IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 601

Memorandum in opposition to re 600 MOTION to Amend/Correct Factual Returns filed by GUANTANAMO BAY DETAINEE LITIGATION. (Kitchel, Jan)

IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Doc. 601

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

INRE:
GUANTANAMO BAY DETAINEE LITIGATION

Misc. No. 08-442 (TFH)

Civil Action No. CV 05-0329 (PLF)

MEMORADUM IN OPPOSITION TO MOTION
FOR LEAVE TO FILE AMENDED FACTUAL RETURN
Petitioner Ahed Abdullah Al- Wazan (actually named Y ounous Chekkouri 1)

("Petitioner"), by counsel, hereby opposes the governent's Motion for Leave to File Amended
Factual Return ("Motion").

Petitioner first fied his complaint seeking habeas corpus relief on February 14, 2005.
The United States filed its factual return in 2005. After two and a half

years oflitigation,

respondents wish to amend. The original return consisted of the record of the proceeding of
Petitioner's Combatant Status Review Tribunal ("CSRT"), an administrative review process
hastily assembled by the Pentagon in the wake of the Rasul decision for the purpose of

justifying

the detention of Guantanamo detainees such as Petitioner.
Now, in the aftermath of

yet another fully predictable loss in the Supreme Court in

Boumediene v. Bush, 128 S. Ct. 2229 (2008), the governent seeks to file an amended, unsigned
factual return. The motion should be denied for the following reasons: (1) the proposed
amended factual return itself

is not signed by an attorney as required by Fed. R. Civ. P. 11(a);

(2) the governent's motion offers no reason why an amended return is appropriate in this case,
and does not offer any explanation why its original return was insuffcient; (3) to allow the
government to rely on evidence assembled for the first time more than six years after Petitioner
was first taken into custody offends the principle underlying the writ of

habeas corpus that a

1 Petitioner has fied an unopposed motion to change the caption to reflect his actual name. We have not yet seen
the Court's ruling on that motion.

1 - MEMORANDUM IN OPPOSITION TO MOTION FOR LEAVE TO FILE AMENDED FACTUAL RETUR
PDX/l12907/141447/JKK2953845.1

Dockets.Justia.com

detention must be legally justified from its inception, and not merely in retrospect, and

inappropriately rewards the governent for the long delay that it obtained through appeals that it

ultimately lost; and (4) the governent has failed to provide an unclassified version or summary
of the proposed amended factual return that the Petitioner can see, discuss with counsel, and
rebut.

1. The proposed amended return is deficient on its face because it is unsigned. If no

offcer of the Court will attest, after reasonable inquiry, that the amended return is not fied for
an improper purpose, is not frvolous, and is supported by the evidence, then this Court "must
strike" the unsigned pleading. See Fed. R. Civ. P. 11(a); Thomas v. Paulson, 507 F.Supp.2d 59,
64 n.6 (D.D.C. 2007) (unsigned response to summary judgment statement of

material facts

violates Rule 11(a)). The lack of a signature not only violates Rule 11, but also fails to satisfy
the requirement of

the habeas statute, 28 U.S.C. § 2243, that "(tJhe person to whom the writ or

order is directed shall make a return certifing the true cause of

the detention." (Emphasis

added). It is particularly important in these cases that a governent attorney attest that the return
is supported by the evidence, given the governent's shifting position for Petitioner's detention
and the dubious nature - recognized by the Court of Appeals for this Circuit - of

the information

on which the governent has sought to justify the detention of other Guantanamo prisoners. See
Parhat v. Gates, 532 F.3d 834, 848-49 (D.C. Cir. 2008) (noting complete lack of credible

evidence to justify the prisoner's detention).
2. This Court has made clear that it will only allow amended returns based upon a

showing of good cause. See Scheduling Order ir 4 (July 11, 2008) ("The Court wil allow

amendment only where the governent establishes good cause for the amending"). The
governent has not even come close to meeting that burden. In support of its Motion, the

governent offers only the weak justification that "the Court should have before it the most upto-date explanation of

the bases for a petitioner's detention ...." Motion at 6. The governent's

2 - MEMORANDUM IN OPPOSITION TO MOTION FOR LEAVE TO FILE AMENDED FACTUAL RETUR
PDX/l12907/141447/JKK2953845.1

argument is a tacit admission that its basis for detaining the Petitioner has shifted over the last six

years, but it does not explain why it was not able to put its best foot forward when it first filed a
return in 2004.
The governent complains that Boumediene "changed the legal

landscape significantly."

