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Respondents.


Petitioners,

v.


____________________________________
)


ABDULSALAM ALI
)
ABDULRAHMAN AL HELA, et al.,
)

)



)

)



)
)


GEORGE W. BUSH, et al.,
)
)




)
____________________________________)
)

SAEED MOHAMMED SALEH
)
HATIM, et al.,
)



)


)

)




)

)

GEORGE W. BUSH, et al.,
)
)




)
____________________________________)

)
HASSAN BIN ATTASH, et al.,
)

)

)


)




)

)

GEORGE W. BUSH, et al.,
)
)




)
____________________________________)



Petitioners,

v.



Petitioners,

v.








Respondents.





Respondents.














































Civ. No. 05-01048 (RMU)

Civ. No. 05-01429 (RMU)


Civ. No. 05-01592 (RCL)

Case 1:05-cv-01429-UNA Document 77 Filed 05/04/2007 Page 1 of 6

Filed with Court Security Officer 5/3/07
Cleared for public filing 5/4/07

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

OPPOSITION TO RESPONDENTS’ MOTIONS TO DISMISS



Consideration of the government’s motions to dismiss should be deferred pending the

D.C. Circuit’s disposition of motions that will clarify how these cases are to be handled in light

of its decision in Boumediene v. Bush and Al Odah v. United States, and pending the Supreme




1

Case 1:05-cv-01429-UNA Document 77 Filed 05/04/2007 Page 2 of 6

Court’s disposition of petitions to reconsider its denial of review in those cases. If consideration

of the government’s motions is not deferred, the motions should be denied as premature.

1.

On April 9, 2007, following the Supreme Court’s denial of certiorari, petitioners in

Al Odah (which was consolidated with Boumediene) filed motions in the D.C. Circuit to stay the

mandate and to govern the appeal.1 Additionally, on April 20, 2007, Petitioners in Abdah v.

Bush, D.C. Cir. No. 05-5127, and Abdah v. Bush, D.C. Cir. No. 05-5224, filed motions seeking,

inter alia, to direct this Court not to dismiss these actions.2 On April 27, 2007, the Al Odah and

Boumediene petitioners filed petitions in the Supreme Court seeking rehearing of the denial of

review in those cases. It is likely that the D.C. Circuit’s disposition of these motions, and the

Supreme Court’s disposition of the rehearing petitions, will govern all of the Guantánamo habeas

cases, not just those brought by the Al Odah and Boumediene petitioners. The government’s mo-

tions are therefore premature.

The government argues that the pendency of the motion to stay the mandate in Boumedi-

ene does not excuse this Court from applying that decision to habeas actions brought by detain-

ees who are not parties to that case. Gov’t Mot. 3-4 n.5. This is a red herring. Nothing requires


1
In Boumediene, Judge Leon granted the government’s motion to dismiss the Guantánamo
cases before him; the D.C. Circuit affirmed. In Al Odah, Judge Joyce Hens Green denied in part
the government’s motion to dismiss the Guantánamo cases before her, the D.C. Circuit reversed.
See Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).
2
In Abdah, No. 05-5127, the government appealed this Court’s order requiring the gov-
ernment to provide Petitioners’ counsel with unredacted records of their clients’ Combatant
Status Review Tribunal proceedings. In Abdah, No. 05-5224, the government appealed this
Court’s order requiring the government to provide Petitioners’ counsel with advance notice of
contemplated transfer of their clients from Guantánamo. The D.C. Circuit has consolidated the
government’s appeals in those cases with the government’s appeals from similar orders in the
above-captioned Al-Hela and Hatim cases.



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Case 1:05-cv-01429-UNA Document 77 Filed 05/04/2007 Page 3 of 6

this Court to act on the government’s motions to dismiss while the D.C. Circuit is considering

the motions just described and the Supreme Court is considering the petitions for rehearing.3

2.

The government also apparently seeks to dissolve the protective and injunctive

orders entered by the Court in this case. The government argues that the “stay-and-abey” relief

requested by Petitioners (which contemplates the continued enforceability of the counsel access

rules established by the protective order, orders requiring advance notice of intended transfers

from Guantánamo, and other orders) would effectively impose “Court-ordered obligations where

the Court has no jurisdiction to act.” Gov’t Mot. 7-8. The government argues that dismissal of

these cases, which the government asserts Boumediene mandates, “would bring this Court’s

counsel access regime to an end.” Id. at 10.

As just discussed, however, the government’s motions to dismiss are premature. Accord-

ingly, the orders entered by this Court, including those governing counsel access, remain in full

force and effect. Moreover, contrary to the government’s contention, dismissal of these cases

would not result automatically in the dissolution of the protective and injunctive orders. As this

Court recognized in Adem v. Bush, 425 F. Supp. 2d 7, 20 (D.D.C. 2006), the “Amended Protec-

tive Order and Procedures for Counsel Access to Detainees at the United States Naval Base in

Guantánamo Bay, Cuba,” entered on November 8, 2004, like all protective orders directed to fu-

ture events, survives dismissal of this case and may be modified, enforced, or dissolved only by

separate order of the Court.4 Indeed, this Court expressly “retain[ed] continuing jurisdiction to


