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____________________________________
)


SAEED MOHAMMED SALEH
)

HATIM,
)



)
Petitioner,
)
)


)


)


BARACK H. OBAMA,
)
President of the United States, et al.,
)
)


Respondents.
)
____________________________________)


v.


Civil Action No. 05-1429 (RMU)




Case 1:05-cv-01429-RMU Document 344 Filed 03/19/10 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION FOR STAY PENDING APPELLATE REVIEW



Respondents have appealed (see Dkt. No. 340) the Court’s December 15, 2009

memorandum opinion and order (Dkt. Nos. 334 & 337), granting the writ of habeas

corpus. Pending resolution of this appeal, Respondents hereby respectfully submit their

motion for stay of the Court’s order that the Government “take all necessary and

appropriate steps to facilitate the release of the petitioner forthwith.” (Dkt. No. 334.)



As discussed below, Respondents, on appeal, will present serious legal issues

concerning the Executive’s authority to detain individuals who are part of, or have

substantially supported, al-Qaida or Taliban forces. If Petitioner Hatim is released to

another country in compliance with the Court’s order, appellate review would be

foreclosed. In addition, ordering Petitioner’s release at this time, in Respondents’ view,

would result in harm to national security and to the public interest. Respondents

therefore request that the Court’s order be stayed pending appellate review.1


1 Pursuant to Local Civil Rule 7(m), Respondents’ counsel conferred with counsel for
Petitioner to ascertain his position with respect to this motion. Counsel for Petitioner
represented that Petitioner opposes the motion.

Case 1:05-cv-01429-RMU Document 344 Filed 03/19/10 Page 2 of 7

ARGUMENT



In light of Respondents’ decision to appeal from the Court’s December 15, 2009

order, the irreparable injury that Respondents would suffer if that order was enforced

pending resolution of their appeal, and the weighty issues presented in this case that must

be resolved on appeal, Respondents respectfully seek a stay. A stay pending appeal is

appropriate where the moving party can show that (1) it will suffer irreparable injury

absent a stay; (2) it has a substantial likelihood of prevailing on the merits of its appeal;

(3) the non-moving party will not be harmed by the issuance of a stay; and (4) the public

interest will be served by a stay. United States v. Philip Morris, Inc., 314 F.3d 612, 617

(D.C. Cir. 2003) (citing Washington Metro. Area Transit Comm’n v. Holiday Tours, Ind.,

559 F.2d 841, 843 (D.C. Cir. 1977)). Respondents need not establish “an absolute

certainty of success”; instead “[i]t will ordinarily be enough that the [movant] has raised

serious legal questions going to the merits, so serious, substantial, difficult as to make

them a fair ground of litigation . . .” Population Inst. v. McPherson, 797 F.2d 1062, 1078

(D.C. Cir. 1986) (quoting Holiday Tours, 559 F.2d at 844). Under these standards, a stay

pending appellate review is warranted here.

I.



Respondents Will Suffer Irreparable Injury Absent The Stay.

Respondents will suffer irreparable injury absent a stay of the Court’s order.

Respondents are seeking appellate review of the Court’s decision in this case to grant the

writ. See Notice of Appeal (Dkt. No. 340). Failure to grant a stay in this case ultimately

would result in the transfer of Petitioner outside the jurisdiction of United States’ courts

and, therefore, result in the irreparable loss of the Government’s ability to continue to

detain Petitioner until the end of hostilities or such time as the Government determines



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Case 1:05-cv-01429-RMU Document 344 Filed 03/19/10 Page 3 of 7

his transfer to be consistent with national security and the foreign policy of the United

States.2 See Population Inst., 797 F.2d at 1081 (holding that irreparable loss was

established where the appellate court would be unable to grant effective relief in the

absence of a stay pending appellate review). The absence of a stay while the appeal is

pending would tend to frustrate the purpose of the appeal, and, in the event of a reversal

of the Court’s order, to render the appellate court’s decision of no effect and to cause

irreparable injury to the United States. See id.; see also Al-Adahi v. Obama, 2009 WL

