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A. ____

(No. 06-1196)

IN THE SUPREME COURT OF THE UNITED STATES

______________________________

IN RE KHALED A.F. AL ODAH,

NEXT FRIEND OF FAWZI KHALID ABDULLAH

FAHAD AL ODAH, et al., PETITIONERS,












v.


UNITED STATES, ET AL.

_________________________________

EMERGENCY APPLICATION FOR STAY OF MANDATE AND

FOR ORIGINAL WRIT OF INJUNCTION
_________________________________

To the Honorable John G. Roberts, Chief Justice of the United States and Circuit Justice

of the United States Court of Appeals for the District of Columbia Circuit:

Pursuant to 28 U.S.C. § 2101(f) and 28 U.S.C. § 1651, Petitioners respectfully request a

stay of the mandate of the United States Court of Appeals in Boumediene v. Bush, 476 F.3d 981

(D.C. Cir. 2007) (“Boumediene I”), and other appropriate injunctive relief, pending Petitioners’

filing of a petition for rehearing on or before April 27, 2007. See S. Ct. Rule 44. Petitioners will

ask that the Court defer its consideration of the rehearing petition until (1) Petitioners have ex-

hausted their remedies in the Court of Appeals under the Detainee Treatment Act of 2005

(“DTA”), or (2) those remedies have proven to be so protracted or delayed as to compromise

“the offices and purposes of the writ of habeas corpus.” Boumediene v. Bush, 127 S. Ct. 1478,

1478 (2007) (“Boumediene II”) (statement of Justices Stevens and Kennedy respecting the denial

of certiorari) (citation omitted).



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The relief sought is analogous to a stay-and-abey order entered by a district court where a

habeas petitioner has failed to exhaust all available remedies in state courts and, rather than dis-

missing the action, the district court stays the action while the petitioner exhausts his state-court

remedies. See Rhines v. Weber, 544 U.S. 269, 277 (2005). Such relief is essential here to pre-

serve the status quo in the lower courts while Petitioners endeavor to exhaust their DTA reme-

dies as a precondition to their seeking reconsideration by the Court of its denial of certiorari.

Such relief is necessary to ensure that counsel can continue to communicate with and visit their

clients detained at Guantánamo Bay, that the DTA cases proceed in an orderly fashion, and that

Petitioners may pursue their habeas corpus claims in the District Court should this Court ulti-

mately find Petitioners entitled to do so.

Absent the relief sought, the government – which maintains that Guantánamo detainees

have no legal rights whatsoever – will completely control the terms and conditions of communi-

cations between the detainees and their counsel, at least until the Court of Appeals establishes

procedures to govern DTA actions.1 The government also will be free to transfer the detainees

from Guantánamo to countries or facilities where they may be tortured or abused, and by trans-

ferring the detainees from Guantánamo effectively defeat the jurisdiction of the federal courts.

Finally, document preservation orders entered in these cases will lapse, and counsel will be re-

quired to destroy their files within 60 days after the cases are dismissed. Prefiguring things to


1
A motion to govern two DTA actions filed by other detainees is pending in the Court of
Appeals, Bismullah v. Gates, D.C. Cir. No. 06-1197; the motion is scheduled for argument on
May 15, 2007. A pending DTA action, Paracha v. Gates, No. 06-1038, will not be heard until
September 27, 2007.



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come, the government is already cautioning counsel that their visits to Guantánamo are being

approved “provided that the District Court PO [protective order] remains extant.” 2

STATEMENT

Petitioners are nearly 60 foreign nationals held by the United States at Guantánamo Bay

Naval Base, Cuba. Many have been held at Guantánamo for more than five years. None is a

citizen of a nation at war with the United States. All filed habeas corpus actions in the United

States District Court for the District of Columbia Circuit. Petitioners’ ability to pursue those ac-

tions is the nub of this case.

A.

The Detainees’ Habeas Actions

In the wake of the September 11, 2001 terror attacks, the United States took into custody

all over the world thousands of foreign nationals. Beginning in January 2002, the United States

transported over 800 of these foreign nationals to detention facilities at Guantánamo Bay Naval

Base. More than 350 detainees are estimated to be held there today. Virtually all of the detain-

ees are being held at Guantánamo on the basis of their designation by the government as unlaw-

ful “enemy combatants.”

