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Case 1 :05-cv-01458-UNA-AK Document 59 Filed 09/15/2008 Page 1 of 12 



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 



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 



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- 



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, 



Case 1 :05-cv-01 458-UNA-AK Document 59 Filed 09/1 5/2008 Page 2 of 1 2 



06-CV-1761, 06-CV-1765, 06-CV-1766, 
06-CV-1767, 07-CV-1710, 07-CV-2337, 
07-CV-2338, 08-CV-0987, 08-CV-1085, 
08-CV-1101, 08-CV-1104, 08-CV-1153, 
08-CV-1185, 08-CV-1207, 08-CV-1221, 
08-CV-1222, 08-CV-1223, 08-CV-1224, 
08-CV-1227, 08-CV-1228, 08-CV-1229, 
08-CV-1230, 08-CV-1231, 08-CV-1232, 
08-CV-1233, 08-CV-1234, 08-CV-1235, 
08-CV-1236, 08-CV-1237, 08-CV-1238, 
08-CV-1310, 08-CV-1360, 08-CV-1440 



RESPONDENTS' REPLY MEMORANDUM IN SUPPORT OF 

MOTION FOR PARTIAL AND TEMPORARY RELIEF FROM 

THE COURT'S JULY 11, 2008 SCHEDULING ORDER 

Respondents hereby submit this consolidated reply memorandum in support of their 
Motion for Partial and Temporary Relief from the Court's July 11, 2008 Scheduling Order 
(Misc. No. 08-0442) (dkt. no. 317) ("Motion for Relief"). 

As explained in connection with its Motion for Relief, the Government underestimated 
the time it would take to accomplish the development and finalization of amended and original 
factual returns in the pending habeas cases. When it could not meet the benchmark it had 
initially represented to the Court as attainable, it reguested relief from the Court in the form of an 
additional 30 days to complete the filing of the first 50 returns. In response, Petitioners urge the 
Court impose various sanctions, including defaults as to amended and original returns. At 
bottom, Petitioners seek to force the Government to choose between its duty to present, 
consistent with the currently governing legal landscape, the most appropriate case to ensure that 
those held as enemy combatants do not return to the fight and its duty to protect classified 
intelligence (and the assets used to acguire that intelligence) from improper disclosure that would 
endanger national security interests. Respondents respectfully reguest that the Court deny 
Petitioners' reguest for sanctions and grant Respondents' reguested relief. 



Case 1 :05-cv-01 458-UNA-AK Document 59 Filed 09/1 5/2008 Page 3 of 1 2 

ARGUMENT 

A. The Relief Requested Is Crucial to Fair and Just Adjudication of These Cases; 
Respondents Are Not Engaging in Inappropriate Delaying Tactics 

Petitioners, in arguing that the Government's difficulties in meeting the August 29 
deadline were entirely within its control, repeatedly emphasize that Respondents "decided to rely 
'extensively' on classified information that they did not previously use to justify Petitioners' 
detention." Pet. Opp. at 7. 1 See also id. at 8, 9, and 11. As detailed in Respondents' already- 
filed motions to amend, however, there are compelling reasons why the Court should not deny 
the Motion for Relief or otherwise impose a sanction that would have the effect of restricting the 
Court's review of the detention of those the Government has deemed to be enemy combatants to 
information compiled four years ago before the indisputably significant changes in the legal 
landscape. 2 The Government did not lightly decide to prepare new factual returns or to divert 
intelligence specialists from the war effort so that they can review thousands of documents for 
use in such returns. Rather, it made the common- sense decision to put forth the best possible 
case for detention in light of appropriate national security considerations, see Motion at 8-10, and 
dedicated substantial resources to ensure that the record before the Court includes such 
information in a form that reflects the current legal landscape. 

Indeed, in seeking relief, respondents are not engaging in any inappropriate delaying 
tactics. When the Motion for Relief was filed, respondents had filed 22 amended or original 



1 Cites to "Pet Opp." are to the omnibus Petitioners' Response to Respondents' Motion 
for Relief From Scheduling Order filed September 8, 2008. 

2 Petitioners have wrongfully interpreted the Governments' desire to present the strongest 
possible case for detention as an admission that the Government now finds the records of the 
Combatant Status Review Tribunal ("CSRT") "inadeguate" to justify detention. See, e.g., Pet. 
Opp. at 9 n. 7. The Government's development of new factual returns, however, recognizes that 
significant legal changes have occurred since the original CSRTs were done and the original 
returns were filed, and it admits of the possibility of factual changes regarding the cases against 
detainees. 



