(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Biodiversity Heritage Library | Children's 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 57 Filed 08/29/2008 Page 1 of 16 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



IN RE: 

GUANTANAMO BAY 
DETAINEE LITIGATION 



Misc. No. 08-442 (TFH) 
Civil Action Nos. 
02-CV-0828, 04-CV-1136 



04-CV-1194 
04-CV-2022 
04-CV-2215 
05-CV-0270 
05-CV-0359 
05-CV-0520 
05-CV-0634 
05-CV-0764 
05-CV-0881 
05-CV-0892 
05-CV-0995 
05-CV-1048 
05-CV-1220 
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-2349 
05-CV-2378 
05-CV-2381 
05-CV-2386 
05-CV-2444 
06-CV-0618 
06-CV-1684 
06-CV-1691 
06-CV-1761 
06-CV-1767 
07-CV-2338 
08-CV-1101 



04-CV-1254 
04-CV-2035 
05-CV-0023 
05-CV-0280 
05-CV-0392 
05-CV-0526 
05-CV-0748 
05-CV-0833 
05-CV-0883 
05-CV-0993 
05-CV-0998 
05-CV-1124 
05-CV-1236 
05-CV-1353 
05-CV-1458 
05-CV-1497 
05-CV-1506 
05-CV-1590 
05-CV-1602 
05-CV-1638 
05-CV-1646 
05-CV-1704 
05-CV-1983 
05-CV-2088 
05-CV-2185 
05-CV-2200 
05-CV-2367 
05-CV-2379 
05-CV-2384 
05-CV-2387 
05-CV-2477 
06-CV-1668 
06-CV-1688 
06-CV-1758 
06-CV-1765 
07-CV-1710 
08-CV-0987 
08-CV-1104 



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



1164, 
1937, 
2046, 
0247, 
0329, 
0492, 
0569, 
0763, 
0877, 
0889, 
0994, 
0999, 
1189, 
1244, 
1429, 
1487, 
1504, 
1509, 
1592, 
1607, 
1639, 
1649, 
1725, 
2010, 
2104, 
2186, 
2249, 
2371, 
2380, 
2385, 
2398, 
2479, 
1674, 
1690, 
1759, 
1766, 
2337, 
1085, 
1153, 



Case 1 :05-cv-01 458-UNA-AK Document 57 Filed 08/29/2008 Page 2 of 1 6 



08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 



1185, 
1222, 
1227, 
1230, 
1233, 
1236, 
1310, 



08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 



1207, 
1223, 
1228, 
1231, 
1234, 
1237, 
1360, 



08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 
08-CV- 



1221, 
1224, 
1229, 
1232, 
1235, 
1238, 
1440 



Case 1 :05-cv-01 458-UNA-AK Document 57 Filed 08/29/2008 Page 3 of 1 6 



RESPONDENTS' MOTION FOR PARTIAL AND TEMPORARY RELIEF 
FROM THE COURT'S JULY 11, 2008 SCHEDULING ORDER 

For the reasons stated herein, Respondents respectfully request that they be excused from 

the requirement of the Court's July 11, 2008 Scheduling Order (Misc. No. 08-0442) (dkt. no. 53) 

that respondents produce 50 factual returns by August 29, 2008. Respondents have already filed 

eight factual returns this month in cases pending before Judges Leon and Sullivan and are filing 

today an additional 14 returns, 10 in cases before this Court and 4 in cases before Judge Sullivan, 

for a total of 22 returns filed this month, as indicated in the chart attached as Exhibit A. Further, 

Respondents expect to file additional returns next week. As explained in detail below and in the 

public and in camera, ex parte declarations of the Director of the Central Intelligence Agency 

submitted herewith, 1 despite diligent and ongoing efforts, Respondents have been unable to 

complete the filing of 50 factual returns in No. 08-442 in light of significant, national security 

related complexities encountered in the start-up of the interagency process of developing factual 

returns in these extraordinary cases. Respondents deeply regret that they have been unable to 

complete the initial set of factual returns in the time-frame originally anticipated. Respondents 

respectfully seek an additional 30 days to complete the process needed to reach the full 

production rate of 50 factual returns per month in these cases. As set forth below, Respondents 

have completed numerous factual returns to date, and are well underway to completing the first 

set of 50 returns required by the Court's scheduling order. Respondents will have completed the 

production of the first 50 factual returns on a rolling basis before the end of September, and hope 

to achieve that rate of production each month thereafter. 



