(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "gov.uscourts.dcd.116163"

Case 1 :05-cv-01458-UNA-AK Document 42 Filed 07/09/2008 Page 1 of 6 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



IN RE: 

GUANTANAMO BAY 
DETAINEE LITIGATION 



Misc. No. 08-442 (TFH) 



02-CV- 
04-CV- 
04-CV- 
04-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
06-CV- 
06-CV- 
06-CV- 
06-CV- 
06-CV- 
07-CV- 
08-CV- 



0828, 
1194 
2022 
2215 
0270. 
0359 
0492 
0569 
0763 
0833 
0883 
0892 
0995 
1048 
1220. 
1244 
1429 
1487 
1504. 
1509 
1592 
1607 
1639. 
1649 
1725 
2010 
2104. 
2186 
2249. 
2367 
2378. 
2381 
2386 
2444 
0618 
1684 
1691 
1759 
1766 
2337 
987 



04-CV-1136 
04-CV-1254 
04-CV-2035 
05-CV-0023 
05-CV-0280 
05-CV-0392 
05-CV-0520 
05-CV-0634 
05-CV-0764 
05-CV-0877 
05-CV-0886 
05-CV-0993 
05-CV-0998 
05-CV-1124 
05-CV-1234 
05-CV-1347 
05-CV-1457 
05-CV-1490 
05-CV-1505 
05-CV-1555 
05-CV-1601 
05-CV-1623 
05-CV-1645 
05-CV-1678 
05-CV-1971 
05-CV-2083 
05-CV-2112 
05-CV-2199 
05-CV-2348 
05-CV-2370 
05-CV-2379 
05-CV-2384 
05-CV-2387 
05-CV-2477 
06- CV- 1668 
06-CV-1688 
06-CV-1725 
06-CV-1761 
06-CV-1767 
07-CV-2338 



04-CV- 
04-CV- 
04-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
05-CV- 
06-CV- 
06-CV- 
06-CV- 
06-CV- 
07-CV- 
08-CV- 



1164, 
1937, 
2046, 
0247, 
0329, 
0409, 
0526, 
0748, 
0765, 
0881, 
0889, 
0994, 
0999, 
1189, 
1236, 
1353, 
1458, 
1497, 
1506, 
1590, 
1602, 
1638, 
1646, 
1704, 
1983, 
2088, 
2185, 
2200, 
2349, 
2371, 
2380, 
2385, 
2398, 
2479, 
1674, 
1690, 
1758, 
1765, 
1710, 
0864, 



Case1:05-cv-01458-UNA-AK Document 42 Filed 07/09/2008 Page 2 of 6 



NOTICE 

At the status conference held before this Court on July 8, 2008, counsel for the parties 
and the Court discussed various issues concerning the disposition of habeas petitions brought by 
or on behalf of detainees at Guantanamo Bay, Cuba. Many of those issues were addressed in a 
letter to the Court that we had previously treated as confidential but that, as discussed at the July 
8 conference, is now in the public domain. We attach a copy of that letter, to make it a part of 
the record in these matters. At the invitation of the Court at the July 8 status conference, the 
Government respectfully seeks to clarify a few points with respect to issues raised at that 
conference. 

1 . Petitioners and respondents have suggested very different approaches to this 
litigation. Petitioners would have all factual returns filed within a matter of days, and then have 
the various individual Guantanamo Bay habeas cases proceed on separate, entirely undefined, 
tracks before each of the various judges of this Court. Under Respondents' approach, the 
Government would file the best return it can based on current intelligence information and taking 
into account the legal developments of the past four years. To do so would reguire a short lead 
time, after which the Government would file 50 factual returns or motions for leave to amend 
factual returns per month beginning the first week in September. Although petitioners' approach 
may superficially appear more expeditious (in that it would reguire the immediate filing of 
returns containing only the factual material already assembled in Combatant Status Review 
Tribunal ("CSRT") records from fouryears ago), over the long term it is a recipe for unnecessary 
delay. The Government respectfully submits that filing a complete return initially setting forth 



Case 1 :05-cv-01458-UNA-AK Document 42 Filed 07/09/2008 Page 3 of 6 

the best and most current evidence supporting a detainee's detention as an enemy combatant 
taking into account the material available to the Government today, and making revisions or 
deletions based on intervening legal decisions, will be more efficient and expeditious in the long 
run. Under our approach, petitioners would know the Government's best case at the outset, and 
litigation could proceed expeditiously without wasteful and repetitive litigation about whether or 
when the Government may expand its initial proffer in individual cases, without the prospect of 
erroneously releasing enemy combatants based on a stale assessment of the evidence, and 
without the ensuing appellate litigation that such an approach would inevitably generate. 
Respondents' approach is particularly justified given that decisions about the enemy combatant 
status of a detainee have, at their foundation, crucial public policy concerns related to the 
protection of the public. As the Supreme Court's plurality opinion in Hamdi noted, "[t]he 
purpose of detention [of lawful and unlawful combatants] is to prevent captured individuals from 
returning to the field of battle and taking up arms once again." Hamdi v. Rumsfeld, 542 U.S. 
507, 518 (2004) (O'Connor, J.). 

