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Case 1:05-cv-01458-UNA-AK Document 33 Filed 05/01/2007 Page 1 of 16 


Ahmed "Doe", et al, 

George W. Bush, 

President of the United States, et al., 


Case No. 05-CV-1458 (ESH) 


The petitioners, through counsel, oppose the Respondents' Motion to Vacate the District 
Court Orders and Dismiss the Habeas Petitions for Lack of Jurisdiction. At the time each petitioner 
filed his pro se petition, the District Court had jurisdiction to review the grounds for detention, as 
the Supreme Court held in Rasul v. Bush, 542 U.S. 466 (2004). Since that time, the Respondents 
have claimed that intervening statutes have deprived the District Courts of jurisdiction, a position 
the petitioners contest based on an array of factual and legal arguments. The Respondents now 
request that the underlying petitions should be dismissed, without the opportunity to persuade the 
District Court that the particular case is viable and to make a record for appellate and Supreme Court 

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The Respondents' position is untenable for six reasons: A) the Boumediene case is not final 
nor is it dispositive given the statements of Justices Stevens and Kennedy regarding the need to 
exhaust remedies; B) under Rhines v. Weber, 541 U.S. 269 (2005), the procedure for addressing a 
pending petition while remedies are exhausted is for the District Court to stay the proceedings and 
hold them in abeyance pending exhaustion; C) under United States v. UMW, 330 U.S. 258, 290-91 
(1946), while the Supreme Court rules on the jurisdictional questions, the lower courts have 
"authority from the necessity of the case to malce orders preserving existing conditions and the 
subject of the petition;" D) the stay-and-abey procedure is especially appropriate in the context of 
orders granted by the District Court to safeguard against violations of the Convention Against 
Torture; E) the norm is for motions to dismiss to be litigated from a final order of the District Court; 
and F) the petitioners are not bound by the record established to date in Boumediene. 

A. Boumediene Is Not Final Because The Denial Of Certiorari Was Based In Part 
On The Failure To Exhaust Remedies, Which Are Still Available To Those 

On February 20, 2007, a split panel of this Court decided combined cases involving aliens 

detained at Guantanamo, finding that post-Rasul statutes deprived courts of jurisdiction. Boumediene 

V. Bush, 476 F,3d 98 1 (D.C. Cir. 2007). Because the petitioners declined to seek review directly with 

this Court under the Detainee Treatment Act of 2005, the Court found that the "only recourse" was 

to vacate the District Court decision and dismiss the case for lack of jurisdiction. Boumediene, 476 

F.3d at 994. The petitioners filed for a writ of certiorari and, on April 2, 2007, the Supreme Court 

denied certiorari, with both a three- Justice dissent and a statement respecting the denial of certiorari. 

Boumediene v. Bush, 127 S.Ct. 1478 (2007), The statement of Justices Kennedy and Stevens found 

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that, given "our practice of requiring the exhaustion of available remedies as a precondition to 
accepting jurisdiction over applications for the writ of habeas corpus," denial of certiorari was 
appropriate "at this time." The Justices specifically expressed concern regarding maintenance of the 
status quo during the litigation: "Were the Goverimient to take additional steps to prejudice the 
position of petitioners in seeking review in this court, 'courts of competent jurisdiction,' including 
this Court, 'should act promptly to ensure that the office and purposes of the writ of habeas corpus 
are not compromised.'" 

The Respondents' reliance on Boumediene is misplaced for several reasons. First, the 
petitioners in that case have filed for reconsideration regarding the disposition of that case. Because 
the mandate has not issued, the litigation is not final. Second, the petitioners have already filed for 
DTA relief or will be doing so in the near future. The Court has the simple and Supreme Court- 
approved "recourse" in these cases to allow exhaustion while the district court proceedings are 
stayed pending the DTA litigation. Third, the dismissal of the District Court proceedings, with their 
web of protective orders and rulings on issues necessary to the maintenance of litigation, would 
constitute exactly the type of prejudice to the petitioners' ability to litigate that Justices Kennedy and 
Stevens instructed that the courts should guard against. As such, the motion to dismiss should be 
denied because it is premised on an incorrect reading of Boumediene. 

B. Because Exhaustion Of Remedies Is Available To The Present Petitioners, The 
District Courts Have Discretion To Enter Stay-And-Abey Orders, Which Are 
Mandatory By Analogy To Rhines v. Weber, 541 U.S. 269 (2005). 

