United States District Court, D. Columbia
November 17, 2005.
BENDER AYED HAMOUD HEZAM AL-OTEIBI AL-SHABANY, et al. Petitioners,
GEORGE W. BUSH, Respondents.
The opinion of the court was delivered by: JOHN BATES, District Judge
Petitioner Bender Ayed Hamoud Hezam Al-Oteibi Al-Shabany
("petitioner"), through his next friend Ayed Hamoud Hezam
Al-Oteibi Al-Shabany, filed this petition for writ of habeas
corpus challenging his detention at the United States Naval
Station at Guantanamo Bay, Cuba ("Guantanamo"). Presently before
the Court are petitioner's motions for a preliminary injunction
and a temporary restraining order, an "Omnibus Motion" filed by
petitioner's counsel, and respondents' motion to stay the
proceedings pending the disposition of related appeals in the
D.C. Circuit. For the reasons discussed below, the Court will
grant the respondents' motion and deny petitioner's motions for a
preliminary injunction and temporary restraining order. The
Omnibus Motion filed by petitioner's counsel will be granted in
This case is one of more than one hundred seventy-five habeas
petitions filed on behalf of aliens detained at Guantanamo by the
Department of Defense ("DoD"). The general facts concerning
Guantanamo and its relationship to the current armed conflicts in
Iraq and Afghanistan will not be reviewed here. The petitioner in this
case is a Saudi Arabian citizen who has been held at Guantanamo
for more than three years. See Pet. for Writ of Habeas Corpus
("Writ Pet.") at 2. On October 14, 2005, he filed a petition for
writ of habeas corpus through his father as next friend, id.,
followed by a Motion for an Immediate Issuance of the Writ or,
Alternatively, an Order to Show Cause, on November 11, 2005,
see Pet'r Mem. Supp. at 1. Petitioner challenges his possible
designation as an "enemy combatant," as well as his three-year
detention and the conditions at Guantanamo. See Writ Pet. at
9-14; Pet'r Mem. Supp. at 1, 3, 5. Specifically, petitioner
argues that his detention violates the United States Constitution
and numerous federal and international laws, including the Alien
Tort Statute, the Administrative Procedures Act, Articles 3 and 5
of the Third and Fourth Geneva Conventions, and customary
international law. See Writ Pet. at 16-27.
On October 14, 2005, petitioner filed a Motion for Preliminary
Injunction, asking the Court to require that respondents provide
thirty days notice of intent to relocate the petitioner. See
Pet'r Mot. Prelim. Inj. The motion argued that there is "ample
reason to fear that [petitioner] is in imminent danger of being
transferred from Guantanamo to Saudi Arabia or to another country
where he will be tortured, interrogated and/or detained
indefinitely without due process of law." Id. at 2. In support
of these contentions, petitioner relied on various news reports,
as well as the declaration of Matthew C. Waxman, the Deputy
Assistant Secretary of Defense for Detainee Affairs in the
Department of Defense. See id. at 2-5. The Court has
previously evaluated these items in related cases. Petitioner
next filed a Motion for Temporary Restraining Order, seeking to
enjoin his transfer in the interim until the Court ruled on the
motion for a preliminary injunction. See Mot. T.R.O. at 1.
Petitioner's counsel also filed an Omnibus Motion seeking telephonic access to the petitioner and the release of
certain information regarding whether the petitioner is
designated an "enemy combatant" and whether he is one of more
than twenty detainees currently participating in a hunger strike.
See Omnibus Mot. at 1-2. The Omnibus Motion also asks the Court
to order respondents to preserve all information regarding the
petitioner, and to provide a factual return for him. Id.
Respondents have declined to voluntarily provide thirty days
notice of intent to transfer the petitioner, and, accordingly,
oppose the petitioner's requests for a preliminary injunction and
temporary restraining order. Furthermore, respondents have filed
a motion seeking to stay the proceedings in this case pending the
resolution of related appeals to the D.C. Circuit in In re
Guantanamo Detainee Cases, 335 F. Supp. 2d 443 (D.D.C. 2005),
and Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005).
Petitioner's motion for a preliminary injunction is, at its
core, indistinguishable from similar motions that have been
denied by this Court in related cases. See, e.g., Hamlily v.
Bush, Civil Action No. 05-0763 (D.D.C. October 3, 2005) (order);
O.K. v. Bush, 377 F. Supp. 2d 102 (D.D.C. 2005); Al-Anazi v.
Bush, 370 F. Supp. 2d 188 (D.D.C. 2005). For the reasons
previously stated in those cases, the Court will deny
petitioner's motion for a preliminary injunction. This denial, in
turn, renders moot petitioner's motion for a temporary
restraining order, because that motion seeks only to enjoin the
petitioner's transfer until the Court has ruled on the underlying
motion for a preliminary injunction.
Respondents' motion to stay asks the Court to hold this case in
abeyance pending the disposition of critical issues presented in
the related appeals in In re Guantanamo Detainee Cases and Khalid v. Bush. The Court has granted identical motions in
several other cases. See, e.g., Hamlily, Civil Action No.