1 Director Hayden's in camera, ex parte declaration has been filed through the Court 
Security Officer. 



Case 1 :05-cv-01 458-UNA-AK Document 57 Filed 08/29/2008 Page 4 of 1 6 

OVERVIEW 

As a result of the Supreme Court's decision in Boumediene v. Bush, U.S. , 128 

S. Ct. 2229 (2008), the United States, for the first time in its history, has had to defend, on the 
merits, habeas corpus proceedings by or on behalf of individuals detained as enemy combatants 
by the military overseas. Further, the Government is faced with defending such proceedings en 
masse, with over 250 such proceedings pending, and on an expedited basis. Defending these 
cases requires an intense inter-agency coordination of efforts. None of the relevant agencies, 
however, was prepared to handle this volume of habeas cases on an expedited basis when 
Boumediene was decided on June 12, 2008. In the weeks that followed, based on direction from 
this Court, each agency began rapidly deploying resources to dedicate to this important task, as 
set forth below. That effort, however, took substantial time - not only to obtain the 
authorizations needed to redirect employees from their other responsibilities - but also to obtain 
needed security clearances. Specifically, the Department of Justice ("Do J"), Department of 
Defense ("DoD"), the Federal Bureau of Investigation ("FBI"), and the Central Intelligence 
Agency ("CIA"), have undertaken extraordinary steps in marshaling resources and appropriate 
personnel, developing processes for gathering and reviewing information, developing pertinent 
information into a factual return, and vetting such information for use in proceedings in this 
Court. 

As part of this process, all of these agencies began efforts to establish a coordinated plan 
and system for assembling and reviewing information and developing factual returns, including 
declarations supporting such returns, appropriate for use in Court. Factual returns are 
necessarily built upon reports and other materials which are commonly used to disseminate 

-2- 



Case 1 :05-cv-01 458-UNA-AK Document 57 Filed 08/29/2008 Page 5 of 1 6 

intelligence to decision-makers throughout the United States Government. These source 
documents are created in the ordinary course of military, law enforcement, and intelligence 
operations by various agencies, including DoD, CIA, and FBI. Given their nature, these products 
are classified and their dissemination is strictly controlled. 

As the Court is aware, the volume of cases is daunting and the very nature of the 
proceedings in most of these cases, including issues such as the quanta and burdens of proof and 
applicable legal standards, remains unsettled. Processing this sheer volume of cases, with these 
uncertainties, on a compressed time-frame is inherently challenging, but, as explained below, the 
task has proven even more difficult than originally envisioned because of the pervasiveness of 
classified information throughout the relevant records and the need for classified information in 
presenting the Government's case. Even once draft factual returns are prepared, they require 
extensive review for consideration of whether the classified information in the draft returns are 
appropriately used in court. Respondents simply did not appreciate the full extent of the 
challenges posed by the extensive need for classified information in these cases when they 
proposed to complete the first set of factual returns by the end of August. As explained in the 
public and in camera, ex parte declarations of CIA Director Hayden, the CIA's review of 
classified information can take up to 30 days. Because both DoJ and DoD were assembling staff 
and resources over the month of July, and DoJ began producing the first set of draft factual 
returns throughout the month of August, that left little time for the CIA's review of sensitive 
classified information. 

Respondents apologize for failing to meet the Court's August 29 deadline. The 
Government failed to recognize the full extent of the challenges presented in handling these cases 

-3- 



Case 1 :05-cv-01 458-UNA-AK Document 57 Filed 08/29/2008 Page 6 of 1 6 

on an expedited fashion and the particular challenges presented by the use of classified 
information. The full extent of those challenges with respect to attempts to complete the first 50 
returns only recently became apparent. We expect to finish production of the first 50 returns on a 
rolling basis throughout September, and hope to achieve production of returns at that rate each 
month thereafter. 
RESOURCES AND EFFORT DEVOTED TO PREPARING THE FACTUAL RETURNS 

1. Department of Defense 

As noted above, the efforts required to put resources in place to process this volume of 
cases have been daunting for each of the Federal agencies involved. Following this Court's 
scheduling order, DoD began detailing attorneys from throughout the Defense Department to 
work on the habeas litigation. See Declaration of Daniel J. Dell'Orto ]f 3 (attached as Exhibit B). 
The first of these attorneys arrived in mid- July. Id. At present approximately 30 attorneys at 
DoD are working exclusively on these matters. Id. DoD is continuing to hire attorneys and 
support staff, and anticipates deploying over 50 attorneys and support staff to these cases. Id. \ 3 
&n.l. 