Given the need to exhaust remedies under the Detainee Treatment Act of 2005, the District 

Court proceedings should continue to be stayed and held in abeyance pending completion of the 

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petitioners' DTA review directly in this Court. In Rhines v. Weber, 541 U.S. 269 (2005), the 
Supreme Court explicitly approved the stay-and-abey procedure in the closely analogous context of 
federal habeas corpus proceedings. In Rhines, the prisoner filed a mixed habeas petition in federal 
court, which contained both claims exhausted through the state court system and unexhausted claims. 
Given the major procedural risks of a dismissal order, the Court found that District Courts have 
discretion to enter stay-and-abey orders in the federal habeas case while the unexhausted claims are 
presented to the state court. The federal habeas corpus case is stayed and held in abeyance for a 
reasonable time while available state remedies are exhausted. 

The Rhines court found three preconditions for, in effect, mandatory stay-and-abey. In the 
absence of intentional dilatory tactics by the pethioner, "it would likely be an abuse of discretion to 
deny a stay and to dismiss" a petition if the petitioner has good cause for the failure to exhaust and 
the unexhausted claims are potentially meritorious. Rhines, 544 at 278; accord Pace v. DiGuglielmo, 
544 U.S. 408, 416-17 (2005). The conditions under which failure to stay-and-abey would constitute 
an abuse of discretion - no deliberate delay, good cause, and potentially meritorious claims - are 
abundantly present in this case. The petitioners have been attempting to move forward, while the 
Respondents have obtained stays of over 1 8 months. Unlike the death penalty eases that caused the 
Supreme Court concern in Rhines, every day of delay prejudices the petitioners.' 

There is also good cause for the failure to exhaust until now: the potential remedy did not 
exist until after the habeas corpus petition was filed and did not purport to provide the habeas relief 
to which the petitioner was entitled at the time the habeas action was filed. In Pace, the Court noted 

' In Rhines, three Justices concurred, stating that stay-and-abey is required in the absence of 
proof of "intentionally dilatory litigation tactics." 544 U.S. at 279 (Stevens, J., concurring, joined 
by Justices Ginsburg and Breyer). 

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that potential confusion regarding state remedies required equitable protections. 544 U.S. at 416. 
Guantanamo detainees face complexities that are similar and worse. The questions left open in the 
Supreme Court's decision in Rasul, which established a right to proceed under § 2241 at the time 
the petitioner submitted his documents,' and the subsequent Detainee Treatment Act of 2005 and 
Military Commission Act of 2006, have resulted in major complications. The petitioners did not 
even have the potential DTA remedy prior to October 2006 because, as the Supreme Court held, the 
DTA did not apply retrospectively to habeas corpus petitions filed prior to the effective date of the 
statute. Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2762-69 (2006). 

The claims raised by the petitioners are substantial and meritorious and involves both factual 
and legal claims that at least encompass an assertion that the prolonged indefinite detention is 
unlawful because the petitioner is not an enemy combatant. In the event the case is remanded, or if 
the DTA procedures prove an inadequate substitute for constitutionally-required habeas corpus 
procedures, the courts should be in position to proceed immediately on the habeas petitions. 

C. Under UMW, the Court Has Authority To Preserve The Status Quo While 
Jurisdictional Questions Are Litigated. 

In the statement accompanying the Boumediene order, two Justices stated: "Were the 

Government to take additional steps to prejudice the position of pethioners in seeking review in this 

Court, 'courts of competent jurisdiction,' including this Court, 'should act promptly to ensure that 

^ The construction of the § 2241 statute in Rasul stated what the statute had always meant. 
Bousley v. United States, 523 U.S. 614, 625-26 (1998) (judicial construction of a statute is an 
authoritative statement of what the statute meant before as well as after the decision giving rise to 
that construction) (Stevens, J., concurring); Rivers v. Roadway Express, Inc. , 5 1 1 U.S. 298, 3 1 1 n. 12 
( 1 994) ("[WJhen this court construes a statute, it is explaining its understanding of what the statute 
has meant continuously since the date when it became law."). 

