IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 1466

STATUS REPORT Regarding Consolidation pursuant to the Court's Order of 12/17/08 by GEORGE W. BUSH, JR, DONALD RUMSFELD, JAY HOOD, NELSON J. CANNON, JAY HOOD, NELSON J. CANNON, JAY HOOD, MIKE BUMGARNER, GEORGE W. BUSH, DONALD RUMSFELD, JAY HOOD, MIKE BUMGARNER, GEORGE W. BUSH, DONALD RUMSFELD, JAY HOOD, MIKE BUMGARNER, JAY HOOD, MIKE BUMGARNER, JAY HOOD, MIKE BUMGARNER, MIKE BUMGARNER, MIKE BUMGARNER, HARRY B. HARRIS, JR, WADE F. DAVIS, HARRY B. HARRIS, JR, WADE F. DAVIS. (Attachments: # 1 Exhibit Redacted version of Classified appendix)(Dean, Paul)

IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Doc. 1466

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________ ) IN RE: ) Misc. No. 08-0442 (TFH) ) GUANTANAMO BAY ) Civil Action Nos. DETAINEE LITIGATION ) ) 04-cv-1194, 04-cv-1254, 05-cv-1189, 05-cv-1506, ) 05-cv-1678, 05-cv-2104, 05-cv-2199, 05-cv-2386, _______________________________ ) 05-cv-2387, 05-cv-2479, 06-cv-1684, 06-cv-1767 JOINT FILING PURSUANT TO THIS COURT'S 12/17/08 ORDER Pursuant to this Court's Order of December 17, 2008, the parties in the above-captioned actions submit this joint filing that identifies habeas petitions that, in the view of at least one of the parties based on the similarity of the factual issues involved, may be transferred to a single judge for proceedings that are coordinated or in whole or part consolidated, as appropriate. A. 1. RESPONDENTS' POSITION Identification of Cases that May be Consolidated

Respondents seek to transfer to a single judge for coordinated or consolidated proceedings the habeas petitions of 18 Guantanamo Bay detainees in the above-captioned matters, because the petitions involve common questions of law and fact, as well as overlapping parties in interest. These habeas petitions are the subject of 12 different civil actions, as itemized in the following table:

Dockets.Justia.com

Number 1 2 3 4 5 6 7 8 9 10 11 12

Case No. 04-cv-1194 04-cv-1254 05-cv-1189 05-cv-1506 05-cv-1678 05-cv-2104 05-cv-2199 05-cv-2386 05-cv-2387 05-cv-2479 06-cv-1684 06-cv-1767

Petitioner(s) ISN 680, 688 ISN 681 ISN 695 ISN 694 ISN 692 ISN 690 ISN 686 ISN 684, 685, 687, 689, 707, 728 ISN 696 ISN 702 ISN 679 ISN 691

Judge Kennedy Kennedy Robertson Collyer Kessler Walton Kennedy Walton Collyer Kennedy Kessler Urbina

Status Pre-hearing Pre-hearing Pre-hearing Pre-hearing Pre-hearing Pre-hearing Pre-hearing Pre-hearing Pre-hearing Pre-hearing Pre-hearing Pre-hearing

Not only is the issue of the validity of detention common to these 18 identified habeas proceedings, but there are also a number of related factual and legal questions specific to these 18 detainees that warrant the coordination or consolidation of their actions. Most notably, these detainees were all arrested on the same day at one of two safehouses in Faisalabad, Pakistan. Consequently, each petitioner has a common purpose for being in Pakistan at the time and a similar, if not identical, capture story.1 As explained below, assignment of these petitions to a single merits judge will expedite the habeas process, save judicial resources, and avoid the possibility of conflicting rulings on common issues.2 2. Standards for Consolidation

Under Federal Rule of Civil Procedure 42(a), the consolidation of actions is appropriate where those actions, "involve a common question of law or fact."3 The rule further notes that the

Respondents have set forth in Appendix A an overview of the classified information reflected in the petitioners' factual returns that further explains the similarity of factual issues involving these petitioners. The classified appendix pertaining to this filing will be filed with the CSO on January 6, 2009. 2 At this time, Respondents seek coordination or consolidation of these matters for litigation before a single merits judge. The extent of the coordination or consolidation of the proceedings, including for purposes of merits hearings, can be refined by that Judge, as appropriate, and Respondents reserve their rights with regard to such issues. 2