2. As discussed at the July 8 conference, these cases present significant issues with 
regard to the appropriate procedural framework under which they should be decided - issues 
common to every Guantanamo habeas case pending before the Court. As the Supreme Court 
made clear in Boumediene v. Bush, 128 S.Ct. 2229 (2008), and the Court noted at the July 8 
conference, the "content of the law that governs petitioners' detention ... is a matter yet to be 
determined." 128 S.Ct. at 2277. Rather than have hundreds of cases proceed with no legal 
guidance, the most expeditious approach would be for the parties to brief these procedural 
framework issues for the Court - including the guestion of whether they are amenable to 



Case 1 :05-cv-01458-UNA-AK Document 42 Filed 07/09/2008 Page 4 of 6 

common resolution - and for the Court to determine how much guidance it may appropriately 
give at the outset. At a minimum, such briefing will help crystalize these issues, so that the 
Court may then consider the appropriateness of deciding them once, rather than many times, and 
sooner rather than later. Even were the Court to ultimately conclude that it could not 
appropriately opine on some of these issues, such preliminary briefing at the outset would be 
beneficial for individual Judges to consider if they must ultimately address these issues. 
Moreover, entertaining such briefing is consistent with this Court's July 1, 2008 Resolution that 
the coordinating judge rule on common procedural issues "[t]o the extent possible." 7/1/2008 
Resolution at 1 4. In contrast, petitioners' proposed approach, under which the coordinating 
judge would not even attempt to consider any common procedural issues, is inconsistent with 
that Resolution. 

3. At the July 8 conference, petitioners suggested that the Court enter orders 
reguiring thirty days pre- transfer notice in those cases in which it has not already been ordered at 
this time. Respondents oppose that suggestion. Several of the judges of this Court denied such 
motions early on in this litigation, even before Congress enacted the Detainee Treatment Act and 
the Military Commissions Act. See, e.g., Al-Anazi v. Bush, 370 F.Supp.2d 188 (D.D.C. 2005( 
(Bates, J.). In any event, the Supreme Court's recent decision in Munafv. Geren, 128 S.Ct. 2207 
(2008), warrants the revisiting of the issue even by those judges who initially granted such 
motions, as explained more fully in briefs to be filed today mMohammon v. Bush, 05-2386 
(RBW); Dokhan v. Bush, 08-987 (JDB); sndMohammed v. Bush, 05-1347(GK). 

4. As mentioned at the July 8 conference, respondents have no objection to the 
Court's suggestion that cases in which petitioners have been approved for release from United 



Case 1:05-cv-01458-UNA-AK Document 42 Filed 07/09/2008 Page 5 of 6 

States custody and transfer to a foreign nation be consolidated before a single judge. However, 

despite the discretionary decision that these petitioners may be released from United States 

custody and transferred to a foreign country, they nonetheless have been determined to be enemy 

combatants by the United States, and there are many unigue fact- specific, or country- specific 

circumstances that will be presented in these cases. Thus, although Respondents do not object to 

consolidation, the Government reserves its rights with regard to all unresolved issues as to such 

detainees, including but not limited to guestions about the effect of decisions of the Department 

of Defense approving a detainee for release or transfer, about the authority of the Department of 

Defense to hold such a detainee as an enemy combatant, about the assurances necessary to 

effectuate release from United States custody and transfer to a foreign country, and about the 

proper role of the judiciary in reviewing transfer determinations. See Munaf v. G reen, 128 S.Ct. 

at 2226. 

Dated: July 9, 2008 Respectfully submitted, 

GREGORY G.KATSAS 
Assistant Attorney General 

JOHNC.O'QUINN 

D eputy A ssistant A tto rney G eneral 

Is/.JudryL. Subar 



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 (D.C. Bar No. 468625) 

ANDREW I. WARDEN (IN Bar No. 23840-49) 

PAULE.AHERN 

Attorneys 

United States Department of Justice 

Civil Division, Federal Programs Branch 

20 Massachusetts Ave., N.W. 



Case1:05-cv-01458-UNA-AK Document 42 Filed 07/09/2008 Page 6 of 6 



Washington, DC 20530 
Tel: (202)514-4107 
Fax: (202)616-8470 



Attorneys for Respondents