gov.uscourts.dcd.116163

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

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Ahmed "Doe", et al,
Petitioner,

George W. Bush,

President of the United States, et al.,

Respondents.

Case No. 05-CV-1458 (ESH)

OPPOSITION TO MOTION TO VACATE THE DISTRICT COURT ORDERS
AND DISMISS THE HABEAS PETITIONS FOR LACK OF JURISDICTION

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
Petitioners.

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
certiorari).

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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

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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
http://wvvw.state.gov.r/pa/bgn/3584.htm). 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

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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.

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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.

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Conclusion

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

RUPRECHT, HART & WEEKS, LLP

306 Main Street

Millbum,NJ 07041

By: /s/ Kevin G. Boris

Louis A. Ruprecht

RUPRECHT, HART & WEEKS, LLP

306 Main Street

Millbum,NJ 07041

By: hi Louis A. Ruprecht

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Ahmed "Doe", et ai,

GEORGE W. BUSH,

President of the United States,
et ai,

Respondents/Defendants.

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

CERTIFICATE OF SERVICE

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

U.S. DEPARTMENT OF JUSTICE

P.O. Box 883

20 Massachusetts Avenue, NW

Suite 7144

Washington, DC 20044

Judry Laeb Subar

U.S. DEPARTMENT OF JUSTICE

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

U.S. DEPARTMENT OF JUSTICE

20 Massachusetts Avenue, NW

Room 7226

Washington, DC 20530

Barbara J. Olshansky

CENTER FOR CONSTITUTIONAL RIGHTS

666 Broadway

7th Floor

New York, NY 10012