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court may also "join for hearing or trial any or all matters at issue in the actions." See id. at (a)(1). The primary purposes of consolidation are to conserve judicial resources and to avoid the risk of inconsistent rulings on common factual and legal issues. See Johnston v. Celotex Corp., 899 F.2d 1281, 1285 (2d Cir. 1990); Bank of Montreal v. Eagle Assn., 117 F.R.D. 530, 533 (S.D.N.Y. 1987) (citing Compania Espanola de Petroleos, S.A. v. Nereus Shipping, S.A., 527 F.2d 966 (2d Cir. 1975)). Consolidation accomplishes this by helping to "relieve[] the parties and the [c]ourt of the burden of duplicative pleadings and [c]ourt orders." New York v. Microsoft Corp., 209 F.Supp. 2d 132, 148 (D.D.C. 2002). Certain characteristics make cases amenable to consolidation. 8 J. Moore, Moore's Federal Practice § 42.10[6] (3d ed. 2008). Those characteristics include similar claims, overlapping parties, and the potential for overlapping discovery. Id. A court in this Circuit has agreed, noting that consolidation is appropriate where, for example, cases "involve review of the same underlying [agency] decision." Biochem Pharma, Inc. v. Emory Univ., 148 F.Supp. 2d 11, 13 (D.D.C. 2001).4 In this instance, of course, the decision in question is whether detention is appropriate.

In Boumediene v. Bush, the Supreme Court held that detainees are entitled to "fundamental" habeas rights. Boumediene v. Bush, 128 S. Ct. 2229, 2277 (2008)(noting that the "opinion does not address the content of the law that governs petitioners' detention"); id. at 2278 ("[L]egislation eliminated the statutory habeas jurisdiction over these claims, so that now there must be constitutionally based jurisdiction or none at all.") (Souter, J., concurring). It is far from clear that the habeas statute applies here. See Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (plurality) (noting implicitly that § 2243 is not binding); Boumediene, 128 S. Ct. at 2291 (same) (Roberts, C.J., dissenting). Moreover, the Federal Rules of Civil Procedure do not necessarily apply to statutory habeas petitions, let alone constitutional habeas claims. See Fed. R. Civ. P. 81(a)(4); Section 2255 Habeas Rule 12; Rumsfeld v. Padilla, 542 U.S. 426, 452 (2004) (Kennedy, J., concurring). Nonetheless, Federal Rule of Civil Procedure 42(a) is instructive and provides persuasive authority on the issue presented. 4 D.D.C. Local Civil Rule 40.5 is also relevant here, as it defines when cases are deemed "related" and sets out the criteria under which reassignment of such cases is appropriate. In relevant part, it provides that two or more civil cases are related, inter alia, if they "involve common issues of fact" or "grow out of the same event or transaction." LCvR 40.5(a)(3). The rule further provides that a case may be re-assigned to a judge with an earlier related case if the Calendar and Case Management Committee finds good cause for transfer. 3

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3.

Consolidation of the Identified Petitions is Appropriate

Coordinating or consolidating these 18 habeas actions is entirely consistent with Federal Rule of Civil Procedure 42(a) and is otherwise appropriate. First, all of the above-listed actions involve detainees with a common capture story; consequently, the cases reflect common grounds for the detention of the petitioners. Further, each of the above-listed actions is a habeas petition disputing the detention resulting from the petitioner's capture. As a result of the nature of these habeas actions, the respondents are identical; therefore, the parties in these actions overlap. Additionally, given the similar nature of the claims in these cases as reflected in the respective petitions in the cases, the legal issues in the cases are similar. Finally, given these issues, it is a near certainty that these actions will involve overlapping discovery requests. Because one of the grounds for the detention of each of these petitioners is that each was captured on the same day in one of two safehouses, the legal and factual similarities of their actions would require the Court to deploy resources redundantly in an effort to manage the litigation of similar factual and legal claims in 18 petitions. For example, each judge would need to learn the history and significance of these safehouses in Faisalabad, Pakistan. Each judge would need to make credibility determinations regarding similar, if not identical, witnesses and documents. And, each judge would need to rule on similar, if not identical, discovery requests and disputes. Not only could such a result lead to inconsistent rulings and thus to unnecessary appeals but, by necessity, such parallel proceedings would squander the resources of the Court and the parties. See 8 J. Moore, Moore's Federal Practice § 42.10[4][c],[d] (3d ed. 2008). Such a result is contrary to the essential and salutary purposes of consolidation under Federal Rule of Civil Procedure 42(a) or otherwise ­ a mechanism that exists to address circumstances precisely like

