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Case 1:05-cv-01429-UNA Document 93 Filed 10/04/2007 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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Civil Action No. 05-520 (RMU)

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SALEH ABDULLAH AL-OSHAN, et al.,

Petitioners,

v.

GEORGE W. BUSH,
President of the United States, et al.,

Respondents.

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Petitioners,

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ABDULSALAM ALI ABDULRAHMAN )
Al HELA, et al.,
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GEORGE W. BUSH,
President of the United States, et al.,

Respondents.

v.

Petitioners,

SAEED MOHAMMED SALEH HATIM,
et al.,

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____________________________________)

GEORGE W. BUSH,
President of the United States, et al.,

Respondents.

v.




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Civil Action No. 05-1048 (RMU)

Civil Action No. 05-1429 (RMU)

Case 1:05-cv-01429-UNA Document 93 Filed 10/04/2007 Page 2 of 13

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ABU ABDUL RAUF ZALITA, et al.,

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GEORGE W. BUSH,
President of the United States, et al.,

Petitioners,

v.

Respondents.

Civil Action No. 05-1220 (RMU)

RESPONDENTS’ OPPOSITION TO PETITIONERS’ MOTION FOR TEMPORARY

RESTRAINING ORDER AND PRELIMINARY INJUNCTION

INTRODUCTION

These cases were dismissed by decision dated September 20, 2007, and judgment order

entered the following day. During the course of these proceedings, various interlocutory orders

were entered. Those orders are no longer in effect now that the cases are over in this Court.

Petitioners ask for temporary and preliminary relief that amounts to the re-invigoration of those

orders. Their motions are predicated on the mistaken belief that their separately filed request for

reconsideration of the dismissal rulings entitles them to treat those rulings as a nullity. This

Court was correct in dismissing these cases and it lacks jurisdiction to grant the newly requested

injunctive relief for the very same reason that it dismissed the cases. Further, the standards for

preliminary relief have not been met here. The filing of petitioners’ reconsideration motions

does not act as an automatic stay of a dismissal order, and certainly does not reinstate the

interlocutory orders to which the present motions pertain. Furthermore, petitioners have not

demonstrated that the equities favor their position. For these reasons, as explained below,

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Case 1:05-cv-01429-UNA Document 93 Filed 10/04/2007 Page 3 of 13

petitioners’ emergency motions should be denied.

ARGUMENT

I.

Petitioners’ Motion Should Be Denied Because The Court Lacks Jurisdiction
To Grant The Motion.

As a threshold matter, petitioners’ motion should be denied because this Court lacks

jurisdiction to grant the requested injunctive relief.

As the Court recognized in its dismissal order, the Court lacks jurisdiction over these

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

(June 29, 2007). Although the Supreme Court granted certiorari in Boumediene on June 29,

2007, see Boumediene v. Bush, 75 U.S.L.W. 3707 (June 29, 2007), at least while Boumediene

remains pending before the Supreme Court, the law of this Circuit remains settled: under the

Military Commissions Act of 2006 (“MCA”) federal district courts do not have jurisdiction over

cases brought by aliens at Guantanamo Bay detained as enemy combatants, and such aliens do

not have constitutional rights. Under settled rules governing the precedential effect of appellate

rulings, regardless of what might happen at some point in the future in the course of the

Boumediene litigation, this Court should act in accordance with the decision in that case. See

Maxwell v. Snow, 409 F.3d 354, 358 (D.C. Cir. 2005) (“this Court is bound to follow circuit

precedent until it is overruled either by an en banc court or the Supreme Court”); Chambers v.

United States, 22 F.3d 939, 942 n.3 (9th Cir. 1994) (“In this circuit, once a published opinion is

filed, it becomes the law of the circuit until withdrawn or reversed by the Supreme Court or an

en banc court.”), vacated on other grounds, 47 F.3d 1015 (1995). See also Vo Van Chau v. U.S.

