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Case 1:07-cv-02338-UNA Document 21 Filed 04/24/2008 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ABDURRAHMAN ABDALLAH ALI
MAHMOUD AL SHUBATI, et al.,

v.

Petitioners/Plaintiffs,

GEORGE W. BUSH, et al.,

Respondents/Defendants.

CIVIL ACTION NO. 07-CV-02338
(HHK)

PETITIONER’S REPLY TO RESPONDENTS’ OPPOSITION TO MOTION TO

RECONSIDER AND VACATE FEBRUARY 5, 2008 ORDER

Petitioner, Abdurrahman Abdallah Ali Mahmoud al Shubati (“Petitioner

Shubati”), respectfully requests that the Court reconsider and vacate its February 5, 2008,

Order denying Petitioner Shubati’s Amended Emergency Motion to Enter the November

8, 2004 Amended Protective Order From In Re Guantanamo Bay Detainees Cases

(“Motion to Enter Protective Order”). Petitioner Shubati further asks the Court to enter

the amended November 8, 2004, protective order from In re Guantanamo Bay Detainee

Cases (the “habeas protective order”), so that Petitioner and his counsel can meet,

converse, and correspond regarding this habeas corpus case.

As explained in his Motion to Reconsider, Petitioner Shubati believes this Court’s

denial of his Motion to Enter the Protective Order resulted from an error of

misunderstanding, apprehension, or oversight, making it a proper subject for

Case 1:07-cv-02338-UNA Document 21 Filed 04/24/2008 Page 2 of 8

reconsideration. Petitioner’s Motion to Reconsider and Vacate February 5, 2008 Order at

2-3, Shubati v. Bush, No. 07-cv-2338 (HKK) (D.D.C. Mar. 31, 2008).

Respondents’ assertion that “entry of a proper protective order in petitioner[’s]

parallel DTA case[] obviate[s] any need for entry of a protective order in th[is] case[]”

reflects a fundamental misunderstanding about the nature of the DTA protective order.

Respondents’ Consolidated Opposition to Petitioners’ Motions to Reconsider and Vacate

February 5, 2008 Orders (“Respondents’ Opposition”) at 5, Shubati, No. 07-cv-2338

(Apr. 14, 2008). Petitioner Shubati does have a Detainee Treatment Act (“DTA”) case

pending before the D.C. Circuit, in which the protective order crafted to govern DTA

cases (the “Bismullah protective order”) was recently entered. Order, Shubati v. Gates,

No. 07-1522 (D.C. Cir. Apr. 22, 2008). But Respondents fail to recognize that however

“proper” the Bismullah protective order may be for the narrow review authorized by the

DTA, it was never intended to govern habeas corpus cases.1 In fact, the Bismullah

protective order would bar Petitioner from fairly developing this habeas corpus case, and

inexplicably would condition Petitioner’s pursuit of this case on unrelated activities

before the D.C. Circuit.





1 Although Respondents conflate the two proceedings, review by the D.C. Circuit
pursuant to the DTA is completely divorced from, and dramatically narrower than,
habeas corpus review in this Court. This point has been elaborated in a number of
contexts, including in Petitioner’s habeas corpus petition, Petition for a Writ of Habeas
Corpus, Shubati, No. 07-cv-2338 (Dec 31, 2007), and before the Supreme Court in
Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), cert. granted, 127 S. Ct. 3078
(2007), argued Dec. 5, 2007 (No. 06-1195).

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Case 1:07-cv-02338-UNA Document 21 Filed 04/24/2008 Page 3 of 8

To give just two examples: First, the Bismullah protective order bars Petitioner

Shubati from exchanging legal mail with counsel regarding any events taking place after

Petitioner’s Combatant Status Review Tribunal (“CSRT”), which occurred on or about

December 6, 2004.2 Thus, legal mail could not include:





any discussion of the “Annual Review Boards,” which purport to justify
Petitioner Shubati’s continued captivity, or of their relationship to his
habeas corpus claims;

discussion of any evidence from before Petitioner Shubati’s arrest or from
the forty months since his CSRT, including evidence proving Petitioner
Shubati’s innocence, unless such evidence addressed “events leading up to
[his] capture”;3

2 Under the Bismullah protective order:





“Legal Mail” consists only of documents and drafts of documents that are
intended for filing in [the DTA] action and correspondence directly related
to those documents that:

i. relate directly to the litigation of [the DTA] action; [and]

ii. address only (a) events leading up to the capture of the Detainee on
whose behalf the petition…was filed; (b) events occurring between such
Detainee’s capture and any hearing before a Combatant Status Review
Tribunal (CSRT) relating to such Detainee; and (c) the conduct of the
CSRT proceeding relating to such Detainee[.]