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those presented here. The Court, therefore, should exercise its discretion to coordinate or consolidate the above actions and conserve judicial resources. See e.g., Thayer v. Shearson, Loeb, Rhoades, Inc., 99 F.R.D. 522, 523 (D.C.N.Y. 1983) (consolidating cases where there will be substantial overlap among plaintiffs' claims and "[e]liminating duplicitous [sic] testimony will further judicial economy.") B. PETITIONERS' POSITIONS Pursuant to this Court's Order of December 17, 2008, the parties of the above captioned actions discussed their position regarding coordination or consolidation of these cases on December 23, 2008 and respondents provided petitioners with a written discussion of respondents' position on this matter on January 5, 2009.5 Petitioners' positions are set forth below: 1. ISNs 679, 680, 681, 684, 685, 686, 687, 688, 689, 690, 691, 692, 694, 695, 696, 702, 708:

Respondents propose consolidation of the following eighteen habeas cases: 06-CV-1684 (ISN 679); 04-CV-1194 (ISN 680); 04-CV-1254 (ISN 681); 05-CV-2386 (ISN 684); 05-CV2199 (ISN 686); 05-CV-2386 (ISN 687); 04-CV-1194 (ISN 688); 05-CV-2386 (ISN 689); 05CV-2104 (ISN 690); 06-CV-1767 (ISN 691); 05-CV-1678 (ISN 692); 05-CV-1189 (ISN 695); 05-CV-2479 (ISN 702); 05-CV-2386 (ISN 728); 05-CV-2386 (ISN 685); 05-CV-1506 (ISN 694); 05-CV-2387 (ISN 696); 05-CV-2386 (ISN 707). These Petitioners object to the proposed consolidation.6 The December 17, 2009 Order states that the Court will consider requests to consolidate cases "based on the similarity of the factual issues involved" and where "the merits of such
Respondents do not oppose the grant of a reasonable amount of additional time for petitioners to review the filing submitted in this matter. 6 Respondents have included 05-cv-2386 (ISN 707) in this proposal, but that action has been stayed on consent, so counsel for that Petitioner does not join in these objections. 5
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similar petitions may be addressed more efficiently in consolidated proceedings." Respondents proposed this consolidation by e-mail dated December 22, 2008, and the parties conferred by phone on December 23, 2008. During that call, Respondents explained that consolidation of these cases is warranted for the sole reason that each of these Petitioners purportedly was captured by Pakistani authorities in early 2002 in one of two guesthouses in Faisalabad, Pakistan: the Issa Guesthouse or Shabaz Cottage. Given that Respondents' allegations against these men otherwise vary widely, counsel for Petitioners pressed Respondents on why this single, purported similarity among these detainees supports consolidated treatment. Respondents stated that they could not elaborate their explanation in a non-secure phone call, since most of the allegations concerning these guesthouses are classified. To address this concern, Petitioners proposed that the parties continue their meet and confer in a secure location prior to the January 5, 2009 due date for this joint filing. By e-mail dated December 31, 2008, Respondents informed Petitioners that it would not be feasible to schedule such a meeting prior to the January 5, 2008 due date for this joint filing. Under these circumstances, Petitioners oppose consolidation. Given that the factual returns for most, if not all, of these detainees allege a variety of factual bases for Respondents' indefinite detention of these men, the mere fact that Respondents allege all of these men were arrested in the same location does not present a sufficient factual overlap to make consolidated treatment an efficient means of addressing the merits of these cases. Indeed, for at least many of these detainees, Respondents' narratives (located at the front of each detainee's factual return) focus not simply, or even substantially, on the presence of the detainees at one of these two guesthouses; rather they focus on the detainees' alleged conduct before arriving at the guesthouses. Thus, consolidation of these men would not accomplish the efficiencies that

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prompted the parties to agree to consolidation of the Uighur cases before Judge Urbina or the Boumediene cases before Judge Leon, where common, dispositive factual or legal issues predominated. Moreover, these cases are at different procedural stages: among other things, some but not all Petitioners have received factual returns; some but not all have received unclassified factual returns; some but not all have sought additional discovery from Respondents; and some but not all have been able to meet with counsel to discuss their unclassified returns. While consolidation will not materially increase efficiency, it will risk delay for those Petitioners who are further along in the process. Furthermore, at least two of the detainees, Sufyian Barhoumi (ISN 694) and Jobran Saad al Quhtani (ISN 696), were arrested at a location other than these two guesthouses. Thus, their cases clearly fall outside the government's definition of those proceedings it wishes to consolidate, and their cases should not be considered at all in the present consolidation discussion. Also, one of these Petitioners (ISN 681) has been approved for release by