Dep’t of State, 891 F. Supp. 650, 654 (D.D.C. 1995) (holding that district court was bound by

principle of stare decisis to abide by a Court of Appeals decision even in absence of effective

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Case 1:05-cv-01429-UNA Document 93 Filed 10/04/2007 Page 4 of 13

mandate). Activity in the Supreme Court short of a reversal does not diminish the binding nature

of the D.C. Circuit’s Boumediene decision. As expressed by Judge Henderson in Ayuda,

Nor is it relevant that . . . the United States Supreme Court has granted certiorari on the
question. Unless and until [the D.C. Circuit’s earlier opinion] is reversed or overruled by
the United States Supreme Court or by this court en banc, [the earlier opinion] remains
the law of this circuit and no amount of hardship the appellees may suffer as a
consequence can confer jurisdiction on the district court.

Ayuda, Inc. v. Thornburgh, 919 F.2d 153, 154 (D.C. Cir. 1990) (Henderson, J., concurring).

Notwithstanding established circuit precedent, petitioners in these cases once again

request that this Court exercise jurisdiction over dismissed cases for the purpose of improperly

reinstating orders governing counsel access. Petitioners previously asserted this same argument

in response to respondents’ motion to dismiss, contending that the Court should adopt a “stay

and abey” approach instead of dismissing the habeas cases. See, e.g., Al-Hela v. Bush, 05-CV-

1048 (RMU) (dkt. no. 93) at 3 (“the ‘stay-and-abey’ relief requested by Petitioners . . .

contemplates the continued enforceability of the counsel access rules established by the

protective order.”); Hatim v. Bush, 05-CV-1429 (RMU) (dkt. no. 77) (same); Al-Oshan v. Bush,

05-CV-520 (RMU) (dkt no. 81) at 20 (“This Court should carefully protect the status quo by

maintaining the Orders entered to date.”). By dismissing these cases, the Court rejected

petitioners’ approach. Petitioners’ desire for continued access to counsel under the regime

established prior to dismissal of these cases rather than under a Court of Appeals order does not

justify an improper exercise of jurisdiction by the Court. See Oceana, Inc. v. Evans, 389 F.

Supp. 2d 4, 8 (D.D.C. 2005) (precluding a plaintiff seeking to persuade a court to amend its

judgment from “rely[ing] on arguments that could have been made at an earlier stage in the

proceeding, . . . for Rule 59 was not intended to allow a second bite at the apple”). Indeed, to

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Case 1:05-cv-01429-UNA Document 93 Filed 10/04/2007 Page 5 of 13

change course now and re-extend the counsel access regime to these cases at this time would be

an assertion of jurisdiction contrary to the Court of Appeals’ decision in Boumedine and

Congress’s clear command in the MCA. See Boumediene, 476 F.3d at 978 (“To accept

[petitioners’ arguments] would be to defy the will of Congress. Section 7(b) could not be

clearer. It states that “the amendment made by subsection (a)”-which repeals habeas

jurisdiction-applies to “all cases, without exception” relating to any aspect of detention. It is

almost as if the proponents of these words were slamming their fists on the table shouting

“When we say ‘all,’ we mean all-without exception!”).

II.

Petitioners’ Motion Should Be Denied In Any Event Because Petitioners Fail To
Satisfy The Requirements For A Preliminary Injunction.

Even if the Court were to move beyond the jurisdictional bar to consider further

petitioners’ motion for a preliminary injunction, petitioners’ motion should be denied.1 It is

well-established that a request for preliminary injunctive relief “is an extraordinary and drastic

remedy, one that should not be granted unless the movant, by a clear showing, carries the burden

of persuasion.” See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Cobell v. Norton, 391

F.3d 251, 258 (D.C. Cir. 2004). To prevail in a request for a preliminary injunction, a movant

“must ‘demonstrate 1) a substantial likelihood of success on the merits, 2) that [he] would suffer

irreparable injury if the injunction is not granted, 3) that an injunction would not substantially

1 In Hicks v. Bush, No. 02-CV-0299 (CKK), 2007 WL 902303 at *5 (D.D.C. Mar. 23,

2007), Judge Kollar-Kotelly denied a motion for preliminary injunction without engaging in the
traditional, four-part test used to determine the propriety of such relief because “Boumediene
holds that this Court lacks jurisdiction to even consider Petitioner’s claims, such that this Court
is precluded from even engaging in a balancing of the factors that would be considered on a
motion for a preliminary injunction.” 2007 WL 902303 at *6. See also Zalita v. Bush, 05-CV-
1220 (RMU) (dkt. no. 51) (denying motion for preliminary injunction based on Boumediene).