DoD attorneys have been actively involved in gathering and reviewing information for 
potential use in the factual returns, including intelligence and law enforcement materials that may 
have originated with DoD or other agencies. Id. f| 4-5. Once a DoD attorney assigned to a case 
has assembled documents for review, they work directly with attorneys from DoJ also assigned to 
the case. Id. ^4. DoD has also diverted intelligence personnel to work full-time in support of 
the habeas litigation. Id. ]j 4. In addition DoD has created a team of personnel responsible for 
seeking use authorization from relevant DoD components. Id. ]} 6. Within the past 30 days, that 

-4- 



Case 1 :05-cv-01 458-UNA-AK Document 57 Filed 08/29/2008 Page 7 of 1 6 

team has reviewed nearly 1,900 DoD documents (most of them being multi-page documents) for 
use in the habeas litigation and assisted in developing other supporting documents for the 
litigation. Id. \1. 

2. Department of Justice 

Until the Supreme Court's decision in Boumediene, DoJ could take only limited steps to 
prepare for the defense of habeas claims by detainees held at Guantanamo Bay. See Declaration 
of Gregory G. Katsas ]j 4 (attached as Exhibit C). After Boumediene was decided, DoJ 
committed to assigning or detailing at least 50 attorneys to be dedicated to producing factual 
returns and litigating the more than 250 habeas cases. Id.^5. A Department-wide initiative was 
undertaken to identify and shift this team of attorneys from other responsibilities. Id. Even 
before these new attorneys began to arrive, the Civil Division began converting office space it 
had previously located to house the team to accommodate information technology and other 
document production resources suitable to the processing of classified information that would 
form the primary basis of the anticipated returns. Id. ]f 6. Further modification and outfitting of 
facility resources continues to the present. Id. 

To date, DoJ has detailed or assigned to the factual return effort more than 50 attorneys 
from its Washington, D.C., components and the U.S. Attorneys' Offices. Id. ]f 7. The first such 
detailees arrived in July, and a number of others have reported for the detail throughout the 
month of August. Id. As a practical matter, however, attorneys must clear two distinct hurdles to 
work on cases of this nature, which entail reviewing significant amounts of classified 



5- 



Case 1 :05-cv-01 458-UNA-AK Document 57 Filed 08/29/2008 Page 8 of 1 6 

information: a security clearance and access to the secure processing system. Id. Once attorneys 
are detailed to the litigation team, it can take several weeks to obtain such clearance and access. 2 

In crafting a factual return, DoJ and DoD attorneys begin by analyzing the information 
about a detainee and by reviewing documents for information that supports the detention (or that 
is exculpatory, as that term is understood in this context), and then draft a narrative to attach to 
the supporting documents that serves as a summary for the Court and counsel substantiating a 
detainee's status and detention as an enemy combatant. Id. ^ 9. The development of an initial 
draft return for a detainee and set of supporting materials involve, at the least, the investment of 
dozens of man-hours and the review of hundreds of pages of documents and sometimes far more. 
Id. Collectively, thousands of man-hours have been expended by those directly involved in this 
factual return development effort in just the last two months. Id. Once classified documents are 
identified as being needed for use, DoJ or DoD contacts the originating agencies to seek 
clearance for use. Id. H 10. 

After DoJ receives from the originating agencies responses to its clearance requests, 
attorneys crafting the return must undertake to finalize the returns. Id. ^ 1 1. In certain cases, 
however, clearance for use of sensitive information may be central to producing a given habeas 
return. If clearance of such documents is denied, attorneys producing the return must re-evaluate 
the case, attempt to identify alternate sources of the information that do not implicate sensitive 
intelligence equities, and determine a course of action without using the restricted material. 



