IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 622

STATUS REPORT PETITIONER'S STATUS REPORT (Redacted and cleared for filing by the CSO) by ABD AL-RAHIM HUSSAIN MOHAMMED AL-NASHIRI. (Turner, Paul)

IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Doc. 622

REDACTED VERSION FOR PUBLIC FILING CLEARED BY CSO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FILED*TN THE 0AT ABO AL-RAHIM HIJSSAIN MOHAMMED AL-NASHIRI Guantanamo Bay Naval Station, Guantanamo Bay, Cuba, Petitioner

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CIVIL ACTION (HABEAS CORPUS)

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V.
GEORGE W. BUSH President of the United States The White House 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20500;

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No:08 Civ. 1207 (RWR) Misc. Nc. 08 Civ. 442 (TFFI) JUDGE THOMAS F. HOGAN

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RICHARD B. CHENEY Vice President of the Unned Statc The White House 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20500;
CONDELEEZA RICE Secretary of State of the United States U.S. Department of State 22OlCStreetNW Washington, DC 20520; MICHAEL V. HAYDEN Director, Central Intelligence Agency Central Intelligence Agency Office of Public Affairs Washington, D.C. 20505 GEORGE TENET [Service address to be provided) ROBERT M. GATES

Secretary of Defense of the United States
1000 Defense Pentagon

Washington, D.C. 20301-1000

Dockets.Justia.com

DONALD RUMSFELD iService address to be providedi NAVY REAR ADMIRAL DAVID M. THOMAS Commander, Joint Task Force GTMO JTF-GTMO APO AE 09360;
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ARMY COL BRUCE VARGO, Commander, Joint Detention Operations Group JTF-GTMO APOA 09360; and
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JOHN DOE, et al., persons acting under actual or apparent authority, or color of law, of foreign nations, Respondents.

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PETITIONER'SSTATUS REIORT 1. Petitioner, Abd Al-Rahim Hussain Mohammed Al-Nashiri, by and through undeisigned

counsel, respectfulLy submits this Status Report in response to the Court's July 24, 2008. Order. See

Docket No. 6. A Preliminary Statement of the Goyerrnpent'sTosjxire and Detention of Petitioncr
2.

Petitioner is unique among Guantanamo prisoners for the level of torture he has been

forced to endure. The government has identified him as one of the three prisoners exposed to interrogations by the odious device known as the "waterboard" that simulates the sensation of drowning on dry land. 3. Petitioner was arrested ii Alrnostyears

Later, the United States government announced that it had transferred him to Guantanamo Bay Naval

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______________________________

Station, where he is currently held, Domestic the question of where petitioner

and

international

human

rights groups have pondered

`disappeared" to for these intervening

years.

Nearly

years

after petitioner's disappearnnce, a breakthrough in the investigation into petitioner's whereabouts was made. According to

current and former intelligence officials and diplomats from the United States and

other nations, the CIA hid and interrogated petitioner and other detainees at Soviet-era compounds (named "gulags" during the Cold War) foreign prisons that included sites
in

The CIA had constructed a network of

several
to house these detainees.

4.

Upon information and

belief, in

these secret prisons,

agents of the United

States

government and the

CIA, including persons under actual or apparent authority or color of law or
threats

nterrogatcd petitioner and subjected him to such as
Petitioner was held

and "stress and duress" techniques

under conditions that violated his rights

to

dignity and freedom from torture, and from cruel, inhuman, and degrading treatment or punishment under common law, constitutional, military and international law. These techniques reportedly included I

the

"waterboarcL"

The

key

issue

in petitioner's case is

whether any court can admit into evidence infomiation developed from such inhuman action thout
violating rights

the United States Constitution, militaiy law, international
Petitioner has been

law

and basic principles of human

and morality.

referred to a military commission convening authority for the 3

issuance of capital murder charges. On information and belief petitioner alleges that this convening authority will seek to convict him and sentence him to death based on inherently unreliable and inhumanely coerced tortured evidence. fetjtjoner's CIa imJorRelid under the Detainc Treatment Acof 2005 in the Court of Appeals fer the Di.,(nct pf Columbia
5.

