                    UNCLASSIFIED//FOR PUBLIC RELEASE




                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


                                      )             Filed with Classified
                                      )         Information Security Oni~~Jr
                                      )
                                      )
                                           CISO ~07?'_E:
ABD AL-RAHIM HUSSAIN MOHAMED
     AL-NASHIRI,                      )             10-"-/....;R;LI..;...'-c. _ _ _,....
                                           Date _ _ _                    •..;..._
                                      )
                      Petitioner.,    )
                                      )
      vs.                             ) Civ. No. 08-1207 (RWR) (EGS)
                                      )
BARACK OBAMA, et al.,                 )
                                      )

_________________________________ )
                   Respondents.       )



                           MEMORANDUM ORDER

      Pending before the Court is Petitioner Abd Al-Rahim Hussain

Mohamed Al-Nashiri's ("Mr. Al-Nashiri") motion to reconsider the

classified Memorandum Opinion and Order filed May 7, 2012

(hereinafter "Opinion")    (see May 9, 2012 Minut.e Order) or,

alternatively, to stay the Order and amend it to permit an

interlocutory appeal.     Upon consideration of the motion, the

opposition, and the reply thereto, the relevant caselaw, and the

record in these proceedings as a whole, and for the reasons set

forth herein, petitioner's motion is DENIED.

I .   BACKGROUND

      The factual and procedural history regarding this matter are

set forth in the May 7, 2012 Opinion, familiarity with which is

assumed.    Briefly, in 2011, the government filed an identical

request in ten habeas corpus cases brought by detainees at




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Guantanamo Bay.    The government notified the Court




the government's request, and by consent of the Merits Judges

presiding over the ten underlying habeas cases, the motions were

transferred to the undersigned for coordinated consolidation and

resolution.    Most of the detainees opposed the government's

request; some filed joint oppositions, and some filed individual

oppositions.

     On May 7, 2012, this Court issued its Opinion and Order

granting the government's request but imposing additional

conditions                                       upon the

government                                       Al-Nashiri is the

sole petitioner who has moved to reconsider, stay, or for

certification of interlocutory appeal.    His motion is ripe for

determination by the Court.




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II.   STANDARD OF REVIEW

      Motions for reconsideration of interlocutory orders "may be

revised at any time before the entry of a judgment adjudicating

all the claims and all the parties' rights and liabilities."

Fed. R. Civ. P. 54(b}.     Although courts have discretion to

reconsider their interlocutory orders, they should be "loathe to

do so in the absence of extraordinary circumstances such as where

the initial decision was clearly erroneous and would work a

manifest injustice."     Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 817 (1988}     (internal citations and quotation

marks omitted}.     "In particular, a court should grant

reconsideration only when the movant demonstrates (1} an

intervening change in the law;     (2) discovery of new evidence not

previously available; or (3} a clear error of law in the first

order."     In re Guantanamo Bay Detainee Litig., 706 F. Supp. 2d

120, 122-23 (D.D.C. 2010) (internal citations and quotations

omitted}.

      In determining whether to stay an order pending appeal, the

Court considers the same four factors it would in resolving a

motion for a preliminary injunction: "(1} whether the stay

applicant has made a strong showing that he is likely to succeed

on the merits;    (2) whether the applicant will be irreparably

injured absent a stay;     (3) whether the issuance of a stay will

substantially injure the other parties interested in the


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proceedings; and ( 4) where the public interest lies."         Nken v.

Holder, 556 U.S. 418, 434 (2009)        (citations omitted).   "It is the

movant's obligation to justify the Court's exercise of such an

extraordinary remedy."      Cuomo v. United States Nuclear Regulatory

Comm'n, 772 F. 2d 972, 978 (D.C. Cir. 1985).

        Finally, in granting a request for an interlocutory appeal,

a district court must certify that the order involves "a

controlling question of law as to which there is substantial

ground for difference of opinion and that an immediate appeal

from the order may materially advance the ultimate termination of

the litigation."     28 U.S.C. 1292(b).     "Although courts have

discretion to certify an issue for interlocutory appeal,

interlocutory appeals are rarely allowed . .        . the movant bears

the burden of showing that exceptional circumstances justify a

departure from the basic policy of postponing appellate review

until after the entry of final judgment."        Judicial Watch, Inc.

v. Nat'l Energy Policy Dev. Group, 233 F. Supp. 2d 16, 20 (D.D.C.