2 Thus, although DoJ now has almost 40 attorneys with security clearances working full 
time on these cases, throughout the month of August an average number of approximately 20 
cleared attorneys have been available for the effort. By late September, DoJ expects to have at 
least 50 cleared attorneys working full-time on the cases before this Court. Katsas Decl. ]j 7. 



6- 



Case 1 :05-cv-01 458-UNA-AK Document 57 Filed 08/29/2008 Page 9 of 1 6 

These decisions cannot be completed - indeed, the need to make such decisions does not become 
apparent - until the initial clearance requests are processed. Id. 

To expedite the document clearance process, DoJ and DoD began sending exhibit lists 
associated with draft returns to the CIA in late July and early August. Id. f 12. These lists 
identified the proposed supporting documents for individual draft returns. Shortly thereafter, on 
or about August 12, DoJ began sending complete packets of draft factual returns on a rolling 
basis to the CIA for document clearance. To date, DoJ has completed, and CIA has received, 
draft factual returns pertaining to 59 petitioners in these cases and those before Judges Leon and 
Sullivan. Id. 

3. Central Intelligence Agency 

CIA Director Hayden has made meeting the Court's schedule a top priority for the 
Agency and has allocated additional personnel to those components involved in the habeas 
review process. See Declaration of Michael V. Hayden ]f 6 (attached as Exhibit D). CIA 
presently has more than fifty attorneys, paralegals, subject matter experts, and classification 
officials involved in the habeas review process. Id. f 6 n.l. 

As noted by Director Hayden, much of the information upon which DoD relied in making 
its enemy combatant determinations, and upon which DoJ proposes to rely in the factual returns 
derives from classified CIA intelligence reports. Id. ]j 8. The release of classified information 
outside of the Executive Branch, either to the Court, or to cleared counsel must be assessed by 
subject-matter experts, to determine whether it would potentially damage the national security. 
Id. U 9. To accommodate detainees' counsel as much as possible, the Government has sought - 
with rare exception - to rely only on materials that have been authorized for release to the 

-7- 



Case 1 :05-cv-01 458-UNA-AK Document 57 Filed 08/29/2008 Page 1 of 1 6 

detainee's cleared counsel in defending a case. The considerations weighed in determining what 
material may be released are detailed further below, in the public declaration of Director Hayden, 
and in greater detail in his in camera, ex parte declaration. In addition, Director Hayden is 
willing to appear before the Court to provide additional information or to answer any questions 
on an ex parte basis, so that he may elaborate on the issues described in his classified declaration. 
See id. \ 20. 

CIA began receiving and reviewing documents to be included in factual returns in late 
July and early August, and received the first sets of completed draft factual returns on August 12. 
It has continued to receive draft factual returns throughout August. See id. \ 19. To date, CIA 
has completed its clearance review for a total of 19 draft factual returns. Based on its initial 
efforts, CIA expects to be able to complete its review of a draft factual return within 30 days of 
receipt. See id. With the benefit of increased production of draft factual returns now that DoJ's 
habeas team is more fully staffed, and lessons learned in working with the first sets of factual 
returns, CIA expects to be able to increase its rate of review towards accommodating the Court's 
schedule of 50 returns per month. See id. Because, however, CIA needs 30 days to review and 
respond to draft factual returns, and because DoD and DoJ were not able to begin substantially 
providing draft factual returns until August, Respondents are essentially 30 days behind the 
Court's schedule. 

REVIEW OF CLASSIFIED INFORMATION FOR USE IN THESE CASES 
As explained in the public and ex parte declarations of Director Hayden, the release of 
classified information always, by definition, risks harm to the national security. See Hayden 
Decl. \ 8. To minimize the risk of harm, such release is governed by several considerations, 

-8- 



Case 1 :05-cv-01458-UNA-AK Document 57 Filed 08/29/2008 Page 1 1 of 16 

including the classification level of the information, the receiving party's clearance and need to 
know the information, and the potential harm to sensitive sources or methods of intelligence that 
might be implicated. See generally Executive Order 13292, 68 Fed. Reg. 15315 (Mar. 28, 2003) 
(Exec. Order 12958, as amended). Expertise on such matters, including potential harms from 
dissemination and "need to know" pertaining to such materials, rest with the agencies that "own" 
or classified the materials; thus, those agencies must be consulted on whether and how to 
authorize release of their information if it is proposed to be included in a factual return. Thus, 
any decision for the Government to rely upon a particular piece of classified information in 
defending these habeas cases, and the decision to share that information with opposing counsel, 
requires extensive review for national security concerns by the agency or agencies which 
classified the information. The majority of information in this context is controlled by three 
national security agencies: CIA, DoD, and FBI. In essence, each agency must clear the 
information contained in its products, or those of other agencies that incorporate those products, 
for release to the detainee's cleared counsel (and thus to the Court). 