In December, 2007, the Law Office of the Federal Public Defender for the District of

Columbia contacted the Office of the Federal Public l)efender for the District of Nevada, which agreed to represent petitioner. The Office of the Federal Public Defender for the District of Nevada entered a Notice of Appearance on January 9, 2008, on behalf of petitioner in the United States Court of Appeals for the District of Columbia. See Al-Narhiri v. Gater, Case No. 08-1007 (D.C. Cir. Jan 9, 2008). With the approval of Franny A. Forsman, Federal Pcblic Defender for the District of Nevada, this Office has from that time forward committed substantial resources, financial, administrative and in personnel, to the cause of petitioner's defense. On January 9, 2008, undersigned counsel, Assistant Federal Public Defenders Paul G. Turner, Gerald Rierbaum and Muicund H. Sharma tiled a Notice of Appearance on behalf of petitioner. As reflected in the case's Docket Sheet entries, counsel fifed the following pleadings contemporaneous with their notice of appearance: a. "Petition For Immediate Release And Other Relief Under The Detainee Treatment Act of 2005 And, In The Alternative, For Writ Of Habeas Corpus" filed January 9, 2008; "Index Of Exhibits In Support Of Petition For Immediate Release And Other Relief Under The Detainee Treatment Act Of 2005 And, In The Alternative, For Writ Of Habeas Corpus" filed January 10, 2008; "Motion For Permission To Proceed In Forma .Pauperis" flIed January 9, 2008.

b.

c.

See At-Nashiri v Gates, No. 08-1 107 (D.C. Cir. Jan 9, 2008), Docket Entries for ian. 9, 2008 and Jan.

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10, 2008. 6. On January 14, 2008, the court of appeals entered au Order directing petitioner to file

various pleadings by February 13, 2008, and the government to file a certified index to the ncord by February 28, 2008. On February 1, 2008, a "Stipulation To Immediate Entry Of Khan Protective
Order" was filed along with a proposed protective order identified as Exhibit A. Responding to the

Court's January 14, 2008, Order, petitioner filed the following pleadings on February 13, 2008: a. b. "Docketing Statement;" "Certificate As To Parties, Rulings, Related Cases, Deferred Appendix Arid Underlying Decision;" "Statement Of Issues To Be Raised;"

7.

By Order of Februauy 12, 2008, the motion for leave to proceed inforinapauperis was

granted and the protective order attached as Exhibit A to the above-referenced stipulation was entered in accordance with its terms ("Protective Order">. Undersigned counsel filed fishy executed

Memoranda Of Understanding ("MOU") respecting the Protective Order on February 21, 2008. 8. On February 21, 2008, attorneys Matthew M. Coflette and Robert Mark Loeb entered

their appearances for the government. On February 22,2008, they moved the Court to stay the filing of a certified index to record (corrected version filed February 26,2008). Petitioner's Opposition to such motion was filed March 10, 2008, and is identified as "Classified" in the case's General Docket, entry for March 10,2008. 9. On February 28,2008, petitioner filed an "Emergency Motion For An Order Directing

Preservation Of Discoverable Arid Relevant Evidence" which was opposed in "Respondent's Opposition To Emergency Motion For An Order Directing Preservation Of Discoverable And Relevant Evidence" filed March 10,2008 (corrected version tiled March 13). By Order of March 12,2008, the

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courtofappeals "ORDERED that the government take all measures necessary to preserve the material described in petitioner's motion pending further order of the court" (emphasis in original). Otherwise, the motion was referred to the assigned merits panel to be addressed in the parties' future briefing. 10. On April 23, 2008, attorney Scott Fensterrnaker's pleading entitled "Entry Of