4641758, at *2 (D.D.C.) (granting the Government’s motion to stay the order granting the

writ pending appeal, finding that “United States would suffer irreparable injury” if the

order was not stayed). If this case is not stayed pending appellate review and Petitioner

Hatim is released to Yemen or to another country, the United States would almost

certainly be unable to regain custody of him in the event that the Court of Appeals

overturns this Court’s grant of the writ. The peremptory, court-ordered release from

United States’ custody of an individual whom the Government believes—and will argue

on appeal—was part of al-Qaida and/or Taliban forces would significantly harm national

security and is against the public interest. See Al-Adahi, 2009 WL 4641758, at *2

(discussing public interest factor);

II.

Respondents Have A Substantial Likelihood Of Prevailing On Appeal.



Respondents also have satisfied the likelihood of success criterion. The

Government respectfully suggests that the Court’s decision presents serious questions

about the evidentiary standard that the Government must meet in these Guantanamo

2 On January 5, 2010, the President addressed the Nation regarding the security situation
in Yemen and stated that the United States will not transfer Guantanamo detainees back
to Yemen for the time being. See Remarks by the President on Security Reviews (Jan. 5,
2010), available at http://www.whitehouse.gov/the-press-office/remarks-president-
security-reviews.



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Case 1:05-cv-01429-RMU Document 344 Filed 03/19/10 Page 4 of 7

cases, about the manner in which the Government’s evidence must be considered, and

about whether the Government’s evidence demonstrated Petitioner’s detainability.



The Government believes its appeal will raise serious questions concerning the

sorts of evidence by which it may carry its burden in this habeas litigation. Relying on

the district court decisions in Gherebi and Hamlily, the Court held that the Government

had to show that Petitioner Hatim was “part of the command structure” of al-Qaida or the

Taliban in order to be subject to detention, and the Court then construed this standard to

require evidence that Petitioner received and executed specific commands from al-Qaida

leaders. Hatim v. Obama, 2009 WL 5191429, at *4 & n.3 (D.D.C.). The Government

has good grounds to argue that this evidentiary requirement is unduly restrictive and

inconsistent with the nature of that organization. Al-Qaida is a terrorist organization

without the formal organization or command structure of a military force. Because al-

Qaida and the Taliban do not operate with uniforms, membership cards or a formal

hierarchical military structure, and instead purposefully attempt to disguise their

members and structure, other Judges of this Court have determined that Respondents

need not present specific evidence that “persons received and executed orders within the

command structure of such an enemy force,” Hatim, 2009 WL 5191429, at *4, to justify

a petitioner’s detention. See Gherebi v. Obama, 609 F. Supp. 2d 43, 69 (D.D.C. 2009);

Al-Odah v. Obama, 648 F. Supp. 2d 1, 15 (D.D.C. 2009). Rather, courts must also

consider functional, and often highly contextual, evidence that a person is “part of” al-

Qaida or of Taliban forces. In particular, the day after the Court filed its opinion in this

case, the Court of Appeals noted in Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010),

that activities, such as Petitioner’s, of staying at al-Qaida and Taliban guesthouses, and



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Case 1:05-cv-01429-RMU Document 344 Filed 03/19/10 Page 5 of 7

training at al-Farouq, would “seem to overwhelmingly, if not definitively, justify the

government’s detention.” 590 F.3d at 873 n.2.3 Moreover, the Government respectfully

suggests it has good grounds to argue that even under the more restrictive standard

applied in this case, its evidence of Petitioner’s role within the “command structure” of

enemy forces was sufficient given that the Government introduced evidence showing

specific commands to which Petitioner was subject at al-Farouq and at guesthouses. See,

e.g., Respondents’ Merits Hearing Exhibit Nos. 12, 14, 17, 31, and 37.4



Furthermore, the Court of Appeals held in Al-Bihani that “purposeful and material

support” of al-Qaida or the Taliban could support a petitioner’s detention. 590 F.3d at

874. Because Al-Bihani is binding circuit precedent, it affords the Government another

possible ground for appeal in this case.