In the spring of 2002, a number of Guantánamo detainees filed habeas actions. The gov-

ernment moved to dismiss, contending that the federal courts lacked jurisdiction over the actions

because Guantánamo is not sovereign U.S. territory. In Rasul v. Bush, 542 U.S. 466 (2004), the

Court rejected the government’s contention, holding that the federal courts had habeas jurisdic-

tion under 28 U.S.C. § 2241 because Guantánamo is United States territory for all practical pur-


2
See Email to Caridad Feria-Perez from Shannon A. Llenza, Office of General Counsel,
Legal Counsel, Department of Defense, dated Apr. 13, 2007; Email to Sarah Jackel, from Shan-
non A. Llenza, Office of General Counsel, Legal Counsel, Department of Defense, dated Apr.
13, 2007. These emails are attached as Exhibit A.



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poses. Stating that petitioners’ allegations “unquestionably describe ‘custody in violation of the

Constitution or laws or treaties of the United States,’” the Court remanded for the District Court

to “consider . . . the merits of petitioners’ claims.” Rasul, 542 U.S. at 484 & n.15.

In the weeks immediately following Rasul, next friends of Guantánamo detainees filed a

dozen additional habeas actions in the District Court. Instead of answering the petitions by filing

factual returns, see 28 U.S.C. § 2243, however, the government moved to dismiss the petitions.

The government argued that Rasul had simply held that 28 U.S.C. § 2241 gave federal courts

jurisdiction over habeas actions brought by the detainees, but that, as foreign nationals held out-

side the sovereign territory of the United States, the detainees had no rights that could be en-

forced through habeas.

The habeas actions had been assigned in the normal course to nine of the judges of the

District Court. By order dated August 17, 2004, the District Court’s Calendar and Case Man-

agement Committee designated Judge Joyce Hens Green “to coordinate and manage all proceed-

ings in the pending matters and, to the extent necessary, rule on procedural and substantive is-

sues common to the cases.” In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 451

(D.D.C. 2005). Judge Green ordered the government to provide counsel with factual returns and

allow counsel visits to their clients in Guantánamo pending consideration of the government’s

motion to dismiss.

Shortly after the Court issued its decision in Rasul, the government established “Combat-

ant Status Review Tribunals” (“CSRTs”) to determine whether each detainee’s prior designation

as an “enemy combatant” was justified. The CSRTs were to make this determination on the ba-

sis of classified evidence supplied by the government and any evidence supplied by the detainee.

In response to Judge Green’s direction to file returns in the habeas actions, the government filed



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for each detainee the record of his CSRT proceeding, although the government provided only

redacted versions of some of the classified portions of the returns.

B.

Ruling on Right to Counsel

At the outset of the habeas proceedings that Rasul allowed, the government attempted to

limit the relationship between Petitioners and their counsel. On October 20, 2004, District Judge

Kollar-Kotelly ruled that Petitioners had a right to counsel in order to effectively present their

habeas claims in the District Court. Al Odah v. United States, 346 F. Supp. 2d 1, 8 (D.D.C.

2004). She found that “[t]he circumstances of [Petitioners’] confinement render their ability to

investigate nonexistent”; that it “[wa]s simply impossible to expect [Petitioners] to grapple with

the complexities of a foreign legal system and present their claims to this Court without legal

representation”; and that the District Court’s “ability to give [Petitioners’] claims the ‘careful

consideration and plenary processing’ which is their due would be stymied were [Petitioners] to

proceed unrepresented by counsel.” Id. Judge Kollar-Kotelly then rejected the government’s

proposal of audio and video monitoring of meetings between detainees and counsel and post hoc

“classification review” by the government of notes taken during those meetings and of legal mail

between counsel and detainees, finding that the proposed measures would “inappropriately bur-

den [the attorney-client] relationship.” Id. at 9.

C.

