gov.uscourts.dcd.116163

Case 1 :05-cv-01458-UNA-AK Document 48 Filed 07/21/2008 Page 1 of 20

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

IN RE:

GUANTANAMO BAY
DETAINEE LITIGATION

Misc. No. 08-442 (TEH)
Civil Action Nos.

02-CV-0828
04-CV-1254
04-CV-2046
05-CV-0270
05-CV-0392
05-CV-0569
05-CV-0764
05-CV-0883
05-CV-0994
05-CV-1048
05-CV-1236
05-CV-1429
05-CV-1490
05-CV-1506
05-CV-1592
05-CV-1623
05-CV-1646
05-CV-1725
05-CV-2083
05-CV-2185
05-CV-2249
05-CV-2378
05-CV-2384
05-CV-2398
06-CV-0618
06-CV-1688
06-CV-1759
06-CV-1767
08-CV-0987
08-CV-1153

04-CV-1136
04-CV-1937
04-CV-2215
05-CV-0280
05-CV-0492
05-CV-0634
05-CV-0833
05-CV-0889
05-CV-0995
05-CV-1124
05-CV-1244
05-CV-1457
05-CV-1497
05-CV-1509
05-CV-1601
05-CV-1638
05-CV-1649
05-CV-1971
05-CV-2088
05-CV-2186
05-CV-2349
05-CV-2379
05-CV-2385
05-CV-2444
06-CV-1668
06-CV-1690
06-CV-1761
07-CV-1710
08-CV-1085
08-CV-1185

04-CV-1164
04-CV-2022
05-CV-0023
05-CV-0329
05-CV-0520
05-CV-0748
05-CV-0877
05-CV-0892
05-CV-0998
05-CV-1189
05-CV-1347
05-CV-1458
05-CV-1504
05-CV-1555
05-CV-1602
05-CV-1639
05-CV-1678
05-CV-1983
05-CV-2104
05-CV-2199
05-CV-2367
05-CV-2380
05-CV-2386
05-CV-2477
06-CV-1674
06-CV-1691
06-CV-1765
07-CV-2337
08-CV-llOl
08-CV-1207

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-
06-CV-
06-CV-
06-CV-
07-CV-
08-CV-

1194,
2035,
0247,
0359,
0526,
0763,
0881,
0993,
0999,
1220,
1353,
1487,
1505,
1590,
1607,
1645,
1704,
2010,
2112,
2200,
2371,
2381,
2387,
2479,
1684,
1758,
1766,
2338,
1104

TOINT REPORT INRESPON5E TO COURT'S TULY U 2D08 SCHEDULING ORDER

Case1:05-cv-01458-UNA-AK Document 48 Filed 07/21/2008 Page 2 of 20

Pursuant to the Court's July 11, 2008 Scheduling Order, undersigned counsel for
petitioners and respondents in the above-captioned cases jointly state as follows:
A.

L Repondoits' PositiGn

With respect to the issue of amendments to the Amended Protective Order and
Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo
Bay, Cuba, first issued on Novembers, 2004, 344 F. Supp. 2d 174 (D.D.C. 2004), as
supplemented by the Order Addressing Designation Procedures for "Protected Information," first
issued on November 10, 2004; and the Order Supplementing and Amending Filing Procedures
Contained in November 8, 2004 Amended Protective Order, first issued on December 13, 2004,
respondents have attached hereto as Exhibit 1 a proposal to amend the procedures for submitting
filings to the Court. Respondents request that the Court enter an order adopting tiiese filing
procedures in the above-captioned cases and vacate the current provisions of the Amended
Protective Order governing filing procedures (i.e., paragraphs 46 and 47 of the Amended
Protective Order as well as the Order Supplementing and Amending Filing Procedures Contained
in November 8, 2004 Amended Protective Order). The amended filing procedures update and
improve the process for submitting filings in two significant respects. First, petitioner's counsel
would be authorized to submit filings directly on Court's electronic filing system if counsel do
not believe and have no reason to believe that a filing contains classified or protected
information. Second, filings containing only "protected information," as defined by the
Amended Protective Order, but not classified information, would be submitted pursuant to Local

Case 1 :05-cv-01458-UNA-AK Document 48 Filed 07/21/2008 Page 3 of 20

Civil Rule 5.1(j), the local rule of this Court governing under seal filings. Respondents reserve
the right to seek future modifications to the Amended Protective Order and supplemental orders
as appropriate.