Appearance" was filed. On May 27, 2008, he served by mail copies of a "Motion To Substitute Counsel And For Leave To File Documents In Cameri7 And Under Seal" with his accompanying Declaration and thatof interpreter Marwan Abdel-Rahman and in camera Exhibits A and B. On June 5, 2008, the Law Office of the Federal Public Defender filed a Response in Opposition to Mr. Fcnsterrnaker's Motion for Leave to File and Motion to Substitute Counsel. The Federal Public Defender also filed a Motion to Strike Mr. Fenstermaker's Notice of Appearance as not authorized by petitioner. Mr. Fenstermaker filed a Reply to the Federal Public Defender's Response and a Response to the Federal Public Defender's Motion to Strike on June 20, 2008. These motions are awaiting a decision by the Court of Appeals for the District of Columbia. ii. On June 18, 2008, the government filed a Motion to Hold in Abeyance or in the

Alternative Dismiss without Prejudice petitioner's suit under the Detainee Treatment Act of 2005. Petitioner filed an Unopposed Motion to Extend Time on June 27, 2008. On July 9, 2008, the Court of Appeals for the District of Columbia granted petitioner's Motion to Extend Time. An opposition to the government's Motion to Hold in Abeyance or in the Alternative Motion to Dismiss DTA proceedings is due on August 4, 2008. Petitioner'ifthionioWrit of Habeas Corpus to for Jii4icial Review ofihe Factual nd Undersigned counsel were contacted by the Federal Public Defender for the District of

12.

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Columbia in December, 2007, to represent petitioner. At the time of undersigned counsel's initial involvement, the powers of Article ill courts to hear Guantanamo Bay detainees' petitions for writ of habeas corpus was unknown. Congress bad enacted the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, which amended Title 28 United States Code section 2241(e) to deny United States District Courts the jurisdiction to hear petitions for writ of habeas corpus from Guantanamo Bay detainees. The Court of Appeals for the District of Columbia held that the MCA must be read to strip all federa' courts ofjudsdiction to hear petitions for writ of habeas corpus from Guantanamo Bay detainees. See Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), overruled, Baumediene v. Bu3h, No. 06-1195 (June 12 2008), slip opinion at 5. Contraiy to the Court of Appeals, the United States Supreme Court held that the MCA operated as an unconstitutional suspension of the writ of habeas corpus, and therefore violated the Suspension Clause of the United States Constitution, Art. I, § 9, ci. 2. Boumediene, No. 06-1195, shp opinion at 5. 13. Before the Court had invalidated the MCA, petitioner, by and through undersigned

counsel, reserved the right to file a petition for writ of habeas corpus were controlling legal authority to dictate that the MCA was unconstitutional. See Al-Nashiri v. Gates, No. 08-i 007 Petition for Review (D.C. Cir. Jan. 9, 2008), pending c'assification review, Soon alter the Supreme Court had decided petitioner has the right to tile a petition for writ of habeas corpus, petitioner commenced the instant proceedings on July 15, 2008, by filing a Petition for Writ of Habeas Corpus with the Court Security Office.' This Petition was accompanied byaNotice of Filing a Petition for Writ of Habeas Corpus. See Docket No. 1. Governnient attorney Judry Subar entered a Notice of Appearance on July

The Petition was forwarded for clearance to the Court Security Office. Petitioner has not yet been advised that the document has been cleared. 7

16, 2008. See Docket No. 2. 14. This Court entered an Order Transferring the Case for Coordination and Management

on July 21, 2008, See Docket No. 3. Petitioners submitted a Joint Status Report on July 21, 2008 (see Docket No. 4), to which the government filed an Errata on July 23, 2008 (see Docket No. 5). On July 25, 2008, the government filed a Motion for an Order Regarding Procedural Framework Issues. See Docket No. 7. A Joint Memorandum of Law Addressing all Procedural Framework Issues was tiled on July 25, 2008. See Docket No. 8. On July 29,2008, this Court entered an Order tiüing stays, vacating dismissals, entering protective order, requiring authorizations, and holding motions in abeyance. See Docket No. 9. 15. On July 24, 2008, this Court entered an Order directing status reports to be due by

August 1,2008. See Docket No. 6. Petitioner submits the instant Status Report pursuant to that Order. A m mary o(Petnr'sPre3çt History 16. After years of imprisonment and torture, petitioner asks this Court to review

the factual and legal bases of his confinement and the use of torture to indefinitely hold him. Accordingly, petitioner requests that this Court: I. Grant the Writ of Habeas Corpus arid order Respondents to release petitioner from his current unlawful detention; Order that petitioner be brought before the Court to vindicate his rights; Order that while this action is pending petitioner cannot be transferred to any other country without the knowing consent and written agreement of petitioner (obtained voluntarily and without duress) and petitioner's counsel; Order that petitioner cannot be delivered, returned or rendered to a country where there is a foreseeable and imminent risk that 8

2.