The Protective Order

The government in due course moved for a protective order and procedures to govern

counsel access to and communications with their Guantánamo clients and other matters relating

to the representation. At Judge Green’s request, counsel for the government and counsel for the

detainees negotiated a proposed protective order. Judge Green, resolving lingering issues and

making modifications of her own, issued the protective order on November 5, 2004 and an

amended version of the order on November 8, 2004. See In re Guantanamo Detainee Cases, 344



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F. Supp. 2d 174 (D.D.C. 2004). The court’s November 8 order, which set out the amended pro-

tective order and related procedures, provides in pertinent part:


1. The Court finds that these cases involve classified national security infor-
mation or documents, the storage, handling and control of which require special
security precautions, and access to which requires a security clearance and a
“need to know.” These cases may also involve other protected information or
documents, the storage, handling and control of which may require special pre-
cautions in order to protect the security of United States government personnel
and facilities, and other significant government interests.


2. The purpose of this Protective Order is to establish the procedures that
must be followed by all petitioners’ counsel, their respective petitioner(s), all
other counsel involved in these cases, translators for the parties, and all other in-
dividuals who receive access to classified national security information or docu-
ments, or other protected information or documents, in connection with these
cases, including the privilege team as defined in Exhibit A.


3. The procedures set forth in this Protective Order will apply to all aspects of
these cases, and may be modified by further order of the Court sua sponte or upon
application by any party. The Court will retain continuing jurisdiction to enforce
or modify the terms of this Order.



* * *


6. Petitioners’ counsel are bound by the terms and conditions set forth in the
“Revised Procedures For Counsel Access To Detainees At the U.S. Naval Base In
Guantanamo Bay, Cuba,” and the procedures for handling mail and documents
brought into and out of counsel meetings, attached hereto as Exhibit A. This Pro-
tective Order specifically incorporates by reference all terms and conditions estab-
lished in the procedures contained in Exhibit A to the extent they place limitations
on petitioners’ counsel in their access to and interaction with petitioners or han-
dling of information. Any violation of the terms and conditions of those proce-
dures will also be deemed a violation of this Protective Order. This paragraph
does not apply with respect to provisions in the procedures contained in Exhibit A
that are or have been overridden by the Court.


7. The privilege team shall not disclose to any person any information pro-
vided by counsel for a petitioner or by a petitioner, other than information pro-
vided in a filing with the Court, unless such information, if it were monitored in-
formation, could be disclosed under Section X of Exhibit A. Such disclosure
shall be consistent with the provisions of Section X of Exhibit A.

344 F. Supp. 2d at 174. The protective order, which is set out in Judge Green’s opinion, pro-

vides for and governs counsel access to and handling of classified and protected information and



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documents, id. at 178-82; procedures for filing court documents, id. at 182-83; document posses-

sion and retention, id. at 182, and penalties for unauthorized disclosure, id. at 183. The District

Court has also issued broad document preservation orders to govern during the pendency of the

habeas actions. See, e.g., Order, Abdah v. Bush, Civil Action 04-1254 (HHK) (June 10, 2005);

Memorandum Opinion and Order, Jamil El-Banna v. Bush, Civ. No. 04-1144 (RWR) (July 18,

2005). These orders are attached as Exhibit B.

Paragraph 45 of the protective order, however, requires the destruction of all protected

documents and information within 60 days after the resolution of the actions and the termination

of any appeals therefrom, including documents prepared by and information gathered by de-

tainee counsel and by the government. The government is permitted to keep a set of those mate-

rials that have been presented to the Court, but the government is not required to preserve even

that limited set of materials:

Within sixty (60) days of the resolution of these actions, and the termination of
any appeals therefrom, all protected documents or information, and any copies
thereof, shall be promptly destroyed . . . . [C]ounsel for the government may re-
tain one complete set of any such materials that were presented in any form to the
Court. . . . In any subsequent or collateral proceeding, a party may seek discovery
of such materials from the government, without prejudice to the government’s
right to oppose such discovery or its ability to dispose of the materials pursuant to
its general document retention policies.

Id. at 182 (emphasis added).

D.

Counsel Access Procedures

“Revised Procedures For Counsel Access To Detainees At the U.S. Naval Base In Guan-

tanamo Bay, Cuba,” Exhibit A to the protective order, sets forth detailed procedures governing

such matters as counsel visits to Guantánamo to meet with their clients, 344 F. Supp. 2d at 185-

86; procedures for correspondence between counsel and their clients, id. at 186-88; materials

brought into and out of client meetings, id. at 188-89; classification review of client communica-



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tions, id. at 189-90; telephonic access to clients, id. at 190; counsel’s handling and dissemination

of information from detainees, id. at 190-91; and security procedures at Guantánamo, id. at 191.