Case 1 :05-cv-01 458-UNA-AK Document 59 Filed 09/1 5/2008 Page 4 of 1 2 

factual returns, including six in cases before Judge Leon, 3 six in cases before Judge Sullivan 

(leaving one additional return in his cases due in September), and 10 in the coordinated 

proceedings before Judge Hbgan Since that time, an additional 1 1 returns have been filed in 

these coordinated proceedings, including 8 in the last week. Such a rolling production of factual 

returns is hardly indicative of inappropriate delay, but rather reflects, as explained in the Motion 

for Relief, that ramping up for the production of the factual returns took longer than anticipated 

and, as previewed in the Motion for Relief, that the Government expects to finish production of 

the first 50 returns in these coordinated proceedings on a rolling basis throughout September and 

hopes to achieve the expected rate of production each month thereafter. 

Although the Government will endeavor to complete 50 factual returns per month, there 

is reason to doubt that Petitioners' counsel can respond, and the Court can adjudicate, cases at 

that pace. For example, in the two weeks that have passed since the Government filed factual 

returns in the first 10 coordinated cases, only one petitioner has filed a traverse. Thus, although 

the Government intends to act expeditiously in these cases, the short delay necessary to address 

the national security issues presented through the use of classified evidence will cause little 

practical delay in the resolution of these cases. 

B. Petitioners' Other Criticisms Are Based on Mischaracterizations and 
M isunder standing 

Petitioners' arguments that the government could have dedicated more resources to the 
production of factual returns and that such production need not be as resource- intensive as 
described in the Motion for Relief demonstrate their cavalier attitude toward the protection of 



3 On September 9, 2008, Respondents requested that Judge Leon also delay his factual 
return deadlines for the remainder of his cases by 30 days. See, e.g., Respondents' Motion for 
Partial and Temporary Relief from the Court's July 30, 2008 Scheduling Order, Sliti v. Bush, 
Civil Action No. 05-cv-0429. 



Case 1 :05-cv-01 458-UNA-AK Document 59 Filed 09/1 5/2008 Page 5 of 1 2 

classified information, born of an overly simplified view of the risks and methods associated 
with dissemination of such information. Specifically, Petitioners demonstrate a lack of 
understanding of how the necessary use of classified information in returns constrains the 
development of the resources available to the Government for producing factual returns and of 
the importance to the national interest of the multiple levels of review associated with producing 
such returns. 

Petitioners' statements that the Government has "literally thousands of lawyers available 
to them" and that Respondents "easily could have secured 250 lawyers from the U.S. Attorneys' 
offices around the country, from DOD, and from the Civil Division," Pet. Opp. at 7-8, are 
misinformed. First, such statements ignore the challenges, discussed extensively in the Motion 
for Relief, arising from the use of classified information. Even if the Government could wave a 
magic wand and transfer an additional 250 attorneys to this effort, attorneys cannot significantly 
contribute to the creation of factual returns until they receive necessary security clearances and 
training and until secure work space - complete with secure copiers, computers, and other 
infrastructure - is available. Motion, Ex. C, Katsas Dec'l., MI 5-6. Also, Petitioners' bald 
assertions about the resources available to the Government ignore the need not only for attorneys 
to develop factual returns, but for intelligence personnel to review and assess the implications of 
the use of such materials in court and determine whether such use would damage national 
security interests. See id., Ex. B, Dell'Orto Dec'l, H 5; see also id., Ex. D, Hayden Dec'l, H 13. 