05-0763 (Jun. 7, 2005 order). For reasons set forth more fully in
those cases, and "[i]n the interest of judicial economy and
avoiding unnecessary litigation," Al-Anazi,
370 F. Supp. 2d at 199, the Court will grant respondents' motion. "Nothing will be
gained by this Court addressing issues the D.C. Circuit is about
to decide, particularly since a stay would in any event be
entered were petitioner to prevail before this Court on those
core issues." Id. This stay will not bar the filing or
disposition of any motion for emergency relief.
Moreover, the Court will enter the protective and supplementary
orders previously issued in In re Guantanamo Detainee Cases,
Civil Action No. 02-0299 (D.D.C. 2004), including the November 8,
2004 Amended Protective Order and Procedures for Counsel Access
to Detainees at the United States Naval Base in Guantanamo Bay,
Cuba; the December 13, 2004 Order Supplementing and Amending
Filing Procedures Contained in November 8, 2004 Amended
Protective Order; and the November 10, 2004 Order Addressing
Designation Procedures for "Protected Information." The stay will
not prevent the parties from availing themselves of the
procedures set forth in those protective and supplemental orders.
The Court will also, as it has done in other cases, issue
petitioner's requested order to show cause. Respondents'
obligation to respond to that order, however, will be stayed
pending disposition of the related appeals. Furthermore, because
of the stay, the Court will not consider, at this juncture, the
request of petitioner's counsel, raised in the Omnibus Motion,
for information regarding whether petitioner is currently
designated an "enemy combatant."
The Omnibus Motion also makes certain requests regarding
petitioner's telephonic access to counsel. The Court finds that
this issue is adequately addressed by the protective orders referenced above. In the alternative, petitioner's counsel asks
for twenty-four hours notice before any force-feeding of
petitioner and, if petitioner is already being force-fed, counsel
seeks the disclosure of medical records from one week prior to
the date that force-feeding began and continuing through the
present time, including a weekly update until such time as
force-feeding is concluded. This is analogous to requests in
related cases that sought to enjoin the efforts of medical
personnel at Guantanamo to prevent the detainees from committing
suicide through hunger-strike methods. See, e.g., El-Banna
v. Bush, Civil Action No. 04-1144 (D.D.C. Oct. 28, 2005)
(consolidated motions) (memorandum and order) at 4; see also
Hamlily, Civil Action No. 05-0763 (Oct. 3, 2005 order).
Consistent with the findings in those cases, this request will be
The remaining request by petitioner's counsel in the Omnibus
Motion asks the Court to require that respondents provide the
Court, and petitioner's counsel, with the factual return that DoD
has compiled regarding the petitioner. As the Court has noted in
other cases, the factual return appears to be necessary in order
to enable counsel effectively to represent the petitioner. See
Al-Anazi, 370 F. Supp. 2d at 199-200. Hence, the Court will
require respondents to produce the factual returns for the
petitioner within one hundred and twenty (120) days,
notwithstanding the stay pending related appeals. Counsel's
request to order the respondents to preserve all information
relating to the petitioner will, however, be denied. Although
this request is not treated as stayed pending the related
appeals, see Al-Anazi v. Bush, Civil Action No. 05-0345
(D.D.C. Oct. 28, 2005) (order) at 1-2,
[t]he Court is not predisposed to assume that the
government would alter or destroy records in its
possession absent a court order, and is therefore
inclined to require that, at the very least, a party
seeking a preservation order against the government make a
credible showing of a significant risk of alteration
or destruction. However, the Court need not determine
the appropriate standard in order to resolve this
motion. That is because respondents have a
pre-existing duty to preserve the very information
that this motion addresses, pursuant to court orders
issued in Al-Marri, No. 04-CV-2035 (D.D.C. Mar. 7,
2005) (order), Anam v. Bush, No. 04-CV-1194 (D.D.C.
June 10, 2005) (order), and Abdah v. Bush, No.
04-CV-1254 (D.D.C. June 10, 2005) (order). As a
result, to the extent petitioners' motion seeks a
preservation order, it is moot. See Battayav
("respondents are already under an obligation to
preserve relevant documents" based on an order in
another case); El-Banna, No. 04-CV-1144 (D.D.C.
July 18, 2005) ("another preservation order would be
Id. at 2.
For the above reasons, petitioner's motions for a preliminary
injunction and a temporary restraining order are denied, and the
Omnibus Motion is granted in part and denied in part. The Court
will grant respondents' motion to stay the case pending the
resolution of the appeals in In Re Guantanamo Detainee Cases
and Khalid v. Bush, and will further stay respondents'
obligation to respond to the order to show cause. Respondents
must, however, file with the Court and provide to petitioner's
counsel the factual returns for the detainee-petitioner within
one hundred and twenty (120) days. The Court will also enter by
reference the protective and supplementary orders previously
entered by Judge Green in In Re Guantanamo Detainee Cases,
Civil Action No. 02-0299. A separate order has been issued on
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