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Case 1:05-cv-01429-UNA Document 93 Filed 10/04/2007 Page 6 of 13

injure other interested parties, and 4) that the public interest would be furthered by the

injunction.’” See Katz v. Georgetown Univ., 246 F.3d 685, 687-88 (D.C. Cir. 2001) (quoting

CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)).

Petitioners’ motion fails to make the showing required to justify the grant of extraordinary

injunctive relief.

Petitioner Has No Likelihood Of Success On The Merits. The proper formulation of the

“likelihood of success” question for present purposes asks whether petitioners are likely to

succeed on their claim that they are entitled to the continued applicability of the interlocutory

orders that they want to have effectuated notwithstanding the Court’s dismissal of these cases.

Cf. Al-Anazi v. Bush, 370 F. Supp. 2d 188, 193-194 (D.D.C. 2005) (Bates, J.) (in context of

habeas case challenging detention, question concerning likelihood of success for purposes of

preliminary injunction motion seeking to place condition on transfer out of detention focuses on

legality of transfer and not on legality of detention). For several reasons, this Court must

conclude that petitioners have failed to meet this test.

First, as discussed above, the law of the Circuit is that section 7 of the MCA clearly

deprives this Court of jurisdiction. See supra I. Therefore, this Court’s dismissal order which

petitioners’ are challenging was legally correct. Certainly, the Court lacks the authority to give

effect to the interlocutory orders at issue on this motion. Relief should not be based on what is

just a guess about what the Supreme Court might or might not do upon review of a case. And

even if the appropriate question here were whether the Court of Appeals’ ruling in Boumediene

is likely to be reversed, petitioners have not convincingly shown (nor could they) that reversal is

likely – and it is they who bear the burden on the present motion. See supra.

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Second, petitioners’ motions seeking reconsideration of the dismissal orders, upon which

the present motions for temporary and preliminary relief are predicated, should be denied. The

several reasons that the reconsideration motions lack merit are set forth in the opposition to those

motions which is being filed contemporaneously with the present filing.

Third, petitioners’ contention that the interlocutory orders in question are still effective is

without legal basis. The applicability of the orders that petitioners would like to see remain in

effect has come to an end, for the simple reason that the Court’s orders establishing the counsel

access regime are entirely interlocutory and therefore do not survive an order of dismissal.2 See

Venezia v. Robinson, 16 F.3d 209, 211 (7th Cir. 1994) (interlocutory orders do not survive

dismissal of a complaint); Chaparro-Febus v. International Longshoremen Ass'n, Local 1575,

983 F.2d 325, 331 n.5 (1st Cir. 1992); Cypress Barn, Inc. v. Western Elec. Co., 812 F.2d 1363,

1364 (11th Cir. 1987).

Further, petitioners incorrectly contend that the mere filing of a motion for

reconsideration pursuant to Federal Rule of Civil Procedure Rule 59(e) automatically stays the

effectiveness of the Court’s dismissal order. Although a Rule 59(e) motion suspends the finality

of the judgment of dismissal for purposes of calculating deadlines under the Federal Rules, see,

e.g., Fed. R. App. P. 4(a)(4)(iv) (Rule 59(e) motion tolls the running of the time for filing an

appeal); International Center for Technology Assessment v. Leavitt, 468 F. Supp. 2d 200, 205-06

2 Of course, petitioners’ counsel explicitly agreed, as a condition for access to such

information, that the Protective Order’s non-disclosure requirements would survive termination
of the litigation and remain forever binding. See 344 F. Supp. 2d 174, ¶ 17 & Exhibit B thereto
(for access to classified information, counsel required to sign Memorandum of Understanding
that nondisclosure requirements survive litigation); id. ¶ 35 & Exhibit C thereto (for access to
protected information, counsel required to sign Acknowledgment that nondisclosure
requirements survive litigation).