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the office and purposes of the writ of habeas corpus are not compromised.'" 2007 WL 957363 

(Justices Stevens and Kennedy, statement respecting the denial of certiorari)? The Justices' 

language echoes the long-established principle that, even if there is no jurisdiction, that ultimate 

question is for the Supreme Court, and that while the matter is under consideration, the courts have 

"authority from the necessity of the case to make orders to preserve the existing conditions and 

subject of the petition." UMW, 330 U.S. at 291 (quoting United States v. Spp, 203 U.S. 563, 573 

(1906) (Holmes, J.)). This Court has not hesitated to apply these principles: 

Of course, whether or not there was jurisdiction to decide the merits, until the 
question of jurisdiction is determined, there was "authority from the necessity of the 
case to make orders to preserve the existing conditions and the subject of the petition 
. . . ." ... Clearly there was "power to preserve existing conditions while . . . 
determining [the] authority to grant injunctive relief.' 

In re President and Directors of Georgetown College, 331 F.2d 1000, 1005 (D.C. Cir. 1964) 

(quoting UMW). This Court should carefully protect the status quo by maintaining the orders entered 

to date to assure the petitioners are not prejudiced in their ability to litigate the DTA action; to 

preserve potential remedies before this Court; and to preserve the petitioners' safety and lives. 

The denial of certiorari in Boumediene leaves unanswered predicate questions necessary to 

deciding issues in each petitioners' case including: Does the DTA provide a forum for resolving 

issues regarding unlawful detention coextensive with traditional habeas corpus? If not, has the writ 

been unconstitutionally suspended or eliminated? Are the MCA and the DTA inapplicable given 

petitioners' jurisdictional arguments regarding the absence of initial military jurisdiction, which 

would foreclose the CSRT from constituting a competent tribunal to render any decision regarding 

' Quoting Padilla v. Hanft, 547 U.S. 1062 (Kennedy, J., concurring in the denial of 


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him? Is the government taking "additional steps to prejudice the position of petitioners in seeking 
review of this Court" and, if so, should this Court "act promptly to ensure that the office and 
purposes of the writ of habeas corpus are not compromised"? 

The motion to dismiss should be denied because the Court has insufficient information to 
answer a number of questions the DTA proceedings will answer. Further, if the District Court 
eventually reaches the jurisdictional and constitutional questions, and rules adversely to the 
pethioner, there must be an adequate record for this Court's appellate review and, if necessary, for 
the Supreme Court to decide whether to grant a writ of certiorari, all of which requires that the 
pethions in the District Court remain in place until after the petitioners have exhausted the DTA 
procedures. During that process, the Respondents should be foreclosed from prejudicing the 
petitioner's ability to litigate these questions - at both the District Court and Circuit Court level. 

D. The Orders On Appeal, Which Are Procedural And Preliminary To Ultimate 
Disposition On The Merits, Are Necessary To Protect Petitioners From Torture 
And Death And To Assure That "The Office And Purpose Of The Writ Of 
Habeas Corpus Are Not Compromised." 

The orders involved in this case involve questions of life and death: whether the petitioners 

have sufficient notice to raise questions regarding rendition to a country where they face torture or 

death in violation of the Convention Against Torture. In this case the Petitioner is at risk of being 

rendered, expelled, or returned without lawful procedures to a country that engages in torture. The 

transfer of Petitioner to a country that creates a foreseeable and direct risk that he will be subjected 

to torture constitutes a violation of Petitioners' rights under the Third and Fourth Geneva 

Conventions, the Covenant Against Torture, and the 1954 Convention Relating to the Status of 

Case 1:05-cv-01458-UNA-AK Document 33 Filed 05/01/2007 Page 8 of 16 

Refugees, 1 89 U.N.T.S. 1 50 (entered into force Apr. 22, 1 954), Further, the foreseeable and direct 
risk that Petitioner will be subjected to torture constitutes a violation of his rights under customary 
international law. 

By maintaining the status quo, the Court provides a minimal mechanism for preventing 
torture and death in violation of the Convention Against Torture: the petitioners face rendition to 
countries with some of the worst human rights records in the world; and, in addition, the 
Respondents have taken affirmative steps that have jeopardized detainees and their families in their 
home countries. 

The petitioner is a citizen of Libya, whose designation as an enemy combatant may well 
mean torture or execution if he is repatriated. See United States Department of State, Country 
Reports on Human Rights Practices ~ 2006: Libya (available at 
http://www.state.gOv/g/drl/rls/hrrpt/2006/78858.htm).. Even forced repatriation or rendition to other 
countries, such as Saudi Arabia, is extremely problematic: "Despite close cooperation on security 
issues, the United States remains concerned about human rights conditions in Saudi Arabia. 
Principal human rights problems include abuse of prisoners and incommunicado detention." United 
States Department of State, Background Note: Saudi Arabia (available at Conditions change, so the level of danger cannot be 
reasonably assessed until a transfer is imminent, hence the status quo must be maintained to allow 
the petitioner to seek further relief if appropriate. The Respondents, however, seek to unnecessarily 
place the petitioners at risk of potentially lethal consequences of a treaty violation. 

