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Case 1:05-cv-01429-UNA Document 81 Filed 06/26/2007 Page 1 of 5

Filed with Court Security Officer 6/25/07
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Civ. No. 05-01048 (RMU)

Civ. No. 05-01429 (RMU)

Civ. No. 05-01592 (RCL)










GEORGE W. BUSH, et al.,


HATIM, et al.,







GEORGE W. BUSH, et al.,









GEORGE W. BUSH, et al.,











Petitioners respectfully submit this notice of recent activity in Guantánamo cases in fur-

ther support of their pending stay-and-abey motion and their opposition to the government’s

pending motion to dismiss. Most notably, the D.C. Circuit issued an order in Al Ginco v. Bush,

Case 1:05-cv-01429-UNA Document 81 Filed 06/26/2007 Page 2 of 5

D.C. Cir. No. 06-5191, on June 7, 2007, making clear that this Court has jurisdiction to grant Pe-

titioners’ stay-and-abey motion and may deny the government’s motion to dismiss. Recent ac-

tivity in other Guantánamo cases offers additional support for this disposition of the motions.

First, a petition is pending in the D.C. Circuit seeking initial en banc hearing in Hamdan

v. Gates. The petition asks the D.C. Circuit to overrule its decision in Boumediene. The D.C.

Circuit considers the petition sufficiently substantial that it has ordered the government to file a

response. Second, petitions are pending in the Supreme Court seeking rehearing of the Court’s

denial of certiorari in Boumediene v. Bush. The Supreme Court considers the rehearing petitions

sufficiently substantial that it invited a response from the Solicitor General. Third, the D.C. Cir-

cuit is considering in Bismullah v. Gates and Parhat v. Gates the scope of judicial review of

Combatant Status Review Tribunal (CSRT) decisions and protective order to govern cases

brought in the D.C. Circuit under the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-

148, tit. X, 119 Stat. 2739 (2005).


Al Ginco

In its Al Ginco order, issued on June 7, 2007, the D.C. Circuit (1) denied the govern-

ment’s motion to vacate this Court’s orders requiring the government to provide the petitioners’

counsel with advance notice of any intended removal of the petitioners from Guantánamo, and

(2) denied the government’s motion to dismiss the habeas petitions. The Court stated:

The district court may consider in the first instance respondents’ motion to dismiss and
petitioners’ motions to stay and hold in abeyance, which are currently pending before the
district court in the actions underlying these consolidated appeals.

(Ex. 1.) The D.C. Circuit’s order makes clear that this Court retains jurisdiction over this case

unless and until this Court dismisses this case, and that this Court need not dismiss this case but

may grant Petitioners’ stay and abey motion.


Case 1:05-cv-01429-UNA Document 81 Filed 06/26/2007 Page 3 of 5


Boumediene, Al Odah, and Paracha

In Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), the D.C. Circuit ruled that the

Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120 Stat. 2600 (2006), elimi-

nated the jurisdiction of the federal courts to consider habeas actions by Guantánamo detainees,

and that the Guantánamo detainees, as aliens outside the sovereign territory of the United States,

lack constitutional rights and therefore lack standing to challenge the elimination of jurisdiction

under the Suspension Clause. (Boumediene is consolidated with Al Odah v. United States.)

On March 5, 2007, the Boumediene and Al Odah petitioners filed certiorari petitions in

the Supreme Court seeking review of the D.C. Circuit’s judgment. S. Ct. Nos. 06-1195 & 06-

1196. On April 2, 2007, the Supreme Court denied the petitions. 127 S.Ct. 1478 (2007). On

April 27, 2007, the petitioners filed rehearing petitions and motions to defer consideration of

those petitions pending the petitioners’ exhaustion of their remedies under the DTA. On June 4,

2007, the Supreme Court invited the Solicitor General to file a response to the petitioners’ mo-

tions, a step that required the support of at least five Justices. The Solicitor General filed his re-

sponse on June 19, 2007. The petitioners filed replies on June 22, 2007. The Al Odah petition-

ers appended to their reply an affidavit of a retired military intelligence office who was involved

in the CSRT process calling sharply into question the fairness of that process. (Ex. 2.)