These restrictions are onerous. Absent these procedures, however, the government could impose

even more onerous restrictions, including prohibiting counsel visits, and even claim authority to

terminate Petitioners’ legal representation altogether.

E.

The District Court’s Decision

On January 30, 2005, Judge Green issued a decision denying in part the government’s

motion to dismiss, ruling that Petitioners had rights under the Due Process Clause and, subject to

certain limitations, under the Geneva Conventions, and could maintain habeas actions claiming

that the United States was detaining them in violations of such rights. In re Guantanamo De-

tainee Cases, 355 F. Supp. 2d 443, 481 (D.D.C. 2005).

F.

The Unredacted Returns Order

On January 31, 2005, Judge Green also granted a motion by Petitioners requiring the

government to provide counsel with unredacted versions of the factual returns. The government

had resisted providing some of the classified information in the returns on the ground that the

information was not “suitable” for disclosure to counsel, but after reviewing the material in cam-

era, Judge Green ruled that the information at issue was relevant to Petitioners’ defense and or-

dered the government to provide it to counsel. In re Guantanamo Detainee Cases, No. 02-CV-

0299 et al., slip op. at *2 (D.D.C. Jan. 31, 2005) (attached as Exhibit C). On February 3, 2005,

Judge Green granted the government’s motion to certify her decision for interlocutory review

under 28 U.S.C. § 1292(b) and to stay Petitioners’ habeas actions pending such review. The

government thereupon appealed. Al Odah v. United States, No. 05-5064 (D.C. Cir. filed Mar. 7,

2005).



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G.

The 30-Day Notice Order

Following Judge Green’s decision denying the government’s motion to dismiss, many

other habeas actions were commenced by or on behalf of Guantánamo detainees, and the District

Court also stayed those actions pending interlocutory review. Notwithstanding the stay, the Dis-

trict Court required the government to permit counsel to continue to meet with their clients and

otherwise prepare their clients’ cases, subject to the terms of the protective order.

In an early meeting at Guantánamo, one of the Petitioners told counsel that he had been

warned that, if he did not cooperate with his interrogators, he would be transferred to a third

country, where he would be tortured. On March 11, 2005, on reading newspaper reports of im-

pending transfers of large numbers of detainees from Guantánamo, counsel applied ex parte to

District Court’s weekend emergency motions judge for a temporary restraining order. Counsel

argued that such an order should be granted because any such transfer might result in extreme

physical and mental suffering for the detainee and might, at least as a practical matter, defeat the

District Court’s jurisdiction over the detainee’s habeas action. To avoid such human and legal

injuries, counsel requested a temporary restraining order requiring the government to provide

counsel with at least 30 days’ advance notice of any intended transfer of certain Petitioners from

Guantánamo, thereby providing counsel with an opportunity to challenge the intended transfer.

On March 12, 2005, the motions judge granted the TRO motion, and on March 29, 2005,

the District Court issued a preliminary injunction providing the requested relief. Abdah v. Bush,

Civ. No. 04-1254 (HHK) (RMC), 2005 WL 589812 (D.D.C. Mar. 12, 2005) (TRO) (attached as

Exhibit D); Abdah, No. 04-1254 (HHK), 2005 WL 711814 (D.D.C. Mar. 29, 2005) (preliminary

injunction) (attached as Exhibit E). The District Court issued orders in substance providing simi-

lar relief in dozens of other habeas actions. The government appealed all such orders. Abdah v.



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Bush, Case No. 05-5224 (D.C. Cir. filed Jun. 16, 2005); Al Ginco v. Bush, No. 06-5191 (D.C.

Cir. filed Jun. 30, 2006).

H.

