IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 356

Memorandum in opposition to re (549 in 1:05-cv-02386-UNA, 317 in 1:08-mc-00442-TFH, 66 in 1:05-cv-00634-UNA) MOTION Partial and Temporary Relief from Court's July 11, 2008 Scheduling Order re (53 in 1:08-mc-00442-TFH) Scheduling Order, MOTION Partial and Temporary Relief from Court's July 11, 2008 Scheduling Order re (53 in 1:08-mc-00442-TFH) Scheduling Order, MOTION Partial and Temporary Relief from Court's July 11, 2008 Scheduling Order re (53 in 1:08-mc-00442-TFH) Scheduling Order, filed by OMER SAEED SALEM AL DAINI, ABDULAZIZ LNU, MOHAMMED AHMED SLAM AL-KHATEEB, ADEL LNU. (Fee, Jonathan)

IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Doc. 356

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) ) ) GUANTANAMO BAY ) DETAINEE LITIGATION ) ) ) ____________________________________) IN RE: Misc. No. 08-442 Civ. Action Nos. 05-CV-2386 (RBW) 05-CV-0634 (RWR)

PETITIONERS' OPPOSITION TO RESPONDENTS' MOTION FOR PARTIAL AND TEMPORARY RELIEF FROM THE COURT'S JULY 11, 2008 SCHEDULING ORDER Petit ioners Al Daini (ISN # 549), Al Noofayaee (ISN #687), Al Khateeb (ISN #689) and Mabrouk (ISN # 148) ("Petitioners") hereby oppose Respondents' Motion for Partial and Temporary Relief fro m the Court's July 11, 2008 Scheduling Order ("Motion"). In the July 11 Order, the Court ordered Respondents to file the first 50 factual returns and motions to amend by August 29, 2008, with the remaining factual returns and motions to amend to fo llow on a "rolling basis" at a minimum rate of 50 per mo nth. In their Motion, Respondents request that the Court modify its July 11 Order to allow an addit ional 30 days to file the first 50 returns or motions to amend. Motion at 13. Because the timelines for production of returns or mot ions to amend are all pegged to the due date for the first 50 cases, Respondents' motion effect ively requests an enlargement of time for the production of returns in all conso lidated cases. Petit ioners in this case have been wait ing in prison cells at Guantánamo Bay Naval Station since 2002. Petitioner Al Daini filed his petit ion for writ of habeas corpus on March 28, 2005. On July 6, 2005, Respondents filed a factual return in his case. Petit ioners Al Noofayaee, Al Khateeb and Mabrouk filed their Petit ion on December 21,

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2005. Respondents have never filed a factual return for Petit ioners Al Noofayaee, Al Khateeb or Mabrouk. Petit ioners' cases are not amo ng the first 50 cases for which returns or motions to amend were ordered by August 29, 2008. Since the filing o f Petit ioners' cases in 2005, they have been mired in the jurisdict ional dispute that was finally reso lved by the United States Supreme Court in Boumediene v. Bush, 128 S. Ct. 2229 (2008). Yet now, almo st three months after the Supreme Court's decisio n and despite the Supreme Court's admonit io n that "the costs of delay can no longer be borne by those who are held in custody," id. at 2275, Respondents have defied this Court's Scheduling Order and have instead moved for at least another mo nth of delay in all o f the coordinated habeas cases. This Court should deny Respondents' Motion for relief from a schedule that Respondents themselves requested, and for which Respondents have utterly failed to show good cause. The Court should further rule that, unless Respondents file factual returns or motions to amend in Petit ioners' cases in accordance wit h the timeline established by the July 11 Scheduling Order, Respondents will waive their opportunit y to do so. In that event, Petit ioners' cases should proceed expedit iously on the 2005 petit ion and the factual return that was previously filed in Petit ioner Al Daini's case. I. THIS COURT ORDERED RESPONDENTS TO PRODUCE 50 FACTUAL RETURNS PER MONTH, WITH NO EXCEPTIONS ABSENT GOOD CAUSE. On July 2, 2008, the judges o f this Court, including Judges Walton and Roberts, ordered most of the habeas petit ions filed by Guantánamo detainees to be transferred to Judge Tho mas F. Hogan for purposes of coordinat ion and management, "so that these cases can be addressed as expedit iously as possible per the Supreme Court's decisio n in

