IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 861

Memorandum in opposition to re 723 MOTION to Dismiss Improper Respondents filed by GUANTANAMO BAY DETAINEE LITIGATION. (Kitchel, Jan)

IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Doc. 861

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

INRE : GUANTÁNAMO BAY
DETAINEE LITIGATION

Misc. No. 08-442 (TFH)

YOUNOUS CHEKKOURI, et aI.,
Petitio n ers/Plain tiff,
v.

Civil No. OS-CV-0329 (PLF)

GEORGE W. BUSH, et aI., Responden ts/Defendants.

PETITIONER'S MEMORANDUM OF LAW IN OPPOSITION TO RESPONDENTS' "MOTION TO DISMISS IMPROPER RESPONDENTS"
Petitioner Y ounous Chekkourí submits this Memorandum of Law in Opposition to

Respondents' "Motion to Dismiss Improper Respondents" as to the habeas claims in the

Petitions. Petitioner believes that all named Respondents herein are proper respondents.

I. The President Is A Proper Respondent

The President "is subject to judicial process in appropriate circumstances." Clinton v.

Jones, 520 U.S. 681, 703 (1997). In Jones, the Court reviewed multiple cases in which sitting

presidents were compelled to comply with court orders. Id. at 705. President Nixon produced
tapes in response to a subpoena. Id. (citing United States v. Nixon, 418 U.S. 683, 715 (1974)).

President Ford complied with an order to give a deposition in a criminal triaL. !d. (citing United

States v. Fromme, 405 F.Supp. 578 (E.D. Cal 1975)). President Clinton gave videotaped

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Dockets.Justia.com

testimony in criminal proceedings. !d. (citing United States v. McDougal, 934 F.Supp. 296 (E.D.

Ark. 1996); United States v. Branscum, No. LRP-CR-96-49 (E.D. Ark., June 7, 1996)). The
Supreme Court explained in Jones that such orders have a long history:

Although Thomas Jefferson apparently thought otherwise, Chief Justice Marshall, when presiding in the treason trial of Aaron Burr, ruled that a subpoena duces tecum could be directed to the
President. United States v. Burr, 25 F. Cas. 30 (No. 14,692d)
(C.c. Va. 1807). We unequivocally and emphatically endorsed

Marshall's position when we held that President Nixon was obligated to comply with a subpoena commanding him to produce certain tape recordings of his conversations with his aides.

520 US. at 703-04 (footnote omitted). The Court noted that "(sJitting Presidents have
responded to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a

novelty." Jones, 520 US. at 704; see also id. at 705 ("In sum, (iJt is settled law that the
separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of
the United States.'" (brackets in original) (citation omitted)).

Also, there are numerous cases in which a sitting President has been a defendant or
respondent, and courts have dealt with those situations without indicating that the President was
not a proper defendant or respondent. See Rasul v. Bush, 542 U.S. 466 (2004), and Boumediene
v. Bush, 128 S. Ct. 2229 (2008). See also Clinton v. City of

New York, 524 US. 417(1998);

Belbacha v. Bush, 520 F.3d 452 (D.C. Cir. 2008); Chem-Nuclear Systems v. Bush, 292 F.3d 254
(D.D.C. 2002).

Respondents do not cite or distinguish the above authorities, but instead rely upon an

1867 case for the proposition that courts have "no jurisdiction. . . to enjoin the President in the
performance of

his official duties." (Resp.'s Motion at 3 (quoting Mississippi v. Johnson, 71

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U.S. (4 Wall.) 475, 498-99 (1867))). But the Court of Appeals for the District of

Columbia

Circuit twice has interpreted Mississippi v. Johnson much more narrowly than Respondents

would argue. In National Treasury Employees Union v. Nixon, 492 F.2d 587,614 (D.C. Cir.
1974), the Court observed that Mississippi v. Johnson explained that the case presented a

nonjusticiable political question, not an improper defendant. The National Treasury court held
that Mississippi v. Johnson did not bar a court from issuing a writ of mandamus to the President

to effect a federal employee pay raise (although the Court did not formally issue the writ). In
Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973), the Court read Mississippi v. Johnson to mean

only that the President could not be enjoined to "coerce a discretionary, as opposed to
ministerial, act ofthe Executive." Id. at 712 n.53. Petitioner does not believe his release is

discretionary.