Motion at 5. The government's expression of surprise is ill-founded -- the Suspension Clause
has been part of

the Constitution since 1789, and the Supreme Court's decision in Boumediene

was largely foreshadowed by its earlier decision in Rasul. "(NJo one who reads the Court's
opinion in Rasul could seriously doubt that the jurisdictional question must be answered the

same way in purely constitutional cases.... (WJhether one agrees or disagrees with today's
decision, it is no bolt out of

the blue." Boumediene, 128 S. Ct. at 2278 (Souter, J., concurring).
whether

Even Chief Justice Roberts conceded in his dissenting opinion that the issue of

Guantanamo detainees are entitled to habeas corpus protection was "a difficult one, primarily

because of the unique and unusual jurisdictional status of Guantanamo Bay." ¡d. at 2279

(Robert, c.J., dissenting). It should have occurred to the governent long ago that it had a
strong possibility of

having to justify the detentions in habeas proceedings.

At any rate, Boumediene "does not address the content of the law that governs

petitioners' detention" (128 S. Ct. at 2277), and therefore could not have impacted the

governent's theory why it has been detaining Petitioner for so many years. The substantive
law has not changed. Either the evidence considered by the CSRT was suffcient to show that
Petitioner was an "enemy combatant" (whatever the correct definition of

the term may be), or it
landscape,"

was not. If anything has changed in Petitioner's case, it is not the underlying "legal

but the governent's rationale for detaining him in the first place.

The governent makes no effort to explain what new information or logic justifies fiing
an amended return at this late date. Indeed, its motion does not even address Petitioner - it is the

same generic motion that was fied in multiple other cases. The governent's position relies on
the bare argument that the "public interest" requires that it have the opportunity to put forward its

3 - MEMORANDUM IN OPPOSITION TO MOTION FOR LEAVE TO FILE AMENDED FACTUAL RETUR
PDX/l12907/141447/JKK/2953845.1

"most up-to-date explanation" of its bases for Petitioner's detention. But the argument assumes
that there is no public interest in the countervailing value of

timely habeas hearngs for prisoners,

and apparently rests on the unsupported and abstract premise that some dangerous detainees may
be released unless the governent is given an unrestricted right to file amended returns in all
cases. The governent should be required to show good cause in this case that (a) its prior

return for this Petitioner is inadequate, and (b) the inadequacies can be fixed with an amended
return.

3. The governent's belated shift in its position as to the reasons Petitioner has been
detained runs counter to the underlying principle of

habeas corpus that a detention must be
just in retrospect. See Carafas v. LaVallee, 391 U.S.

legally justified from its inception, and not

234,238 (1968) (purpose of

habeas corpus is effective and speedy inquiry into legality

of

detention); see also Stack v. Boyle, 342 U.S. 1,4 (1952); see also Preiser v. Rodriguez, 411 U.S.

475,495 (1973). Petitioner has been waiting for two-thirds of a decade for access to the writ of
habeas corpus. He has been imprisoned for the entire time, and the government is only now

getting around to assembling what are supposedly the real reasons why.
The governent, not the Petitioner, is responsible for the costs of

this delay and should

not be allowed to benefit from it. The basis for Petitioner's habeas claim is the same as it was in

2005 when he fied it, and it is the same as it was when the governent fied its return - he is
being held without lawful justification. If the Court had proceeded to habeas hearings after

Rasul instead of certifying the governent's interlocutory appeal to the D.C. Circuit, then the
governent would have had to proceed to trial on its initial factual return. To allow the

governent to file an amended return now, without a showing of good cause, gives it the benefit
of a two-and-a-half year appeal that it lost. The Petitioner was entitled to a habeas

hearing in

2005 or earlier. This Court should do what it can to put him back in the position he would have
been in if the hearing had gone forward as it should have.