Second, Petitioners blatantly mischaracterize the efforts undertaken to assemble the 
Government resources and draft the factual returns. For example, petitioners' assertion that 
"DOJ and DOD waited until July to assemble staff and resources," Pet. Opp. at 8, is simply 
wrong. It is true that both "DoJ and DoD were assembling staff and resources over the month of 



Case 1 :05-cv-01 458-UNA-AK Document 59 Filed 09/1 5/2008 Page 6 of 1 2 

July." Motion at 3. That is not however, when the departments began assembling their team. 
See, e.g., Motion, Ex. C, Katsas Dec'l., HI 5 (" After Boumediene was decided, DoJ moved 
quickly to secure" staff and resources.). Further, Petitioners' characterization of DoD's review 
of 1,900 classified documents in a month as a "snail's pace" ignores what was clearly laid out in 
the paragraphs they cite to support this mischaracterization: Petitioners incorrectly assign the 
clearance review of these 1,900 documents to the 30 DoD attorneys involved in assembling and 
winnowing information for use in drafting proposed factual returns and submitting materials 
cited in those drafts for intelligence equity review. Pet. Opp. at 8, n. 5. In fact, DoD created a 
team of intelligence specialists to coordinate its clearance review. Id., Ex. B, Dell'Orto Dec'l., H 
6-7. Further, petitioners dismiss the significant scope of review related to those 1,900 documents 
and the fact that reviewing those documents was not the only task intelligence personnel have 
performed in this undertaking. See, e.g., id., Ex. B, Dell'Orto Dec'l., H 5 (listing many of the 
issues that must be addressed for each document reviewed, including classification level and the 
potential harm to intelligence sources that may arise from the use and potential release of the 
information in the habeas context), H 6 (listing ten DoD organizations with whom the team had to 
coordinate review), H 7 (stating that intelligence personnel reviewed 1,900 documents "in 
addition to expending a significant amount of time preparing supporting materials and 
coordinating them for use in the litigation" (emphasis added)). 

Petitioners also exhibit a fundamental misunderstanding of the restrictions on 
dissemination of classified information. For example, they assert that special CIA review should 
not be necessary because the Court and counsel "already have the security clearance required for 
access to this information." Pet. Opp. at 10. This assertion seems to be based on the mistaken 
assumption that all that is required to have access to classified information is the correct security 



Case 1 :05-cv-01 458-UNA-AK Document 59 Filed 09/1 5/2008 Page 7 of 1 2 

clearance. However, as set forth in the public and ex parte, in camera declarations of Director 
Hayden, the agencies that "own" classified information must make "need to know" 
determinations and consider whether use of their classified information is otherwise appropriate 
in this context bearing in mind that disclosure to Petitioner's counsel can mean disclosure, 
pursuant to the protective order with yet additional counsel in other cases. This leads to 
heightened sensitivities over such potentially broad disclosures. Even Petitioner's own declarant 
acknowledges that there are circumstances in which mere possession of the proper clearance will 
not entitle a recipient to see classified information. See Pet. Opp., Ex. 1, Kaplan Dec'l., MI 7-8. 4 
The CIA review is designed in part to identify information included in the factual returns 
that cannot be disseminated outside the Executive Branch and to ensure use of information in the 
factual returns is consistent with this and other intelligence-related interests. Motion, Ex. D, 
Hayden Dec' 1, 11 13. Petitioners seek to substitute their own assessment of the national security 
risks associated with release of classified information for that of the public officials charged with 
protecting intelligence sources and methods from unauthorized disclosure, id. at fl 15. Such an 
approach in improper, however. SeeDep'toftheNavyv.Egan, 484 U.S. 518, 529 (1988) ("the 
protection of classified information must be committed to the broad discretion of the agency 
responsible, and this must include broad discretion to determine who may have access to it"); 



4 Petitioners' declarant asserts that the four CSRT records that he has seen contain no 
classified information involving additional distribution restrictions or requiring a Top Secret 
Clearance, and thus may be (istobuted to anyone witii a Secret clearance and a need to 
Pet Opp., Ex. 1, Kaplan Dec' 1., 11 10. This fact is not relevant to whether information not found 
in the CSRT records requires intelligence agency review to determine if it is subject to 
restrictions to which the CSRT records themselves may not be. Petitioners' assertion that 
because they have been trusted with CSRT record irrformationintiiepast, tiieyaretiustworthyto 
receive the information the CIA is cunenfly reviewing likewise ignores the fact that different 
classified information may be subject to different restrictions on dissemination in light of unique 
interests that may be involved See Motion, Ex. D, Hayden Dec'l, H 13. 



