IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 670

MOTION for Status Hearing by ASIM BEN THABIT AL-KHALAQI (Attachments: # 1 Exhibit Judge Hogan Order 9-19-08, # 2 Exhibit "Cleared for Release/Transfer" List, # 3 Exhibit Transferred List)(Charlick, Shereen)

IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Doc. 670

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Misc. No. 08-442 (TFH) Civil Action Nos.

04-CV-1194, 05-CV-0280, 05-CV-0748, 05-CV-0994, 05-CV-0999,05-CV-1347,05-CV-1353,05-CV-1504, 05-CV-1505, 05-CV-2349, 05-CV-2385, 05-CV-2386, 05-CV-2479, 06-CV-0618, 08-CV-1185, 08-CV-1221

The above-listed petitioners request a hearing as soon as is practicable to ensure their right to "a prompt habeas corpus hearing." Boumediene v. Bush, 128 S. Ct. 2229, 2275 (2008). This Court's September 19, 2008 Order allows Respondents to avoid this Court's previously-imposed filing deadlines for factual returns or motions to amend such returns for petitioners "approved for transfer or release from the United States Naval Base at Guantanamo Bay, Cuba." See Exhibit A, Case No. Misc. 08-442 (TFH) September 19, 2008 O rde r. This group of petitioners request the opportunity to present evidence that many have been languishing in prison for extended periods of time although they have been "approved for transfer or release." See Exhibit B. Four petitioners who have been transferred from Guantánamo are also included in this group. See Exhibit C. Absent a deadline to produce factual returns, or an order requiring frequent, case-specific updates about efforts to effect their release or transfer (and the proposed transfer location), each prisoner fears that he will

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continue to remain incarcerated indefinitely at Guantánamo Bay or stigmatized and restricted as a result of he "enemy combatant" designation.1 At the proposed status conference, petitioners can elaborate to the Court why simply labeling these petitioners as "approved for transfer or release" affords them no meaningful relief. Many have been "approved for transfer or release" for extended periods without any indication that substantial good faith efforts to effect such release are being made. For example, seven of the seventeen petitioners above-listed petitioners were notified that they were cleared for release at least one year and seven months ago, yet they remain incarcerated at Guantánamo Bay. See Exhibit B (listing date petitioners were notified of approval for release or transfer). Petitioners conferred with Respondents who indicated that they oppose the request for a status conference. I. THE "APPROVED FOR TRANSFER OF RELEASE" PETITIONERS SEEK AN IMMEDIATE STATUS CONFERENCE REGARDING THE CONTINUED INDEFINITE INCARCERATION OF THE PRISONERS DEEMED MOST DESERVING OF RELIEF. The Respondents no longer have any reason or desire to detain these petitioners. However, under the Court's September 19, 2008 Order ensuring their release is now the

This motion seeking a status conference is brought on behalf of seventeen petitioners who are approved for transfer or release but who remain detained at Guantanamo Bay, see Exhibit B (list of case numbers and names of detained petitioners), and four petitioners who were transferred from Guantánamo Bay but still designated "enemy combatants" and suffer collateral consequences resulting from such designation. See Exhibit C (list of transferred p e titio n e r s ) .

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lowest of Respondents' priorities because there is no judicial pressure for the Respondents to act. This is contrary to the Supreme Court's holding that "the costs of delay can no longer be borne by those who are held in custody." Boumediene, 128 S. Ct. at 2275. The failure to require returns also undermines the Resolution of the Executive Session of this Court, which was designed to expedite these cases. See Misc. No. 08-442 (TFH) July 2, 2008 Order. Pursuant to the July 21, 2008 Resolution of the Executive Session of the judges of the District of Columbia, this Court was designated to coordinate and to manage the proceedings involving the above petitioners. This was done "so that these cases can be addressed as expeditiously as possible per the Supreme Court's decision in Boumediene v. Bush . . . ." Id. Acting in accordance with this directive, on July 11, 2008, this Court established August 29, 2008 as the deadline for Respondents to file factual returns. See Misc. No. 08-442 (TFH) July 11, 2008 Order. Respondents sought and obtained extensions of time from that deadline, but this Court, without further explanation, relieved Respondents of the obligation to file factual returns or motions to amend any previously-filed return indefinitely. See Exhibit A, Misc. No. 08-442, September 19, 2008 Order. The Respondents' motion seeking partial and temporary relief did not even request this. See Misc. No. 08-442 (TFH), Respondents Motion filed August 29, 2008. Petitioners who have been "cleared for release" yet continue to languish at the Guantánamo Bay Naval Base seek an immediate status conference or alternatively, an order compelling the Respondents to produce factual returns in their cases. Originally, this Court ordered production of factual returns for this group of individuals, who are arguably, the

most worthy group of prisoners because no one believes they should remain detained at Guantánamo. Indeed, government officials clearly believe they do not pose a threat to the United States sufficient to justify detention, and have recommended their release. In spite of this, the Court sua sponte relieved the Respondents of any obligation to justify the petitioners' ongoing detention, thus allowing Respondents indefinitely to detain them. As Exhibit B, attached to this motion, demonstrates, seven individuals on the list of 17 have been cleared for release since February 2007. Notwithstanding their approval for release or transfer, the prisoners have remained detained for the past year and seven months without any evidence of any progress, or even that any demonstrable good faith efforts were made, to effect their release. The remaining eight petitioners have been detained for anywhere between two and eight months, after learning that they were cleared for release, again without any evidence that they will be released or transferred anytime soon. Hence, the petitioners' fears that they will be indefinitely detained are real, and they wish to address them with the Court. II. THE TRANSFERRED/RELEASED PRISONERS STILL SEEK REDRESS. Similarly, the transferred prisoners included in this motion seek an immediate status conference regarding the collateral consequences they continue to suffer from their designation as enemy combatants and the conditions of their transfers. See Exhibit C (listing petitioners on the Case No. Misc. 08-442 (TFH) docket who have been transferred). The Court has jurisdiction over these cases under well-established habeas corpus law. While

cases can be reasonably prioritized, the Respondents should not be relieved of the obligation to file a return within twenty days. See 28 U.S.C. § 2243. Therefore, this Court should order their production and review their habeas corpus claims as well. III. C O N C L U SIO N The above-listed Petitioners respectfully request a status hearing to address their entitlement to meaningful habeas corpus relief.
Respectfully submitted,

