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Case 1:07-cv-02338-UNA Document 8 Filed 01/08/2008 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ABDURRAHMAN ABDALLAH ALI
MAHMOUD AL SHUBATI,

v.

Petitioner/Plaintiff,

GEORGE W. BUSH, et al.,

Respondents/Defendants.

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

PETITIONER’S REPLY TO RESPONDENT’S OPPOSITION TO MOTION FOR

THIRTY DAYS’ ADVANCE NOTICE OF INTENDED REMOVAL OF

PETITIONER FROM GUANTANAMO

Respondents portray the D.C. Circuit’s Boumediene decision as the final arbiter of

whether the Military Commissions Act (“MCA”) strips this court of jurisdiction. But the

Supreme Court’s grant of certiorari in Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.

2007), cert. granted, 75 U.S.L.W. 3707 (U.S. June 29, 2007), shows that jurisdiction

remains an open question in this case and that the Supreme Court will have the final word

in this matter. It could just as well find that:

The writ would have reached the detainees at common law, and Congress
has neither provided an adequate alternative remedy, through the Detainee
Treatment Act of 2005, Pub. L. No. 109-148, Div. A, tit. X, 119 Stat. 2680,
2739 (“DTA”), nor invoked the exception to the Clause by making the
required findings to suspend the writ. The MCA is therefore void and does
not deprive this court or the district courts of jurisdiction.

Id. at 995 (Rogers, J., dissenting).

As a practical matter, the Supreme Court’s grant in Boumediene makes it essential

for this court to preserve its jurisdiction over Petitioner in this case until the issue can be

Case 1:07-cv-02338-UNA Document 8 Filed 01/08/2008 Page 2 of 5

decided. Granting Petitioner’s request for notice before transfer permits the Court to

protect its jurisdiction by keeping Petitioner Shubati from being unwillingly transferred

to a location over which the Court lacks jurisdiction. All Writs Act, 28 U.S.C. § 1651(a);

Envtl. Def. Fund v. EPA, 485 F.2d 780, 784 n.2 (D.C. Cir. 1973) (Courts have the

inherent power “to issue injunctions to protect . . . jurisdiction.”). As Respondents

acknowledge, courts have granted the requested relief after the Supreme Court’s grant of

certiorari in Boumediene. See Ghanem v. Bush, 05-cv-01638 (CKK), dkt. 53 (D.D.C.

July 10, 2007); see also Saleh v. Bush, 06-cv-01765 (HHK), dkt. 32 (D.D.C. July 28,

2007); Hentif v. Bush, 06-cv-01766 (HHK), dkt. 29 (D.D.C. July 28, 2007).

Respondents’ claims that the requested relief will interfere with international

relations are overblown. If Respondents are sincere in their protestations that Petitioner

Shubati faces no risk, they cannot be harmed by the notice provision. Should

Respondents transfer Petitioner Shubati to a location where he will not face abuse of

process or person, there will be no need for Petitioner to seek relief from this Court. In

that situation, the parties can easily speed up the transfer process, an expediency that has

already occurred in numerous cases with notification provisions in place. Petitioner

Shubati has no desire to slow down his transfer to a neutral or favorable location; to the

contrary, he only requests some legal protection against finding himself in a worse

situation than the one he currently faces.

Respondents’ opposition brief does little to alleviate Petitioner Shubati’s concerns

that he will be transferred to a hostile location. According to Respondents, the standard

used by the State Department is that detainees will not be transferred to countries where it

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Case 1:07-cv-02338-UNA Document 8 Filed 01/08/2008 Page 3 of 5

is “more likely than not” they will be tortured. Opp. at 16; Williamson Decl. ¶ 4. On its

face, the State Department policy will allow Petitioner Shubati to be transferred to a

country where there is up to and including a 50 percent chance that he will be tortured.

The risk to Petitioner rises far beyond “mere speculation,” though the precise level of risk

is unknown (and cannot be discovered by Petitioner).

In their opposition, Respondents refrain from telling the Court that Petitioner

Shubati will not be transferred to a prison in some undesirable location. Speaking in the

broadest of generalities, the Williamson Declaration explicitly states: “A detainee may

be considered for transfer to a country other than his country of nationality.” Id. ¶¶ 2-3.

None of Respondent’s statements alleviate Petitioner Shubati’s concerns, nor should they

assuage the Court’s concerns regarding possible transfer of Petitioner.

Recent developments regarding detainee transfers and policies highlight some

holes in Respondents’ assurances to the Court. In particular, the United States has

transferred detainees to places other than their home countries within the past six months.

See AP, U.S. Sends Guantanamo Prisoner Who Tried to Kill Himself to Saudi Arabia,

July 17, 2007 (reporting that United States transferred a citizen of Bahrain to Saudi

Arabia on July 14 or 15). Further, the press has reported that the United States’ plans to

expand the prison facilities in Afghanistan and transfer Afghani Guantanamo detainees

there. N.Y. Times, Defying U.S. Plan, Prison Expands in Afghanistan, Jan. 7, 2008. The

prison in Afghanistan already houses inmates from other countries. See, e.g., AP,

Inmates Detail U.S. Prison Near Kabul, Oct. 1, 2006. Petitioner Shubati fears that

pressure to close Guantanamo might motivate the U.S. to move non-Afghani prisoners to

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Case 1:07-cv-02338-UNA Document 8 Filed 01/08/2008 Page 4 of 5

Bagram, where widespread abuse has been documented. See Eliza Griswold, Black Hole,

the Other Guantanamo, The New Republic, May 7, 2007.

While these facts are not conclusive, they suggest that Respondents will bear only

a de minimis burden from the requested relief, while the prospective harm to Petitioner

Shubati may be severe. Further, the Court has a strong interest in preserving the status

quo until the jurisdiction question can be resolved by the Supreme Court. Thus,

Petitioner respectfully requests this Court to grant 30 days’ notice to counsel for

Petitioner Shubati and this Court of intended removal from Guantanamo.

Dated: January 8, 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)
Jenny L. Workman (DC 502584)
Elizabeth S. Arora
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 8 Filed 01/08/2008 Page 5 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ABDURRAHMAN ABDALLAH ALI
MAHMOUD AL SHUBATI,

v.

Petitioner/Plaintiff,

GEORGE W. BUSH, et al.,

Respondents/Defendants.

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

CERTIFICATE OF SERVICE

I hereby certify that, on this 8th day of January, 2008, I caused a true and correct copy of
the PETITIONER’S REPLY TO RESPONDENT’S OPPOSITION TO MOTION
FOR THIRTY DAYS’ ADVANCE NOTICE OF INTENDED REMOVAL OF
PETITIONER FROM GUANTANAMO to be served electronically via the ECF
system on:

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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