3
The D.C. Circuit ordered dismissal in Kiyemba v. Bush and Paracha v. Bush, see Gov’t
Mot. 4 n.5, before receiving the Al Odah petitioners’ motion to stay the mandate. Those peti-
tioners urged in their motion that dismissal of their actions would threaten severe injury, and they
announced their intention to file a petition for rehearing in the Supreme Court.
4
See Gambale v. Deutsche Bank AG, 377 F.3d 133, 140-41 (2d Cir. 2004); Poliquin v.
Garden Way, Inc., 989 F.2d 527, 535 (1st Cir. 1993); United Nuclear Corp. v. Cranford Ins. Co.,
905 F.2d 1424, 1427 (10th Cir. 1990); Pub. Citizen v. Liggett Group, 858 F.2d 775, 780-82 (1st



3

Case 1:05-cv-01429-UNA Document 77 Filed 05/04/2007 Page 4 of 6

enforce or modify the terms of [the Amended Protective] Order.” In re Guantánamo Detainee

Cases, 344 F. Supp. 2d 174, 176 (D.D.C. 2004). For the same reason, orders directed to future

events (such as the orders entered by the Court requiring advance notice of intended transfers

from Guantánamo and preservation of government records and counsel papers) survive dismissal

of this case and may be modified, enforced, or dissolved only by separate order of the Court.5

The government is aware of at least some of these precedents, but it interprets them to

mean that only “certain requirements of this Court’s Protective Order, i.e., requirements pertain-

ing to the handling of classified and ‘protected’ information appropriately, retain vitality beyond

the required dismissal of these cases.” Gov’t Mot. 8-9 n.15. In other words, even though the

government attacks the orders as imposing “Court-ordered obligations where the Court has no

jurisdiction to act,” the government contends that it is legitimate to continue enforcing those por-

tions of the orders that the government likes (those that constrain the detainees’ counsel), while it

is not legitimate to continue enforcing those portions it does not like (those that constrain the

government).

The government cites no authority, and Petitioners are aware of none, that supports such

cherry-picking. Cf. SRS Techs., Inc. v. Physitron, Inc., 216 F.R.D. 525, 526 (N.D. Ala. 2003)

(rejecting plaintiff’s assertion that, under protective order in effect after settlement of underlying

lawsuit, plaintiff “should now be allowed virtually unrestricted access to and use of confidential

documents produced by the Defendants, but that the protective order should remain in full force


Cir. 1988); Marshall v. Planz, 347 F. Supp. 2d, 1198, 1201 (M.D. Ala. 2004); Tucker v. Ohtsu
Tire & Rubber Co., Ltd., 191 F.R.D. 495, 499 (D. Md. 2000).
5
See United States v. Swift & Co., 286 U.S. 106, 114 (1932); Cobell v. Norton, 392 F.3d
461, 467 (D.C. Cir. 2004); Gilmore v. California, 220 F. 3d 987, 1007 (9th Cir. 2000); Dahlen v.
Kramer Machine & Eng’g Prods. Co., 303 F.2d 293, 295 (10th Cir. 1961); State Police for
Automatic Ret. v. Difava, 164 F. Supp. 2d 141, 156 (D. Mass. 2001); EEOC v. Local 40, Int’l
Ass’n of Bridge . . . Workers, 855 F. Supp. 488, 491-92 (S.D.N.Y. 1994).



4

Case 1:05-cv-01429-UNA Document 77 Filed 05/04/2007 Page 5 of 6

to protect Plaintiff’s documents”). The cases cited above show that the protective and injunctive

orders entered by the Court survive dismissal in their entirety, unless and until modified or dis-

solved by separate order of the Court.

Moreover, equitable principles dictate that the Court may not dissolve the protective and

injunctive orders entered in this case without first holding an evidentiary hearing at which the

government and Petitioners are heard. See Hodge v. HUD, 862 F.2d 859, 861 (11th Cir. 1989).

The government, however, has not moved to dissolve the protective and injunctive orders en-

tered in this case, and the Court has not held an evidentiary hearing. Were the government to file

such a motion, it would bear the burden of showing why the orders, or portions of them, should

be dissolved,6 even where, as here, intervening legislation has been held to have affected the

Court’s jurisdiction, see Miller v. French, 530 U.S. 327, 345-48 (2000).

For these reasons, the Court should defer consideration of the government’s motions to

dismiss or, alternatively, the Court should deny the motions as premature.

Respectfully submitted,





/s/ David H. Remes
David H. Remes
D.C. Bar No. 370782
COVINGTON & BURLING LLP
1201 Pennsylvania Ave., N.W.
Washington, DC 20004-2401
(202) 662-5212 (tel)
(202) 778-5212 (fax)



6
See SRS Techs., 216 F.R.D. at 529-31; Lee Shuknecht & Sons v. P. Vigneri & Sons, Inc.,
927 F. Supp. 610, 614-16 (W.D.N.Y. 1996); Grundberg v. Upjohn Co., 140 F.R.D. 459 (D. Utah
1991); SEC v. Samuel H. Sloan & Co., Nos. 71 Civ. 2695 (RJW), 74 Civ. 5729 (RJW), 1991 WL
173730 (S.D.N.Y. Aug. 29, 1991).



5

Case 1:05-cv-01429-UNA Document 77 Filed 05/04/2007 Page 6 of 6

Marc D. Falkoff
D.C. Bar No. 491149
NORTHERN ILLINOIS UNIVERSITY
COLLEGE OF LAW
DeKalb, IL 60614
(347) 564-5043 (tel)

Counsel for Petitioners



May 3, 2007
Washington, D.C.




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