Nor does Franklin v. Massachusetts, 505 U.S. 788 (1992) support Respondents' position.
In that case, the Court merely questioned the judiciary's authority to issue an injunction against
the President, without deciding the issue. See id. at 802-03 (opinion of

O'Connor, J.).

Respondents rely on dicta in Justice Scalia's concurrence, in which no other Justice joined. That
certainly is not controlling authority.

In fact, no authority Respondents cite bars Petitioner from naming the President as a

proper respondent. The Supreme Court, in Rumsfeld v. Padila, 542 U.S. 426 (2004), left open
the issue of whether individuals higher up on the chain of command are proper respondents when
the Petitioner is an alien, as is the case with Petitioner. See id. at 436 n. 8 (citing Ahrens v.

Clark, 335 US. 188 (1948)).

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Al- Marri v. Rumsfeld, 360 F.3d 707 (7th Cir. 2004), a case also cited by Respondents,

was decided before Supreme Court's decisions in Boumediene and Rasul, and it may not be

viable now. In al-Marri, the Seventh Circuit ruled that only the immediate custodians were
proper respondents, "rather than the Director of the Bureau of Prisons, the Secretary of

the Navy,

the Chairman of

the Joint Chiefs of

Staff, the Attorney General, the Secretary of

Defense, or the
Defense is a proper

President." 360 F.3d at 708-09 (emphasis added). If

the Secretary of

respondent here, as Respondents argue, then the President is a proper respondent under al-Marri.
The President is also a proper respondent here because Petitioner is being held pursuant
to the exercise of

the President's executive power. Respondents repeatedly have claimed that the

authority to detain those deemed enemy combatants at Guantánamo Bay arises from the

President's Article II powers, and the President's authority to use all necessary and appropriate
force under the Authorization for Use of

Military Force, Pub. L. No. 107-40, 115 Stat. 224

(2001). See Hamdi v. Rumsfeld, 542 U.S. 507, 517-18 (2004) (plurality opinion); Padila, 542
US. at 431 (2004). If

Petitioner is held under the President's inherent power, then the President

is a proper respondent.
If

the highest executive is dismissed, then the governent may try to evade this Court's
the Department of

authority by transferring the Petitioner from the custody of

Defense (DoD) to

that ofthe Central Intelligence Agency (CIA), the Department of Justice (DoJ), or other agencies

1 The Governent argues that it
unkown to Petitioners, as the executive has done in the past.

A number of detainees were previously transferred from CIA custody to DoD and are currently detained at Guantánamo. At least one GTMO detainee suspect was transferred from the DoJ to DoD. See al-Marri v. Pucciarell, 534 F.3d 213 (4th Cir. 2008) (en banc) (noting the Government's dismissal of an indictment during criminal proceedings
against defendant and an order signed by the President transferrng the defendant to

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has unfettered discretion to transfer detainees from Defense Department control. See, e.g.,
Governent's Brief

Regarding Procedural Framework Issues at 43-46 (Boumediene v. Bush, No.

04-cv-l 166 (RJL) (D.D.C. Aug. 12,2008) (Dkt. No. 58). In light of

these risks, only by

including the President as a respondent can Petitioner keep jurisdiction over a respondent with
ultimate authority.
II. Petitioners' Custodians Are Proper Respondents

Respondents take the position that Petitioner's immediate custodians at Guantánamo Bay
(the Commanders of Joint Task Force-GTMO and the Commander of

the Joint Detention

Operations Group of

the Joint Task Force-GTMO) are not proper respondents on the habeas
the Supreme Court in Rumsfeld v. Padila, 542 US.

claims. This is contrary to the holding of

426 (2004), that the federal habeas statute "contemplate(sJ a proceeding against some person
who has the immediate custody of the party detained, with the power to produce the body of such
party. . . that he may be liberated." Id. at 435 (quoting Wales v. Whitney, 114 U.S. 564, 574

(1885) (emphasis added by Padila)). Under Padila, Petitioners must, at minimum, name their
immediate physical custodians or risk dismissal of their habeas claims.

Respondents argue, under footnote 9 in Padila, that where "a petitioner is held abroad in
a military context," the proper respondent is a "supervisory official of

that custodian." (Resp.'s

Mot. at 4.) This misconstrues footnote 9, which states that, "(wJe have long implicitly

recognized an exception to the immediate custodian rule in the military context where an

military custody). And at least one other detainee, Jose Padilla, after several years in military confinement, was transferred the other way, from DoD confinement to
confinement under the Dol Padila v. Hanft, 432 F.2d 582 (4th Cir. 2005), rev'd 546 U.S. 1084 (2006).

