Case 1:05-cv-00764-CKK Document 261 Filed 01/18/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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ABDULLATIF NASSER,
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Petitioner,
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v.
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BARACK OBAMA, et al.,
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Respondents.
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Civil Action No. 05-cv-0764 (CKK)

REPLY BRIEF IN SUPPORT OF
EMERGENCY MOTION FOR ORDER EFFECTING RELEASE

Thomas Anthony Durkin (IL. Bar No. 697966)
DURKIN & ROBERTS
2446 N. Clark St.
Chicago, IL 60614
(312) 913-9300
tdurkin@durkinroberts.com
Attorney for Petitioner Nasser

 Case 1:05-cv-00764-CKK Document 261 Filed 01/18/17 Page 2 of 4

Neither prisoners nor persons accused, but simply
“detainees,” they are the object of a pure de facto rule, of a
detention that is indefinite not only in the temporal sense but
in its very nature as well, since it is entirely removed from the
law and from judicial oversight. The only thing to which it
could possibly be compared is the legal situation of the Jews
in the Nazi Lager [camps], who along with their citizenship,
had lost every legal identity, but at least retained their identity
as Jews. As Judith Butler has effectively shown, in the
detainee at Guantanamo, bare life reaches its maximum
indeterminacy.
— Giorgio Agamben, State of Exception 1

Bare life in its maximum indeterminacy, indeed. A man’s life hangs in the balance because
we have no Secretary of Defense. The government admits that on December 28, 2016, the
Department of State and the Department of Defense received an affirmative response to State’s
diplomatic note regarding the security assurances required for Petitioner’s transfer to be
effectuated. Nevertheless, as the government also concedes in its Response, “because of the timing
of this response, which was less than 30 days before the Secretary of Defense would leave office,
the Secretary of Defense did not make a final decision regarding the transfer…as he elected to
leave that decision to his successor.” (Dkt. #259, pp. 6-7) (emphasis added) In short, the United
States appears now to have no Secretary of Defense until next week—or at least one willing to
exercise his sworn official duties. As such, as a matter of equity, law and simple decency, this
Court should act for him and order Petitioner’s immediate release.
Due to the little window of time left for this important and extraordinary issue to be
resolved; that is, the wrongful and continued detention of a man who as the September 9, 2016,
Joint Status Report of this pending habeas case stated was no longer necessary, counsel would
respectfully ask leave to adopt the legal arguments filed in the Reply Brief (Dkt. #284, filed

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The University of Chicago Press (2003), pp. 3-4.

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 Case 1:05-cv-00764-CKK Document 261 Filed 01/18/17 Page 3 of 4

01/17/17) of co-detainee, Sufyian Barhoumi (ISN 694) in the companion case simultaneously filed
before Judge Collyer in Civil Action No. 05-1506 (RMC). A copy of said pleading is attached
hereto as Exhibit A.
Counsel further acknowledges that this morning, Barhoumi’s motion was denied in a
Memorandum Opinion issued by Judge Collyer. (Dkt. #285) A copy of said opinion is also
attached hereto as Exhibit B. Nevertheless, counsel strongly suggests that the factual differences
between Barhoumi’s case where the Secretary of Defense affirmatively decided not to accept the
recommendation of the PRB—as compared to the Secretary’s refusal to act in this instance only
because of the 30 day requirement of the NDAA—necessitates a different conclusion. That
conclusion, the only equitable one under the totality of these circumstances, is that this court should
use the “court order” exception of the NDAA to effectuate Petitioner’s immediate release.
A decision to permit Petitioner’s continued detention will only render Petitioner, as
Agamben suggests, “entirely removed from the law and from judicial oversight.” Id. For once, if
only once, a detainee should be released by way of judicial oversight. To do nothing is to permit
him to fall into what can only be considered a “legal black hole.” See, e.g., Andrew Kent,
Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights
Protection in National Security and Foreign Affairs, 115 COLUM. L. REV. 1029, 1030, 1034 n.23
(2015) (quoting the terms “legal black hole” and “legal grey hole,” and also attributing the creation
of the terms to professor David Dyzenhaus who stated “there are some legal constraints on
executive action—it is not a lawless void—but the constraints are so insubstantial that they pretty
well permit the government to do as it pleases”). Judicial oversight is the only restraint left. It is
the right thing to do.

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 Case 1:05-cv-00764-CKK Document 261 Filed 01/18/17 Page 4 of 4

Dated: January 18, 2017
Respectfully Submitted,
/s/ Thomas Anthony Durkin
Thomas Anthony Durkin (IL. Bar No. 697966)
DURKIN & ROBERTS
2446 N. Clark St.
Chicago, IL 60614
(312) 913-9300
tdurkin@durkinroberts.com
Attorney for Petitioner Nasser

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