On April 11, 2007, the Boumediene and Al Odah petitioners asked the D.C. Circuit to

hold the cases in abeyance and stay the mandate pending the Supreme Court’s disposition of

their certiorari petitions. On June 20, 2007, the D.C. Circuit denied the motions to hold the case

in abeyance and stay the mandate. Boumediene v. Bush, D.C. Cir. Nos. 05-5062 & 05-5063; Al

Odah v. United States, D.C. Cir. No. 05-5064. (Ex. 3.) Under Fed. R. App. P. 41(b), the man-

date is set to issue on June 27, 2007.


Case 1:05-cv-01429-UNA Document 81 Filed 06/26/2007 Page 4 of 5

On April 9, 2007, in another Guantánamo appeal, the D.C. Circuit, citing Boumediene,

ordered this Court to dismiss Paracha’s habeas petition. Paracha v. Bush, D.C. Cir. No. 05-

5194. On May 24, 2007, Paracha moved to stay the mandate pending his filing of a certiorari

petition in the Supreme Court. On June 20, 2007, the D.C. Circuit denied the petitioners’ mo-

tions to hold the case in abeyance and to stay issuance of the mandate. (Ex. 4.) Paracha’s certio-

rari petition will be filed by July 9, 2007.



On December 13, 2006, this Court dismissed Hamdan’s habeas petition challenging the

jurisdiction-stripping and military commission provisions of the MCA. Hamdan v. Rumsfeld,

464 F. Supp. 2d 9 (D.D.C. 2006). On February 27, 2007, Hamdan filed a petition for certiorari

before judgment in the Supreme Court. Hamdan v. Gates, S. Ct. No. 06-1169. On April 30,

2007, the Supreme Court denied the petition. On June 8, 2007, Hamdan moved in the D.C. Cir-

cuit for initial en banc hearing. On June 13, 2007, the D.C. Circuit sua sponte ordered the gov-

ernment to file a response to the petition. Hamdan v. Gates, D.C. Cir. No. 07-5042. The gov-

ernment’s response is due by June 28, 2007. (Ex. 5.)



Also pending in the Supreme Court is an original habeas petition that directly challenges

the MCA jurisdictional holding of the Court of Appeals. In re Ali, S. Ct. No. 06-1194. The Su-

preme Court considers the Ali petition sufficiently serious that it invited the Solicitor General to

respond. In response, the Solicitor General moved to dismiss Ali’s petition. On June 25, 2007,

the Court granted Ali’s motion to file under seal a response to the government’s motion.


Bismullah and Parhat

On May 15, 2007, the D.C. Circuit heard argument in Bismullah v. Gates, D.C. Cir. No.

06-1197, and Parhat v. Gates, D.C. Cir. No. 06-1397, the first cases brought under the Detainee


Case 1:05-cv-01429-UNA Document 81 Filed 06/26/2007 Page 5 of 5

Treatment Act of 2005. Among other things, the D.C. Circuit will consider the scope of judicial

review of CSRT decisions under the DTA and the form of the protective order to govern DTA

actions. The D.C. Circuit’s decision may be relevant to this Court’s consideration of any appli-

cation by the government to vacate or modify the protective order that governs these habeas



For the foregoing reasons, and the reasons earlier set forth by Petitioners, this Court

should grant Petitioners’ stay-and-abey motion and deny the government’s motion to dismiss.

Respectfully submitted,

/s/ David H. Remes
David H. Remes
D.C. Bar No. 370782
1201 Pennsylvania Ave., N.W.
Washington, DC 20004-2401
(202) 662-6000

Marc D. Falkoff
D.C. Bar. No. 491149
DeKalb, IL 60614
(347) 564-5043

Counsel for Petitioners


June 25, 2007
Washington, DC