Case 1:05-cv-01458-UNA-AK Document 13 Filed 11/18/2005 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Ahmed "Doe", et al
Petitioners,
GEORGE W. BUSH,
President of the United States,
et al.,
Respondents.
Civil Action No. 05-CV-1458 (ESH)
PETITIONER'S MEMORANDUM SHOWING CAUSE WHY PETITION FOR
WRIT OF HABEAS CORPUS SHOULD NOT BE DISMISSED FOR LACK OF
"NEXT FRIEND" STANDING
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STATEMENT OF FACTS
Petitioner, Ahmed Doe, is in the custody under or by the color of authority of the
United States at Guantanamo Naval Base on the island of Cuba and has been so held for
an indeterminate amount of time. He has not been charged with a crime nor appeared
before a civilian court of law. On June 28, 2004, the Supreme Court held, in Rasul v.
Bush, U.S. , 124 S. Ct 2686, that those in custody at Guantanamo are entitled
to Habeas Corpus review by United States District Courts. On August 10, 2005, Ahmed
Doe, through his "Next Friend", Omar Deghayes, filed a Writ of Habeas Corpus in this
Court. On August 31, 2005, Respondents moved for an Order to Show Cause why the
Petition should not be dismissed and on October 11, this Court issued a Memorandum
Order directing Petitioner to Show Cause why this case should not be dismissed for lack
of proper "Next Friend" standing.
ARGUMENT
I. The Special Circumstances Under Which Petitioner Labors. All Imposed
by Respondents. Severely Incapacitate Petitioner's Access to This Court and Renders
the Relationship Between Petitioner and His "Next Friend" Unique
Petitioner has been detained and imprisoned by Respondents at the U.S. Naval
Base at Guantanamo, Cuba, for an undetermined time, possibly as long as VA years. He
has been held incommunicado, in virtual isolation from external friends and family, as
Respondents have refused to divulge the names of the Guantanamo detainees, their
countries of origin, or the names of their relatives. (See Olshansky Declaration ff 5, 8,
9, Attached to Petitioner's Opposition to Respondents' Motion for an Order to Show
Cause "Exhibit B"). Until commanded otherwise by the United States Supreme Court in
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Rasul v. Bush, U.S. , 124 S.Ct. 2686 (2004), Respondents refused to provide
Petitioner with counsel, refused to permit him to seek judicial relief on his own behalf,
and refused him access to courts even via "next friend" standing. Now that some
Guantanamo detainees, including Petitioner, Ahmed Doe, seek standing in United States
District Court, via "next friend" status subsequent to the decision in Rasul, Respondents
are attacking the validity of even this time honored method of access to judicial review.
The attack might have merit were Petitioner Ahmed Doe held under normal
circumstances so that he could obtain, or attempt to obtain, external assistance in
petitioning this Court. But the circumstances to which he is subject are nowhere near
"normal." For example:
He is a resident of Libya;
He has been allowed virtually no contact with the news media or any word
from outside the closed Guantanamo prison system for the length of his
imprisonment;
He has been allowed no contact with his friends or family members;
He is unfamiliar with the United States Court System and likely does not
know what the term Habeas Corpus means.
He has had no criminal charges brought against him;
He has every reason to rely on his friendships with other prisoners who
speak his language and suffer under the same disabilities;
Like most Guantanamo prisoners, Petitioner's family members are
unknown to outsiders, and in almost all cases unreachable by prisoners
themselves, making it necessary for him to rely on fellow inmates for
access to courts (See Olshansky Declaration, f 5; See also Smith
Declaration, ff 47-77, Attached as "Exhibit A" to Petitioner's Opposition
to Respondents' Motion for an Order to Show Cause).
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No party outside Guantanamo is allowed to be aware of the specific camp
or building in which Petitioner is being imprisoned, nor the "grade" or
"level" of penal detention he occupies, each level being determinative of
the privileges he receives. It cannot be know, therefore if Petitioner has
access to paper, pen or pencil.
He does not have access to a law library;
He cannot communicate with his attorney, nor does he even know at
present that he has an attorney;
He has no expectation of release, ever; and
He has every reason to challenge his confinement.