Subsequent Proceedings

On February 20, 2007, the Court of Appeals vacated Judge Green’s order denying the

government’s motion to dismiss. Boumediene I, 476 F.3d at 994. The court held that the Mili-

tary Commissions Act of 2006 (“MCA”), Pub. Law No. 109-366, 120 Stat. 2600, divested fed-

eral courts of jurisdiction over habeas actions brought by Guantánamo detainees, and that Peti-

tioners had no legal rights enforceable through habeas because Guantánamo is not sovereign

United States territory. Id. at 986-994. On April 2, 2007, this Court denied a petition for certio-

rari seeking review of the decision of the Court of Appeals. Boumediene II, 127 S. Ct. 1478. The

Court of Appeals is poised to issue the mandate, directing the District Court to dismiss Petition-

ers’ habeas actions, whereupon the District Court’s protective order, unredacted returns order,

and 30-day notice order will lapse. The District Court will dismiss – indeed, has already begun

to dismiss – habeas actions brought by other Guantánamo detainees, likely causing the orders in

those actions to lapse as well.

ARGUMENT

The Court or a Justice may stay the mandate of the Court of Appeals to enable Petitioners

to obtain a writ of certiorari from the Supreme Court. 28 U.S.C. § 2101(f); 28 U.S.C. § 1651(a).

Justice Scalia has stated the standard for such relief:

The practice of the Justices has settled upon three conditions that must be met be-
fore issuance of a § 2101(f) stay is appropriate. There must be a reasonable prob-
ability that certiorari will be granted (or probable jurisdiction noted), a significant
possibility that the judgment below will be reversed, and a likelihood of irrepara-
ble harm (assuming the correctness of the applicant’s position) if the judgment is
not stayed.

* * *



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The conditions that are necessary for issuance of a stay are not necessarily

sufficient. Even when they all exist, sound equitable discretion will deny the stay
when ‘a decided balance of convenience’ does not support it.

Barnes v. E-Systems, Inc. Group Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301, 1302, 1304-

05 (1991) (Scalia, J., Circuit Justice) (citations omitted), cited in Stroup v. Willcox, 127 S. Ct.

851 (2006) (Roberts, C.J., Circuit Justice); see also United States Postal Serv. v. Nat’l Ass’n of

Letter Carriers, AFL-CIO, 481 U.S. 1301, 1302 (1986) (Rehnquist, C.J., Circuit Justice); Curry

v. Baker, 479 U.S. 1301, 1302 (1986) (Powell, J., Circuit Justice).

Applicants meet this standard. First, there is at least a “reasonable probability” that the

Court will vote to grant rehearing after Petitioners have exhausted their DTA remedies. The

three Justices who dissented from the denial of certiorari were of the view that the jurisdictional

and constitutional questions raised by the petitioners “deserve this Court’s immediate attention.”

Boumediene II, 127 S. Ct. at 1479 (Breyer, J., joined by Souter & Ginsburg, JJ., dissenting).

Two other Justices stated that despite “the obvious importance of the issues raised in these

cases,” review was not appropriate “at this time” because the petitioners had yet to exhaust their

DTA remedies. See id. at 1478 (statement of Stevens and Kennedy, JJ., respecting the denial of

certiorari).

Second, there is a “significant possibility” that the judgment of the Court of Appeals in

this matter will be reversed. Justice Breyer, dissenting from the denial of certiorari, expressed

the view that “petitioners plausibly argue that the lower court’s reasoning is contrary to this

Court’s precedent.” Id. at 1479. Justice Kennedy in Rasul has rejected the government’s formal-

istic distinction between sovereign United States territory and territory that “is in every practical

respect a United States territory,” 542 U.S. at 487 (Kennedy, J., concurring in judgment), and

Justice Kennedy also made clear in Verdugo his view that whether foreign nationals outside sov-

ereign United States territory have constitutional rights may depend on the right being asserted.



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United States v. Verdugo-Urquidez, 494 U.S. 259, 275-78 (1990) (Kennedy, J., concurring). Fi-

nally, Justice Stevens wrote the opinion of the Court in Rasul, concluding, among other things,

that “petitioners’ allegations unquestionably describe ‘custody in violation of the Constitution or

laws or treaties of the United States,’” 542 U.S. at 484 n.15 (citing Justice Kennedy’s concur-

rence in Verdugo), and remanding for the District Court to “consider . . . the merits of petition-

ers’ claims,” id. at 484.

