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Full text of "gov.uscourts.dcd.116163"

Case1:05-cv-01458-UNA-AK Document 11 Filed 11/14/2005 Page 1 of 8 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



AHMED DOE, et ah, 



Petitioners, 



GEORGE W. BUSH, 

President of the United States, 
et ah, 



Respondents. 



NABIL (Last Name Unknown), et ah 
Petitioners, 



GEORGE W. BUSH, 

President of the United States, 
et ah, 



Respondents. 



ABBAR SUFIAN AL HAWARY, et ah, 



Petitioners, 



GEORGE W. BUSH, 

President of the United States, 
et ah, 



Respondents. 



Civil Action No. 05-CV-1458 (ESH) 



Civil Action No. 05-CV-1504 (RMC) 



Civil Action No. 05-CV-1505 (RMC) 



Case1:05-cv-01458-UNA-AK Document 11 Filed 11/14/2005 Page 2 of 8 



SHAFIIQ (Last Name Unknown), et al, 



Petitioners, 



GEORGE W. BUSH, 

President of the United States, 
et al, 



Respondents. 



SAD AR DOE, et al, 



Petitioners, 



GEORGE W. BUSH, 

President of the United States, 
et al, 



Respondents. 



MUHAMMED QASIM, et al, 



Petitioners, 



GEORGE W. BUSH, 

President of the United States, 
et al, 



Respondents. 



Civil Action No. 05-CV-1506 (RMC) 



Civil Action No. 05-CV-1704 (JR) 



Civil Action No. 05-CV-1779 (JDB) 



Case1:05-cv-01458-UNA-AK Document 11 Filed 11/14/2005 Page 3 of 8 

RESPONDENTS' MOTION FOR CLARIFICATION OR, 

IN THE ALTERNATIVE, RECONSIDERATION, OF THE 

COURT'S NOVEMBER 4, 2005 ORDER TO SHOW CAUSE 

Respondents respectfully request that the Court clarify its November 4, 2005 Order to 
Show Cause in the above-captioned cases. Although the Court granted respondents' motions and 
required petitioners to show cause "why their petitions should not be dismissed for lack of 
jurisdiction," the Court also ordered that the parties consult with Magistrate Judge Kay regarding 
how counsel for petitioners may "obtain access to the detainees who allegedly seek to be 
represented by next friends to determine if the detainees will authorize counsel to represent them 
directly." See Order to Show Cause dated November 4, 2005 (Oberdorfer, J.). Because counsel 
already have access to the detainees through the mail system, and because visits to Guantanamo 
Bay or other privileged access are inappropriate until the Court's jurisdiction over this action has 
been established, respondents are unclear as to what the Court intended should be the scope of 
the parties' discussions with Magistrate Judge Kay. If the Court intended for respondents to 
provide access to the detainees beyond that which is already available to counsel for petitioners 
while the question of whether the Court has jurisdiction over these actions is pending, 
respondents request that the Court reconsider its November 4, 2005 Order and stay the final 
paragraph of the Order until the jurisdictional issue is resolved. 

ARGUMENT 

Respondents filed motions for order to show cause in certain recently-filed Guantanamo 
Bay detainee habeas cases, including the above-captioned cases, in which detainees are 
attempting to seek habeas relief on behalf of other detainees and have failed to satisfy the 
requirements for next friend standing articulated by the Supreme Court in Whitmore v. Arkansas , 

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Case1:05-cv-01458-UNA-AK Document 11 Filed 11/14/2005 Page 4 of 8 

495 U.S. 149 (1990). On November 4, 2005, Senior Judge Louis F. Oberdorfer 1 granted 

respondents' motions in the above-captioned cases and required petitioners to show cause by 

November 18, 2005 "why the petition should not be dismissed for lack of jurisdiction." See 

Order to Show Cause at 5. 2 As the Court noted in its Order, the Supreme Court recognized "two 

firmly rooted prerequisites" that must be satisfied in order to establish next friend standing: 

First, a "next friend" must provide an adequate explanation — such 
as inaccessibility, mental incompetence, or other disability — why 
the real party in interest cannot appear on his own behalf to 
prosecute the action. Second, the "next friend" must be truly 
dedicated to the best interests of the person on whose behalf he 
seeks to litigate, and it has been further suggested that a "next 
friend" must have some significant relationship with the real party 
in interest. 

Order to Show Cause at 3 (quoting Whitmore , 495 U.S. at 163-64 (citations omitted)). Thus, the 

putative next friend petitioners in the above-captioned cases must (1) provide an "adequate 

explanation" why the detainees for whom habeas relief is purportedly sought "cannot appear on 

[their] own behalf," and (2) demonstrate that they have a "significant relationship" with these 

detainees to show that they are "truly dedicated to [the detainees'] best interests," see id, before 

the Court can exercise jurisdiction over these actions. See id at 3 ("[A] court does not have 

jurisdiction over a case if the party filing the suit does not have standing."). 



1 Respondents' motions in the above-captioned cases were transferred to Judge 
Oberdorfer for consideration and decision pursuant to LCvR 40.6(a). See Order to Show Cause 
at 3, n.2. 

2 The Court also provided respondents the opportunity to respond to petitioners' 
submissions by November 28, 2005, and scheduled a hearing for December 5, 2005. See Order 
to Show Cause at 5. 