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Boumediene v. Bush." In re Guantánamo Bay Detainee Litigation, Misc. No. 08-442, Dkt. no. 1. This Court held a status conference on July 8, 2008, at which the parties expressed their views on how these cases should be managed and scheduled. At that hearing, counsel for Petitioners expressed concern that Respondents might use the Court's efforts to coordinate these cases as a further opportunity for delay. At the status conference on July 8, 2008, and in letters and pleadings filed before and after the conference, Respondents requested that they be allowed until the end o f August 2008 to file factual returns and motions for leave to amend returns in the 50 firstfiled habeas cases, and that they be allo wed to continue filing returns and motions for leave to amend returns at a rate of 50 per month after that. Dkt. no. 39. Petit ioners opposed the request, but Respondents assured this Court that they were "dedicating substant ial resources to facilitate the expedit ious handling of these cases" (id. at Ex. A), and that their request for a "short lead time" would best facilitate expedit ious adjudicat ion of the cases. Id. At the July 8, 2008 hearing, Judge Hogan explicit ly directed Respondents to alert other agencies that proceedings in these cases must be a top priorit y: I think the government has to understand, they're going to set aside every other case that's pending before them in their divisio n, and address these cases first. Put them on notice that I expect the corresponding agencies to do the same; that they're now in a court process, the Supreme Court has spoken, has asked strongly that these be handled prompt ly . . . . July 8, 2008 Hearing Transcript, at 90. Judge Hogan also warned that delays would be granted only "rarely" and only upon a showing of good cause: [I]'m concerned about time and extensio ns. And whatever I decide, I would anticipate the parties will fo llow and that motion[s] for extension will be rarely granted. And that any t ype of extensio n would have to be approved by the court. It makes no sense to set a schedule to make continuances. 3

Id. at 60. Over Petit ioners' object ions, the Court gave Respondents precisely the Scheduling Order they asked for, allowing them unt il August 29, 2008 to prepare returns and motions to file amended returns in the first 50 pending cases, and allowing Respondents to file returns and motions to amend at a rate of 50 cases per month thereafter. Dkt. no. 53, Scheduling Order. As Judge Hogan stated at the July 8 hearing, the Scheduling Order allows Respondents to request except ions only to sequencing of factual returns: if the government believes that an individual factual return is significant ly more complicated than others or a particular detainee's circumstances present unique issues that require more time to complete the return such that processing the return would delay the overall processing . . . . As with amendments, the Court will only allow except ions where the government establishes cause. Id. at ¶ 4. The plain intent of the Scheduling Order is to allow except ions only on a caseby-case basis, based on good cause, and solely to avo id delays in the processing of other cases. The Scheduling Order does not anticipate that a delay would be requested, much less granted, for the filing of virtually all amended returns without a particularized showing o f good cause. As Judge Hogan stated at the July 8 hearing: "delays . . . would reflect badly and would cause the Court to become perhaps not only concerned, but suspicious of the necessit y for further delay, which could -- to the detriment of the government in how we proceed with these cases and take them to trial." Transcript at 91. II. RESPONDENTS' MOTION FAILS TO ESTABLISH GOOD CAUSE, AIMS TO PERPETUATE DELAY, AND SHOULD BE DENIED BY THIS COURT. At midnight on the Court's deadline for the filing of the first 50 returns, Respondents requested an extensio n of the very schedule they had requested. Instead of filing 50 returns in these coordinated cases, Respondents filed 10 in the coordinated cases 4

and 12 in the handful o f other cases pending before Judges Leon and Sullivan. See "Amended and Other Factual Returns Filed ­ August 2008," Ex. A to Motion. Respondents requested this extensio n after the deadline had passed, without any effort to meet and confer with Pet itioners' counsel, and without any showing o f good cause. In their Motion, Respondents announce that they have been "unable to complete" the filing of the first 50 factual returns, request an addit ional 30 days to file these returns, and express "hope" to produce 50 factual returns per month thereafter. Motion at 1, 4, 11-13. Nowhere in Respondents' Motion is there any indicat ion--much less assurance-- that Respondents will co mply wit h their "hoped for" schedule. Instead, Respondents promise only to "strive" to do so. Id. at 12. Respondents' equivocal language strongly suggests that they are laying the groundwork now for more missed deadlines and requests for extensions of time in the future. The reasons offered by Respondents do not come close to showing good cause for grant ing their Motion.1 First, Respondents contend that they "could take only limit ed steps to prepare for the defense of claims by the Guantanamo detainees" unt il the Supreme Court issued the Boumediene decisio n. Id. at 5. Petit ioners filed their habeas petit ions in 2005, after the Supreme Court had already ruled that this Court had jurisdict ion under the habeas statute to hear the habeas claims o f Guantánamo prisoners. Rasul v. Bush, 542 U.S. 466, 484 (2004). Respondents doggedly opposed this Court's jurisdict ion in the federal courts and in Congress, but that should not have prevented