4 - MEMORANDUM IN OPPOSITION TO MOTION FOR LEAVE TO FILE AMENDED FACTUAL RETUR
PDX/l12907/141447/JKK2953845.1

Moreover, the governent's argument that it should be allowed to present the "most
up-to-date information" offers no limiting principle for amending returns and would give the

governent further excuses for delay by offering repeated amendments with "current
information." The purpose of

habeas corpus is to require the Executive promptly to justify a

prisoner's detention. See Stack, 342 U.S. at 4. The governent has avoided that requirement for
almost seven years, while Petitioner remains in isolation in Guantanamo. The Court should not
give the governent further opportunity and incentive for delay.
4. Finally, the governent's motion to file its amended return should be denied

because the government has not provided an unclassified version of the return that Petitioner can

review and discuss with his counsel, thereby eliminating the most fundamental requirement of

due process - notice and an opportunity to be heard. See Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306,313 (1950); Boumediene, 128 S. Ct. at 2269; see also Hamdi v.
Rumsfeld, 542 U.S. 507, 533 (2004) (plurality

opinion). Petitioner will have no way of ever

rebutting the governent's allegations ifhe cannot know what those allegations are, nor can his
counsel effectively prepare Petitioner's case without being able to question Petitioner and any
potential witnesses about the allegations.

The governent's original return also contained large numbers of classified pages, and
the unclassified summary was wholly inadequate to put Petitioner on notice of the accusations

against him. But at least counsel could discuss the summary with Petitioner as a starting point
for preparing a a traverse and presenting evidence. A classified amended return with no
unclassified summary at all

leaves Petitioner with nothing to do but to listen to his counsel say,

"The governent has given new reasons to detain you, but we can't tell you what they are."
This is not justice - this is no notice; no opportunity to respond; and no process.

5 - MEMORANDUM IN OPPOSITION TO MOTION FOR LEAVE TO FILE AMENDED FACTUAL RETUR
PDX/l12907/141447/JKK2953845.1

Conclusion
The governent's Motion is unsupported by good cause, and the proposed amended
return is unsigned. The Motion should be denied.
September 26, 2008

By:

. Kitchel, Pro Hac Vice

HWABE, WILLIAMSON & WYATT,
1211 SW 5TH Avenue, #1500-2000

Portland, OR 97204
Telephone - 503.796.2939

Facsimile - 503.796.2900 Attorneys for Plaintiffs-Petitioners

6 - MEMORAUM IN OPPOSITION TO MOTION FOR LEAVE TO FILE AMENDED FACTUAL RETUR
PDX/1 12907/41447/JKK2953845.1

CERTIFICATE OF SERVICE
I certify that on Septembei2¡', 2008, I caused the foregoing to be served on the following
attorneys via electronic fiing:

Brian David Boyle

U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Room 4633 Washington, DC 20530-0001 (202) 3305-1434 202-514-0238 (fax)
brian.d.boyle(iusdoj .gov

Terry Marcus Henry U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION P.O. Box 883 20 Massachusetts Avenue, NW Suite 7144 Washington, DC 20044 [phone]
[phone] (fax)
terry.henry(iusdoj .gov

Robert J. Katerberg U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAS 20 Massachusetts Avenue, NW Washington, DC 20530 [phone] [phone] (fax)
robert.katerberg(iusdoj .gov

Robert D. Okun

UNITED STATES ATTORNEY'S OFFICE Judiciary Center Building 555 Fourth Street, NW Room 10-435 Washington, DC 20530 [phone] [phone] (fax)
robert.okun(iusdoj .gov

1 - Certificate of Service
PDX/l12907/141447IJKK/2953845.1

Judry Laeb Subar U.S. DEPARTMENT OF mSTICE P.O. Box 833 Suite 7342 Washington, DC 20044-0833 [phone]
judry.subar(iusdoj .gov

Andrew i. Warden U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, FEDERAL PROGRAS 20 Massachusetts Avenue, NW Washington, DC 20530 [phone]
[phone] (fax)
andrew. warden(iusdoj .gov

2 - Certificate of Service
PDX/l12907/141447/JKK2953845.1