The petitioners also face danger from another source: the Respondents' intentional exposure 
of information they knew to be dangerous without taking reasonable security precautions. In the 

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litigation with the Associated Press that resulted in the publication of CSRT transcripts, the 

Respondents recognized that information contained in those documents could endanger detainees 

and their families from terrorist organizations and, by inference, governments unable to protect 

against or sympathetic to such organizations: 

If the detainee's identity is connected to his testimony, and terrorist groups or other 
individuals abroad are displeased by something the detainee said to the Tribunal, 
DOD believes that this could put his family at serious risk of reprisals-including 
death or serious harm-at home. This risk also translates to the detainee himself when 
he is released from detention. 

Declaration of Associate General Counsel Karen Hecker, Department of Defense at f 9, filed in 

Associated Press v. U.S. Department of Defense, CV 05-3941 (S.D.N.Y. June 30, 2005). Despite 

this knowledge, the Respondents exposed CSRT information without taking reasonable steps, such 

as redaction or selective disclosure, to safeguard information that placed detainees and their families 

at risk.'' 

As such the status quo must be maintained to ensure that the anti-rendition and refoulment 

provisions of the Convention Against Torture are honored.' The protections provided by CAT 

The government's solicitation of consent to disclose from detainees, without obtaining such 
consent, also creates another issue not resolved in Boumediene : does the intentional action to expose 
life-endangering facts, in the context of New York civil litigation, create a sufficient nexus between 
detainees held for six years in territory exclusively controlled by the United States and this country 
that a higher level of constitutional protection applies? 

Art. Ill provides: 

1 . No State Party shall expel, return ("refouler") or extradite a person to another State 
where there are substantial grounds for believing that he would be in danger of being 
subjected to torture. 

2. For the purpose of determining whether there are such grounds, the competent 

authorities shall take into account all relevant considerations including, where 

Case 1:05-cv-01458-UNA-AK Document33 Filed 05/01/2007 Page 10 of 16 

defend principles so deeply ingrained in our country's values that violations transgress ajus cogens 
norm. Siderman de Blake v. Argentina, 965 F.2d 699, 717 (9th Cir. 1992) (citing Committee of U.S. 
Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 941-42 (D.C. Cir. 1988), and Filartinga v. 
Pena-lrala, 630 F.2d 876, 884, 890 (2nd Cir. 1980)). The dangers of rendition faced by the 
Petitioner implicates the same core values, warranting this Court's full and vigorous protection. 

E. The Norm Is For Motions To Dismiss To Be Litigated From A Final Order Of 
The District Court. 

The Respondents are asking this Court to enter orders without giving the District Courts the 

opportunity to rule in the first instance. This Court's authority properly extends to final decisions 

of the District Courts. 28 U.S.C. s 1291 ("The courts of appeals . . . shall have jurisdiction of 

appeals from all final decisions of the district courts of the United States . . . ."). The present cases 

are before the Court as interlocutory appeals addressing preliminary matters, pursuant to the limited 

jurisdiction provided by 28 U.S.C. § 1292. There is no final order of the District Courts regarding 

jurisdiction or the merits of any of these habeas petitions. The Court should not expand beyond its 

normal jurisdiction but should rather permit the District Courts to determine its own jurisdiction. 

See Kircher et alv. Putnam Funds Trust et al, 126 S. Ct.2145, 2155(2006). It would be premature 

for this Court to determine the dispositive questions without first giving the District Coiffts the 

opportunity to review, to consider a record, and to decide on each individual case. 

applicable, the existence in the State concerned of a consistent pattern of gross, 
flagrant or mass violations of human rights. 


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F. Boumediene Does Not Establish The Record To Which These Petitioners Should 
Be Bound Because They Are Exhausting Available Remedies And Other Legal 
Theories May Be Available On The Facts Of Their Cases. 

The Respondents' request for dismissal fails to recognize the protean detainee factual settings 
and resulting legal issues. The Boumediene cases involve certain allegations and legal theories; those 
cases do not control all the potential issues to be raised by the petitioners. Texas v. Cobb, 532 U.S. 

