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Case 1:05-cv-01429-UNA Document 88 Filed 09/25/2007 Page 1 of 5



IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA









































Respondents.





Petitioners,



v.



____________________________________


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

)



)

)



)


)
GEORGE W. BUSH, et al.,
)
)




)
____________________________________)
)

SAEED MOHAMMED SALEH
)
HATIM, et al.,

)




)
Petitioners,


)

)





v.

)
)




GEORGE W. BUSH, et al.,
)


)


)
____________________________________)



Respondents.










































Civ. No. 05-1048 (RMU)

Civ. No. 05-1429 (RMU)



MOTION TO RECONSIDER AND VACATE

ORDER OF SEPTEMBER 20, 2007 DISMISSING CASES

Petitioners respectfully ask the Court to reconsider and vacate its Order dated September

20, 2007, dismissing these cases for lack of jurisdiction based on the D.C. Circuit’s decision in

Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.), cert. granted, 127 S. Ct. 3078 (2007).

1.

The D.C. Circuit has made clear that this Court should not dismiss Guantánamo

habeas cases pending the Supreme Court’s disposition of Boumediene. Moreover, as discussed

in ¶¶ 1(b) and (d) below, the pendency of appeals deprives this Court of jurisdiction to dismiss

11 of the 16 cases it dismissed, including the above-captioned cases. In another case, a motion to

recall the mandate is pending in the D.C. Circuit and a petition for certiorari has been filed.






Case 1:05-cv-01429-UNA Document 88 Filed 09/25/2007 Page 2 of 5



a.

On April 2, 2007, the Supreme Court denied certiorari in Boumediene. On June

29, 2007, however, the Court reversed itself and granted certiorari. The D.C. Circuit, which had

issued the mandate in Boumediene on June 27, 2007, recalled the mandate on July 26, 2007.

(Ex. A.) The effect of the recall of the mandate was to divest this Court of jurisdiction to dismiss

those cases, and to preserve in those cases the protective order and counsel access rules that gov-

ern Guantánamo habeas cases, as well as related orders, such as orders requiring the government

to provide counsel with advance notice of any intended transfer of a prisoner from Guantánamo.1

b.

Similarly, on March 22, 2007, the D.C. Circuit dismissed the appeals in Kiyemba

v. Bush, No. 05-5487, in light of Boumediene. (Ex. C.) On May 10, 2007, the D.C. Circuit is-

sued the mandate in the case; on September 7, 2007, however, after the Supreme Court granted

certiorari in Boumediene, the D.C. Circuit recalled the mandate. (Ex. D.) Kiyemba is among the

cases that this Court has dismissed. Because the Kiyemba appeal is pending, this Court lacks ju-

risdiction to dismiss it. See United States v. DeFries, 129 F.3d 1293, 1302 (D.C. Cir. 1997).

c.

Similarly, on April 9, 2007, the D.C. Circuit dismissed the appeals in Paracha v.

Bush, No. 05-5194, and remanded to this Court with directions to dismiss the case in light of

Boumediene. (Ex. E.) On June 20, 2007, the D.C. Circuit denied the petitioner’s motion to stay


1 The day after this Court dismissed the 16 cases, the government sent counsel an email assert-
ing that the dismissal rendered inoperative the protective order and counsel access rules that gov-
ern these cases. See, e.g., Email dated Sept. 21, 2007, from Andrew Warden to David Remes
(Ex. B). According to the government’s email, counsel may henceforth visit and communicate
with petitioners only as permitted by the “jurisdictionally appropriate”—i.e., more restrictive—
protective order entered by the D.C. Circuit for cases brought under the Detainee Treatment Act
of 2005. Id. It would be anomalous, to say the least, if petitioners in the above-captioned cases
or the others this Court dismissed were required to live under a more restrictive regime for client
access and communications, and related orders, than the petitioners in the vast majority of habeas
cases that, as discussed in the text, the D.C. Circuit and other district court judges have decided
not to dismiss pending the Supreme Court’s resolution of Boumediene.





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Case 1:05-cv-01429-UNA Document 88 Filed 09/25/2007 Page 3 of 5



the mandate. (Ex. F.) On September 7, 2007, however, the D.C. Circuit stayed the mandate

pending the Supreme Court’s disposition of Boumediene. (Ex. G.)

d.

Finally, on August 9, 2007, the D.C. Circuit deferred consideration of the gov-

ernment’s motions in Abdah v. Bush, No. 05-5224, et al., to dismiss 12 of the 16 cases that this

Court has dismissed pending the Supreme Court’s disposition of Boumediene, including the

above-captioned cases; the D.C. Circuit directed that the cases be “held in abeyance pending fur-

ther order of the court.” (Ex. H.) In its order, the D.C. Circuit also deferred consideration of the

government’s motion to vacate orders entered by this Court requiring the government to provide

counsel with advance notice of any intended transfer of petitioners from Guantánamo.2 Because

the appeals in these cases are pending, this Court lacks jurisdiction to dismiss them. See De-

