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Case 1 :05-cv-01458-UNA-AK Document 61 Filed 09/19/2008 Page 1 of 6 




Misc. No. 08-0442 (TFH) 
Civil Action Nos. 


0828, 04- 
1937, 04- 
0023, 05- 
0359, 05- 
0569, 05- 
0877, 05- 
0994, 05- 
1220, 05- 
1457, 05- 
1504, 05- 
1592, 05- 
1638, 05- 
1704, 05- 
2104, 05- 
2349, 05- 
2379, 05- 
2386, 05- 
0618, 06- 
1759, 06- 
1710, 07- 
1104, 08- 
1185, 08- 
1227, 08- 
1232, 08- 
1238, 08- 

cv-1136, 04- 
cv-2022, 04- 
cv-0247, 05- 
cv-0392, 05- 
cv-0634, 05- 
cv-0883, 05- 
cv-0998, 05- 
cv-1244, 05- 
cv-1458, 05- 
cv-1505, 05- 
cv-1601, 05- 
cv-1639, 05- 
cv-1971, 05- 
cv-2185, 05- 
cv-2367, 05- 
cv-2380, 05- 
cv-2387, 05- 
cv-1668, 06- 
cv-1761, 06- 
cv-2337, 07- 
cv-0987, 08- 
cv-1207, 08- 
cv-1228, 08- 
cv-1233, 08- 
cv-1310, 08- 

cv-1164, 04- 
cv-2035, 04- 
cv-0270, 05- 
cv-0492, 05- 
cv-0748, 05- 
cv-0889, 05- 
cv-0999, 05- 
cv-1347, 05- 
cv-1487, 05- 
cv-1506, 05- 
cv-1602, 05- 
cv-1645, 05- 
cv-1983, 05- 
cv-2186, 05- 
cv-2370, 05- 
cv-2381, 05- 
cv-2398, 05- 
cv-1684, 06- 
cv-1765, 06- 
cv-2338, 08- 
cv-1101, 08- 
cv-1221, 08- 
cv-1229, 08- 
cv-1235, 08- 
cv-1360, 08- 

cv-1194, 04- 
cv-2046, 04- 
cv-0280, 05- 
cv-0520, 05- 
cv-0763, 05- 
cv-0892, 05- 
cv-1048, 05- 
cv-1353, 05- 
cv-1490, 05- 
cv-1509, 05- 
cv-1607, 05- 
cv-1646, 05- 
cv-2010, 05- 
cv-2199, 05- 
cv-2371, 05- 
cv-2384, 05- 
cv-2444, 05- 
cv-1690, 06- 
cv-1766, 06- 
cv-1085, 08- 
cv-1104, 08- 
cv-1223, 08- 
cv-1230, 08- 
cv-1236, 08- 



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. 

Case1:05-cv-01458-UNA-AK Document 61 Filed 09/19/2008 Page 2 of 6 

, 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 

Case1:05-cv-01458-UNA-AK Document 61 Filed 09/19/2008 Page 3 of 6 

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 
factual returns. 

Case1:05-cv-01458-UNA-AK Document 61 Filed 09/19/2008 Page 4 of 6 

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 

Case1:05-cv-01458-UNA-AK Document 61 Filed 09/19/2008 Page 5 of 6 

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 

Case1:05-cv-01458-UNA-AK Document 61 Filed 09/19/2008 Page 6 of 6 

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