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Petit ioners, of course, are unable to address any support which may be contained in the classified declaration o f Director Hayden as it was filed in camera and ex parte. Therefore, Petit ioners respect fully submit that Director Hayden's classified declarat ion be stricken as Respondents have demo nstrated no justificat ion for such an extraordinary ex parte filing. See D.C. Rule of Professio nal Responsibilit y 3.5. 5

Respondents from preparing their defense o f Petit ioners' habeas claims. In any event, this lit igat ion history was well known to the parties and the Court when the July 11 Scheduling Order was put in place. The fact that those claims now rest on constitutional grounds does not alter the fundamental issue in this case: Respondents must just ify their detention of Petit ioners. That was the issue in 2005, and it remains the issue today. Second, Respondents claim that DOD needs more time to gather informat ion to just ify Pet it ioners' detention. Motion at 4. However, Deputy Secretary of Defense Paul Wo lfowitz claimed more than four years ago that every Guantánamo prisoner had already "been determined to be an enemy co mbatant through mult iple levels of review by o fficers of the Department of Defense." Order Establishing Combatant Status Review Tribunal, July 7, 2004, at 1. Apparent ly, Respondents believe that their earlier "mult iple levels of review" relied on inadequate just ifications for detaining Petit ioners that must now be supplemented. According to DOD, its 30-lawyer team has reviewed fewer than 1,900 documents within the past 30 days -- an average of fewer than three documents per lawyer per business day. Declarat ion of Daniel J. Dell'orto, Ex. B to Motion, ¶¶ 5, 7. Respondents also request addit ional t ime so that DOJ may draft a "narrative that summarizes the case for detaining the petit ioner as an enemy co mbatant." Declarat ion of Gregory G. Katsas, Ex. C to Motion, ¶ 9. That is exact ly what Respondents claimed to have included in the CSRT record. Order Establis hing Co mbatant Status Review Tribunal ¶¶ g(3), h. Respondents' desire to bolster their purported just ificat ions, or to "develop the Government's best possible case" (Motion, Ex. C ¶ 8) cannot override the Supreme Court's clear mandate: Petit ioners "are ent it led to a prompt habeas corpus hearing." Boumediene, 128 S. Ct. at 2275.

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Third, Respondents claim that the CIA needs 30 days to review and approve each factual return before it can be submitted to the Court, Petit ioners' counsel, or the public. Motion at 3, Ex. D at ¶¶ 8-9. Although Petit ioners have not seen (and therefore object to) the classified portions of the declarat ion submitted by CIA Director Michael V. Hayden, Director Hayden's unclassified declaration shows that Respondents have no excuse for missing this Court's deadline. Director Hayden reports that DOJ and DOD (with, according to Respondents, between 50 and 80 full-time attorneys) produced their first factual return for CIA review on August 12, 2008 ­ more than a month after the Scheduling Order. Id. at ¶ 19. This belies Respondents' claims that they are working diligent ly to expedite the factual returns. III. FILING A CLASSIFIED FACTUAL RETURN UNDER SEAL DOES NOT RISK PUBLIC DISCLOSURE OF CLASSIFIED INFORMATION.

Petit ioners' counsel have already been granted "secret" level securit y clearances fro m the government and are authorized to access and review "secret" level classified documents. Indeed, DOJ informed Petit ioners' counsel that they received a more extensive background check so that counsel's clearance level could be upgraded quickly to "top secret" if necessary. It is unclear to Petitioners' counsel why they or the Court should be prohibited fro m reviewing the newly drafted factual returns unt il the documents are cleared by the CIA, and Respondents have cited no DOJ or DOD authority, policy, or procedure requiring such a process. Alt hough Respondents profess to encounter difficult ies in obtaining timely interagency clearance of newly drafted factual returns, these alleged difficult ies are ent irely wit hin Respondents' control to resolve. Respondents decided to rely

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"extensively" on informat ion that they designated as classified, they delayed in co mpiling and reviewing the informat ion among themselves, and they decided to include DOJ narratives. Motion at 3, 6. The Court should not permit such self-engineered hurdles to just ify Respondents' delay. Respondents' last-minute filing is based not on good cause, but on tactical considerat ions or, at best, a failure of leadership in the departments invo lved. See id., Ex. B at ¶ 7, Ex. C. at ¶ 13, Ex. D at ¶ 19. Petit ioners have been detained since 2002, and their habeas cases have been pending since 2005. Respondents have sought to delay Pet itioners' cases at every opportunit y. The purpose of having a single judge to coordinate the habeas cases for management purposes will be frustrated if Respondents are permitted to disregard the management orders with impunit y. In order to preserve the intent of the coordination of habeas cases to address the cases as expedit iously as possible, this Court should enforce its Scheduling Order strict ly, particularly where ­ as here ­ there is no good cause shown for an except ion. It is long past time to test Respondents' basis for ho lding Petit ioners in a fair hearing before an independent judge. IV. THE COURT SHOULD DENY RESPONDENTS' MOTION AS GRANT OF THE MOTION WOULD REWARD RESPONDENTS' SELF-HELP.