With respect to a proposed protective order for use in cases involving "high-value
detainees" ("HVDs"), respondents have proposed to counsel for HVD petitioners tiie protective
order adopted by the Court of Appeals in HVD cases brought under the Detainee Treatment Act
("DTA"), revised to reflect matters including procedural and substantive differences between
DTA cases in the Court of Appeals and habeas corpus proceedings in this Court. No agreement
on the proposed HVD protective order has been reached, however, and at least some petitioners'
counsel believe that the matter should be resolved through litigation, on a schedule to be
determined by the Court through input of the parties at a status conference. Respondents are
amenable to the Court holding a status conference to determine a schedule for litigating
appropriate issues related to an HVD protective order.
2 Petiticna:^ Poaticn

a. Proposed Amended Protective Order

Petitioners urge the Court to enter in all Guantanamo detainee habeas cases the protective
order entered by Judge Green in In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174
(D.D.C. 2004). This order includes the following: (1) the Amended Protective Order and
Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo
Bay, Cuba, first issued on November 8, 2004, 344 F. Supp. 2d 174 (D.D.C. 2004); (2) the Order
Addressing Designation Procedures for "Protected Information," first issued on November 10,
2004; and (3) the Order Supplementing and Amending Filing Procedures Contained in

Case 1 :05-cv-01458-UNA-AK Document 48 Filed 07/21/2008 Page 4 of 20

November 8, 2004 Amended Protective Order, first issued on December 13, 2004. Petitioners
refer to these orders collectively as the "Standard Protective Order."

The Standard Protective Order, as entered in Zalita v. Bush, No. 05-cv-1220 (RMU), is
attached hereto as Petitioners' Exhibit A. This order was the product of months of negotiation,
briefing and argument before Judge Green, and is fully capable of governing all Guantanamo
habeas cases. SeeAdem v. Bush, 425 F. Supp. 2d 7, 10-12 (D.D.C. 2006) (describing the lengthy
process by which the Standard Protective Order was created).^

' The Court Security Office ("CSO") has lecommended additional minisberial

changes to the Standard Protective Order. See Exhibit 1 . Petitioners consent to tiieir entry by the
Court with one clarification: the government must provide to counsel and the Court a version of
each court filing containing classified or protected information that is suitable for filing on the
public record mthin two weeks of the original filing date. Respondents object to this proposed
amendment by petitioners' counsel and request an opportunity to be heard on this point before
any such requirement is adopted by the Court.

Nothing in the above should be taken to foreclose the possibility that individual counsel
may in the future propose amendments to the protective order in their particular cases to reflect
special circumstances arising in those particular cases.

Case1:05-cv-01458-UNA-AK Document 48 Filed 07/21/2008 Page 5 of 20

b. Proposed Protective Order for "High-Value" Detainees^
As an initial matter, Pditioneis object to any reference or cbaiacterization of certain
Guantanamo prisoners as "High- Value Detainees" or "HVDs," and ask this Court; not to refer to
any ddainees by those terms. Wh^her a Guantanamo ddainee has ar^ intelligence "value" may
only be ddermined, if at all, through habeas corpus, and is not relevant to v\teher that prisoner
is entitled to habeas relief.

Petitioners contend that this Court should enter the Standard Protective Order in cases
irwoMng presunptivdy TOP SECRKT/ZSENSmVE COMPAKnVENTED INFORMATION
('TS/ZSCI") informatiorL Althou^ each case irwolves different facts, each case irwotes the
same statutory and constitutional principles, and each raises at least one common guestion -
v\teher the prisoner's continued urpisonment is justified in light of constitutional principles or
is unlawful. To date, the Standard Protective Order has governed habeas cases irwoMng all
levels of classified information. In fact, the Standard Protective Order specifically contenplates
and is fully c^^able of governing filings that contain presunptivdy TS//SCI information.^
Indeed, presurrglively TS//SCI information has already been filed in at least one habeas case
under the Standard Protective Order. See Motion for Hearing for Inguiry Concerning

^ As indicated below, there is a dispute concerning representation of petitioner Al-NasMri

(ISN 10015). Counsel inAl-Nashiri v. Bush, No. 08-cv-1207 (RWR), join this response to the
Court;'s July 11, 2008 Order. The position of counsel inA/i Nashir v. Bush, No. 08-cv-1085
(PLF), is uncertain. Counsel for other petitioners take no position concerning the dispute in
representation.