In light of the foregoing, the Government respectfully submits that these are

serious legal issues going to the merits for appeal in this case that would justify a stay

pending such appeal.

III. Any Potential Harm To Petitioner Hatim Does Not Outweigh The Need For









A Stay.
















The Government acknowledges that a stay during appellate proceedings would

work to harm Petitioner Hatim to the extent he remains in detention. In the

Government’s view, however, the balance favors a stay given that Petitioner’s release

3 Petitioner additionally stayed at the rear lines near Bagram.
4 The Government believes it has good grounds to argue that the evidence in the record
must be viewed as a whole and cannot be rejected by a piecemeal analysis of the
evidence. See generally Hatim, 2009 WL 5191429, at *7 - *16. Courts must consider
the totality of the evidence, including evidence that seems insignificant in isolation; even
in the criminal context, “most convictions result from the cumulation of bits of proof
which, taken singly, would not be enough in the mind of a fair minded person * * * [a]ll
that is necessary, and all that is possible, is that each bit may have enough rational
connection with the issue to be considered a factor contributing to an answer.” U.S. v.
Pugliese, 153 F.2d 497, 500 (2d Cir. 1946) (L. Hand, J.).



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Case 1:05-cv-01429-RMU Document 344 Filed 03/19/10 Page 6 of 7

would moot the appeal and that his court-ordered release would harm national security

and the public interest. Moreover, an expedited briefing schedule is already in place in

this appeal,5 and the Court of Appeals is routinely expediting argument in these

Guantanamo Bay habeas cases. Thus, in light of the serious irreparable harm to the

United States and to the public interest if a stay is not granted, any potential for harm to

Petitioner Hatim as a result of continued detention during appellate proceedings does not

outweigh the need for a stay.

The Public Interest Supports A Stay Pending Appeal.



IV.



The public interest will be served by a stay pending appellate review. The issues

implicated by the Court’s opinion are of a particular importance to the public interest, as

they concern the Executive’s authority to detain individuals who are part of, or have

substantially supported, al-Qaida or Taliban forces. The public interest would be

disserved if a stay is denied and Respondents’ appeal was effectively foreclosed, denying

the Court of Appeals the opportunity to provide guidance on the showing the

Government must make to establish its detention authority. A stay to allow the Court of

Appeals to address the issue presented in this case is appropriate. See Landis v. N. Am.

Co., 299 U.S. 248, 256 (1936) (noting propriety of a stay in cases “of extraordinary

public moment”); see also Al-Adahi, 2009 WL 4641758, at *2 (finding “significant

benefit in having the Court of Appeals clarify the evidentiary issues” on appeal in this

habeas litigation); cf. also Nken v. Holder, 129 S. Ct. 1749, 1762 (2009) (recognizing a

merger of the factors of harm and the public interest when the Government is a party).



In addition, the public interest in national security and in the effectuation of the

right to appeal also weigh heavily in favor of staying the implementation of the Court’s

5 Opening briefs are due April 12, 2010.



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Case 1:05-cv-01429-RMU Document 344 Filed 03/19/10 Page 7 of 7

order. As discussed above, if Petitioner Hatim is released from U.S. custody and from

U.S. jurisdiction, the Court of Appeals would be unable to grant effective relief.

CONCLUSION



For the aforementioned reasons, the Court should grant Respondents’ motion for

stay pending appellate review.

Dated: March 19, 2010


































































Respectfully submitted,

TONY WEST
Assistant Attorney General





JOSEPH H. HUNT
Branch Director

TERRY M. HENRY
JAMES J. GILLIGAN
Assistant Branch Directors



_/s/ Ryan G. Lee_________________________
ANDREW I. WARDEN
STEPHEN FINN
RYAN G. LEE
Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, DC 20530
Tel.: (202) 305-8900



Attorneys for Respondents

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