Filing 1076

Memorandum in opposition to re 1004 MOTION for Reconsideration MOTION for Certification for interlocatory appeal MOTION to Stay Of This Court's November 6, 2008 Case Management Order and Motion to Transfer this Case Back to the Merits Judge filed by GUANTANAMO BAY DETAINEE LITIGATION. (Kitchel, Jan)

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IN RE: GUANTANAMO BAY DETAINEE LITIGATION Doc. 1076 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA INRE : GUANTÁNAMO BAY DETAINEE LITIGATION Misc. No. 08-442 (TFH) YOUNOUS CHEKKOURI, et aI., Petitioners/piaintif~ v. Civil No. 05-CV-0329 (PLF) GEORGE W. BUSH, et aI., RespondentslDefendants. OPPOSITION TO THE GOVERNMENT'S MOTION FOR RECONSIDERATION, AND MOTION TO TRASFER THIS CASE BACK TO THE MERITS JUDGE FOR ALL FURTHER PROCEEDINGS Petitioner Y ounous Chekkouri, by and through his undersigned counsel, respectfully submits this opposition to the governent's omnibus motion for reconsideration, see In re Guantánamo Bay Detainee Litig., Misc. No. 08-442 (TFH) (D.D.C.) (misc. dkt. no. 1004) ("Gvt. Motion"), and the Cour's November 20,2008 Minute Order directing the detainees to respond to the motion by November 26, 2008. Chekkouri also moves to transfer this case back to Judge 1 Friedman ("Merits Judge") for all further proceedings. .! 1 As to the motion to transfer, the governent's position is that Judge Hogan should address the issues related to the CMO and the motion for reconsideration in all ofthe coordinated detainee cases, including this case. . PDXll12907/141447/JKK3168922.l Dockets.Justia.comI,: PRELIMINARY STATEMENT Younous Chekkouri, a citizen of Morocco, was one of the first prisoners transferred to longer than most Guantánamo Bay in May 2002. He has been held there without charge or tral remaining prisoners. He also has one of the oldest remaining cases, filed in February 2005. Chekkouri's detention has been and continues to be indefinite and unlawful by any standard. On June l2, 2008, the Supreme Cour held that detainees at Guantánamo Bay have a constitutionally-protected right to petition for habeas relief. See Boumediene v. Bush, 128 S. Ct. 2229 (2008). The Cour fuher held that "( w )hile some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing." Id. at 2275. The detainee cases are now governed by the Habeas Corpus Statute, 28 U.S.C. § 2241 et seq., which sets forth specific guidelines for prompt resolution of these cases. Yet the governent plainly seeks by its motion for reconsideration to prolong Chekkouri's indefinite detention. The governent's motion is simply the latest tactic in a longstanding strategy to deprive Chekkour and other Guantánamo detainees of any meaningful opportunity to challenge the legality of their detention through habeas. Although Judge Hogan and the Merits Judge each ordered the paries in this case and other detainee cases to proceed on an individualized basis - and, indeed, invited the governent to propose modifications to Judge Hogan's November 6, 2008 case management order in the context of this paricular case - the proceeding. Rather, now that the courts have governent made no objection to that mode of ruled, the governent seeks to continue litigation essentially on a class-wide basis that is contrary to the cours' orders and serves only to delay consideration ofthe merits of this case. 2 The governent's motion should be denied for three reasons: (1) because the governent failed to meet and confer with Chekkouri's counsel as required by Local Civil Rule 7(m); (2) because the motion fails to establish any basis for reconsideration; and (3) because the motion does not address the particular facts and circumstances of this case, which would not warant the 2 relief sought by the governent - i. e., a further indefinite stay - if reconsideration were granted. This case should be transferred back to the Merits Judge for all further proceedings, for the reasons below. BACKGROUND On July 2, 2008, this case was transferred to Judge Hogan for coordination and management pursuant to the Resolution of the Executive Session (D.D.C. July 1, 2008). On July 11, 2008, Judge Hogan entered a scheduling order requiring the governent to produce factual returs in each detainee case on a rolling basis. The governent failed to comply with that schedule - which they had proposed - and moved to amend the schedule for production of returns. See In re Guantánamo Bay Detainee Litig., Misc. No. 08-442 (TFH) (D.D.C.) (misc. dkt. no. 317). Judge