Respondents must have known well before the August 29, 2008 deadline that they would have difficult y meet ing the deadline. They could have alerted Petitioners' counsel and the Court that they intended to seek relief fro m the deadline, leaving enough time for consideration of their motion before the deadline. 2 Instead, Respondents waited until

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In fact LCvR 7.1(m) requires that moving counsel confer with opposing counsel before filing non-disposit ive motions. Rule 7.1(m) serves important inst itutional 8

literally the last minute to file their motion for relief. By filing their mot ion so late, Respondents secured for themselves in substant ial measure the very relief their motion seeks, without having to just ify their request to the Court. This practice should not be tolerated. As Just ice Rehnquist, sitting as a Circuit Justice, stated in an analogous context: To use the technique of a last-minute filing as a sort of insurance to get at least a temporary stay when an adequate application might have been presented earlier, is, in my opinio n, a tactic unworthy o f our professio n. Evans v. Bennett, 440 U.S. 1301, 1307 (1979) (Rehnquist, Circuit Just ice). Indeed, the Seventh Circuit has rebuked the Department of Justice for filing a motion for an extensio n of time to file a brief on the day the brief was due, thereby securing the relief the government sought without a ruling on its motion. Ramos v. Ashcroft, 371 F.3d 948, 949-50 (7th Cir. 2004) ("Filing mot ions in lieu of briefs, a form of self-help extensio n, has become increasingly co mmo n but is not authorized by any rule, either nat ional or local."). The Court should strike Respondents' motion and sanct ion them to deny them any benefit from their last-minute self-help filing and to deter them fro m repeating this behavior.

purposes, and historically, this Court does not treat vio lat ions of the rule light ly. See Ellipso, Inc. v. Mann, 460 F. Supp. 2d 99, 102 (D.D.C. 2006); Niedermeier v. Office of Max S. Baucus, 153 F. Supp. 2d 23, 27 (D.D.C. 2001) (Hogan, C.J.); Alexander v. FBI, 186 F.R.D. 185, 187 (D.D.C. 1999) (Lamberth, J.); Nwachukwu v. Karl, 223 F. Supp. 2d 60, 71 n.7 (D.D.C. 2002) (Hogan, C.J.). Failure to comply wit h LCvR 7.1(m) alone provides sufficient grounds to deny Respondent's mot ion.

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V.

CONCLUSION

Respondents' last-minute filing makes clear that Respondents are still attempt ing to impose the "costs of delay" upon those held in prison. This Court should enforce the Supreme Court's ruling that "the detainees in these cases are ent it led to a prompt habeas corpus hearing," Boumediene, 128 S. Ct. at 2275, deny Respondents' Motion, and rule that Respondents will waive their opportunit y to file factual returns or motions for leave to amend returns if they do not comply wit h the Court's Order of July 11, 2008. Respect fully submitted, /s/Jonathan M. Fee Jonathan M. Fee, DC Bar No. 479579 Michael E. Ward, DC Bar No. 434624 Jill M. Williamson, DC Bar No. 478469 ALSTON & BIRD LLP 950 F Street, NW Washington, DC 20004 Tel: [phone] Fax: [phone] Counsel for Petitioners C. Rufus Pennington, III MARGOL & PENNINGTON, PA 320 North First Street, Suite 600 Jacksonville Beach, FL 32250 [phone] Counsel for Petitioner Al Daini Dated: September 8, 2008

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CERTIFICATE OF SERVICE I hereby certify that on September 8, 2008, I filed and served the foregoing Petit ioners' Opposit ion to Respondents' Motion for Partial and Temporary Relief fro m the Court's July 11, 2008 Scheduling Order to be delivered to the counsel listed below in the above-capt ioned matter through the CM/ECF system:

Andrew I. Warden United States Department of Just ice Civil Divis io n, Federal Programs Branch 20 Massachusetts Avenue NW Washington, D.C. 20530

Terry Marcus Henry United States Department of Just ice Civil Divis io n, Federal Programs Branch 20 Massachusetts Avenue NW Washington, D.C. 20530

/s/Jonathan M. Fee Jonathan M. Fee Dated: September 8, 2008

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