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Case 1:05-cv-01429-UNA Document 93 Filed 10/04/2007 Page 8 of 13

(D.D.C. 2007) (Rule 59(e) motion tolls the running of the time for filing a Rule 60(b) motion),

such a motion does not deprive a dismissal order of its effectiveness. The above-captioned cases

are currently dismissed, and they must remain so unless and until the Court orders otherwise. To

the extent petitioners seek relief from the effectiveness of the Court’s dismissal order, they

cannot simply rely on the filing of a Rule 59(e) motion. Instead, they must obtain a stay from

this Court or from the Court of Appeals. See Fed. R. Civ. P. 62(b) (the Court may, “[i]n its

discretion,” stay the execution of the judgment pending the disposition of a Rule 59(e) motion)

(emphasis added); Mars Steel Corp. v. Continental Bank, 880 F.2d 928, 937 (7th Cir. 1989) (en

banc) (“Unless the party obtains a stay from the district court under Fed. R. Civ. P. 62(b), or

from the court of appeals, an outstanding order must be obeyed, whether or not a Rule 59 motion

or a notice of appeal has been filed.”). Accordingly, there is no merit to petitioner’s argument

that the filing of a timely Rule 59 motion automatically resuscitates the habeas counsel access

regime or otherwise stays the effectiveness of the Court’s dismissal order.

While circumstances do exist in which applicable court rules say that filing of a

reconsideration motion operates as a stay, this is not such a circumstance. Petitioners refer to

some such rules that do not apply to the present situation. Thus, Supreme Court Rule 45.2 and

Federal Rule of Appellate Procedure 41(d) explicitly provide for an automatic stay of a mandate

upon the filing of a rehearing petition. Likewise, a stay is available upon the filing of an appeal

and a supresedeas bond in a case seeking such relief as money damages. See Rule 62(a), (d),

Fed.R.Civ.P. See Hebert v. Exxon Corp., 953 F.2d 936, 938 (5th Cir.1992) (“Courts have

restricted the application of Rule 62(d)'s automatic stay to judgments for money.”). But while

some rules provide for automatic stays, not every party has the right to avoid the effect of a

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court’s ruling by means of self-help. Thus, a “final or interlocutory judgment in an action for an

injunction” is not stayed before or during an appeal “[u]nless otherwise ordered by the court.”

Fed. R. Civ. P. 62(a). Petitioners cannot point to any rule which allows them to treat their

reconsideration motions as awarding a self-executing stay.

Petitioners argue, in effect, that by filing reconsideration motions they rendered this

Court’s order non-final in every conceivable respect. Their position would arrogate to any

litigant the power to keep any interlocutory order alive by simply lodging on the docket a request

to reconsider a final judgment order entered in the case in which the interlocutory order had been

granted. But the proposition that a reconsideration motion has an effect of the finality of a

dismissal for such purposes as computing time does not mean that it has an impact on the finality

of the dismissal as far as the nullification of an interlocutory order is concerned. As the Supreme

Court emphasized in one of the very cases cited by petitioners in al Hela, “[f]inality is variously

defined; like many legal terms, its precise meaning depends on context.” Clay v. United States,

537 U.S. 522, 527 (2003). The present context is one in which this Court has ruled, and the

impact of its ruling cannot be avoided by petitioners just by asking that it be set aside.3

Petitioner Has Not Demonstrated Irreparable Injury. Petitioners also have not carried

their burden to show they face irreparable injury absent the requested injunction. With respect to

the issue of counsel access, the dismissal of petitioners’ habeas corpus cases does not mean that