Hogan granted the motion on September 19,2008, over the detainees' objections, but cautioned that "(g)oing forward. . . the governent cannot claim as a 2 Chekkour also objects to the governent's alternate request to certify these issues for appeal and for a stay pending appeaL. There is no legitimate basis for an interlocutory appeal of a case management order pursuant to 28 U.S.C. § 1292(b). Nor do the issues raised in the governent's motion present substantial ground for difference of opinion. The governent's suggestion that fuher appellate litigation in the detainee cases would materially advance the litigation also strains credulity in light of its consistent dilatory tactics. 3 basis for failing to meet deadlines imposed by this Cour that it simply did not appreciate the full extent of the challenges posed." Id. (misc. dk. no. 466, at 6) (internal quotation marks omitted).3 Chekkouri's amended factual retur was consequently delayed. And when the governent finally did produce the return, it attempted unilaterally to designate all non-classified information in the retu as "protected," thus preventing Chekkour himself from reviewing the information. Indeed, to date, Chekkouri himself has not been able to review a single document contained in his return or prepare a response to the return. In the meantime, Judge Hogan's July 11,2008 scheduling order also required the parties to submit briefs addressing the procedural framework to govern these cases. See, e.g., id. (misc. dkt. nos. 206, 231) (detainee briefs). Those briefs addressed nearly all of the issues raised in the governent's omnibus motion for reconsideration, including issues concerning production of exculpatory evidence and other discovery, the admissibility of hearsay evidence, and whether the governent's evidence should be afforded any presumptions. On November 6, 2008, Judge Hogan issued a Case Management Order ("CMO") to govern the coordinated detainee cases. The CMO resolved many of the issues addressed in the parties' procedural framework briefs, and indicated (at p.2 n.l) that the judges to whom the cases are assigned for final resolution "may alter the framework based on the paricular facts and circumstances oftheir individual cases," and "wil address procedural and substantive issues not covered in this (CMO)." 3 Yet the governent soon failed to comply once again, and sought fuher relief from their proposed schedule on October 31, 2008. See In re Guantánamo Bay Detainee Litig., Misc. No. 08-442 (TFH) (D.D.C.) (misc. dkt. no. 917). 4 The Merits Judge in this case has not entered any orders modifying Judge Hogan's orders. On November 18, 2008, the governent fied its omnbus motion for reconsideration, seeking a blanet stay of all detainee cases coordinated before Judge Hogan regardless of the facts and circumstances ofthe individual cases, and seeking the opportunity to relitigate issues that were addressed before Judge Hogan in the paries' procedural framework briefs. The governent's motion made no mention of this case specifically. See Gvt. Motion. On November 21,2008, Judge Hogan entered an order staying the deadlines in the CMO pending resolution of the governent's motion for reconsideration. See In re Guantánamo Bay Detainee Litig., Misc. No. 08-442 (TFH) (D.D.C.) (misc. dkt. no. 1026). I. THE GOVERNMENT'S BLANKET MOTION FAILS TO PROVIDE AN BASIS FOR RECONSIDERATION IN THE CONTEXT OF THIS CASE A. The Motion Should Be Denied for Failure to Meet and Confer The governent's motion should be denied because counsel for the governent failed to meet and confer with undersigned counsel as required by Local Civil Rule 7(m). Simply stated, the governent made no good faith attempt to determine whether undersigned counsel objected to the requested relief or to narow the areas of disagreement in this particular case. A day prior to fiing this motion, governent counsel asked counsel for Chekkouri ifhe would stipulate to an unseen motion. Counsel for Chekkouri stated that he could not until he at least saw the proposed motion. No response was had until the motion was fied. The movant made no attempt to confer. ,. Accordingly, because counsel for the governent failed to comply with Local Civil Rule 7(m), the motion for reconsideration should be denied on this basis alone. Rule 7(m) serves 5 important institutional puroses, and the courts should not treat a violation of the rule lightly. See Ellpso, Inc. v. Mann, 460 F. Supp. 2d 99, 102 (D.D.C. 2006).4 B. The Motion