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Case1:05-cv-01458-UNA-AK Document 11 Filed 11/14/2005 Page 5 of 8 

Even though the Court granted respondents' motions for order to show cause and 

determined that the putative next friend petitioners must demonstrate proper standing to sue 

before the Court can exercise jurisdiction over these cases, the Court also ordered 

that Petitioners and Respondents consult with Magistrate Judge 
Kay as soon as is practicable (but in any event before the hearing) 
to discuss how counsel for Petitioners may obtain access to the 
detainees who allegedly seek to be represented by next friends to 
determine if the detainees will authorize counsel to represent them 
directly. 

Order to Show Cause at 5. Respondents seek clarification as to the scope of this consultation, 

which appears to be inconsistent with the portion of the Court's order granting respondents' 

motions for order to show cause. 

One of the fundamental bases for respondents' motions for order to show cause is that 

detainees at Guantanamo Bay are able to access the Court themselves and, therefore, generally do 

not require next friends to seek habeas relief on their behalf 3 Detainees at Guantanamo Bay 

already have access to the Court through the mail collection and delivery system administered by 

the U.S. Military. See Exhibit D to Declaration of Frank Sweigart (attached to Respondents' 

Motions for Order to Show Cause). Counsel were able to send mail to the detainees at issue 

prior to the filing of an alleged next friend petition to "determine if the detainees will authorize 

counsel to represent them directly." Any direct authorizations would have resulted in the filing 

of directly authorized petitions for writs of habeas corpus instead of apparently deficient next 

friend petitions. Alternatively, counsel have had the opportunity to send mail to the detainees 



3 In its Order to Show Cause, the Court recognized that "[petitioners do not explain why 
the detainees that they purport to represent as next friends are in a materially different position 
than the detainees who have filed petitions with this Court." Order to Show Cause at 4. 

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Case1:05-cv-01458-UNA-AK Document 11 Filed 11/14/2005 Page 6 of 8 

purporting to act as next friends (or to contact these detainees through their own counsel) in order 
to determine if there is an "adequate explanation" why the detainees for whom the next friend 
purports to act cannot seek such relief themselves, though scores of detainees already have 
sought their own relief from the Court. See Sweigart Decl., ]f 6 (stating that there have been at 
least 55 pro se petitions mailed by detainees to the Court). To require that counsel instead 
become entitled to some sort of special access to detainees whom they do not properly represent 
simply through the filing of an apparently deficient next friend petition would eviscerate the 
purpose of the Whitmore next friend standing requirements and respondents' motions for order 
to show cause. Unless the Court determines that it can exercise jurisdiction over these actions, 
i.e., that the putative next friend petitioners have established that the detainees for whom they 
attempt to seek habeas relief cannot access the Court themselves and that the next friend 
petitioners have a significant relationship with these detainees, special methods of access to 
detainees are inappropriate. 

On the other hand, if the Court finds that petitioners have standing to sue, entry in these 
cases of the Protective Order that has been entered in other Guantanamo detainee habeas cases 
would provide the means for counsel to access the properly represented detainees in a privileged 
manner, including through counsel visits and privileged legal mail channels, consistent with the 
terms of the Protective Order. See Amended Protective Order and Procedures for Counsel 
Access to Detainees at the United States Naval Base at Guantanamo Bay, Cuba in In re 
Guantanamo Detainee Cases , 344 F. Supp. 2d 174 (D.D.C. 2004). 

Accordingly, there is no need for any consultation or discussion with Magistrate Judge 
Kay or otherwise on the subject of how counsel for petitioners may obtain special access to 

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Case1:05-cv-01458-UNA-AK Document 11 Filed 11/14/2005 Page 7 of 8 

detainees at Guantanamo Bay — after the Court has considered the parties' submissions and has 
held a hearing on the issue of whether the next friend standing requirements (including the 
inability of detainees to access the Court themselves) have been satisfied in these cases, the Court 
should either dismiss the petitions, or if proper next friend standing is found, enter the Protective 
Order in these cases, which will provide counsel with access to properly represented detainees at 
Guantanamo Bay. An interim hearing before Magistrate Judge Kay regarding special access to 
detainees is unnecessary. 

CONCLUSION 
For the reasons stated, the Court should clarify the portion of its November 4, 2005 Order 
to show cause requiring that the parties consult with Magistrate Judge Kay regarding counsel 
access to detainees at Guantanamo Bay, given that counsel already have access to detainees 
through the mail system, and that other access is inappropriate until it is established that the 
Court has jurisdiction over this action and that the detainees are properly represented by counsel. 
Alternatively, for all the reasons set forth above, the Court should reconsider any determination 
that intends respondents to provide special access to the detainees while the question of whether 
the Court has jurisdiction over these actions is pending, and stay the final paragraph of the Order 
until the jurisdictional issue is resolved. 

Dated: November 14, 2005 Respectfully submitted, 

PETER D. KEISLER 

Assistant Attorney General 

KENNETH L. WAINSTEIN 
United States Attorney 



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Case1:05-cv-01458-UNA-AK Document 11 Filed 11/14/2005 Page 8 of 8 



DOUGLAS N. LETTER 
Terrorism Litigation Counsel 



/s/ Preeya M. Noronha 



JOSEPH H. HUNT (D.C. Bar No. 43 1 134) 

VINCENT M. GARVEY (D.C. Bar No. 127191) 

TERRY M. HENRY 

JAMES J. SCHWARTZ 

PREEYA M. NORONHA 

ROBERT J. KATERBERG 

NICHOLAS J. PATTERSON 

ANDREW I. WARDEN 

EDWARD H. WHITE 

Attorneys 

United States Department of Justice 

Civil Division, Federal Programs Branch 

20 Massachusetts Ave., N.W. Room 7144 

Washington, DC 20530 

Tel: (202)514-4107 

Fax: (202)616-8470 



Attorneys for Respondents 



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