Saifullah Paracha v. George W. Bush (November 1, 2005)

The CSO cleared this filing for public filing November 1, 2005.

IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

PETITIONER'S MOTION TO BE ALLOWED A BIBLE AND OTHER BOOKS

Petitioner moves for an order requiring release to him of a Bible and other books at the prison at Guantanamo Bay.

In support of this motion petitioner submits an affidavit of counsel saying that petitioner has repeatedly asked for a Bible, counsel sent him one, and one of the Staff Judge Advocates has said that the Bible will not be released to or delivered to the prisoner. Counsel also sent or delivered fourteen other books to the prison which have not been released to petitioner.

Respondents will oppose this motion.

Respectfully submitted, November 1, 2005 ____/s/________________________________ GAILLARD T. HUNT
 * Attorney for Petitioner

(D.C. Bar No. 89375) 1409 Gleason Street Silver Spring, Maryland 20902 (Not admitted in Maryland) 301-530-2807 gthunt@mdo.net (Fax: 301-564-6059) ATTACHMENTS:

Affidavit of Gaillard T. Hunt, dated November 1, 2005

UNITED STATES OF AMERICA

DISTRICT OF COLUMBIA

GAILLARD T. HUNT deposes and says:

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on: November 1, 2005

____/s/______________________________

GAILLARD T. HUNT

IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

POINTS AND AUTHORITIES IN SUPPORT OF

PETITIONER'S MOTION

TO BE ALLOWED A BIBLE AND OTHER BOOKS

There can be no legitimate governmental interest in denying any prisoner noninflammatory and non-seditious reading matter (except possibly temporarily as a duly authorized disciplinary measure), because no one can be more confined, and more effectively secured, than while reading. Petitioner's motion therefore asks for release to him of all the books he has been sent: eleven from his family and four from counsel. The legal authorities requiring that petitioner not be subjected to purely penal conditions of confinement as long as he is being held as a possible enemy combatant are discussed in his motion for release from punitive confinement and need not be repeated here. Petitioner should be allowed to work, to associate with other prisoners, and to take part in recreational, educational, and cultural activities, and should be allowed access to reading matter generally. But among the books being denied petitioner is a Bible, which he has expressly and repeatedly requested, and that gives him an independent statutory right to relief.

In Cutter v. Wilkinson, 125 S. Ct. 2113 (May 31, 2005), Justice Ginsburg, writing for a unanimous Court, observed that several circuits have held that the Religious Freedom Restoration Act, 42 USC 2000bb et seq., is fully binding on federal programs even though the Court held in City of Boerne v. Flores, 512 U.S. 507, that it could not constitutionally apply to state activities. 125 S. Ct. 2113, footnote 2.

The Religious Freedom Restoration Act declares broadly that "Government shall not substantially burden a person's exercise of religion, " 42 USC 2000bb-1(a), except when it must do so as the least restrictive means to achieve a compelling governmental interest, 2000bb-1(b). The regulations governing federal prisons provide, under 28 CFR 541.21, "Conditions of disciplinary segregation," that even prisoners being punished for infractions of the rules shall have a reasonable amount of non-legal reading matter, not more that five books at a time, and, "Staff shall provide the inmate opportunity to possess religious scriptures of the inmate's faith." The exact standing of the Old and New Testaments in Islam is not relevant. Cf. Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir., 2002), rejecting the idea that Catholic prisoners could be denied wine because it is not for the laity an essential part of the communion rite. The Bible is among the scriptures accepted in Islam, and the Act therefore protects petitioner Paracha's access to it.

The Act explicitly provides that anyone whose religious exercise has been burdened may assert "that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." 2000bb-1(c). Petitioner's motion for access to the books sent to him must be granted, and his request for access to a Bible rests on unassailable statutory grounds.

Respectfully submitted, November 1, 2005

____/s/_______________________________ GAILLARD T. HUNT Attorney for Petitioner (D.C. Bar No. 89375) 1409 Gleason Street Silver Spring, Maryland 20902 (Not admitted in Maryland) 301-530-2807 gthunt@mdo.net (Fax: 301-564-6059)

IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

CERTIFICATE OF CONFERRING

I hereby certify that on November 1, 2005, I conferred with Andrew Warden, Esq., attorney for respondents, in an attempt to narrow the issues raised by the within motion. Respondents will oppose this motion.

___/s/__________________________________ November 1, 2005

GAILLARD T. HUNT Attorney for Petitioner (D.C. Bar No. 89375) 1409 Gleason Street Silver Spring, Maryland 20902 (Not admitted in Maryland) 301-530-2807 gthunt@mdo.net (Fax: 301-564-6059)

A PROPOSED ORDER FOLLOWS:

(PROPOSED) ORDER REQUIRING DELIVERY OF BOOKS

On consideration of petitioner's motion, and the opposition thereto, and the entire record,

IT IS HEREBY ORDERED:

That petitioner Saifullah Paracha be allowed to have in his cell a copy of the Bible in English.

FURTHER ORDERED:

That petitioner Saifullah Paracha be allowed to have all other published books sent to him by his relatives or by counsel, unless respondents report to counsel and to this Court specific reasons for objecting to a given publication within ten days of its arrival at the prison.

IT IS SO ORDERED.

Notify counsel:

GAILLARD T. HUNT, Esq. Attorney for Petitioner (D.C. Bar No. 89375) 8909 Grant Street Bethesda, Maryland 20817 (Not admitted in Maryland) 301-530-2807 gthunt@mdo.net (Fax: 301-564-6059)

LISA A. OLSON, ESQ. ANDREW I. WARDEN, Esq. Attorneys for Respondents U.S.Department of Justice Civil Division, Federal Programs Branch Room 7144 20 Massachusetts Avenue NW Washington, D.C. 20530 Tel: 202-514-4107 Fax: 202-616-8470