IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 272

STATUS REPORT Filed Jointly By Petitioners And Respondents In Response To Court's August 19, 2008 Order by GEORGE W. BUSH. (Attachments: # 1 Exhibit 2)(Warden, Andrew)

IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Doc. 272

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________________ ) IN RE: ) ) Misc. No. 08-MC-442 (TFH) GUANTANAMO BAY ) DETAINEE LITIGATION ) Civil Action Nos. 05-1509 (RMU) ) 05-1602 (RMU) ) 05-1704 (RMU) ) 05-2370 (RMU) ) 05-2398 (RMU) _______________________________________ ) 08-1310 (RMU) JOINT STATUS REPORT Pursuant to the Court's August 19, 2008 Order, undersigned counsel for petitioners and respondents in the above-captioned cases jointly state as follows: 1. Whether Factual Returns Are Necessary For Each Of The Petitioners a. Respondents' Position

With respect to five petitioners ­ Huzaifa Parhat (ISN 320), Abdul Semet (ISN 295), Jalal Jalaldin (ISN 285), Khalid Ali (ISN 280), Sabir Osman (ISN 282) ­ respondents have determined that further litigation over petitioners' status is unnecessary and, therefore, factual returns are not necessary. For these petitioners, remedy is the only outstanding issue. As to the remaining twelve petitioners, respondents are in the process of completing a comprehensive review of their information to determine, in light of Parhat v. Gates, __ F.3d __, 2008 WL 2576977 (D.C. Cir. 2008), rhg. pet. pending (filed August 4, 2008), whether they should be treated the same as the other five petitioners. Respondents anticipate this review will be completed by the deadline for the submission of the first batch of factual returns in these cases (see infra section 2). In the event that respondents determine that further litigation over these petitioners' status is unnecessary, respondents will notify the Court. If such a decision is

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not made, respondents will file factual returns in accordance with the schedule set out below. 2. The Date Each Factual Return (or Amended Return) Is Due a. Respondents' Position

As noted above, with respect to five petitioners ­ Huzaifa Parhat (ISN 320), Abdul Semet (ISN 295), Jalal Jalaldin (ISN 285), Khalid Ali (ISN 280), Sabir Osman (ISN 282) ­ respondents have determined that further litigation over petitioners' status is unnecessary and respondents will not file factual returns for these petitioners.1 For the remaining twelve petitioners, consistent with the schedule established by Judge Hogan's July 11, 2008 Order in 08-MC-442 (TFH),2 and recognizing that Judge Hogan's Order allows for adjustment to the sequencing of factual returns,3 the schedule for production of factual returns that respondents intend to follow, should factual returns be necessary, is as follows:

Had respondents not decided that further litigation was unnecessary for the five petitioners listed above, factual returns for those petitioners would have been due on September 30. Judge Hogan's July 11 Order was entered in all of the above-captioned cases except Razakah v. Bush, 05-CV-2370. Razakah was excluded from Judge Hogan's July 11 Order because the case was originally assigned to Judge Sullivan, who has retained the Guantanamo Bay cases originally assigned to him, but has since reassigned Razakah to this Court's docket. For this reason, no schedule has been established for the production of factual returns in Razakah. The chart listed above assumes application of Judge Hogan's factual return schedule to the Razakah case. Even without any adjustments, none of the returns for the petitioners in these cases would be due before the end of September. -23 2

1

Name Abdul Sabour Abdul Nasser Hammad Memet Edham Mamet Arkin Mahmud Bahtiyar Mahnut Ahmad Tourson Abdur Razakah Anwar Hassan Dawut Abdurehim Abdul Ghappar Abdul Rahman Adel Noori

ISN 275 278 328 102 103 277 201 219 250 289 281 584

Civil Action Number 05-1509 05-1509 05-1509 05-1602 05-1704 05-1704 05-2370 05-2370 05-2398 05-2398 08-1310 08-1310

Date Factual Return Due September 30 September 30 September 30 September 30 September 30 September 30 October 31 October 31 October 31 October 31 October 31 October 31

3.

The Efforts Undertaken By Respondents To Resettle Petitioners

Submitted to the Court Security Officers as Exhibit 1 is the classified declaration of Ambassador Clint Williamson, Ambassador At Large For War Crimes Issues. The declaration describes the Department of State's efforts to pursue resettlement options for petitioners and specifically addresses the point as to which the Court directed respondents to give special attention. The full submission cannot be filed on the public record because it contains classified information. The full submission is being filed with the Court under seal through the Court Security Office, pursuant to the protective orders entered in the above-captioned cases. Respondents will also provide a copy of the submission in its entirety to petitioners' counsel at the secure work facility for habeas counsel. -3-

4.