Case 1 :05-cv-01 458-UNA-AK Document 59 Filed 09/1 5/2008 Page 8 of 1 2 

CIA v. Sims, 471 U.S. 159, 176 (1985) ("An intelligence source will 'not be concerned with the 
underlying rationale for disclosure of his cooperation if it was secured 'under assurances of 
confidentiality.'"); Center for National Security Studies, etal. v. U.S. Dep't of Justice, 331 F.3d 
918, 928 (D.C. Cir. 2003) (courts should not second-guess Executive's judgment in the area of 
national security). The Court, therefore, should look to Director Hayden's in camera, ex parte 
declaration, rather than the speculation of Petitioners, if it needs additional information regarding 
the dangers that could arise from inadeguate intelligence agency review of the factual returns. 

Finally, Petitioners' comparison of the current situation to the preparation of factual 
returns in 2004 does not support their contention that the Government could, if only it would, file 
factual returns more guickly. As described by the Petitioners, on August 31, 2004, the 
Government proposed (and the Court adopted) a schedule for its filing of factual returns. Pet. 
Opp. at 9, n. 8. By October 29, 2004, the Government had filed more than 50 returns. Id. Thus, 
in 2004, it took about two months (not six weeks as Petitioners claim) for the Government to file 
more than 50 factual returns, each of which consisted entirely of a CSRT record prepared 
through an administrative process that began prior to August 31, 2004. This Court issued its 
scheduling order on July 11, 2008, and the Government is now reguesting until September 30, or 
a little more than two and a half months total, to file the first 50 factual returns, the preparation 
of which has involved a significantly different process resulting in returns different from the 
CSRT records. 

Thus, Petitioners' statements about the availability of resources the government could 
have transferred to these cases and the necessity of the efforts it undertook to file factual returns 
rest on fundamental mischaracterizations and misunderstandings regarding the resources, risks 



Case 1 :05-cv-01 458-UNA-AK Document 59 Filed 09/1 5/2008 Page 9 of 1 2 

and interests associated with dealing with classified information necessary to appropriate 
resolution of these cases on the merits. 

C . Procedural Shortcomings do not Warrant Striking the Motion for Relief 

The Government acknowledges that it failed to confer with the scores of Petitioners' 
counsel involved in these cases as contemplated by Local Civil Rule 7(m). In the rush of 
attempting to meet the aggressive schedule and the late- blooming realization that it would not be 
able to do so, the Government found itself drafting its Motion for Relief on an expedited basis. 
The Government did not even know until late in the day on August 29 which returns it would be 
able to file and which it could not file. In these circumstances, Respondents' counsel failed to 
attempt to co nf er. 5 Respondents apologize for this failure. 

Respectfully, however, and without irdmirdzing the importance of the rule, striking the 
Motion for Relief is not warranted This Court has, in the past, addressed the merits of 
nondispositive motions filed without conferring. For example, inNiedermeier v. Office of 



5 These same factors led the Government to file its motion just before the expiration of 
the August 29 deadline. Petitioners' argue that the lateness of the motion justifies striking it 
The decisions Petitioners cite to support this argument miss the point In the first, Justice 
Rehnquist requested an explanation for counsels' waiting to file a petition for writ of habeas 
corpus only four days before a defendant' s scheduled execution and more than forty days after 
the Supreme Court denied a petition for certiorari. Evans v. Bennett, 440 U.S. 1301, 1308 (1979) 
(Rehnguist, Circuit Justice). The "hydraulic pressure" created by a pending execution, id., and 
defendant's failure to file anything for forty days are guite different from the situation here, 
where there is no irreversible external event such as an execution looming over the proceedings 
and where the Government did all it could by the deadline, openly reguested an extension, and 
has since continued to file factual returns on a rolling basis. 

The other two cases Petitioners cite regarding so-called "self-help" motions actually 
decry the filing of substantive motions in lieu of briefs instead of openly reguesting extensions of 
time as the Government has done here. Ramos v. Ashcroft, 371 F.3d 948, 949-50 (7th Cir. 2004) 
(addressing a motion to transfer filed in lieu of a brief where no extension of time had been 
reguested); United State v. Lloyd, 398 F.3d 978, 980 (7th Cir. 2005) (addressing a motion to 
dismiss in similar circumstances). The Government does not dispute that it would have been 
better to file its motion for relief earlier. Unfortunately, the same factors that created the need to 
reguest relief at all also created the need to file that reguest at the last minute. 



