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Dhiab v. Obama

United States District Court, D. Columbia

October 27, 2015

ABU WA'EL (JIHAD) DHIAB, Petitioner,
v.
BARACK OBAMA, et al., Respondents

Page 24

          For Jihad Dhiab Detainee, Guantanamo Bay Naval Station, Petitioner: Alka Pradhan, LEAD ATTORNEY, LEWIS BAACH PLLC, Washington, DC; Clive A. Staffordsmith, REPRIEVE, LEAD ATTORNEY, London Ec3p 3bz; Cori Crider, REPRIEVE, LEAD ATTORNEY, London, Uk Ec4y 0ay; Elizabeth L. Marvin, LEAD ATTORNEY, LEWIS BAACH PLLC, Washington, DC; Eric Leslie Lewis, LEAD ATTORNEY, LEWIS BAACH PLLC, Washington, DC; Ahmed Ghappour, REPRIEVE, London, Uk Ec4y 0ay; Jon B. Eisenberg, Oakland, CA; Lisa Jaskol, Los Angeles, CA; Shayana Devendra Kadidal, CENTER FOR CONSTITUTIONAL RIGHTS, New York, NY; Tara L. Murray, REPRIEVE, London Ec4p 4ws.

         For Shaker Aamer Next Friend of Jihad Dhaib, Petitioner: Shayana Devendra Kadidal, CENTER FOR CONSTITUTIONAL RIGHTS, New York, NY.

         For George Walker Bush President of the United States, Donald Rumsfeld Secretary, United States Department of Defense, Jay Hood Army Brigadier General, Commander, Joint Task Force-GTMO, Respondents: Scott Michael Marconda, Terry Marcus Henry LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE Washington, DC; Alexander Kenneth Haas, Andrew I. Warden, August Edward Flentje, David Hugh White, James J. Schwartz, Julia A. Berman, Kathryn Celia Davis, Patrick D. Davis, Robert J. Prince, Timothy Burke Walthall, U.S. DEPARTMENT OF JUSTICE Washington, DC.

         For Associated Press, USA Today, Hearst Corporation, Abc, Inc., Associated Press, Bloomberg L.P., Cbs Broadcasting, Inc., The Contently Foundation, Dow Jones & Company, Inc., First Look Media, Inc., Guardian US, Mcclatchy Company, National Public Radio Inc., New York Times Company, Reuters America LLC, Tribune Publishing Company, LLC, USA Today, Washington Post, Movants: David A. Schulz, LEAD ATTORNEY, LEVINE SULLIVAN KOCH & SCHULZ, LLP, New York, NY; Julie B. Ehrlich, PRO HAC VICE, LEVINE SULLIVAN KOCH & SCHULZ, LLP, New York, NY.

Page 25

         MEMORANDUM OPINION

         Gladys Kessler, United States District Judge.

         On October 3, 2014, this Court issued a decision to grant, with specified conditions, the Motion of Press-Intervenors to Unseal Videotape Evidence consisting of recent classified videotapes of forcible cell extraction and force feeding of Petitioner Dhiab, who had been detained for more than 12 years at the United States Naval Base in Guantanamo Bay [Dkt. No. 349]. On October 15, 2014, the Government filed a Motion to Stay that ruling, accompanied by two additional declarations in support of the Motion [Dkt. No. 356], only one of which related to harm the Government believed would result from unsealing the tapes. On November 7, 2014, the Court granted the Government's Motion to Stay until midnight December 2, 2014 [Dkt. No. 367]. On November 10, 2014, the Government filed a Notice of Appeal with the Court of Appeals [Dkt. No. 368]. On December 2, 2014, the Government filed with this Court an Emergency Motion to Extend Stay of Orders Unsealing Classified Videotapes Pending Final Resolution of Appeal [Dkt. No. 375], and filed two additional declarations in support of its Emergency Motion. Redacted copies at Dkt. No. 375. On December 3, 2014, this Court granted that Motion [Dkt. No. 378]. On December 5, 2014, the case was transferred to the Court of Appeals as Case No. 14-5299.

         On May 29, 2015, the Court of Appeals, in a per curiam Opinion, dismissed the appeal because this Court's Orders were not final orders over which the Court of Appeals had jurisdiction. In addition, it denied the request for a writ of mandamus, and remanded the case back to this Court. In that Opinion, the Court of Appeals noted that the remand would give this Court " an opportunity to consider the supplemental declarations that the Government submitted in support of its motion to stay. When it ruled on the Intervenors' motion to unseal, the district court did not have an opportunity to consider those declarations which set out the harm associated with release of the videotapes in considerably more detail than the declarations the Government submitted in opposition to the initial motion." Dhiab v. Obama, 787 F.3d 563, 567 (D.C. Cir. 2015).[1] The Mandate from the Court of Appeals was issued on June 25, 2015 [Dkt. No. 385].

         On July 15, 2015, the Government moved for reconsideration of the Court's October 3, 2014 Memorandum Opinion and Order [Dkt. No. 388]. Both Petitioner and Press-Intervenors filed Oppositions [Dkt.

Page 26

Nos. 394, 396], and the Government filed its Reply on August 17, 2015 [Dkt. No. 397].

         A. The Government Has Failed to Meet the Standard for Granting a Motion for Reconsideration

         While the Government has not clearly identified the provisions of the Federal Rules of Civil Procedure under which it is applying for reconsideration, the Court will assume that it is proceeding under Rule 54(b). See p. 19, n. 4 of Mot. to Reconsider.

         The law is clear and well established as to what the basic requirements are that must be satisfied in order to prevail on a motion for reconsideration. They are: " (1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error of law in the first order." In re Guantanamo Detainee Litig., 706 F.Supp.2d 120, 122-23 (D.D.C. 2010) (emphasis added) (internal quotation marks omitted).

         " A motion for reconsideration is not an 'opportunity to reargue facts and theories upon which a court has already ruled,' nor is it 'a vehicle for presenting theories or arguments that could have been advanced earlier.'" Gilmore v. Palestine Interim Self-Government Authority,8 F.Supp.3d 1, 6 ...


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