Fries, 129 F.3d at 1302.3


2 Al-Hela v. Bush, No. 05-cv-1048 (RMU), appeal pending, No. 05-5230 (D.C. Cir.); Hatim v.
Bush, No. 05-cv-1429 (RMU), appeal pending, No. 05-5398 (D.C. Cir.); Al-Oshan v. Bush, No.
05-cv-0520 (RMU), appeal pending, No. 05-5237 (D.C. Cir.); Tumani v. Bush, No. 05-cv-0526
(RMU), appeal pending, No. 05-5244 (D.C. Cir.); Sohail v. Bush, No. 05-cv-0993 (RMU), ap-
peal pending, No. 05-5478 (D.C. Cir.); Al Karim v. Bush, No. 05-cv-0998 (RMU), appeal pend-
ing, No. 05-5374 (D.C. Cir.); Rabbani v. Bush, No. 05-cv-1607 (RMU), appeal pending, No. 06-
5235 (D.C. Cir.); Alkhemisi v. Bush, No. 05-cv-1983 (RMU), appeal pending, No. 06-5041 (D.C.
Cir.); Naseer v. Bush, No. 06-cv-1689, appeal pending, No. 07-1188 (D.C. Cir.); Zalita v. Bush,
No. 05-cv-1220 (RMU), appeal pending, No. 05-5353 (D.C. Cir.); Al-Zarnouqi v. Bush, No. 06-
cv-1767 (RMU), appeal pending, No. 07-5148 (D.C. Cir.). The D.C. Circuit has separately re-
called the mandate in Kiyemba, as discussed in ¶ 1(b) above. Of the four other cases dismissed
by this Court, the D.C. Circuit dismissed appeals in two as moot because the petitioners had been
transferred from Guantánamo. Qayed v. Bush, No. 05-cv-0454 (RMU), appeal dismissed, No.
05-5245 (D.C. Cir.); Al-Subaiy v. Bush, No. 05-cv-1453 (RMU), appeal dismissed, No. 05-5482
(D.C. Cir.). In the two other cases, no appeals were pending. Al Halmandy v. Bush, No. 05-cv-
2385 (RMU); Al-Delebany v. Bush, No. 05-cv-2477 (RMU).
3 On April 25, 2007, this Court dismissed Zalita v. Bush, No. 05-cv-1220 (RMU), on receiving
the D.C. Circuit’s mandate. (Doc. 61.) The D.C. Circuit issued its mandate, however, before the
Supreme Court granted review in Boumediene and the D.C. Circuit recalled its mandate in
Boumediene. Zalita has asked the D.C. Circuit to recall the mandate in his case; his motion is
pending. On September 21, 2007, Zalita filed a petition for certiorari in the Supreme Court.





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Case 1:05-cv-01429-UNA Document 88 Filed 09/25/2007 Page 4 of 5



2.

Eleven other judges of this Court have denied or deferred government motions to

dismiss pending the Supreme Court’s disposition of Boumediene. See, e.g., Taher v. Bush, No.

06-cv-1684 (GK) (D.D.C. Sept. 13, 2007) (Doc. 26) (Ex. I); Razakah v. Bush, No. 05-cv-2370

(EGS) (D.D.C. Aug. 17, 2007) (minute order); Al Darby v. Bush, No. 05-cv-2371 (RCL)

(D.D.C. Aug. 8, 2007) (Doc. 49) (Ex. J); Al-Mohammed v. Bush, No. 05-cv-0247 (HHK)

(D.D.C. Aug. 7, 2007) (Doc. 66) (Ex. K); Khalid v. Bush, No. 04-cv-1142 (RJL) (D.D.C. Aug. 7,

2007) (Doc. 90) (Ex. L); Faraj v. Bush, No. 05-cv-1490 (PLF) (D.D.C. July 27, 2007) (Doc. 66)

(Ex. M); Maqaleh v. Gates, No. 06-cv-1669 (JDB) (D.D.C. July 18, 2007) (Doc. 13) (Ex. N)

(Bagram prisoner); Ameziane v. Bush, No. 05-cv-0392 (ESH) (D.D.C. July 5, 2007) (minute or-

der); Zadran v. Bush, No. 05-cv-2367 (RWR) (D.D.C. July 2, 2007) (minute order). Judge Col-

lyer dismissed the habeas cases assigned to her but reinstated them on reconsideration, e.g., Al

Shimrani v. Bush, No. 05-cv-2249 (RMC) (D.D.C. Aug. 22, 2007) (Doc. 59) (Ex. O); and Judge

Walton has closed his cases administratively but has not dismissed them, see Mohammon v.

Bush, et al., No. 05-cv-2386 (RBW) (D.D.C. Jan. 31, 2007) (Ex. P). Judge Robertson dismissed

his cases before the Supreme Court granted certiorari in Boumediene and the D.C. Circuit re-

called its mandate; he is currently considering motions to reconsider.

3.

In Kiyemba, this Court rejected the government’s claim that the Court could not

enforce the habeas protective order because the Detainee Treatment Act of 2005 had divested the

Court of jurisdiction over Guantánamo habeas cases. The Court stated:

The issue of this court’s jurisdiction to entertain habeas petitions filed by Guan-
tanamo detainees “is a disputed issue that was litigated and is currently under
consideration by the United States Court of Appeals for the District of Columbia
Circuit.” Adem v. Bush, 2006 WL 1193853, at * 7 (D.D.C. Apr. 28, 2006). As
other judges on this court have ruled, “enforcing the terms of the protective order
in this case does not pose the danger of exceeding the court’s jurisdiction, even if
it is ultimately determined that this court does not have jurisdiction to determine
the merits of a petition for habeas corpus relief.” Id. at *7-8.





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Case 1:05-cv-01429-UNA Document 88 Filed 09/25/2007 Page 5 of 5



Kiyemba v. Bush, No. 05-cv-01509 (RMU), 2006 WL 2255736, at *2 (D.D.C. Aug. 7, 2006)

(mandate in appeal recalled by D.C. Circuit). It has not been “ultimately determined that this

court does not have jurisdiction to determine the merits of a petition for habeas corpus relief.”

As this Court noted, the government itself has conceded that the Court’s jurisdiction over these

cases will remain undecided until the Supreme Court decides it. Id. at *2 n.4.

For these reasons, the Court should reconsider and vacate its Order of September 20,

2007, dismissing these cases.

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)

Counsel for Petitioners

September 25, 2007
Washington, D.C.







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