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American citizen is detained outside the territorial jurisdiction of any district court." Padila,
542 US. at 436 n.9 (citing, inter alia, Braden v. 30th Judicial Circuit Court of Ky., 410 US.
484,498 (1973)).2 In Braden the Court held that, "(WJhere American citizens confined overseas
(and thus outside the terrtory of any district court) have sought relief in habeas corpus, we have
held, if only implicitly, that the petitioners' absence from the district court does not present a

jurisdictional obstacle to the consideration ofthe claim."
Thus, it is clear that the purpose of

the exception in footnote 9 of Padila is to remove

obstacles to a habeas petition in those circumstances in which the immediate custodians cannot
be named as respondents because they are outside of the jurisdiction of

US. courts. There is

nothing in that footnote, or elsewhere in Padila, that forecloses the immediate custodians from
being respondents.

Moreover, the circumstances set forth in footnote 9 of Padila do not apply here because
Petitioner is detained within this Court's territorial

jurisdiction at Guantánamo Bay, which the

Supreme Court described as "in every practical sense. . . not abroad; it is within the constant
jurisdiction of

the United States." Boumediene v. Bush, 128 S. Ct. 2229, 2261 (2008); accord

Rasul v. Bush, 542 US. 466, 480 (2004) (concluding that the Naval Base at Guantánamo Bay
was not an "extraterritorial" location, and therefore subject matter jurisdiction over aliens

detained there could be exercise). For these reasons, the exception to the immediate custodian
rule does not bar the naming of Petitioner's immediate custodians as respondents.

2

The Supreme Court also cited for this proposition two cases in which the Secretary of the Air Force were held to be proper respondents for the habeas Defense or Secretary of petitions of convicts detained in foreign countries. See United States ex rel. Toth v. Quarles, 350 US. 11 (1955); Burns v. Wilson, 346 US. 137 (1953).
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r:

III. Respondents Have Not Objected To Being Named As

Respondents For Years, And Are Estopped From Doing So Now

Petitioner's case was filed in February, 2005. In the years that have since passed, none
of

the Respondents have objected to being named as respondents on any claims until now.

Respondents have failed to address why they did not make a motion previously if there was any
reason to believe that any of

them were named improperly.

IV. Conclusion

Petitioner requests that Respondents' motion be denied.
Dated: October 30, 2008
Respectfully submitted,

By:
/s/ Jan K. Kitchel
Pro

Hac Vice

Schwabe, Williamson & Wyatt 1211 SW 5th AVENUE, #1500-2000 Portland, OR 97204
Telephone - 503.796.2939

Facsimile - 503.796.2900
George Brent Mickum IV, Bar No. 396142 KELLER AND HECKMAN, LLP 1001 "G" Street, NW., Suite 500 W Washington, D.C. 20001
[phone]/[phone] (fax)
Mickum(ëKHLAW.Com

Attorneys for Plaintiffs-Petitioners

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CERTIFICATE OF SERVICE
I certify that on October 30,2008, I caused the foregoing Petitioner's Memorandum of
Law in Opposition to Respondents' "Motion to Dismiss Improper Respondents" to be served on
the following attorneys via electronic filing:
SCOTT M. MARCONDA

US. Departent of Justice
Civil Division Federal Programs Branch Room 5130 20 Massachusetts Ave., N.W. Washington, D.C. 20530 202-305-8900 Scott.Marcondaêusdoj. gov

Brian David Boyle US. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Room 4633 Washington, DC 20530-0001 (202) 3305-1434 202-514-0238 (fax)
brian.d.boyleêusdoj .gov

Terry Marcus Hemy US. DEPARTMENT OF JUSTICE CIVIL DIVISION P.O. Box 883 20 Massachusetts Avenue, NW Suite 7144 Washington, DC 20044 [phone]
[phone] (fax)
terry.hemyêusdoj .gov

Robert J. Katerberg US. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAS 20 Massachusetts Avenue, NW Washington, DC 20530

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[phone]
[phone] (fax) robert.katerberg(êusdoj. gov

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

Judry Laeb Subar US. DEPARTMENT OF JUSTICE P.O. Box 833 Suite 7342 Washington, DC 20044-0833 [phone]
judry.subar(êusdoj .gov

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

lsI Jan K. Kitchel

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