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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Misc. No. 08-0442 (TFH)
Civil Action Nos.
Pending before the Court is the government's Motion For Partial And Temporary
Relief From The Court's July 11, 2008 Scheduling Order. For the reasons that follow, the
Court will grant the motion.
A little over three months ago, the Supreme Court held that foreign nationals detained
at the United States Naval Base at Guantanamo Bay, Cuba, "are entitled to the privilege of
habeas corpus to challenge the legality of their detention." Boumediene v. Bush, U.S.
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, 128 S. Ct. 2229, 2262 (2008). In its decision, the Court directed that, "[wjhile some
delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne
by those who are held in custody." Id. at 2275. In sum, the Supreme Court held, "[t]he
detainees in these cases are entitled to a prompt habeas corpus hearing." Id.
Following the Supreme Court's decision in Boumediene, this Court convened two
meetings with government counsel and representative counsel for petitioners — the first on June
18, 2008, and the second on June 25, 2008 — during which the Court and counsel discussed
management of these habeas cases. On July 1, 2008, the Judges of this Court resolved by
Executive Session to designate the undersigned to coordinate and manage proceedings in all
cases involving petitioners presently detained at Guantanamo Bay, Cuba, ' so that these cases
would be addressed as expeditiously as possible per the Supreme Court's directive in
Boumediene. One week later, this Court held a status conference to discuss the procedures for
handling these cases, including the schedule by which the government was to process factual
returns. On July 11, 2008, the Court entered a scheduling order in which, relying in part on
the government's assurances that it could meet such a schedule, the Court ordered the
government to file factual returns at a rate of fifty per month, with the first fifty due by
August 29, 2008.
Just before midnight on August 29, 2008, and after filing only ten factual returns in
these consolidated cases, ^ the government filed the instant motion. In its motion, the
government explains that it "simply did not appreciate the fiiU extent of the challenges posed
' Judges Richard J. Leon and Emmet G. Sullivan opted to retain for all purposes the
Guantanamo Bay cases assigned to them.
^ The government had filed an additional twelve returns in cases before Judges Leon and
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by the extensive need for classified information in these cases when [it] proposed to complete
the first set of factual returns by the end of August" and, therefore, requests that this Court
grant it "partial and temporary" relief from the July 11, 2008, scheduling order.
Respondents' Motion For Partial And Temporary Relief From The Court's July 11, 2008
Scheduling Order ("Gov't Mot.") 1, 3. Specifically, the government asks this Court to extend
by thirty days the date by which it is to file the first fifty factual returns.^ In support of its
motion, the government attached public declarations from high-level government officials — the
Acting General Counsel for the Department of Defense, the Assistant Attorney General for the
Civil Division of the Department of Justice, and the Director of the Central Intelligence
Agency — as well as an ex parte declaration from the Director of the Central Intelligence
Agency, explaining the substantial resources and efforts the government has devoted to
preparing factual returns and the risk of harm to the national security involved in releasing
classified information to persons outside the Executive Branch.''
Nearly all of the petitioners in these consolidated cases object to the government's
request for an extension of time and filed or joined oppositions stating their respective
positions for doing so. See, e.g., 08-mc-442, Docket Nos. 327, 330, 334, 341, 342, 346,
348, 350, 351, 353, 354, 355, 356, 392, 400 Coined by petitioners in 64 cases), and 406. For
the most part, petitioners contend that granting the motion would prejudice them by further
^ Consequently, the relief the government seeks is actually neither "partial" nor
"temporary." Rather, the government seeks to, at a minimum, push back each monthly filing
deadline by 30 days. See Gov't Mot. 4 ("We expect to finish production of the first 50 factual
returns on a rolling basis throughout September, and hope to achieve production of returns at that
rate each month thereafter.").
'^ Since filing the instant motion, the government has submitted an additional thirteen
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delaying habeas hearings, contrary to the Supreme Court's admonition in Boumediene that
petitioners are entitled to "prompt habeas corpus hearing[s]," 128 S. Ct. at 2275. And they
assert that government's reasons for requesting an extension are unpersuasive. To penalize the
government for failing to meet the Court's deadline and to deter future violations of the
scheduling order, petitioners propose various sanctions, including denial of motions to amend
factual returns, default, and evidentiary and monetary sanctions.