Should Be Denied for Failure to State Any Basis for Reconsideration The governent cites Federal Rule of Civil Procedure 54(b) in support of its request for reconsideration of Judge Hogan's CMO. See Gvt. Motion at 10 n.7. But that rule provides no basis for reconsideration here. Rule 54(b) governs motions for reconsideration that do not constitute final judgments. See Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005). A court may reconsider an order pursuant to Rule 54(b) when it "patently misunderstood a pary, has made a decision outside the adversaral issue presented to the Court by the paries, has made an error not of reasoning but of apprehension, or where a controllng or significant change in the law or facts (has occurred) since the submission of the issue to the Cour." Id. (quoting Cobell v. Norton, 224 F.R.D. 266,272 (D.D.C. 2004)). In general, a court wil only consider a motion for reconsideration when the moving pary demonstrates: "(1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error oflaw in the first order." Keystone Tobacco Co. v. U.S. Tobacco Co., 217 F.R.D. 235, 237 (D.D.C. 2003). Motions for reconsideration should not be used to "relitigate old matters." Niedermeier v. Offce 4 See Penobscot Indian Nation v. HUD, Civ. No. 07-1282 (PLF), 2008 WL 635740, at *1 Rule 7(m)); Canady v. Erbe Elektromedizin GmbH, 271 F. Supp. 2d 64, 75 n.19 (D.D.C. 2002) (denying plain-tiffs' motion to lift stay and awarding fees and costs to defendants); see also United States v. Sci. Applications Intl Corp., 555 F. Supp. 2d 40,47 (D.D.C. 2008) (denying motion to strike be-cause pary "failed to comply with Rule 7(m) and meet its heavy burden in filing its motion to strike"). (D.D.C. Mar. 5,2008) (order granting motion to strike papers filed in violation of 6 of Max. S. Baucus, 153 F. Supp. 2d 23, 29 (D.D.C. 2001) (addressing Rule 59(e)); see also Singh, 383 F. Supp. 2d at 101. The standard for reconsideration is not met here. Indeed, nothing about the governent's motion is paricularly new. There are no new legal issues presented - all were previously addressed at length in the paries' procedural framework briefs - and the governent does not identify any factual or legal issues that Judge Hogan misunderstood or overlooked in his case management orders. Rather, what the governent plainly seeks to do is relitigate on a classwide basis four central issues that have already been addressed in the paries' procedural framework briefs and resolved by Judge Hogan in the CMO: (1) the breadth of the required search for exculpatory evidence; (2) the provision for automatic discovery of detainee statements relating to the amended factual returns; (3) the requirement that the governent provide counsel and the detainees themselves with classified information or "adequate substitutes" for classified information; and (4) the procedures governing the use of hearsay, presumptions in favor of the governent's evidence, and the standard for an evidentiar hearing. See Gvt. Motion at 2_3.5 these and other issues, that request is likewise nothing more than an attempt to relitigate those issues on class-wide basis. For instance, on November 20, 2008, the governent filed a notice pertaining to its the CMO. See In re Guantánamo Bay Detainee purported compliance with Par LD.1 of Litig., Misc. No. 08-442 (TFH) (D.D.C.) (misc. dkt. no. 1022) ("Exculpatory Evidence 5 To the extent the governent seeks "clarification" of Statement"). The notice stated that the governent had complied with the requirement to produce exculpatory evidence to the extent that the CMO was intended to require a search for exculpatory evidence that is no broader than the search previously conducted by the governent - an interpretation that conflcts not only with the plain language of the CMO but also with the express orders of Judge Sullvan, Judge Kessler and Judge Walton (who has since stayed the order) requiring a broader search for exculpatory Status evidence. See Gvt. Motion at 5 (acknowledging these contrar orders); Tr. of Hearing at 17, Habishi v. Bush, No. 05-765 (EGS) (D.D.C. Oct. 30 2008) (discussing obligation of governent attorneys to search for exculpatory evidence not in their immediate possession). In any case, the governent has further acknowledged its failure 7 In its opposition to Chekkouri's motion to strike, the governent concedes that the issues raised in its motion for reconsideration are the same as the issues addressed in the paries' procedural framework