Third, Petitioners will be irreparably harmed if the Court of Appeals issues the mandate

directing the District Court to dismiss these habeas cases for lack of jurisdiction. If the mandate

issues and Petitioners’ habeas actions are dismissed, the protective order and other procedures

established by the District Court will lapse, causing a procedural vacuum that will last at least

until the Court of Appeals adopts procedures to govern DTA actions. As discussed, these orders

govern such matters as (1) communications between detainees and their counsel, (2) meetings of

detainees and counsel, (3) counsel access to and handling of classified and protected information,

including information vital to counsel’s representation of the detainees, (4) contemplated trans-

fers of detainees from Guantánamo, and (5) preservation of counsel papers and government re-

cords. If these orders are allowed to lapse, the government, which maintains that Guantánamo

detainees have no legal rights whatsoever, will have unfettered control over the matters just de-

scribed. In addition, by filing DTA actions in the Court of Appeals after the District Court has

dismissed their habeas actions for want of jurisdiction, Petitioners may lose their opportunity to

argue that jurisdiction in these cases remains because the MCA violates the Suspension Clause.

Petitioners, however, are entitled to ask the Court to reverse the Court of Appeals’ jurisdictional

holding in these cases, once Applicants have exhausted their DTA remedies.



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Staying the mandate of the Court of Appeals is also warranted to facilitate the Court’s

swift intervention before Petitioners have exhausted their DTA remedies if the remedies are rea-

sonably protracted or delayed. As Justices Stevens and Kennedy stated:

If petitioners later seek to establish that the Government has unreasonably delayed
proceedings under the Detainee Treatment Act of 2005, Tit. X, 119 Stat. 2739, or
some other and ongoing injury, alternative means exist for us to consider our ju-
risdiction over the allegations made by petitioners before the Court of Appeals.
See 28 U.S.C. §§ 1651(a), 2241. Were the Government to take additional steps to
prejudice the position of petitioners in seeking review in this Court, “courts of
competent jurisdiction,” including this Court, “should act promptly to ensure that
the office and purposes of the writ of habeas corpus are not compromised.”

Boumediene II, 127 S. Ct. at 1478 (statement respecting the denial of certiorari).

Fourth, “a decided balance of convenience” supports a stay. The government will suffer

no prejudice if the mandate issues. In opposing Petitioners’ motion to stay the mandate in the

Court of Appeals, the government suggested that, should a stay issue, Petitioners might attempt

to continue to litigate these cases in the district court while exhausting their DTA remedies in

this Court. Resps.’ Opp. to Pet’rs. Mot. to Withhold Issuance of the Mandate, Abdah v. Bush,

Nos. 05-5115 and 05-5116, at 6 (D.C. Cir. filed Apr. 11, 2007). That suggestion is groundless

because the habeas actions are stayed. The government conjured other horribles in its opposition

but never explained how any of them would follow from staying the mandate. Id. at 1, 5. As in

Barnes, the “likelihood that denying the stay will permit irreparable harm to the applicant

[would] clearly exceed the likelihood that granting it will cause irreparable harm to others,” 501

U.S. at 1305 (concluding that the “balancing seems to me quite easy in the present case, since I

am aware of no irreparable harm that granting the stay would produce”).

Finally, the importance of the constitutional issues raised in Boumediene I militates in fa-

vor of a stay of the Court of Appeals’ mandate. Justices sitting in chambers commonly empha-

size the importance of the constitutional issues at stake in their decisions to issue stays pending



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petitions for certiorari. See, e.g., California v. Riegler, 449 U.S. 1319, 1322 (1981) (Rehnquist,

J., Circuit Justice) (“In my opinion, the case presents issues which are of sufficient importance

that four Justices of this Court would likely vote to grant the State’s petition for certiorari.”);

Boston v. Anderson, 439 U.S. 1389, 1391 (1978) (Brennan, J., Circuit Justice) (“I am also of the

view that at least four Members of this Court will vote to grant plenary review of this important

constitutional question.”).

The application should be granted.

CONCLUSION

Respectfully submitted,



__________________________
David H. Remes
Covington & Burling LLP
1201 Pennsylvania Avenue, N.W.,
Washington, D.C. 20004
(202) 662-5212

Attorneys for Petitioners



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Case 1:05-cv-01429-UNA Document 72-4 Filed 04/19/2007 Page 43 of 45

Case 1:05-cv-01429-UNA Document 72-4 Filed 04/19/2007 Page 44 of 45

Case 1:05-cv-01429-UNA Document 72-4 Filed 04/19/2007 Page 45 of 45