IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 177

MOTION to Stay as to Petitioners' Motion for Summary Judgment by GEORGE W. BUSH, DONALD RUMSFELD, JAY HOOD, BRICE A. GYURISKO (Attachments: # 1 Text of Proposed Order)(Dean, Paul)

IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Doc. 177

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) IN RE: ) ) Misc. No. 08-CV-442 (TFH) GUANTANAMO BAY ) DETAINEE LITIGATION ) Civil Action No. 05-CV-359 (GK) ) RESPONDENTS' MOTION TO STAY AS TO TO PETITIONERS' MOTION FOR SUMMARY JUDGMENT Respondents hereby move for a stay of any obligation to respond to Petitioners Rafiq Bin Bashir Bin Jallul Alhami's and Mohammed Abdul Rahman's (petitioners) motion for summary judgment. As discussed below, the instant proceeding is currently subject to a stay, with exceptions not applicable here, which has yet to be lifted. In support of this motion, respondents submit the following: 1. On June 9, 2005, Judge Gladys Kessler (Judge Kessler) stayed proceedings in the

instant case, pending, inter alia, resolution of all appeals in In re Guantanamo Detainees Cases, 355 F. Supp. 2d 433 (D.D.C. 2005). See dkt. no. 20. 2. On July 1, 2008, this Court's executive committee passed a resolution appointing

Judge Thomas F. Hogan (Judge Hogan), coordinator and manager of specifically designated Guantanamo Bay cases, including the instant case. On July 2, 2008, pursuant to the executive committee's resolution, Judge Kessler transferred the instant case to Judge Hogan for coordination and management and Judge Hogan scheduled a July 8, 2008 conference to address administrative matters pertaining to designated cases, such as this one. See dkt. nos. 71 and 72. On July 11, 2008, Judge Hogan issued a scheduling order, pertaining to the Guantanamo Bay cases he is coordinating and managing, in which he ruled, inter alia, that respondents would not

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be required to file factual returns until August 29, 2008 at the rate of fifty per month on a "rolling basis . . . beginning with the earliest filed petitions [for habeas corpus]". See dkt. no. 77. 3. On July 8, 2008, petitioners filed a motion for summary judgment with the Court

Security Office, thereby, theoretically triggering a July 22, 2008 due date for respondents' summary judgment response. See D.C. Cir. Rule 7(b). 4. At this juncture, it would be premature to require respondents to file a response

to petitioners' motion for summary judgment. Proceedings in the instant case are currently stayed, pursuant to Judge Kessler's June 9, 2005 order. See dkt. no. 20. While respondents do not oppose the lifting of the stay, requiring respondents to provide a basis at this time for the Court to evaluate the question of whether or not there are factual issues in dispute in the instant case would be premature. Imposition of such a requirement, at this juncture, would be inconsistent with Judge Hogan's scheduling order, setting the commencement of the rolling, sequential, fifty-per-month factual return process (which is properly seen as a predicate for litigation of the merits of these cases) for August 29, 2008, i.e., more than one month after the theoretical D.C. Cir. Rule 7(b) July 22, 2008 due date for respondents' summary judgment response. See dkt. no. 77. Petitioners, moreover, make no showing that they should be excepted either from the controlling stay order or from the controlling factual return sequencing order, where in their motion for summary judgment they do not show a need for "emergency relief" (a potentially pertinent exception to the stay order). See dkt. no. 20.

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5.

For the aforementioned reasons, respondents respectfully request that, at this

juncture, the Court stay respondents' obligation to file a response to petitioners' motion for summary judgment, until after the filing of a factual return comes due under Judge Hogan's scheduling order and further merits related proceedings are scheduled. 6. Respondents' counsel has conferred with petitioners' counsel, regarding the

instant motion. At the time of this writing, petitioners' counsel has not articulated a position vis à vis the motion. Dated: July 22, 2008 Respectfully Submitted, GREGORY G. KATSAS Assistant Attorney General JOHN C. O'QUINN Deputy Assistant Attorney General /s/ Paul A. Dean JOSEPH H. HUNT (D.C. Bar No. 431134) VINCENT M. GARVEY (D.C. Bar No. 127191) JUDRY L. SUBAR TERRY M. HENRY ANDREW I. WARDEN PAUL E. AHERN PAUL A. DEAN Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, DC 20530 Tel: [phone] Fax: [phone] Attorneys for Respondents

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