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Case 1:05-cv-01429-UNA Document 90-8 Filed 10/01/2007 Page 1 of 4












GEORGE W. BUSH, et al.,












GEORGE W. BUSH, et al.,






Civ. No. 05-1048 (RMU)

Civ. No. 05-1429 (RMU)


Petitioners are individuals imprisoned by the United States at Guantánamo Bay Naval

Station, Cuba. Petitioners filed these habeas actions challenging their imprisonment. The Mili-

tary Commissions Act of 2006 (“MCA”) stripped the courts of jurisdiction to consider habeas

cases brought by Guantánamo prisoners, and the D.C. Circuit held that Guantánamo prisoners

have no right to challenge the MCA’s elimination of jurisdiction over their habeas cases. Boum-

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

20 and 21, 2007, this Court entered orders dismissing these and other Guantánamo habeas cases

for lack of subject-matter jurisdiction on the basis of the D.C. Circuit’s decision in Boumediene.

Case 1:05-cv-01429-UNA Document 90-8 Filed 10/01/2007 Page 2 of 4

On September 25, 2007, petitioners filed motions requesting that this Court reconsider and va-

cate its orders dismissing these cases.

Respondents maintain that the dismissal of these cases rendered inoperative the protec-

tive order and counsel access rules entered by the Court in these habeas cases and the require-

ment established by the Court in these cases that respondents give counsel for petitioners thirty

days’ advance notice of any intended transfer of petitioners from Guantánamo (“Habeas Or-

ders”). Respondents further maintain that petitioners’ counsel may not visit or communicate

with petitioners in the future unless counsel agree to the protective order and counsel access rules

entered by the D.C. Circuit in Bismullah v. Gates, 2007 WL 2067938 (D.C. Cir. July 20, 2007),

for cases brought under the Detainee Treatment act of 2005 (“DTA”). No order has been entered

for DTA cases requiring respondents to give petitioners’ counsel advance notice of any intended

transfer of petitioners from Guantánamo.

Petitioners seek preliminary relief compelling respondents to comply with the Habeas

Orders pending this Court’s disposition of petitioners’ motions to reconsider and vacate. The

Court finds that petitioners satisfy the conditions for preliminary relief.

First, petitioners have shown that they will face irreparable injury if preliminary relief is

denied. Petitioners’ counsel, Mr. Starks, is scheduled to visit Mr. Hatim, one of the petitioners,

at Guantánamo on October 16-17, 2007. Unless Mr. Starks agrees to the DTA protective order

and counsel access rules, he will be unable to visit Mr. Hatim. Moreover, petitioners’ counsel

wish to send petitioners legal mail that would be subject to government inspection and censor-

ship before delivery under the DTA protective order and counsel access rules. Finally, absent

the Habeas Orders, petitioners would be subject to transfer from Guantánamo to other countries

or secret overseas prisons where petitioners might be tortured or otherwise abused without prior

opportunity for their counsel to be heard.


Case 1:05-cv-01429-UNA Document 90-8 Filed 10/01/2007 Page 3 of 4

Second, petitioners have shown that the issues raised by their motions to reconsider and

vacate are “so serious, substantial, difficult and doubtful, as to make them a fair ground for liti-

gation.” WMATC v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977) (citation omitted).

As petitioners note, the Supreme Court has granted certiorari in Boumediene. The D.C. Circuit

has recalled the mandates in that case and in Kiyemba v. Bush, No. 05-5487, and has deferred

consideration of the government’s motions to dismiss the above-captioned cases, among other

cases, in Abdah v. Bush, No. 05-5224, pending the Supreme Court’s disposition of Boumediene.

Finally, eleven other judges of this Court have denied or deferred consideration of the govern-

ment’s motion to dismiss these actions. Petitioners also have shown a likelihood of success on

their claim that the pendency of their motions to reconsider and vacate preserves the Habeas Or-

ders in effect pending the Court’s disposition of their motions. Browder v. Dir., Dep’t of Corr.,

434 U.S. 257, 267 (1978); Int’l Ctr. for Tech. Assessment v. Leavitt, 468 F. Supp. 2d 200, 206

(D.D.C. 2007) (Urbina, J.); Amer. Fed’n of Gov’t Employees v. Dist. of Columbia Fin. Responsi-

bility and Mgmt. Assistance Auth., 133 F. Supp. 2d 75, 83 (D.D.C. 2001) (citing cases). See also,

e.g., Miltimore Sales, Inc. v. Int’l Rectifier, Inc., 412 F.3d 685, 688 (6th Cir. 2005).

Third and fourth, because the government is compelled to comply with the Habeas Or-

ders in scores of other Guantánamo habeas cases that have not been dismissed, the public interest

will not be disserved, and the government will not suffer injury, if the requested relief is granted.

For the foregoing reasons, it is

ORDERED, that petitioners’ motion for a temporary restraining order is GRANTED; and

it is further

ORDERED, that respondents shall electronically file and serve any motion to dissolve

the temporary restraining order not later than 4:00 p.m. on Tuesday, October 2, 2007; and it is



Case 1:05-cv-01429-UNA Document 90-8 Filed 10/01/2007 Page 4 of 4

ORDERED, that the Court shall hear oral argument on respondents’ motion to dissolve at

10:00 a.m. on Wednesday, October 3, 2007.

United States District Judge