^ The Standard Protective Order expressly sets forth provisions to govern habeas counsel's

access to TS//SCI information. See Amended Protective Order H 9 (defining "classified
information" to be used in these cases as including "any classified document or information" that
has been classified as "'CONFIDENTIAL,' 'SECRET,' or 'TOP SECRET,' or additionally
contiDlled as 'SENSITIVE COMPARTMENTED INFORMATION (SCI).'").

Case1:05-cv-01458-UNA-AK Document 48 Filed 07/21/2008 Page 6 of 20

Destruction of Evidence Related to CIA Detainee Interrogations, Zalita v. Bush, No. 05-cv-1220
(RMU) (D.D.C.) (dkt. no. 82) (filed Jan. 15, 2008). At tiie time the original protective order was
litigated before Judge Green, the government did not argue that additional provisions were
necessary to protect TS//SC I information, and it should not be heard to argue otherwise now. No
harm resulted from the filings in the Zalita case, and none would if the Standard Protective Order
were entered in other cases involving presumptively TS//SCI information.^

Pelitionens otgect to the govemmenf s proposed protective order, v\Mch is modeled on
the protective order applicable in Ddainee Treatment Act cases and contains many substantive
differences from the Standard Protective Order. The disputed issues are too numerous and
conplex to address fully or adequately in an unclassified joint status report Accordingly, to the
extent this Court is inclined to enter a protective order that differs from the Standard Protective
Order in the cases irwoMng presunqlively TS//SCI information, Pditioners request that this
Court schedule separate briefing and argument on the protective order issues.^

If the Court chooses to order briefing and argument, a question immediately arises
concerning the conditions under v\Mch counsel labors v\ten the briefing and argument proceed
The government may argue that the protective order entered in Pditioners' Ddainee Treatment
Act cases should remain in place throughout briefing and argument But that protective order is
so restrictive that it would actually prevent counsel from briefing and arguing the issues fully and

^ Moreover, to the extent the CSO may request further ministerial changes to the

Standard Protective Order, such as modifications to the procedures for transporting legal mail
containing presunptively TS//SCI information. Petitioners wiU attend to reach agreement with
the CSO ard the government on those matters.

^ Because the interests of the Petitioners in the cases in question are quite varied,

they request that the Court provide the opportunity for separate briefing (rather than requesting a

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adequately, and in a coordinated fashion. Petitioners thus request an initial status conference to
address various issues that will plainly arise in connection with briefing and argument.

Among these particular issues, Petitioners must be permitted to disclose presumptively
TS//SCI information to this Court in their briefs and argument in order to ensure full and
adequate consideration of all relevant protective order issues. Petitioners' TS//SCI security-
cleared counsel also must be permitted to share presumptively TS//SCI information among
themselves in order to make a single coordinated presentation to this Court. But pursuant to the
terms of the protective order that currently governs counsel access to Petitioners in their Detainee
Treatment Act cases, counsel are expressly prohibited from sharing classified information with
other counsel or with this Court absent permission from the Justice Department.

The ability to share presumptively TS//SCI information is a particularly important issue
that potentially cuts across numerous Guantanamo detainee habeas cases. In any hypothetical
instances where prisoners in cases involving presumptively TS//SCI information may have
inculpated other Guantanamo prisoners while under torture, including military commission
defendants, or perhaps federal criminal defendants, counsel for those prisoners or defendants
would require some mechanism to discover and test exculpatory information, while maintaining
privilege and an appropriate working relationship. Thus, ensuring consistency among all counsel
who will require access to presumptively TS//SCI information is a further reason why this Court
should enter the Standard Protective Order in all habeas cases.

single brief and a single representative at argument) from this group of petitioners.

