IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 884

Memorandum in opposition to re (723 in 1:08-mc-00442-TFH, 134 in 1:05-cv-02384-RWR) MOTION to Dismiss Improper Respondents / Petitioners' Opposition to Respondents' Motion to Dismiss Improper Respondents filed by MOHAMMED ZAHRANI, SAAD AL QAHTAANI. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Bronte, Patricia)

IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Doc. 884

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

IN RE: GUANTÁNAMO BAY DETAINEE LITIGATION SALIM SAID, et al., Petitioners, v. GEORGE W. BUSH, et al., Respondents.

Misc. No. 08-442 (TFH)

No. 1:05 CV 2384 (RWR)

PETITIONERS' OPPOSITION TO RESPONDENTS' MOTION TO DISMISS IMPROPER RESPONDENTS Petitioners Saad Al Qahtani and Mohammed Zahrani ("Said Petitioners" or "Petitioners"), by their undersigned counsel, respectfully submit this opposition to Respondents' Motion to Dismiss Improper Respondents. The Said Petitioners oppose the Government's motion for the reasons set forth in the Memorandum of Law in Opposition to Respondents' "Motion to Dismiss Improper Respondents" filed today in Mousovi v. Bush, 05-CV-1124 (RMC), Al Razak v. Bush, 05-CV1601 (GK), Zadran v. Bush, 05-CV-2367 (RWR), and the In re Guantánamo Bay Detainee Litigation (Misc. No. 08-442, Dkt. 872). As in those cases, the President, the Secretary of Defense, and Petitioners' immediate custodians are respondents in these proceedings. Petitioners' counsel informed Respondents' counsel by e-mail that Petitioners do not oppose the Government's motion provided that safeguards are put in place to prevent substantial prejudice

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to the rights of Petitioners. (See e-mail from Sarah Crane to Scott Marconda dated October 13, 2008, attached as Exhibit A.) Respondents' counsel did not respond to this e-mail before filing their motion. The Said Petitioners also oppose the Government's motion because, if granted, it would effectively foreclose full consideration of Petitioner Al Qahtani's still unresolved motion concerning probable spoliation of evidence. On January 7, 2008, Petitioner Al Qahtani filed a motion to preserve remaining exculpatory evidence. (1:05-CV-2384, Dkt. 79, 83.) The motion was fully briefed on February 19, 2008. (1:05-CV-2384, Dkt. 80, 81, 85, 88.) To date, this motion remains unresolved. The Petitioners therefore respectfully request that, at a minimum, the Court maintain jurisdiction over all executive branch agencies pending resolution of Petitioner Al Qahtani's motion to preserve remaining exculpatory evidence.

Dated: October 30, 2008

Respectfully submitted, /s/ Patricia A. Bronte One of the Attorneys for Petitioners

David W. DeBruin JENNER & BLOCK LLP 601 Thirteenth Street, N.W., Suite 1200 Washington, DC 20005-3823 Tel: [phone] Fax: [phone] Of Counsel Gitanjali S. Gutierrez (GG1234) 666 Broadway, 7th Floor New York, NY 10012 Tel: [phone] Fax: [phone]

Patricia A. Bronte Sapna G. Lalmalani JENNER & BLOCK LLP 330 North Wabash Ave. Chicago, IL 60611 Tel: [phone] Fax: [phone]

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CERTIFICATE OF SERVICE I hereby certify that on October 30, 2008, I caused a true and correct copy of the foregoing Opposition to Respondents' Motion to Dismiss Improper Respondents to be delivered to the below-listed counsel of record in the above-captioned matters through the CM/ECF system: Andrew I. Warden Terry Marcus Henry United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, D.C. 20530

/s/ Patricia A. Bronte