Cognizant of the Supreme Court's directive that this Court address petitioners' cases
expeditiously, see Boumediene, 128 S. Ct. at 2275, while, at the same time, "us[ing] its
discretion" to accommodate the government's "legitimate interest in protecting sources and
methods of inteUigence gathering ... to the greatest extent possible," id. at 2276, the Court
will grant the government's motion. Upon review of the public and ex parte declarations, the
Court is satisfied that the government is not dragging its feet in an attempt to delay these
matters beyond what is necessary to protect the national security concerns associated with
releasing classified information. These cases are not run of the mine; they involve significant
amounts of sensitive, classified information concerning individuals whom the government
alleges were part of or supporting the Taliban or al Qaida or other organizations against which
the United States is engaged in armed conflict. The Court, therefore, must proceed with
"caution . . . [and] pay proper heed both to the matters of national security that might arise in
an individual case and to the constitutional limitations safeguarding essential liberties that
remain vibrant even in times of security concerns." Hamdi v. Rumsfeld, 542 U.S. 507, 538-
39 (2004) (plurality). As described in the Director of the Central Intelligence Agency's ex
parte declaration, the dangers and risks to the national security that could follow from
inadequate intelligence agency review of factual returns lead this Court to find that the
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government's requested extension of thirty days strikes, in this context, the proper balance
between protecting the national security and providing petitioners the prompt habeas corpus
hearings to which they are entitled.
As it is disappointed in the government's failure to meet the schedule the Court adopted
based in part on the government's assurances, the Court grants the government's motion
reluctantly. At this juncture, however, the Court is not convinced that the scope and nature of
the sanctions petitioners propose are warranted to ensure that the government will meet its
fiiture obligations under the Court's scheduling order. But the Court admonishes the
government that, in allowing it an additional thirty days to file each set of factual returns in
these cases, the Court is not merely setting a "goal" for which the government is to "strive,"
Gov't Mot. 10-11 (contending that the government has diligently proceeded to "attempt to
meet its goal"); id. at 12 ("The government will continue to strive to meet the 50-per-month
requirement."). Rather, the Court is ordering the government to produce at least fifty factual
returns by month's end, followed by at least fifty more each month thereafter until production
is complete. Nor is the government's "doubt that Petitioners' counsel can respond, and the
Court can adjudicate, cases at that pace," Gov't Reply 4, a basis on which the government can
rely to disobey an order of this Court.
While the Court is not unsympathetic to the government's current workload and that,
since Boumediene was decided a little over three months ago, government "[ajttorneys and
others from multiple agencies have worked long and hard, nights and weekends," see Gov't
Mot. 10-11, 10 n. 3, the government has detained many of these petitioners for more than six
years, and the time has come to provide them with the opportunity to fially test the legality of
such detention in a prompt, meaningful manner. And although the Court cannot fault the
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government for failing to "engage in resource ramp-up," Gov't Mot. 11 n.3, prior to the
Supreme Court's decision in Boumediene, it was "no bolt out of the blue" that detainees at
Guantanamo would be able to fully test the legality of their detention through habeas corpus
challenges. 128 S. Ct. at 2278 (Souter, J., joined by Ginsburg & Breyer, JJ., concurring).
Indeed, the Supreme Court held as much over four years ago. See Rasul v. Bush, 542 U.S.
466, 481-82 (2004) ("We therefore hold that [28 U.S.C] § 2241 confers on the District Court
jurisdiction to hear petitioners' habeas corpus challenges to the legality of their detention at the
Guantanamo Bay Naval Base.").
Review of the public and ex parte declarations assures the Court that the government is
now on notice of the time needed "to accomplish the development and finalization of amended
and original factual returns in the pending habeas cases," Gov't Reply 2. Going forward
under the revised schedule resulting from the Court's granting of its motion, consequently, the
government cannot claim as a basis for failing to meet deadlines imposed by this Court that it
"simply did not appreciate the full extent of the challenges posed," Gov't Mot. 3. Except for
good cause shown, therefore, the Court will not tolerate any further delay. Boumediene, 128
S. Ct. at 2275 ("While some delay in fashioning new procedures is unavoidable, the costs of
delay can no longer be borne by those who are held in custody.").
September 19, 2008 /s/
Thomas F. Hogan
United States District Judge