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Petitioners also would need to make ex parte, sealed submissions to the Court in order to
address disputed protective order issues in context of their privileged and confidential litigation
strategies. These matters should also be addressed at a status conference.

In addition, Petitioners notify this Court that they anticipate there will be substantial,
material factual disputes in the cases involving presumptively TS//SCI information warranting
discovery. As counsel have already informed counsel for the government, petitioner Majid
Khan^ specifically will seek to serve interrogatDiies and depDsition notices (or subpoenas) on
certain current and fonner senior government officials v\to may have exculpatoiy information, if
any, concerning him Khanalsovvillseektointerviewotherprisonens in U.S. custody.

Finally, Pditioners request that representatives from the CIA General Counsel' s Office
be required to attend all proceedings before this Court in cases iiwoMng presurrptivdy TS//SCI
information Their presence is necessary in order for them to justify orverify the positions taten
on various matters, including with respect to entry of a protective order, and on the ground that
these officials appear to be the sole dedsion-maters with settlement authority in these cases.
The Special Litigation Team, as counsel for the Privilege Review Team, should also be iiwolving
in briefing and argument concerning protective order issues.

R With respect to duplicate petitions that were filed on behalf of a single individual,
the parties have taken significant steps to resolve this issue. The problem of duplicate petitioners
arises primarily because of two habeas petitions filed in late 2005 involving, collectively, over
two hundred petitioners: Mohammon v. Bush, 05-CV-2386 (RBW) and A /-Ha/ ma ndy v. Bush,
05-CV-2385 (RMU). These two petitions sought habeas relief on behalf of many petitioners that

Khan's habeas case is iC/ian v. Bush, 06-cv-1690 (RBW).

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had previously- filed habeas actions already pending on their behalf. Since the filing of these two
cases, counsel for petitioners and respondents have worked together to identify only those
petitioners in tiie cases who do not have duplicate habeas petitions pending before the District
Court and have not been transferred or released from Guantanamo Bay. The thirty petitioners in
tiie Mohammon case that meet this criteria are listed in Exhibit 2.^ A listof the seven petitioneis
mtbeAl-Halmandy case that meet this criteria listed in petitioner's individual status report
attached hereto as Exhibit 3 .^ The parties are in agreement that the remaining petitioners in the
two cases not listed in Exhibits 2 & 3 should be dismissed without prgudice. Petitioners,
however, reserve the right to reinstate the dismissed petitions, if necessary, as to those petitioners
who may have been transfened or released from Guantanamo Bay.

Assuming the dismissal of the aforementioned petitioners in theMohammon and
Halmandy cases, and excluding the duplicate petitions that have already been dismissed, as well
as the cases pending before Judges Leon and Sullivan that are not consolidated herewith, the
parties are aware of only two duplicate petitions. First, petitioner Y ounis Shakur (ISN 197) in
Imran v. Bush, 05-764 (CKK) has a previously- filed petition pending inAl-Wazan v. Bush, 05-
CV-329 (PLF). Respondents' position is that the petitioner should be dismissed from the later-
filed case {Imran) and should proceed in the eariier- filed case {Al-Wazan). Petitioner's counsel
is willing to proceed in the earlier-filed action, should the Court prefer. Second, petitioner
Abddul Rahim Hussein Muhammed Ali Nashir (ISN 10015) in A/; Nashir v. Bush, 08-CV-1085

^ Respondents note that the issue of v\teher petitioner Ahmed Omar (ISN 30) proceeds

intbeMohammon case or a later- filed case before Judge Sullivan, Al Hakimi v. Bush, 08-CV-
1 1 1 1 (EG S), has not been resolved.

^ Respondents note that they are still in the process of verifying the proposed
identifications of petitioners Nargeri, Warzly, and Saleh. Respondents will report back to the

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(PLF) has a second petition pending on his behalf mAl-Nashiri v. Bush, 08-CV-1207 (RWR).
As explained in respondents' individual status report filed on July 18, 2008 in the A/i Nashir
case, there is a dispute among two different groups of counsel regarding the representation of
petitioner Nashir. Respondents take no position at tiiis time as to tiiat dispute or witii respect to
which petition should proceed, but reserve their position on these issues as appropriate.