For Respondents to argue that under these circumstances Petitioner Ahmed Doe
cannot lawfully challenge the legality of his confinement because his "next friend" may
not qualify under Whitmore guidelines, is irrational at best and more likely
disingenuous. It is disingenuous because the very disabilities which prevent Petitioner
from contacting external friends and family are imposed by Respondents themselves.
Even the dissenters imprisoned in the Tower of London in the 17th century, for whom
the Habeas Petition became their only remaining thread of British Law, had less severe
conditions of isolation than those occasioning Petitioner Ahmed Doe herein.
An additional circumstance, also imposed at the insistence of Respondents, makes
Petitioner's access to the Courts even more problematic. Petitioner's counsel cannot
interview Ahmed Doe in person until he has received security clearance which has not
yet been attained. (See Boris Declaration, % 6, attached hereto as "Exhibit A"). While
he recently was interviewed by the FBI, which is conducting its investigation, as long as
clearance has not been granted he cannot visit Petitioner to obtain his own consent (or
non-consent) to proceed on his behalf. Had Respondents not requested this unique
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qualification for attorneys to gain access to their clients or potential clients, the matter
under review today could have been resolved before the Petition was filed or shortly
thereafter, as Petitioner could have indicated his desire (or lack of desire) for
representation to the undersigned in person.
II. The Whitmore Standards are Circumstantially Inapplicable to Petitioner
Herein
Respondents argue that in Whitmore v. Arkansas, 495 U.S. 149 (1990), the
Supreme Court set established standards for "next friend" standing which are not
fulfilled in the case under review today.
To appreciate these standards adequately, it is necessary to review briefly the
facts of that case. The real party in interest in Whitmore was named Simmons, an
extremely aware if not legally sophisticated Defendant. Simmons was tried, with
assistance of counsel, for two of sixteen murders with which he was charged.
Subsequent to his conviction and sentence of death, Simmons swore an oath that he
wanted no appeal. The trial court conducted a hearing concerning his competence to
waive further proceedings and found his decision was knowing and intelligent. As his
execution date approached, a priest who counseled inmates petitioned the Arkansas
Supreme Court, as Simmons' "next friend," to prosecute the very appeal Simmons did
not wish to have pursued. The priest did not indicate that he had ever met Simmons and
claimed standing as an "aggrieved taxpayer" and "concerned citizen." His standing was
denied. The priest tried once again, this time jointly with another death row inmate, and
was denied standing a second time.
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Simmons then underwent a second trial, again with the assistance of counsel, for
the remaining fourteen murders, found guilty, and again sentenced to death. He again
notified the Court of his desire to waive appeal and after another hearing was again
found competent to do so. The tribunal considering his competency noted that Simmons
had been notified by his attorney of several points of possible reversal upon appeal and
that they were all rejected by the condemned man. Three days later another death row
inmate, named Whitmore, sought permission to intervene on Simmons' behalf as a "next
friend" but was denied standing. Whitmore appealed to the Supreme Court, pursuing the
"next friend" issue (among others) and the Whitmore decision bears his name.
The Supreme Court acknowledged that it had not previously discussed the
concept of "next friend" standing at length, but noted it had long been an accepted basis
for jurisdiction "most frequently (when) 'next friends' appear in court on behalf of
detained prisoners who are unable, usually because of mental incompetence or
inaccessibility, to seek relief themselves" (495 U.S. 149, 161-162, emphasis added,
citations omitted).
The Whitmore decision then set forth a summary of the "next friend" standards to
which lower courts have generally adhered. Such standing is not to be considered
automatically granted, the Court ruled. Rather (at 163-164):
(d)ecisions applying the habeas corpus statute have adhered
to at least two firmly rooted prerequisites for "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 (citations
omitted). Second, the "next friend" must be truly dedicated
to the best interests of the person on whose behalf he seeks to
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litigate (citation omitted), and it has been suggested that a
"next friend" must have some significant relationship with
the real party in interest (citation omitted).
[The omitted citations for the first and second standard refer to cases from the 7th and
8th Circuit Courts of Appeal, a Virginia District Court, and the State of California; the
"suggestion" comes from a Georgia District Court.]