3.

4.

he will be subject to torture; 5. Order Respondents to allow counsel to meet and confer with petitioner in private and to engage in unmonitored attorneyclient conversations; Order Respondents to cease all interrogations of petitioncr, direct or indirect, while this litigation is pending; Order Respondents to cease all acts of torture and cruel, inhuman and degrading treatment of petitioner; Order and declare the Executive Oider of November 13, 2001, ulira vires and unlawfW as applied to petitioner; Order and declare that the prolonged, indefinite, and restrictive detention of petitioner without due process is arbitrary and unlawful and a deprivation of liberty without due process of law; Order Respondents to respond to this Petition and to provide counsel with factual returns, discovery and all other evidence allegedly justifying petitioner's continued detention; Grant an evidentiary hearing or other such process that would allow petitioner opportunity to provide further evidence and proof of his claims and justif' the relief sought; and Grant such other and further relief as the Court may deem necessary and appropriate to protect petitioner's rights under the common law, the Constitution of the United States, federal statutory law, international law, the treaties to which the United States is a party and military law.

6.

7,

8.

9.

10.

11.

12.

17.

Such review should be preceded and accompanied by full and fair discovery and

preservation of all evidence documenting the brutal and inhumane punishment and torture inflicted on petitioner without trial or any form of meaningful judicial review until now. 18. Petitioner further notifies the Court that he anticipates there wi] I be substantial, material

factual disputes in this case warranting further discovery. Petitioner also notifies the Court that he will 9

procedures of the seek declaratory, injunctive and other relief to enjoin the jurisdiction, legality and military commission on constitutional grounds. Dated: July 31, 2008 Las Vegas, Nevada

Respectfully Submitted,

Paul 0. Turner Nevada Bar No. 07941 Assistant Federal Public Defender "Gerald Bierbaum Texas Bar No. 24025252 Assistant Federal Public Defender "Mukund H. Sharma California Bar No. 249125 Assistant Federal Public Defender 411 East Bonneville Avenue, Ste. 250 Las Vegas, NV 89101 [phone] "Atlorneys for Petitioner

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flfICAOFSERVICE I hereby certify that on July 31, 2008, 1 served the foregoing PETITIONER'S STATUS REPORT, by causing an original and eight copies to be delivered to the United States Department of Justice / Court Security Office via overnight mail (Federal Express) for filing with the United States Court for the District of Columbia and service on the persons listed on the attached service list: Attn: Nathaniel A. Johnson Court Security Officer Litigation Security Section United States Department of Justice 20 Massachusetts Avenue, NW. Washington, D.C. 20530
$ER VICE UjST

Judry L,aeb Subar UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Bmnch 20 Massachusetts Avenue, NW Washington, DC 20530 Email: [e-mail]
Alexander Kenneth Haas U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, NW Washington, DC 20530

Email: alcxander,haasusdoj .gov

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AMENDED CERTIFICATE OF SERVICE I hereby certify that on October 2, 2008, I served the foregoing PETITIONER's STATUS REPORT, with the United States District Court for the District of Columbia for electronic filing (CM/ECF) with the Court and service on the persons listed on the attached service list: Judry Laeb Subar UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Email: [e-mail] Scott Michael Marconda UNITED STATES DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, NW Room 5130 Washington, DC 20530 Email: scott.marcondausdoj .gov Alexander Kenneth Haas U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, NW Washington, DC 20530 Email: a1exander.haasusdoj .gov Terry Marcus Henry U.S. DEPARTMENT OF JUSTICE P.O. Box 883 20 Massachusetts Avenue, NW Suite 7212 Washington, DC 20044 Email: terry.henryusdoj .gov

Defender