162, (2001) ("Constitutional rights are not defined by inferences from opinions which did not 

address the question at issue."); see also Booker v. United States, [cite](limiting stare decisis effect 
of cases where constitutional issue was not raised or resolved). The most profound difference for 
all petitioners will be the resolution of the now-open question of the scope and efficacy of the DTA 
remedy, which will only be known once the exhaustion of remedies is completed. Until then, the 
factual predicate for evaluation of the legal issues is lacking, rendering the cases unripe for the fully 
developed review anticipated by Justices Kennedy and Stevens in the Boumediene statement 
accompanying the denial of certiorari. 

The DTA litigation, in addition to providing insight regarding the DTA as an alternative to 
habeas corpus, also will provide the opportunity for determining the District Court's role in the DTA 
exhaustion process. Besides providing the procedural context for the litigation, DTA petitions have 
included alternative requests for remand to the District Court or the Supreme Court to resolve 
controverted facts, remand to the District Court to address initial jurisdiction questions in the first 
instance, and remand to the District Court based on the inadequacy of the DTA procedure for factual 
development and equitable relief commensurate with habeas corpus. For the Circuit Court to 
exercise these options, the present habeas cases must be stayed and held in abeyance. 


Case 1:05-cv-01458-UNA-AK Document33 Filed 05/01/2007 Page 12 of 16 

The Boumediene cases did not resolve all potential legal issues regarding the purported 
statutory disenfranohisement of the jurisdiction that existed at the filing of the habeas petitions under 
Rasul. The post-exhaustion litigation, if not mooted by relief granted under the DTA, should involve 
legal approaches that the Boumediene majority did not address and resolve. If Rasul means anything, 
the constitutional validity of the DTA statute must be determined in light of the post-DTA litigation 
and address these petitioners' unique claims, including challenges under the bill of attainder, equal 
protection, due process, habeas corpus, and ex post facto clauses. 


Case 1:05-cv-01458-UNA-AK Document33 Filed 05/01/2007 Page 13 of 16 


The petitioners' habeas corpus rights are far from finally decided: the Supreme Court has yet 
to speak on the merits, and the petitioners have not had their individual facts and legal arguments 
heard. The Respondents' motion to undo the carefully crafted measures by the District Courts to 
balance competing interests is not only premature but unnecessarily places detainees in danger of 
torture and death. Under governing Supreme Court precedent, the status quo should be preserved 
while the eases are litigated: under UMW, the courts have "authority from the necessity of the case 
to make orders to preserve the existing conditions and the subject of the petition;" under Rhines, the 
mechanism for permitting exhaustion of remedies without prejudice to habeas corpus rights is to stay 
the District Court action and hold it in abeyance for a reasonable time for the DTA direct actions to 
be litigated. 

Dated this 25* day of April, 2007. 

Respectfully submitted 
Counsel for Petitioners: 

Kevin G. Boris 


306 Main Street 

Millbum,NJ 07041 

By: /s/ Kevin G. Boris 

Louis A. Ruprecht 


306 Main Street 

Millbum,NJ 07041 

By: hi Louis A. Ruprecht 


Case 1:05-cv-01458-UNA-AK Document33 Filed 05/01/2007 Page 14 of 16 


Case 1:05-cv-01458-UNA-AK Document33 Filed 05/01/2007 Page 15 of 16 


Ahmed "Doe", et ai, 


President of the United States, 
et ai, 


Civil Action No. 
05-CV-1458 (ESH) 


1, Kevin G. Boris liereby certify that on this 25* day of April, 2007, 1 caused to be served via 
electronic filing a copy of the foregoing Opposition to Motion to Vacate the District Court Orders and 
Dismiss the Habeas Petititions for Lack of Jurisdiction on the following counsel: 

Terry Marcus Henry 


P.O. Box 883 

20 Massachusetts Avenue, NW 

Suite 7144 

Washington, DC 20044 

Judry Laeb Subar 


Federal Programs Branch 

20 Massachusetts Avenue, NW 

Room 7342 

Washington, DC 20530 

Case 1:05-cv-01458-UNA-AK Document33 Filed 05/01/2007 Page 16 of 16 

Preeya M. Noronha 


20 Massachusetts Avenue, NW 

Room 7226 

Washington, DC 20530 

Barbara J. Olshansky 


666 Broadway 

7th Floor 

New York, NY 10012