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-

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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,
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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