briefs before Judge Hogan: "The issues to be resolved by the Motion for Reconsideration are precisely the types of issues contemplated in the (July 1, 2008) transfer order. Only nine days after the transfer of cases to Judge Hogan, he ordered the paries to brief precisely these issues. The Motion for Reconsideration addresses nothing not addressed in the CMO." In re Guantánamo Bay Detainee Litig., Misc. No. 08-442 (TFH) (D.D.C.) (misc. dkt. no. 1041, at 2). And that is precisely why the standard for reconsideration is not satisfied. C. Even if Reconsideration Were Granted, the Requested Relief Should Be Denied in the Context of This Particular Case The only arguably "new" relief requested by the governent includes relief from the deadlines for compliance with the CMO, which the governent contends would be unduly burdensome and threaten national security. The governent specifically asks the courts to set a schedule for production of unclassified returns, which would require production of an unclassified return in this case by December 12, 2008. See Gvt. Motion at 31. The governent also seeks a new schedule for "generalized briefing" regarding a presumption in favor of the governent's evidence and the admissibility of hearsay evidence - matters already briefed at length before Judge Hogan. Id. In addition, the governent seeks a staggered schedule for other to provide all exculpatory evidence in its possession. See Gvt. Motion at 17 n.14 (admitting failure to produce all detainee denials of governent's claims); Exculpatory Evidence Statement at 3 n.1 (admitting failure to produce all detainee denials of governent's claims; all agency reports containing exculpatory evidence; and all returns). Accordingly, it is Chekkouri's exculpatory evidence identified after filing of position that the governent has failed to comply with Par LD.1 ofthe CMO, and that this failure does not trigger the time period under Part LG for him to fie a traverse. 8 proceedings in these cases, which, if accepted, might delay merits hearngs in the detainee cases until the end of2009 or perhaps early 2010.6 Even if reconsideration were granted, which it should not be, these requests should be denied. The governent had the opportnity to propose modifications to the CMO in the context of this case. Instead, they have attempted to seek a blanet stay of the deadlines set forth in the CMO. In doing so, the governent has failed to address whether its proposed modifications are necessary or relevant in the context of this paricular case. For instance, the governent argues at length that the CMO's provisions concerning the production of exculpatory evidence and other discovery are improper because they do not require a showing of relevance or materiality. See, e.g., Gvt. Motion at 6, 14,22-23. But the governent does not address whether all or a portion ofChekkouri's specific requests for exculpatory evidence and other discovery already satisfy its proposed requirements of relevance or materiality. The governent also questions whether it should be required to produce classified information to counsel for detainees who lack securty clearances at the same classification level as the information at issue. To the extent the government seeks modifications to the CMO on the ground of undue burden, the Court should require the governent to propose those modifications in context of the 6 The governent also proposes for this first time in this case to require each detainee to fie a "preliminary traverse" shortly after production of the unclassified return but before any discovery proceeds. Gvt. Motion at 31-32. Chekkouri objects to such a procedure, his trial strategies and which is plainly intended to afford the governent a preview of counter-evidence, and to limit the governent's discovery obligations. Such a procedure has already been rejected by Judge Sullvan and Judge Leon in other cases, and should be Status Hearing at 17, Habishi v. Bush, No. 05-765 (EGS) rejected here. See, e.g., Tr. of (D.D.C. Oct. 302008) (Judge Sullvan: "I think that would be inappropriate. I don't think that would be beneficial for the petitioner in this case."); Sliti v. Bush, No. 05-429 (RJL) (D.D.C. Oct. 24,2008 Status Conference); Ghazy v. Bush, No. 05-2223 (RJL) (D.D.C. Oct. 23, 2008 Status Conference). 