Respondents, and for this additional reason his case should not be consolidated with the others. To the extent Respondents intend to seek consolidation of these cases over Petitioners' objections, the Court should require them to do so by expedited motion, so that the issues can be fully briefed and argued. Moreover, Petitioners respectfully suggest that such motions are properly directed to the individual Merits Judges in these cases. However, in the event this

Court is inclined to consider Respondents' consolidation proposal notwithstanding Petitioners' objections, it is essential that Petitioners have an opportunity to review the entirety of Respondents' proposal, including the classified appendix referenced above, and file a supplemental response. While Respondents took the position in the meet and confer that

presence at the Issa Guesthouse or Shabaz Cottage, alone, supported consolidation, Respondents

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have now suggested for the first time in this filing (which they shared with Petitioners only at approximately 3:00 PM today) that there are other purported factual overlaps that support consolidation of these cases. Moreover, Respondents have described those other factual overlaps only in a classified appendix, which Petitioners' counsel have not yet seen, since it was made available to them in the Secure Facility in Washington only late this afternoon. Petitioners thus were afforded no opportunity to evaluate the full basis for Respondents' consolidation proposal before responding to it.

2. stayed.

ISN 707: Petitioner's counsel opposes consolidation on the basis that the case is

Dated: January 5, 2009 Respectfully submitted, Counsel for Respondents: GREGORY KATSAS Assistant Attorney General JOHN C. O'QUINN Deputy Assistant Attorney General /s/ Paul Dean JOSEPH H. HUNT (D.C. Bar No. 431134) TERRY M. HENRY PAUL E. AHERN PAUL A. DEAN KATHRYN MASON Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530

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Counsel for Objecting Petitioners: Pardiss Kebriaei J. Wells Dixon CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 Tel: [phone] Fax: [phone] Counsel for Mohammed Ahmed Taher (ISN 679) Civil Action No. 06-1684

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David H. Remes D.C. Bar. No. 370372 APPEAL FOR JUSTICE 1106 Noyes Drive Silver Spring, MD 20910 Tel: [phone] [e-mail] S. William Livingston D.C. Bar. No. 59005 Alan A. Pemberton D.C. Bar. No. 367108 COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, DC 20004-2401 Tel: [phone] Fax: [phone] [e-mail] [e-mail] Marc D. Falkoff D.C. Bar No. 491149 NORTHERN ILLINOIS UNIVERSITY COLLEGE OF LAW DeKalb, IL 60614 Tel: [phone] Fax: [phone] [e-mail] Counsel for Petitioner Mohammed Mohammed Hassen (ISN 681) Civil Action No. 04-cv-1254

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Jerry Cohen Burns & Levinson LLP 125 Summer Street Boston, MA 02110 Tel: [phone] [e-mail] Stewart Eisenberg Weinberg & Garber, PC 71 King Street Northampton, MA 01060 Tel: [phone] [e-mail] Sozi P. Tulante Hangley Aronchick Segal & Pudlin One Logan Square, 27th Floor Philadelphia, PA 19103-6933 Tel: [phone] [e-mail] Gordon S. Woodward Schnader Harrison Segal & Lewis LLP 2001 Pennsylvania Avenue, N.W., Suite 300 Washington, D.C. 20006-1825 Tel: [phone] [e-mail] Counsel for Petitioner Mohammed Abdullah Taha Mattan (ISN 684) Civil Action No. 05-2386 H. Candace Gorman Law Office of H. Candace Gorman 220 S. Halsted - Suite 200 Chicago, IL 60661 Tel: [phone] Fax: [phone] Counsel for Petitioner Abdal Razak Ali (ISN 685) Civil Action No. 05-cv-2386