For DoD and the FBI, decisions about whether to authorize the release of sensitive 
information may begin once the documents to be used are identified and the narrative is being 
drafted. For the CIA, this process begins once the narrative is drafted and the documents to be 
used are identified and provided to the Agency, such that the Agency can see the context of 
intended use. Moreover, CIA must review virtually every classified document involved in these 
cases, regardless of the apparent origination of that document, to determine whether its 
dissemination outside the Executive Branch would implicate national security concerns not 
immediately apparent to the other agencies involved in the process. For reasons described in the 

-9- 



Case 1 :05-cv-01 458-UNA-AK Document 57 Filed 08/29/2008 Page 1 2 of 1 6 

public and ex parte declarations of Director Hayden, the Agency might determine that certain 
information cannot be released to the detainee's counsel, and thus it is generally not provided to 
counsel or the Court in a factual return. There are a limited number of CIA subject matter 
experts who can undertake such assessments. See Hayden Decl. 1} 13. Until such decisions are 
made, however, Do J cannot finalize a factual return or file it with the Court. Because of the 
sheer volume of classified information involved in these cases, filing a return consisting solely of 
unclassified documents would not provide an appropriately full account of the basis for detention 
and would not materially assist either petitioners or the Court. 

Indeed, the issues involved in clearing documents for use in these habeas proceedings are 
akin to the consideration and weighing the Government must engage in when choosing between 
protecting sensitive information or forgoing a prosecution or civil action or remedy. Of course, 
these cases are neither prosecutions nor affirmative cases by the Government; rather, the 
Government is responding to challenges to the legality of detention. This inherently requires 
balancing the national security interests in preventing inappropriate dissemination of sensitive 
classified information with the national security interests arising from not including particular 
information in a given detainee's case, thus perhaps substantially weakening the case for 
detention. These sensitive decisions must often be made on a document-by-document, line-by- 
line basis. See Katsas Decl. \ 13; Hayden Decl. \ 13. 

RESPONDENTS' REQUEST FOR RELIEF 

The Government is keenly aware of the need for expedition in these cases and of the 
disruption in the Court's planned schedule in the cases and deeply regrets that the schedule has 
not been met this month. The Government has proceeded with diligence and in good faith, and 

-10- 



Case 1 :05-cv-01 458-UNA-AK Document 57 Filed 08/29/2008 Page 1 3 of 1 6 

has undertaken extraordinary efforts in this unprecedented situation to attempt to meet its goal 
and this Court's requirement of 50 returns per month, including, as explained supra, drafting 59 
factual returns for clearance decision, which reflects the sheer volume of work that has been 
completed to date. 3 Attorneys and others from multiple agencies have worked long and hard, 
nights and weekends, under the difficult logistical challenges inherent in working with classified 
information. Nonetheless, the Government is compelled to seek partial and temporary relief 
from the 50-return-per-month requirement as it works toward meeting that requirement. 
Although the Supreme Court in Boumediene noted that detainee habeas proceedings should occur 
expeditiously, the Court did not say that inappropriate burdens on national security should be 
borne by the American public. Such burdens are distinctly possible if the sensitive balancing of 
national security interests involved in the clearance and use issues discussed supra and in the 
declarations of Director Hayden is shortchanged. 