C. Attached hereto as Exhibit 4 is a chart listing petitioners currentiy detained at
Guantanamo Bay whose habeas corpus cases are currently dismissed on jurisdictional grounds.^
Petitioners request, and Respjndents do not opp)se, vacatur of the dismissal orders in these
cases.

L Respondaits' PoatiGn

Attached hereto as Exhibits 5 and 6 are charts listing the petitioners inthe above-
c^Dtioned cases who are ^jproved by the Department of Defense for release or transfer from
Guantanamo Ba5^. Exhibit 5 lists those pditioners v\to are approved for transfer to the control of
another government for release. Exhibit 6 lists those petitioners v\to are ^pDved for transfer to
the control of another government for possible ddention, investigation, and/or prosecution as
that government deems ^jpropriate under its own laws.

With respect to consolidation of the pditions listed in Exhibits 5 and 6 before one Judge,

Court in the event of a dispute regarding tiie identity of these petitioners.

^ Additional cases were dismissed on jurisdictional grounds by the District Court
foUowingthe Court of Appeals dedsioninBoiimediene, but many of those dismissal orders were
later vacated by the District Court or by the Court of Appeals. The parties have not included a
list of these cases in this report. Rather, the cases listed on Exhibit 4 are the only cases in which
jurisdictionally- based dismissal orders have not been vacated.

'° Subsection "D" was omiti;ed from tiie Court's July 11, 2008 Order.

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respondents have no objection to this suggestion. 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 unique fact-specific, or country-specific circumstances that will be presented
in these petitions. 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 questions about the effect of decisions of the Department of Defense approving a
detainee for release or transfer, about the autiiority 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. SeeMunafv. Green, 128 S.Ct. 2207, 2226 (2008).

Another issue regarding the consolidation of cases appears appropriate to note for the
Court's attention. Onjuly 10, 2008, the Court, per Judge Hogan sitting as coordinating judge,
entered an order in Mo/iammon v. Bush, Civil Action No. 05-CV-2386 (Docket Number 481),
consolidating the claims of two of the many petitioners in that case with the claims of six other
cases, and transferring those five cases along with the claims of the two named Mohammon
petitioners to the docket of Judge Urbina. On the same day, another order was entered, per Judge
Huvelle as the Chair of the Calendar and Case Management Committee, Docket Number 483,
transferring the Mohammon case in its entirety to the docket of Judge Urbina. Respondents
respectfully request that the Court clarify whether the second order was intended to effectuate the
first. If so, because the first order transferred only part of the case to Judge Urbina' s docket,
respondents respectfully request that the second order be reconciled with the first by clarifying

10

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that the claims of only those Mohammon petitioners mentioned by name in Judge Hogan's order,
Docket Number 481, be transferred to the docket of Judge Urbina.
2 Petiticna^sr Fbaticn^^

As the Court has recognized in its July 11, 2008 Scheduling Order (112.E.), not all of the
pditioners v\to have been cleared or authorized for release or transfer (for corwerdence, the
"cleared petitioners") are similarly situated For exanple, some seek, vMle others oppose,
repatriation to the country of their birth; and some have individual defenses to continued
ddention that are not available to others. It should not be surprising, therefore, that
notwithstanding a conference call and numerous other communications counsel for these more
than fifty pditioners are not atie to state a unified position on the subject of consolidation,

A large m^ority of the petitioners subscribing to this joint report oppose full
consolidation and transfer of these cases to a single judge for all purposes, because they believe
that each petitioner is entitled under the Supreme Courts Boumediene decision to a separate
hearing on the merits of his individual habeas petition.