Petitioner’s Reply to Respondents’ Opposition to Motion to Enter the Protective Order
Ex. 1 at 4-5, Shubati, No. 07-cv-2338 (Jan. 23, 2008).

3 For example, suppose counsel discovered a witness whose testimony would
exculpate Petitioner Shubati, but the testimony did not address “events leading up to
[Petitioner Shubati’s] capture.” Counsel could not write Petitioner Shubati legal mail
informing him of this development. Similarly, if he knew of such a witness, Petitioner
Shubati could not send legal mail informing counsel and instructing them to locate the
witness and present the exculpatory evidence on his behalf.

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Case 1:07-cv-02338-UNA Document 21 Filed 04/24/2008 Page 4 of 8







any discussion of Petitioner Shubati’s treatment in captivity in the past
three and one half years, including allegations of abuse or health concerns;

any discussion of Petitioner Shubati’s potential transfer to a location where
he might be tortured, abused, or denied due process of law, or how
Petitioner Shubati wishes counsel to proceed should they receive notice of
such transfer pursuant to this Court’s January 11, 2008, Order;

any mention of the very existence of this habeas corpus case, because it is
an event occurring after the CSRT, and arguably does not “relate directly to
the litigation of [the DTA] action.” Bismullah’s definition of legal mail
would not allow counsel to send Petitioner Shubati a copy of his own
habeas corpus petition, or any of the other pleadings or orders in this case.

Second, under the Bismullah protective order, Petitioner Shubati would be entitled

to only two meetings with his habeas corpus counsel unless he authorized them to pursue

Petitioner Shubati’s DTA case, a proceeding utterly divorced from this habeas corpus

action.4 Respondents fail to explain why Petitioner Shubati’s access to habeas corpus

counsel should turn on his authorizing those same counsel to pursue his DTA case.

Petitioner is entitled to forgo DTA representation altogether, or to select alternate counsel

for the separate proceeding, without forfeiting his right to decide the terms of his

representation before this Court. Unlike the Bismullah order, the habeas protective order

Petitioner Shubati seeks was designed to govern habeas corpus cases, and appropriately

requires Petitioner to authorize counsel for his habeas corpus proceeding.





4 Respondents mischaracterize the habeas protective order as “contain[ing] the

same limitation” on subsequent client meetings as the Bismullah protective order, “only
in slightly different words.” See Respondents’ Opposition at 6-7. Under the Bismullah
protective order, Petitioner Shubati must authorize counsel “to seek review of the
CSRT’s determination of his status” in a DTA proceeding before the Circuit Court. Id. at
7. The habeas protective order requires “authori[zation] to represent the detainee” in his
habeas corpus case before this Court – a totally independent proceeding. Id. These
requirements simply are not “the same.”

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Case 1:07-cv-02338-UNA Document 21 Filed 04/24/2008 Page 5 of 8

By muddling the distinct DTA and habeas proceedings, Respondents attempt by

sleight of hand to dissuade this Court from adopting the protective order appropriate to

this proceeding. See Respondents’ Opposition at 5-6, (alleging “the inherent

unsoundness of petitioners’ invitation to this Court to sit in judgment of the adequacy of a

protective order that a three-judge panel of our Court of Appeals adopted following

substantial briefing and argument”). Respondents fail to recognize that the D.C. Circuit

in Bismullah addressed the protective order appropriate for DTA claims. Such a decision

has no bearing on Petitioner’s habeas corpus case. Indeed, it is this Court, and not the

Court of Appeals, which has jurisdiction in the first instance over habeas corpus

petitions. See Petition at 3, Shubati, 07-cv-2338 (Dec. 31, 2007). Because the D.C.