Case 1 :05-cv-01 458-UNA-AK Document 59 Filed 09/1 5/2008 Page 1 of 1 2 

Baucus, the Court cited "the general judicial preference for resolving motions on their merits 
rather than dismissing them on technicalities, the fact that this will be plaintiff's final opportunity 
to argue the merits of her case to this Court, and the desire to avoid prejudicing litigants for their 
counsel's errors" as reasons for its decision to address a motion's merits despite the failure of 
counsel to confer. 153 F.Supp.2d 23, 27 (D.D.C. 2001.) (Hogan, C.J.). With respect to those 
petitions for which the Government has not yet filed returns, granting sanctions such as 
Petitioners reguest might prevent resolution of some of those petitions on the merits, and, in any 
event, would prevent the appropriate resolution of some of those petitions in light of the now- 
changed legal landscape. As discussed above, the Government's amended and original returns 
are needed to ensure the existence of the full and fair record critical to the adjudication of the 
merits of the respective petitions. Petitioners, in asking the court to show no leniency towards 
Respondents, rightly point out that "so much is at stake" here. Pet. Opp. at 4-5. It is precisely 
because so much is at stake that reaching the merits of the Motion for Relief and, ultimately, the 

merits of Respondents' motions to amend the factual returns, is critical. 6 

* * * 

Petitioners urge the Court to make the Respondents "pay a price for violating its 
deadlines." Pet Opp. at 11. That price, apparently, is to force the Government to choose 



6 Petitioners cite Gray Panthers v. Schweiker, 716 F.2d 23 (D.C. Cir. 1983). That 
decision noted that the duty "to inform the courts of outside developments that might affect the 
outcome of litigation" may be higher for government counsel because "their client is not only the 
agency they represent but also the public at large." Id. at 33. The court compared this higher 
duty with a government lawyer's "responsibility to seek justice and to develop a full and fair 
record." Id. (guoting Model Code of Professional Responsibility, EC 7-14 (1981)). That is 
exactly what Respondents' Motion for Relief seeks to accomplish. Respondents respectfully 
reguest that the Court not hinder the Government from performing this higher duty based on a 
failure to confer with scores of Petitioners' counsel on the motion. 



10 



Case 1 :05-cv-01 458-UNA-AK Document 59 Filed 09/1 5/2008 Page 1 1 of 1 2 

between following procedures designed to appropriately safeguard classified information from 
disclosure that will harm national security interests and making its best possible case in the 
circumstances for the continued detention of enemy combatants to prevent their return to the 
battlefield. Petitioners seek to prevent the Court from considering late- filed amended returns and 
to allow the Government only seven days to file original returns on pain of default or evidentiary 
sanctions. 7 Imposing such sanctions because the Government was overly optimistic in its 
estimates of how long it would take to ramp up production of returns would not force 
Respondents alone to pay the price. It would force the American people to shoulder the burden, 
either in the form of increased risk of the erroneous release of individuals whom the government 
has determined are enemies of the United States, or in the form of reckless and inappropriate 
dissemination of classified information without careful review and vetting by the intelligence 
agencies charged with protecting American interests. 

CONCLUSION 
For the foregoing reasons, and for the reasons set forth in the Motion for Relief, 
Respondents respectfully reguest that the Court modify its July 11, 2008 scheduling order to 
allow them an additional 30 days to file factual returns in a manner consistent with their national 
security obligations. 8 



7 Petitioners clearly unwarranted request for unspecified monetary sanctions raises 
several issues, such as sovereign immunity, that Petitioners (and therefore Respondents) do not 
address. l : ^espondents respectfully request an opportiinity to address those issues stodd the 
Court consider imposing monetary sanctions. 

8 Respondents further reguest that the Court clarify the provisions of the scheduling order 
governing the processing of factual returns for petitioners who have been approved by DoD for 
transfer or release from Guantanamo. See July 1 1 Scheduling Order f 2.E. 

11 



Case 1 :05-cv-01 458-UNA-AK Document 59 Filed 09/1 5/2008 Page 1 2 of 1 2 



Dated: September 15, 2008 Respectfully submitted, 

GREGORY G.KATSAS 
A ssistant A ttomey G eneral 

JOHNC.O'QUINN 

Deputy Assistant Attorney General 



/s/ Robert]. Prince 



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

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

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

TERRY M. HENRY 

ANDREW I. WARDEN 

PAUL AHERN 

ROBERT J. PRINCE (D.C. Bar No. 975545) 

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 



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