2002)    (citations omitted) .

III. ANALYSIS

        Mr. Al-Nashiri has identified no error in this Court's May

2012 Opinion, nor does he argue there has been a change in the

law since that time.     He does not discuss his likelihood of

success on the merits.      He does not identify a controlling

question of law on which there is a substantial difference of


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opinion, nor does he argue that resolution by the Court of

Appeals would materially advance the disposition of his habeas

corpus litigation.       Rather, he argues that his circumstances have

changed since this matter was previously considered by the Court

.- namely, he "now faces an active capital murder prosecution in

military commissions proceedings in Guantanamo Bay."       Motion at

3.   Mr.   Al~Nashiri   argues that

                  would interfere with his due process rights in his

            commissions prosecution.




           Accordingly, he requests that the Court reconsider, stay,

and or certify its Opinion for appeal, and he additionally




      The government responds that Mr. Al-Nashiri's     circums~ances

have not changed in any material manner:       when he filed his

opposition to the government's original motion in 2011, he was

alre~dy    aware he could face capital'charges in the military


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commission proceedings and brought that fact to the Court's

attention at least three times.        Gov't Opp'n to Mot. for

Reconsid. at 6 (citing Mr. Al-Nashiri's Opp'n filed May 27, 2011

at 2, 3, 8).   More fundamentally, the government argues that this

Court's May 2012 decision governs the government's rights and



The government is correct.     Indeed, in their initial filings in

this matter in 2011, many of the petitioners asked the Court to

reject the government's request

because

tribunals' - such as the Military Commissions - consideration

                          in other proceedings.      The Court rejected

this claim, noting that "these arguments fall outside the scope

of petitioners' habeas review."        Opinion 16.   The government

argues - and Mr. Al-Nashiri does not dispute - that:

                                the Court to supervise
                             for military commission
               , nor s     re any reason for the Court to do so.
    The Court's May 9, 2012 Order has no effect on
    ~ns the Government may have
    lllllllllin military commission procee     , or any
    corresponding rights Petitioner might potentially assert in
    such proceeding.

Gov't Opp'n at 7.    The Court agrees with the government that it

does not have jurisdiction to order

                     in military commission proceedings.       The only

issues this Court resolved - and, so far as the Court is aware,

the only issues it had the power to resolve - concerned the

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parties' rights and obligations with respect to

                in proceedings in this court, namely, the petitions

for habeas corpus.     As a necessary corollary, therefore, this

Court could only determine the government's rights

                     as relates to the habeas proceedings.    The May

2012 Opinion does not impact the parties' rights or obligations

under any other law, or in any other proceedings.      Accordingly,

Mr. Al-Nashiri's prosecution before the military commission does

not constitute grounds for reconsideration, stay, or

certification for interlocutory appeal.

        Finally, the Court turns to Mr. Al-Nashiri's additional

request for relief,




                Essentially, counsel request that they be

from their obligations under the Top Secret/Sensitive

Compartmented Information Orders entered by Judge Hogan in In re:

Guantanamo Bay Detainee Litig., Case 08-mc-442, which prohibit

petitioners' counsel from disclosing such information.       See Doc.

1496.    Petitioner's request is denied.   Judge Hogan's protective

orders are not before this Court: the sole issue transferred to

the undersigned is the government's obligations under certain

                        orders in the habeas proceedings.


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 Moreover, even if the protective orders were before this Court,

 Mr. Al-Nashiri's counsel have provided no basis for overturning

 the orders; as discussed above, this Court's May 2012 Opinion

 does not govern the parties' rights or obligations in the




IV.   CONCLUSION

      For the foregoing reasons, Mr. Al-Nashiri has not met his

heavy burden to prevail on his motion for reconisderation, for

stay pending appeal, or for certification of interlocutory

appeal.   Accordingly, it is hereby ORDERED that petitioner's

motion is DENIED.

Signed:   Emmet G. Sullivan
          United States District Judge
          October 11, 2012


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