'' The following response to paragraph 2.E of the July 11, 2008 Scheduling Order is
submitted on behalf of the petitioners in the following proceedings, v\tose counsel (i) know that
their clients have been cleared for release from Guantanamo, and (ii) have been able to
communicate on the sutgect of consolidation: 04rcv-1254 (for petitioners Mohammed
Mohammed Hassea ISN 681, and Adil Said Al H^ Obeid Al Busayss, ISN 165); 05-cv-0748
(for pditioners Mohsen Abdrub Aboassy, ISN 091, Mohammed Saeed Bin Salman, ISN 251,
and SameerNajy Hasan Mukbd, ISN 043); 05-cv-0994 (for petitioner Tohirjanovich, ISN 675);
05-CV-1347 (for petitioner Fartd Saiid bin Mohammed ISN 311); 05-cv-1353 (for petitioner
Motai Saib, ISN 288); 05-cv-1497 (for petitioner Add al Wirghi, ISN 502); 05-cv-1504 (for
petitioner Nalil Hadjarab, ISN 238); 05-cv-1505 (for pditioner Abbar Sufian Al Hawary, ISN
1016); 05-CV-2349 (for petitioner Ahmed Bdbacha, ISN 290); 05-cv-2386 (for petitioners Al
Yafie, ISN 034, Ali Sher Hamidullah, ISN 455, El Falestery, ISN 519, and S^ Bin Abdallah,
ISN 46); 06-CV-0618 (for petitioner Feghoul, ISN 292); 06-cv-1766 (for petitioner Hentif, ISN
259); and 08-cv-1185 (Mohammed AbdAl Al Qadir, ISN 284).

11

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At the same time, a large (but not the same) majority of the cleared petitioners agree that
it may be beneficial to coordinate the efforts to secure their transfer to countries where they will
be free from persecution and to consolidate their cases for the limited but significant purpose of
furthering those efforts. With due regard for separation of powers principles, a single judge
handling the cases of all cleared petitioners may be able to facilitate solutions to transfer- related
problems that have to date been intractable.

All of tiie cleared petitioners strongly oppose an indeterminate continuation of their
detention, which for many is in its seventh year. Therefore, consolidation of the cases for the
limited purpose described above should be without prejudice to the right of any petitioner who is
prepared to proceed with an adjudication of the merits of his petition to seek at any time such an
adjudication by the judge to whom the proceeding has been assigned (or, with the consent of that
judge, another judge of this court).

Furthermore, the cleared petitioners ask the Court to make clear, if it orders consolidation
to any extent, that (i) the government's obligations under paragraph 4 regarding factual returns
and amended returns applies to cleared as well as uncleared petitioners, and (ii) cleared
petitioners shall be entitled to discovery under the same conditions as uncleared petitioners. All
cleared petitioners, but particularly those who continue to bear the stigma of an enemy
combatant designation, are entitled to know whether the government believes that facts in
addition to those in the CSRT record justify continued detention.

F. The parties propose that the coordinating judge enter an omnibus order providing
tiiat all Boumedi'ene-related motions to dismiss and motions to stay be denied as moot, subject to
tiie following further qualifications on which the parties do not agree, as noted.

12

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In April 2007, respondents filed motions to dismiss in all of the above- captioned cases
tiiat were pending at that time, on the basis of section 7 of the Military Commissions Act
("MCA"), Pub. L. No. 109-366, 120 Stat. 260, and tiie construction and application of that
statute articulated mBoumediene v. Bush, 476 F.3d 981, (D.C.Cir. 2007), rev'd, 128 S.Ct. 2229
(2008). The Court is respectfully referred to that motion as filed in the case listed first above,
which can be found at Civil Action No. 02-CV-828, Docket Number 320, which lists in its
caption all the cases in which the motion was filed. Petitioners' opposed the motions to dismiss
and in many cases filed stay and abey motions. The judges of this Court handled the motions to
dismiss in a variety of ways, including granting them, holding the cases in abeyance or otherwise
staying them, and forebearing from ruling on the motions. In light of the Supreme Court's
reversal of the Court of Appeals' Boumediene decision, the parties are in agreement that the
dismissal motions are no longer warranted insofar as they were based on section 7 of the MCA.
Nor is it any longer appropriate to stay those cases.

As explained elsewhere in this Report, however. Respondents contend that dismissal of
petitions brought by or on behalf of petitioners no longer at Guantanamo Bay remains
appropriate. Petitioners object to dismissal on mootness or other grounds.