The Court also should be aware that the Government is taking steps to streamline and 
improve the process related to vetting of factual returns for use in court going forward. Many of 
these efforts are outlined in the declarations of Director Hayden, and the increase in the number 
of available, security-cleared personnel at DoD and DoJ should permit a build-up of a queue of 



3 While engaged in the resource ramp-up and factual return development effort over the 
last two months, respondents have also made numerous other filings and appearances in these 
Guantanamo cases. For example, respondents have been required to file hundreds of status 
reports and engage in docket clean-up efforts and negotiations; have appeared in over two dozen 
status conferences or other hearings before this Court or other Judges of the Court; have filed 
briefing on procedural framework issues and responded to a number of detainee medical care or 
other conditions of confinement issues; have provided various records to opposing counsel as 
ordered by the Court; and have undertaken to address special accommodations of certain 
Chinese Uighur detainees at Guantanamo consistent with discussions with Judge Urbina in the 
cases before him, all the while also dealing with advance notice and other issues associated with 
the transfer of several detainees. 

-11- 



Case 1 :05-cv-01 458-UNA-AK Document 57 Filed 08/29/2008 Page 1 4 of 1 6 

draft returns so as permit the clearance process to go forward and produce a number of returns 
approaching the 50 per month requirement soon. CIA has explained in its declaration that it 
needs 30 days from the date that a draft factual return is provided by Do J to complete its 
clearance review. Thus, because dozens of draft factual returns already have been provided to 
CIA, we expect to file completed returns on a rolling basis on a substantially increasing rate. 
Approximately 50 returns (those due today and others) can be filed on a rolling basis throughout 
the month of September, beginning as early as next week, and with an extra month of lead-time, 
we hope to produce returns at that rate in future months. The difficulties to date have been part 
of a learning process in an unprecedented and exceedingly complex undertaking in a new area of 
law. Lessons learned are being incorporated into the factual return development process in order 
to attempt to avoid from the outset use of information that would likely give rise to security 
concerns and hinder timely filing of returns. 

The Government will continue to strive to meet the 50-per-month requirement. However, 
in light of the challenges associated both with starting up the factual return development process 
and with the substantive issues encountered in executing that process, and the inherent 
complexity and sensitivity in reviewing and processing classified information for release to 
persons outside of the Executive Branch, Respondents anticipate filing by today a total of 22 
returns, as indicated in the chart attached as Exhibit A. Further, Respondents anticipate filing 
several returns next week and additional returns on a rolling basis throughout the month of 
September. The shortfall in the number of returns filed this month and the deviation in the 
ordered sequencing reflects primarily the clearance issues discussed above, but also several 
special or unique difficulties and complications regarding specific cases, preventing the filing of 

-12- 



Case 1 :05-cv-01 458-UNA-AK Document 57 Filed 08/29/2008 Page 1 5 of 1 6 

factual returns in those cases. 4 Including those filed today, Respondents anticipate filing at least 
50 factual returns by the end of September, and hope to continue at that rate each month 

thereafter. 

* * * 

For the foregoing reasons, the Government respectfully requests that the Court modify its 

July 11, 2008 Scheduling Order to relieve Respondents from the requirement that 50 factual 

returns be produced by August 29, 2008. Such relief will give Respondents the additional 30 

days of lead time needed due to the complexity and national security sensitivities of these cases 

to produce 50 returns by the end of September. 

Dated: August 29, 2008 Respectfully submitted, 

GREGORY G. KATSAS 
Assistant Attorney General 

JOHN C. O'QUINN 

Deputy Assistant Attorney General 



4 Respondents are continuing efforts to resolve those issues to permit filing of a return in 
those cases at the soonest possible date. In addition, because Respondents misunderstood the 
Court's intentions regarding processing of factual returns for petitioners who have been approved 
by DoD for transfer or release from Guantanamo, see July 1 1 Scheduling Order ]{ 2.E, such 
petitioners were not included for processing of factual returns in August. Those petitioners will 
be included going forward and processed consistent with sequencing established in the July 1 1 
Scheduling Order. 

-13- 



Case 1 :05-cv-01 458-UNA-AK Document 57 Filed 08/29/2008 Page 1 6 of 1 6 



/s/ Terry M. Henry 



JOSEPH H. HUNT (D.C. Bar No. 43 1 134) 

VINCENT M. GARVEY (D.C. Bar No. 127191) 

JUDRY L. SUBAR (D.C. Bar No. 347518) 

TERRY M. HENRY 

ANDREW I. WARDEN 

PAUL AHERN 

Attorneys 

United States Department of Justice 

Civil Division, Federal Programs Branch 

20 Massachusetts Ave., N.W. 

Washington, DC 20530 

Tel: (202)514-4107 



Attorneys for Respondents 



14-