3 Petitioners also cannot rely on the All Writs Act as a basis for relief. The All Writs Act

provides that federal courts “may issue all writs necessary or appropriate in aid of their
respective jurisdictions.” 28 U.S.C. § 1651(a). The Act, however, “‘confines the authority to the
issuance of process ‘in aid of’ the issuing court’s jurisdiction . . . . [T]he Act does not enlarge
that jurisdiction.’” In re Tennant, 359 F.3d 523, 527 (D.C. Cir. 2004) (quoting Clinton v.
Goldsmith, 526 U.S. 529, 534-35 (1999)). Thus, when an issue that is the subject of a request for
a writ is “beyond the . . . [court’s] jurisdiction to review[, it is] . . . beyond the ‘aid’ of the All
Writs Act in reviewing it.” Clinton, 526 U.S. at 535.

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Case 1:05-cv-01429-UNA Document 93 Filed 10/04/2007 Page 10 of 13

petitioners are prohibited from communicating with their counsel. To the contrary, petitioners

and their counsel may maintain continued access by filing a petition pursuant to the Detainee

Treatment Act of 2005 (“DTA”) and obtaining entry of the protective order that the Court of

Appeals has entered in scores of DTA cases.4

As this Court recognized in its dismissal order, “Congress has made clear that this circuit,

not the district court, has exclusive jurisdiction to determine the validity of any final decision of

a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.”

See Memorandum Order at 5 n.2. To that end, the Court of Appeals has adopted a protective

order in the DTA litigation that creates a counsel access regime consistent with the scope of

review established by Congress. In Bismullah v. Gates, 2007 WL 2067938 (D.C. Cir. July 20,

2007), reh’g pending on other grounds, the Court of Appeals entered a protective order after a

host of issues had been litigated, and after the Court of Appeals specifically considered and

rejected the district court habeas corpus protective order regime. See id. at *10-11; see also

Bismullah protective order (attached as Exhibit 1). Notwithstanding this decision by the Court

of Appeals, petitioners in these cases raise a variety of complaints about alleged defects in the

DTA protective order, essentially asking this Court to review a decision by the Court of Appeals.

As explained below, none of petitioners’ complaints have merit, and they certainly do not rise to

the level of irreparable injury warranting preliminary injunctive relief.

First, petitioners’ contention that the Court of Appeals has been slow to enter the

protective order in DTA cases is misplaced. Respondents have been stipulating to entry of the

Bismullah protective order on an expedited basis, where circumstances warrant (e.g., when

4 There are approximately 150 DTA petitions currently pending in the Court of Appeals.

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counsel have a previously-scheduled visit to Guantanamo Bay), and the Court of Appeals in

many cases has entered the order promptly.5 See Rabbani v. Gates, 07-1237 (Exhibit 2)

(entering Bismullah protective order on October 1, 2007, the same day the stipulation was filed

with the Court of Appeals).

Second, petitioners’ complaints about the terms of the Bismullah protective order are an

improper attempt to relitigate issues that would be appropriate to litigate, if anywhere, before the

Court of Appeals. Although petitioners complain that the Bismullah protective order authorizes

the privilege team to perform close content review of legal mail in order to ensure petitioner’s

counsel’s correspondence does not include information prohibited by the terms of the protective

order, that provision of the order was expressly approved by the Court of Appeals. See

Bismullah at *10-11. If petitioners wish to seek relief from that ruling, the proper approach is to

seek review in the Court of Appeals or Supreme Court, not to resurrect their district court habeas

cases.