The Date By Which Respondents Anticipate Transferring Petitioners Parhat, Semet, Jalaldin, Ali, and Osman

The Court is respectfully referred to Exhibit 1, the declaration of Ambassador Clint Williamson, Ambassador At Large For War Crimes Issues. As explained therein, although the Department of State is engaged in diligent efforts to resettle the 17 Uighur petitioners, there is not date for resettlement. 5. Adequacy of Next-Friend Authorizations a. See Exhibit 2. b. Respondents' Position: Petitioners' Position:

The habeas corpus petitions in these cases were filed in 2005 by putative "next friends" on behalf of the seventeen Uighur petitioners currently seeking relief. Merits proceedings in these cases should not be permitted to continue on the basis of the originally-filed next friend authorizations because those authorizations do not meet the legal standard for next-fried standing set forth by the Supreme Court in Whitmore v. Arkansas, 495 U.S. 149, 154 (1990). Next friend standing is not automatically granted to anyone who seeks to pursue an action behalf of another person. See id. at 163. To obtain next friend standing, the purported next friend must satisfy the "two firmly rooted prerequisites" articulated by the Supreme Court in Whitmore: (1) "provide an adequate explanation -- such as inaccessibility, mental incompetence, or other disability -- why the real party in interest cannot appear on his own behalf to prosecute the action"; and (2) have a significant relationship with the petitioner in order to demonstrate that he is truly dedicated to the petitioner's best interests. Id. at 163-64.

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Petitioners cannot satisfy the first prong of the Whitmore test because they have not provided an adequate explanation why the petitioners seeking relief cannot now appear on their own behalf. Since the protective orders were entered in these cases, petitioners' counsel have had the opportunity to visit petitioners at Guantanamo Bay on numerous occasions. Indeed, this Court in Kiyemba v. Bush, ordered that petitioners' counsel be permitted to visit Guantanamo for the very purpose of obtaining a direct authorization from the petitioners seeking relief. See Kiyemba v. Bush, 05-CV-1509 (RMU) (dkt. No. 82) (Aug. 7, 2008). Consequently, there can be no argument that petitioners' counsel are not in a position to provide this Court with direct authorizations from the petitioners that establishes their consent to these cases proceeding, if they, in fact, have given such consent. Furthermore, with the exception of petitioner Edham Mamet (ISN 102), whose brother is serving as his next-friend, the other sixteen petitioners also cannot establish that their putative next friends ­ two former Guantanamo Bay detainees ­ have a significant relationship with the petitioners. The requirement of a "significant relationship" with the real party in interest is necessary to ensure that a next friend will genuinely pursue the interests of the person in custody (who at all times remains the real party in interest) and will not (1) merely use the litigation as a vehicle for advancing his own agenda or (2) assume he or she is in tune with the real party's desires and interests. See Whitmore, 195 U.S. a 164 (cautioning against "intruders or uninvited meddlers" filing lawsuits on behalf of unwitting strangers). For this reason, courts have generally limited next friend standing to close relatives such as parents, siblings, and spouses. See, e.g., Vargas v. Lambert, 159 F.3d 1161, 1168 (9th Cir. 1998) (mother); Smith ex rel. Missouri Pub. Defender Common v. Armontrout, 812 F.2d 1050 (8th Cir. 1987) (brother).

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Dated: August 19, 2008

Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JOHN C. O'QUINN Deputy Assistant Attorney General /S/ Andrew I. Warden JOSEPH H. HUNT (D.C. Bar No. 431134) VINCENT M. GARVEY (D.C. Bar No. 127191) JUDRY L. SUBAR (D.C. Bar No. 347518) TERRY M. HENRY ANDREW I. WARDEN (IN Bar No. 23840-49) Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 Tel: [phone] Fax: [phone] Attorneys for Respondents
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Susan Baker Manning BINGHAM McCUTCHEN LLP 2020 K Street NW Washington, DC 20006 Telephone: [phone] Facsimile: [phone] Sabin Willett (Pursuant to LCvR 83.2(g)) Neil McGaraghan (Pursuant to LCvR 83.2(g)) Rheba Rutkowski (Pursuant to LCvR 83.2(g)) Jason S. Pinney (Pursuant to LCvR 83.2(g)) BINGHAM McCUTCHEN LLP One Federal Street Boston, Massachusetts 02110 Telephone: [phone] Facsimile: [phone] Counsel for Petitioners Abdul Nasser, Abdul -6-

Sabour, Abdul Semet, Hammad Memet, Huzaifa Parhat, Jalal Jalaldin, Khalid Ali, Sabir Osman and Edham Mamet George Clarke MILLER & CHEVALIER CHARTERED 655 15th Street, NW, Suite 900 Washington, DC 20005 Telephone: [phone] Facsimile: [phone] Counsel for Petitioners Anwar Hassan and Dawut Abdurehim Eric A. Tirschwell (Pursuant to LCvR 83.2(g)) Michael J. Sternhell (Pursuant to LCvR 83.2(g)) Darren LaVerne (Pursuant to LCvR 83.2(g)) Seema Saifee (Pursuant to LCvR 83.2(g)) KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 Avenue of the Americas New York, New York 10036 Telephone: [phone] Facsimile: [phone] Counsel to Petitioners Abdur Razakah, Ahmad Tourson, Abdul Ghappar Abdul Rahman and Adel Noori Elizabeth P. Gilson (Pursuant to LCvR 83.2(g)) 383 Orange Street New Haven, Connecticut 06511 Telephone: [phone] Facsimile: [phone] Counsel for Petitioners Bahtiyar Mahnut and Arkin Mahmud J. Wells Dixon CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, New York 10012 Telephone: [phone]-

Facsimile: [phone] Counsel for All Petitioners

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