Accordingly, the parties consent to the lifting of any stays in these cases. Respondents
content that the lifting of stays, however, should not render ripe any motions that are pending in
these cases. Rather, motions should be calendered in accordance with respondents' suggestions
in paragraph G, below. Petitioners object and contend that motions identified in response to
paragraph G, below, should be decided as set forth in Petitioners' Exhibit B attached hereto.

The action that should be taken with regard to dismissal motions, however, according to

13

Case1:05-cv-01458-UNA-AK Document 48 Filed 07/21/2008 Page 15 of 20

Respondents, involves several additional considerations. Respondents hereby withdraw their
motions to dismiss grounded on section 7 of the MCA as to all petitioners who are still at
Guantanamo Bay. The habeas claims of those petitioners who are no longer at Guantanamo Bay,
who are listed in Exhibit 3 of Respondents' Individual Status Report, filed on July 18, 2008,
should be dismissed on tiie ground of mootness. Again, Petitioners object to dismissal on
mootness or other grounds. Nonetheless, respondents hereby withdraw the dismissal motions
made as to such petitioners insofar as they are based on section 7 of the MCA. Further,
according to Respondents, the Court is alerted to the fact that almost all the petitioners in these
cases have named as respondents individuals who are not custodians of Guantanamo Bay
detainees, and who are therefore not proper respondents, including among the most glaring
examples the President and Vice President. Claims against improperly named respondents
should be promptly dismissed. Petitioners object to dismissal of the President and Vice
President, and other respondents, on the ground tiiat they are custodians of Guantanamo Bay
detainees and otherwise proper respondents. Additionally, respondents contend that the habeas
claims of detainees against whom charges have been sworn pursuant to the Military
Commissions Act should be dismissed or held in abeyance pending resolution of those charges.
Because respondents believe that not all petitioners with claims subject to dismissal as described
in this paragraph would agree to such dismissals, respondents intend to propose at a later date a
schedule for coordinated briefing regarding the dismissal and/or abeyance of claims in these
categories. Indeed, Petitioners object to the dismissal or stay of any claims of detainees against
whom charges have been sworn or may be sworn pursuant to the Military Commissions Act.

14

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G. Respondents do not have any motions pending in these cases that are ripe for
decision. Petitioners have identified the motions set forth in Petitioners' Exhibit B hereto that
tiiey wish to have resolved. Respondents propose that any motion currently pending that relates
to the merits of a specific case be deferred until consideration of the merits of that case by the
assigned judge, and that all other motions should be resolved in a coordinated fashion by the
coordinating judge. Petitioners object and contend that the motions should be heard in the
manner set forth in Petitioners' Exhibit B .

H Respondents propose that the coordinating judge enter an omnibus order providing
tiiat stays entered in any of these cases be lifted.

I. Attached hereto as Exhibit 7 is a chart listing the cases in which an appeal or petition
for certiorari is pending.

J.

L ReEpondads' Poatkn

Respondents propose that biweekly telephone conferences be held on the record with
regard to the coordination of these matters, witii the coordinating judge presiding. Such
conferences should be held in the following fashion. By 5:00 PM on the business day
immediately preceding each conference, any petitioner's counsel wishing to be heard should
send an email message to a designee of respondent's counsel and to a member of the Court's
staff designated by the Court. Should respondents wish to be heard with regard to a particular
petitioner's case, respondents would notify tiiat petitioner's counsel and the Court by 5:00 on the
business day immediately preceding the conference. Should respondents wish to be heard on a
more general matter, respondents would notify one attorney designated by petitioners' counsel

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by 4:00 PM on the business day immediately preceding the conference. The Court would call
the matters to be heard by first calling the cases in the order in which petitioner's counsel's
emails are received. Any case not called at that point as to which respondents had identified an
interest in being heard, would then be called. Finally, any general matters as to which
respondents have provided notice would be heard. Respondents propose that no motion other
tiian a dispositive motion or a motion for an extension of time would be entertained by the Court
unless that motion was first discussed during the course of a conference set up in accordance
witii this paragraph.