Dated: October 7, 2008

/s/ Shereen J. Charlick Steven F. Hubachek Stephen D. Demik Ellis M. Johnston, III. Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101 619-234-8467 (ofc) 619-687-2666 (fax) Counsel for Petitioner Al -Khalaqi

/s/ George Clarke George Clarke Miller & Chevalier Chartered 655 15th Street, N.W. Suite 900 Washington, D.C. 20005 (W) [phone] (M) [phone] Counsel for Petitioner Yafie

/ A. Stephens Clay A. Stephens Clay KILPATRICK STOCKTON LLP 1100 Peachtree St., Suite 2800 Atlanta, Georgia 30309-4530 Telephone: [phone] Facsimile: [phone] [e-mail] Counsel for Petitioners Ali LNU and Hamiduva

/s/ Michael E. Mone, Jr. Michael E. Mone Jr. (MA BBO #634607) Esdaile, Barrett & Esdaile 75 Federal Street Boston, MA 02110 [phone] Counsel for Petitioner Jamolovich

/s/ Matthew J. O'Hara Matthew J. O'Hara Lowell E. Sachnoff Matthew J. O'Hara Adam R. Chiss (Each Pursuant to LCvR 83.2(g)) Brian C. Lewis (D.C. Bar No. 476851) REED SMITH LLP 10 South Wacker Drive Chicago, Illinois 60606 [phone] [e-mail] Counsel for Petitioner Hijazi Shayana Kadidal (D.C. Bar No. 454248) CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 Of Counsel

/Allison M. Lefrak Douglas K. Spaulding Gary S. Thompson Allison M. Lefrak Rick W. Roberts REED SMITH LLP 1301 K Street, NW Suite 1100 - East Tower Washington, DC 20005 Phone: [phone] Counsel for Petitioner Al-harbi -- and -Bernard J. Casey, D.C. Bar No. 112219 Casey ADR Services 3018 NE 32nd Place Portland, OR 97212 Phone: [phone] - and CENTER FOR CONSTITUTIONAL RIGHTS Gitanjali S. Gutierrez (NY1234) 666 Broadway, 7th Floor New York, New York 10012 Tel: [phone] Counsel for Petitioners /s/ Shawn Nolan Billy H. Nolas (DC 399275; PA 83177) Assistant Federal Defender Maureen Rowley (PA 33020) Chief Federal Defender David McColgin (PA 42963) Shawn Nolan (PA 56535) Cristi Charpentier (PA 62055) Matthew Lawry (PA 87221) Assistant Federal Defenders Federal Community Defender Office for the Eastern District of Pennsylvania 601 Walnut Street, Suite 545 West Philadelphia, PA 19106 [phone]; [phone] Counsel for Petitioners Tohirjanovich, Feghoul

/s/ Jerry Cohen Jerry Cohen (MA # 116413) BURNS &LEVINSON 125 Summer Street Boston, MA 02110 tel: [phone] fax: [phone] e-mail: [e-mail] - and /s/ Stewart Eisenberg Stewart Eisenberg (MA #152180) WEINBERG & GARBER, P.C. 71 King Street Northampton, MA 01060 Tel: [phone] Fax: [phone] e-mail: [e-mail] Counsel for Petitioners Mohammed and Qadir

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Joseph E. O'Neil Lavin, O'Neil, Ricci, Cedrone & DiSipio 190 North Independence Mall West Suite 500 Philadelphia, Pennsylvania 19106 [phone] Counsel for Petitioner Salman CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 Tel: [phone] Counsel for Petitioners

/s/ Joseph Berman LOONEY & GROSSMAN LLP 101 Arch Street Boston, MA 02110 Tel: [phone] Fax: [phone] -and/s/ Zachary Katnelson Zachary Katznelson Cori Rider Ahmed Ghappour REPRIEVE P.O. Box 52742 22 Tudor Street London, UK EC4Y 0AY Tel: [phone] Fax: [phone] [e-mail] Counsel for Petitioners Abdullah and Belbacha

/s/ Meghan Winokur Meghan Winokur HOLLAND & HART LLP 555 17th Street, Suite 3200 Denver, CO 80202 [phone] Fax: [phone] Email: [e-mail] Counsel for Petitioners Saib, Nabil and Hawary

DAVIS WRIGHT TREMAINE LLP _/s/ Richard L. Cys____________________ Richard L. Cys (D.C. Bar No. 87536) Lisa B. Zycherman (D.C. Bar No. 495277) 1919 Pennsylvania Avenue, N.W. Suite 200 Washington, D.C. 20006-3402 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email: [e-mail] __/s/ James P. Walsh___________________ James P. Walsh (D.C. Bar No. 930115) Suite 800 505 Montgomery Street San Francisco, CA 94111-6533 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Counsel for Petitioner Madni

/s/ Julie Withers Julie Withers, Associate Allen & Overy LLP 1221 Avenue of the Americas New York, NY 10020 Tel: [phone] Fax: [phone] Counsel for Petitioner Mahdi