Third, the DTA counsel access regime does not prevent petitioners’ counsel from

bringing papers into their client meetings. Although the Court of Appeals in the Bismullah

protective order declined to adopt provisions governing in-person visits at Guantanamo Bay into

a court order, the Department of Defense has adopted extensive procedures for counsel visits in

5 Petitioners Hatim and Al-Hela filed DTA cases in June 2007. See Mohammad v. Gates,
07-1191 (D.C. Cir.). Petitioner Zalita filed a DTA petition on September 26, 2007. See Zalita v.
Gates, 07-1384 (D.C. Cir.). Thus, a stipulation can be filed in these cases in relatively short
order. Although the petitioners in Al-Oshan have not filed DTA cases, a DTA petition should
not be difficult to file, as it can be merely a short document that contains the names of the
petitioner and respondent(s) and identifies the determination for which review is sought. See
FED. R. APP. P. 15(a)(2); FED. R. APP. P. Appendix, Form 3. Indeed, the DTA petition is simply
a case-initiating document; the merits of such a case are addressed in the parties’ later-filed
merits briefs.

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Case 1:05-cv-01429-UNA Document 93 Filed 10/04/2007 Page 12 of 13

DTA cases. See Guantanamo Procedure Guide For Counsel Access In Detainee Treatment Act

Cases (attached as Exhibit 3). These procedures include a host of regulations governing such

things as counsel’s ability to bring documents into their meetings and to request visits to

Guantanamo Bay. Consequently, the DTA counsel access regime provides petitioners with an

appropriate means of communicating with the counsel, and petitioners will not suffer irreparable

harm by complying with the protective order adopted by Court of Appeals.

Furthermore, it is neither necessary nor appropriate that the Court reinstate orders that

prohibit respondents from transferring petitioners from Guantanamo Bay to another country

without thirty days’ advance notice to the Court and counsel. As respondents have demonstrated

in numerous filings in this Court, in any transfer of a Guantanamo detainee, a key concern is

whether the receiving government will treat the detainee humanely and in a manner consistent

with its international obligations; specifically, it is the policy of the United States not to

repatriate or transfer a detainee to a country where the United States believes it is more likely

than not that the individual will be tortured.6 See Declarations of Ambassador Clint Williamson

and Principal Deputy Assistant Secretary of Defense for Global Security Affairs Joseph Benkert

(attached as Exhibits 5 & 6).7

6 In addition, the Court is without jurisdiction in this matter and, specifically, with respect

to issues relating to detainee transfers. As recognized in Boumediene, Section 7 of the MCA
eliminates jurisdiction not only over habeas actions, but also over all cases “‘which relate to any
aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained
by the United States since September 11, 2001.’” See 476 F.3d at 986-87. Indeed, the Court of
Appeals effectuated its ruling that the MCA expressly bars claims relating to any transfer of a
petitioner when it denied a motion for advance notice of transfer in a DTA case for lack of
jurisdiction. See Hamlily v. Gates, 07-1127 (D.C. Cir) (attached as Exhibit 4).

7 The attached declarations of Ambassador Williamson and Secretary Benkert are more

up-to-date declarations addressing the policies and practices discussed in the declarations
previously submitted by Ambassador Pierre-Richard Prosper and Deputy Assistant Secretary

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Case 1:05-cv-01429-UNA Document 93 Filed 10/04/2007 Page 13 of 13

CONCLUSION

For the foregoing reasons, Respondents respectfully request that the Court deny

petitioners’ motion for temporary restraining order and preliminary injunction. A proposed

order is attached.

Dated: October 4, 2007

Respectfully submitted,



PETER D. KEISLER
Assistant Attorney General

DOUGLAS N. LETTER
Terrorism Litigation Counsel

/s/ Andrew I. Warden
JOSEPH H. HUNT (D.C. Bar No. 431134)
VINCENT M. GARVEY (D.C. Bar No. 127191)
JUDRY L. SUBAR (D.C. Bar 347518)
TERRY M. HENRY
JAMES J. SCHWARTZ
JEAN LIN
ROBERT J. KATERBERG
ANDREW I. WARDEN (IN Bar No. 23840-49)
NICHOLAS A. OLDHAM
JAMES C. LUH
Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20530
(202) 514-2000

Matthew C. Waxman. See, e.g., Hatim v. Bush, 05-CV-1429 (RMU) (dkt. no. 13). In all
respects relevant to the present matter, the new declarations describe the same policies and
practices as those described in the Prosper and Waxman declarations.

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