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David L. Engelhardt (DC429886) John C. Snodgrass (DC473864) Johnisha Matthews (DC492478) DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006-5403 Tel: [phone] Fax: [phone] Counsel for Petitioner Abd Al Hakin Ghalid Ahmad Alhag (ISN 686) Civil Action No. 05-cv-2199 Pamela Rogers Chepiga Sarah Havens Julie Withers ALLEN & OVERY LLP 1221 Avenue of the Americas New York, NY 10020 Tel. [phone] Admitted pro hac vice Counsel for Petitioners Emad Abdalla Hassan (ISN 680) and Fahmi Abdullah Ahmed Al-Tawlaqi (ISN 688) Civil Action No. 04-cv-1194 Jonathan M. Fee D.C. Bar No. 479579 Michael E. Ward D.C. Bar No. 434624 ALSTON & BIRD LLP 950 F Street, NW Washington, DC 20004 Tel: [phone] Fax: [phone] Email: [e-mail] Counsel for Petitioners Abdalaziz Kareem Salim Al Noofayaee (ISN 687) and Mohammed Ahmed Salam Al Khateeb (ISN 689) Civil Action No. 05-cv-2386

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Wesley R. Powell [e-mail] HUNTON & WILLIAMS LLP 200 Park Avenue New York, NY 10166 Tel: [phone] Fax: [phone] Karma B. Brown (Bar No. 479744) [e-mail] HUNTON & WILLIAMS LLP 1900 K Street, N.W. Washington, DC 20006 Tel: [phone] Fax: [phone] Counsel for Petitioner Ahmed Abdul Al Qader Ahmed Hussein (ISN 690) Civil Action No. 1:05-cv-2104 Brian J. Neff SCHIFF HARDIN LLP 900 Third Avenue, 23rd Floor New York, New York 10022 Tel: [phone] Fax: [phone] Counsel for Petitioner Mohamed Al-Zarnouqi (ISN 691) Civil Action No. 06-1767 Brent Rushforth DAY PITNEY LLP 1100 New York Ave., N.W., #300 Washington, DC 20005 Tel: [phone] Fax: [phone] Counsel for Petitioner Ala' Ali Bin Ali Ahmed (ISN 692) Civil Action No. 05-cv-1678

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Anne J. Castle Scott S. Barker William Murane Danielle R. Voorhees Jonathan S. Bender HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Denver, CO 80202 Telephone: [phone] Counsel for Sufyian Barhoumi, A/K/A Shafiiq (ISN 694) Civil Action No. 05-cv-1506 Edmund Burke Burke McPheeters Bordner & Estes 737 Bishop Street, Suite 3100 Honolulu, Hawaii 96813 Tel: [phone] Fax: [phone] Cary Silverman (D.C. Bar # 473658)* Shook Hardy & Bacon L.L.P. 600 14th Street NW, Suite 800 Washington, D.C. 20005-2004 Tel: [phone] Fax: [phone] *Counsel of record Counsel for Petitioner Omar Khalifa Mohammed (ISN 695) Civil Action No. 05-cv-1189

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Charles E. Patterson Skye H. Donald MORRISON & FOERSTER LLP 555 West Fifth Street, Suite 3500 Los Angeles, CA 90013 Tel. [phone] Fax: [phone] Email: [e-mail] Email: [e-mail] Michael A. Jacobs Rachael Clarke Mathew W. dos Santos MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 Tel. [phone] Fax [phone] Email: [e-mail] Email: [e-mail] Email: [e-mail] George Brian Busey, DC Bar No. 366760 Ketanji Brown Jackson, DC Bar No. 460651 John L. Kolakowski, DC Bar No. 476628 MORRISON & FOERSTER LLP 2000 Pennsylvania Avenue, NW Suite 6000 Washington, D.C. 20006 Tel. [phone] Fax [phone] Email: [e-mail] Email: [e-mail] Counsel for Petitioner Jobran Saad Al-Quhtani (ISN #696) Civil Action No. 05-cv-2387

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Douglas K. Spaulding Gary S. Thompson Allison M. Lefrak Rick W. Roberts Nathan R. Fennessy REED SMITH LLP 1301 K Street, NW Suite 1100 ­ East Tower Washington, DC 20005 Tel: [phone] Bernard J. Casey, D.C. Bar No. 112219 Casey ADR Services 3018 NE 32nd Place Portland, OR 97212 Tel: [phone] - and CENTER FOR CONSTITUTIONAL RIGHTS Gitanjali S. Gutierrez (NY1234) 666 Broadway, 7th Floor New York, New York 10012 Tel: [phone] Counsel for Petitioner Ravil Mingazov (ISN 702) Civil Action No: 05-CV-2479 Noah H. Rashkind 2411 SW 35th Place, #206 Gainesville, FL 32608 Tel: [phone] [e-mail] Counsel for Jamil Ahmed Saeed (ISN 728) Civil Action No. 05-cv-2386

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