Although these cases are stayed, the petitioners filed their motion to compel. Under

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Federal Rule of Civil Procedure 37(a), a party may move the court in which the action is pending

for an order compelling disclosure. FED. R. CIV. P. 37(a). The party must certify that the movant

has conferred in good faith with the party refusing disclosure in an effort to avoid court action.

Id. The court “has broad discretion in its resolution of discovery problems that arise in cases

pending before it.” In re Multi-Piece Rim Prod. Liab. Litig., 653 F.2d 671, 679 (D.C. Cir. 1981).

A ruling on the instant motion would undermine the reasons this court, and others

handling GTMO cases, stayed proceedings pending resolution of Khalid, Boumediene, and In Re

Guantanamo Detainee Cases. The Supreme Court requires that this court, “proceed with the

caution that is necessary” and only take “prudent and incremental steps” in resolving these

difficult and novel issues. Hamdi v. Rumsfeld, 124 S.Ct. 2633, 2650 (2004). The Court

continued with its expectation that “courts faced with these sensitive matters will pay proper

heed both to the matters of national security that might arise in an individual case and to the

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Although the petitioners filed a discovery motion, they curiously plopped a preliminary
injunction standard into their motion. Pet’rs’ Mot. ¶ 31. At its core, however, the
petitioners are seeking access to their clients and their clients’ medical records. As such,
their motion is peculiarly a discovery motion. “[A]t the end of the day, even if you put a
calico dress on it and call it Florence, a pig is still a pig,” Bradshaw v. Unity Marine
Corp., Inc., 147 F. Supp. 2d 668, 671 (S.D. Tex. 2001), the petitioners’ legal standard to
the contrary notwithstanding. Nevertheless, although it is not the court’s role to craft the
petitioners’ arguments, perhaps the petitioners are attempting to demonstrate that if the
stay is not lifted, the petitioners will be irreparably harmed. Pet’rs’ Mot. ¶ 41. The court
notes that Judge Louis Oberdorfer recently concluded that the Guantanamo detainees
failed to demonstrate an imminent threat to their health or life due to their hunger strike.
El-Banna v. Bush, Civ. No. 04-1144, (D.D.C. Sept. 28, 2005). Judge Oberdorfer relied
on the same declaration that this court has before it, which states that the Joint Task
Force “will prevent unnecessary loss of life by detainees through standard medical
intervention, including involuntary medical intervention when necessary to overcome a
detainee’s desire to commit suicide.” Resp’ts’ Opp’n, Ex. A (Wood Decl.) (relying on
28 C.F.R. § 549.65).

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Case 1:05-cv-01429-UNA Document 28 Filed 10/05/2005 Page 6 of 6

constitutional limitations safeguarding essential liberties that remain vibrant even in times of

security concerns.” Id.

A determination of the instant motion requires the court to balance the interests of the

detainees’ constitutional rights, the executive branch’s authority to classify individuals as enemy

combatants and its authority to detain those individuals according to the government’s discretion,

and the scope of the judiciary’s role in these cases. Unsure of the way in which the D.C. Circuit

will strike such a balance, or at least inform the contours of this trichotomy, a judicial

determination by this court regarding the instant motion would be imprudent. 4

III. CONCLUSION

For the reasons set forth herein, it is this 5th day of October 2005,

ORDERED that the petitioner’s motion to compel is DENIED without prejudice.



SO ORDERED.

RICARDO M. URBINA
United States District Judge

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The petitioners’ motion to compel is curious because “[c]ounsel make this application
for emergency relief because the Government has inappropriately burdened Petitioners’
right of reasonable access to counsel by refusing to provide any information related to
Petitioners despite the exigent circumstances presented by the current hunger strike.”
Pet’rs’ Mot. to Compel ¶ 38 (internal quotation marks omitted). Stated differently, the
petitioners are requesting “emergency” relief due to the “exigent circumstances” that
they themselves created by undergoing a hunger strike, assuming arguendo that the
instant petitioners are among the detainees starving themselves. The court is cautious of
parties attempting to circumvent the judicial process by creating an “emergency”
situation then asking the court to intervene and grant discovery while their case is stayed.

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