Circuit has never addressed what protective order should govern a Guantanamo Bay

prisoner’s habeas corpus case, this Court should follow the precedent it and the other

District Courts have established and enter the In re Guantanamo Bay Detainee Cases

protective order. See, e.g., Order Entering Am. Protective Order, Hentif v. Bush, Civ. No.

06-1766 (HHK) (D.D.C. Nov. 21, 2006).

Finally, Respondents reiterate their position that this Court lacks jurisdiction to

hear this case under the D.C. Circuit’s Boumediene decision, 476 F.3d 981,

notwithstanding both the Circuit’s recall of its mandate and this Court’s established

contradictory practice. Order, Boumediene, No. 05-5062 (D.C. Cir. July 26, 2007). As

this Court evidently recognizes, the Supreme Court remains the final arbiter of this

Court’s jurisdiction, and will resolve the question when it decides Boumediene, now

under review. The status quo, allowing Guantanamo prisoners to meet and correspond

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Case 1:07-cv-02338-UNA Document 21 Filed 04/24/2008 Page 6 of 8

with their habeas corpus counsel, should be maintained in the interim. Accordingly, this

Court and its fellow District Courts have continued to exercise jurisdiction over Petitioner

Shubati’s and other Guantanamo prisoners’ habeas corpus cases pending a Supreme

Court ruling in Boumediene. See, e.g., Order, Shubati, 07-cv-2338 (Jan. 11, 2008)

(granting one of Petitioner Shubati’s substantive motions in this case); Order, Abulayev v.

Bush, No. 05-2389 (RBW) (Mar. 19, 2008) (granting a similar motion in another

Guantanamo habeas corpus case, just one month ago).

In sum, Petitioner Shubati respectfully asks the Court to reconsider and vacate its

February 5, 2008, Order, and to enter in this case the protective order tailored for habeas

corpus proceedings: the November 8, 2004, order from In re Guantanamo Bay Detainee

Cases. Although Respondents deride differences between this protective order and the

Bismullah protective order as mere “quibbles,” their vigorous opposition to the instant

motion belies such characterization. If the differences were immaterial, Respondents

should be equally satisfied with either protective order. The In re Guantanamo Bay

Detainee Cases protective order adopted in other habeas cases, not some order crafted for

DTA proceedings, is appropriate in this habeas corpus action.

Dated: April 24, 2008

Respectfully submitted,

Counsel for Petitioner:

/s/ Brent N. Rushforth

Brent N. Rushforth (DC 331074)
Kit A. Pierson (DC 398123)
Sarah B. Pojanowski (DC 502036)
Elizabeth S. Arora

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Case 1:07-cv-02338-UNA Document 21 Filed 04/24/2008 Page 7 of 8

Janet E. Haws
HELLER EHRMAN LLP
1717 Rhode Island Avenue, NW
Washington, DC 20036
Tel: (202) 912-2000
Fax: (202) 912-2020

Shayana Kadidal (DC 49512)
Pardiss Kebriaei (DC 51395)
CENTER FOR CONSTITUTIONAL
RIGHTS
666 Broadway, 7th Floor
New York, New York 10012
Tel: (212) 614-6439
Fax: (212) 614-6499

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Case 1:07-cv-02338-UNA Document 21 Filed 04/24/2008 Page 8 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

RIDAH BIN SALEH AL SHUBATI, et al.,

v.

Petitioners/Plaintiffs,

GEORGE W. BUSH, et al.,

Respondents/Defendants.

CIVIL ACTION NO. 07-CV-02338
(HHK)

CERTIFICATE OF SERVICE

I hereby certify that, on this 24th day of April, 2008, I caused a true and correct copy of
the PETITIONER’S REPLY TO RESPONDENTS’ OPPOSITION TO MOTION
TO RECONSIDER AND VACATE FEBRUARY 5, 2008 ORDER to be served on by
the ECF system:

TERRY M. HENRY
ANDREW WARDEN
JUDRY SUBAR

United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20530
Tel: (202) 514-4107
Fax: (202) 616-8470
Counsel for Respondents

/s/ Brent N. Rushforth



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