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)

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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 (202) 514-4107 (202) 616-8470 (fax) terry.henry(iusdoj .gov Robert J. Katerberg U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAS 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 616-8298 (202) 616-8460 (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 (202) 514-7282 (202) 514-8784 (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 (202) 514-3969 judry.subar(iusdoj .gov Andrew i. Warden U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, FEDERAL PROGRAS 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 616-5084 (202) 616-8460 (fax) andrew. warden(iusdoj .gov 2 - Certificate of Service PDX/l12907/141447/JKK2953845.1

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