9 i I specific facts and circumstances of this case to determine whether such modifications are necessary or appropriate. In the meantime, the governent should be required to proceed in compliance with the deadlines set forth in the CMO to ensure that this case proceeds expeditiously. Because this is a habeas case, the governent bears a higher burden to justify delay than it would in an ordinary civil action. See Boumediene v. Bush, 128 S. Ct. 2229, 2275 (2008) ("Whle some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody."); see also Yong v. INS, 208 F.3d 1116, 1119 (9th Cir. 2000) (noting standard of review of district cour decision to stay habeas proceeding "is somewhat less deferential than the flexible abuse of discretion standard applicable in other contexts"). The statutory provisions for prompt returns, immediate hearngs, and summary disposition of habeas cases expressly require that petitions be heard and decided promptly. See 28 U.S.c. §§ 2241, 2243; see also Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484, 490 (1973) (noting interests of prisoner and society in "preserv(ing) the writ of habeas corpus as a swift and imperative remedy in all cases of illegal restraint or confinement") (internal quotation marks omitted); Yong,208 F.3d at 1120 ("(H)abeas proceedings implicate special considerations that place unique limits on a district cour's authority to stay a case in the interests of judicial economy.") (citing cases). Chekkouri has been in prison for nearly seven years without charge or trial and this case should not be stayed any longer. II. THIS CASE SHOULD BE TRASFERRD TO THE MERITS JUDGE FOR ALL FURTHER PROCEEDINGS This case was initially transferred to Judge Hogan for coordination and management, including extensive briefing on the procedural framework for adjudicating detainee habeas cases. 10 The CMO established a framework to govern these cases, and indicated that the judges of this cour may alter that framework based on the particular facts and circumstances of their individual cases. That is exactly what the Merits Judge in this case has already begu to do. Proceeding on an individual case-by-case basis is also the only practical way that the detainee cases wil be resolved expeditiously as required by Boumediene and the Habeas Corpus Statute. Accordingly, Chekkour requests that this case be transferred back to the Merits Judge for all fuher proceedings. Ifthere are issues that need to be addressed after the governent narrows its case, the Merits Judge is best suited to address those issues and ensure that this case is resolved expeditiously. Date: Portland, Oregon November 26,2008 Respectfully submitted, Pro. ac Vice S abe, Wiliamson & Wyatt 11 SW 5th AVENU, #1500-2000 ortland, OR 97204 Telephone - 503.796.2939 Facsimile - 503.796.2900 George Brent Micku iV, Bar No. 396142 KELLER AN HECKMAN, LLP 1001 "G" Street, NW., Suite 500 W Washington, D.C. 20001 (202) 434-4100/(202) 434-4646 (fax) MickumtâKHLAW.Com Attorneys for Plaintiffs-Petitioners 11 I. \. i I CERTIFICATE OF SERVICE I certify that on November 26, 2008, I caused the foregoing OPPOSITION TO THE GOVERNMENT'S MOTION FOR RECONSIDERATION, AN CROSS-MOTION TO TRASFER THIS CASE BACK TO THE MERITS JUGE FOR ALL FURTHER PROCEEDINGS to be served on the following attorneys via electronic fiing: SCOTT M. MARCONDA U.S. Departent of Justice Civil Division Federal Programs Branch Room 5130 20 Massachusetts Ave., N.W. Washington, D.C. 20530 202-305-8900 Scott.Marcondaêusdoj .gov Brian David Boyle U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW 4633 Room Washington, DC 20530-0001 (202) 3305-1434 202-514-0238 (fax) brian.d. boyleêusdoj .gov Terry Marcus Henry U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION P.O. Box 883 20 Massachusetts Avenue, NW Suite 7144 Washington, DC 20044 (202) 514-4107 (202) 616-8470 (fax) terr.henrêusdoj .gov Robert J. Katerberg U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAS 20 Massachusetts Avenue, NW Washington, DC 20530 13296443.4.LlTIGA T10N 11/26/2008 10:24 AM (202) 616-8298 (202) 616-8460 (fax) robert.katerbergêusdoj. gov Robert D. Oku UNITED STATES ATTORNEY'S OFFICE Judiciar Center Building 555 Fourth Street, NW Room 10-435 Washington, DC 20530 (202) 514-7282 (202) 514-8784 (fax) robert.okunêusdoj .gov judr.subarê Judry Laeb Subar U.S. DEPARTMENT OF JUSTICE P.O. Box 833 Suite 7342 Washington, DC 20044-0833 (202) 514-3969 Andrew i. Warden U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, FEDERA PROGRAS 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 616-5084 (202) 616-8460 (fax) andrew. wardenêusdoj .gov J 13

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