2 Petiticna:^ Poaticn

a. Petitioners do not object to regular status conferences before the Court.
However, they respectfully submit that conferences should be scheduled at the Court's discretion
or at the request of counsel for any party, as needed to address specific issues, rather than on any
pre-set periodic schedule {e.g., every two weeks). Petitioners believe there may not always be
sufficient business before the Court to justify holding a regular status conference at which
hundreds of petitioners' counsel will feel obligated to appear (even when they have no specific
request pending before the Court).

b. Petitioners request that counsel not located in Washington, DC, be
permitted to appear by telephone at status conferences, without restrictions as to the number of
counsel appearing. The government takes no position on this request.

c. Petitioners further request that counsel be permitted to appear and
participate directly in any status conferences that may impact their individual clients. Petitioners
object to any requirement that they designate other representative counsel to speak on behalf of

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Case1:05-cv-01458-UNA-AK Document 48 Filed 07/21/2008 Page 18 of 20

their clients at status conferences. The government takes no position on this request. However,
Respondents have proposed other procedures to govern status conferences, including with
respect to counsel registering in advance their intention to appear and participate, to which
Petitioners object.

d. Petitioners also object to any proposal that the parties be required to
propose motions to the Court at a status conference prior to filing any no n- dispositive motions.
This seems to us a thinly- disguised version of the government's earlier request that the Court
require pre-motion conferences before motions may be filed. There already exists a requirement
that the parties confer before filing non-dispositive motions, see LCvR 7(m), a requirement
which the judges in this district have strictly enforced. The government has not demonstrated
that a problem exists - for example, it has not shown that counsel for petitioners have filed
duplicative, over- numerous, or frivolous motions in the past, nor could it. There is no need to
create additional layers of procedure (whose burdens will primarily affect petitioners, as the
parties seeking relief here) as a solution to a non-existent problem.

K.

L Repondeits' Poatkn

Respondents have agreed to provide to a petitioner's counsel the unclassified portions of
the CSRT record pertaining to that petitioner, where petitioner's counsel have not previously had
access to the unclassified or classified CSRT record either through habeas litigation or litigation
in the Court of Appeals under the Detainee Treatment Act. Respondents anticipate providing
such unclassified materials by July 31, 2008, or shortly thereafter. If this undertaking is not
complete by July 31, 2008, respondents will provide a status report to the Court on August 1,

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Case1:05-cv-01458-UNA-AK Document 48 Filed 07/21/2008 Page 19 of 20

2008, updating the Court regarding the matter and providing an anticipated completion date.
2 Petiticna:^ Poaticn

a. Petitioners understand that the government is attempting to
produce unclassified CSRT records by July 31, 2008, but that they may be unable to do so in
every case. Petitioners object to any delay in production of the unclassified records after July 31,
2008.

b. The government has also refused to state whether it will permit
Petitioners to use in their habeas cases the classified records that were produced in connection
with their Detainee Treatment Act cases. Absent the ability to use that information in their
habeas cases. Petitioners' counsel may not necessarily be able to provide the Court with all
relevant information concerning their clients; and their clients may be required to wait weeks or
months to receive factual returns containing information that they already know, thereby
delaying their habeas cases unnecessarily.

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Case1:05-cv-01458-UNA-AK Document 48 Filed 07/21/2008 Page 20 of 20

Dated: July 21, 2008

Respectfully submitted,

/s/ Shayana D. Kadidal

ShayanaD. Kadidal (D.C. Bar No. 454248)

CENTER FOR CONSTITUTIONAL

RIGHTS

666 Broadway, 7tii Floor

New Y ork. New Y ork 10012

Tel: (212)614-6438

Fax: (212)614-6499

GREGORY G.KATSAS
Assistant Attorney General

JOHNC.O'QUINN

Deputy Assistant Attorney General

On Behalf of Petitioners with Consent*

/S/

Andrew I. Warden

JOSEPH H. HUNT (D.C. Bar No. 431134)

VINCENT M. GARVEY (D.C. Bar No.

127191)

JUDRY L. SUBAR

TERRY M. HENRY

ANDREW I. WARDEN (IN Bar No. 23840-

49)

Attorneys

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

Attorneys for Respondents

Except as noted herein.

19