The underlying philosophy for having such standards, Chief Justice Rehnquist,
for the court, concluded, is "the recognition that 'it was not intended that the writ of
habeas corpus should be availed of, as a matter of course, by intruders or uninvited
meddlers, styling themselves 'next friends.' Indeed, if there were no restrictions on
'next friend' standing in federal courts, the litigant asserting only a generalized interest
in constitutional governance could circumvent the jurisdictional limits of Article III
simply by assuming the mantle of 'next friend'" (at 1 64, emphasis added).
The information available to the undersigned reveals that Petitioner Ahmed Doe
and his "next friend" Omar Deghayes cannot fit precisely into the standards set forth in
Whitmore because of the oppressive circumstances set forth in Argument I . infra. These
circumstances, created in whole by Respondents and exacerbated by both Ahmed Doe
and Omar Deghayes's lack of legal knowledge and Ahmed Doe's lack of access to other
legal redress, were not even remotely similar to those which determined the status of
Whitmore and Simmons themselves.
The principle theory of Whitmore, which underlies the two-pronged test, is that
the "next friend" mechanism is meant to provide access to courts for those who are
unable, because of inaccessibility, to seek relief themselves. This is stated twice, in
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Rehnquist's general introduction to the "next friend" concept, quoted herein above, and
in his first of the two prong test to be satisfied for "next friend" standing. It finds its
way into the first prong as a requirement that the "next friend" explain why the party in
interest suffers from inaccessibility.
It is submitted that as inaccessibility is Petitioner Ahmed Doe's primary
circumstance, it is also his primary argument. He lacks access to the courts to seek
relief on his own behalf because of the conditions under which he (and his "next friend")
labor. To the degree that the first test places a burden upon Omar Deghayes to "provide
an adequate explanation" of the circumstances of Ahmed Doe's inaccessibility, this too
is obviated by the existence of circumstances which speak for themselves. Omar
Deghayes does not know the members of Ahmed Doe's family nor his friends in Libya,
nor can he reach them. He knows that he himself has obtained an attorney and that if his
friend Ahmed Doe cannot obtain one he will continue to remain as inaccessible at
Guantanamo as he has been for years.
The second Whitmore test, that Omar Deghayes demonstrate his dedication to
Ahmed Doe's best interests, is equally as problematic in this case. It is simply unknown
- - and will remain unknown - - what the depth or quality of their friendship is because
of the inability to gain access to Ahmed Doe. On the other hand, some facts are known
about Omar Deghayes and Ahmed Doe's relationship. Omar Deghayes' "next friend"
authorization states that he knows that Ahmed Doe desires legal assistance. Omar
Deghayes also provides the names of numerous other Guantanamo prisoners who have
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desired legal representation. (See Authorization of Omar Deghayes, attached as Exhibit
A to the Petition)
It can therefore hardly be said that "next friend" Omar Deghayes's interest in
assisting Ahmed Doe constitutes "asserting only a generalized interest in constitutional
governance." (See Rehnquist's fear articulated in Whitmore at 164, based upon the fact
that Simmons had styled himself an "aggrieved taxpayer" and a "concerned citizen.")
Omar Deghayes's letter states plainly "that he (Ahmed Doe) would want legal assistance
to secure his freedom." (Exhibit A to the Petition). Omar Deghayes's interest is in
obtaining the release of his fellow inmates.
Whitmore had a trial with counsel; two trials with counsel in fact. He had two
further hearings at which independent tribunals determined that he was capable of
knowingly waiving an appeal. Two separate individuals on two separate occasions
sought "next friend" status not only without Simmons' consent or approval but over his
stated objection, Whitmore was found, subsequent to being afforded due process of law,
to be a mass murderer. All Petitioner Ahmed Doe seeks is to have his Petition brought
before this Court, and Respondents well know that it if is not so presented, Petitioner
will have no access to any civil court, ever.
There is no evidence that Omar Deghayes or Ahmed Doe are "intruders" (as was
Whitmore) or uninvited (as was Whitmore) nor "meddlers," unless seeking to have one's
lengthy incarceration without charge and without trial j udicially reviewed for the first
time can be considered as "meddlesome." It would strain credulity and human decency
to think so.
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One wonders, given Respondents' position in this matter, what recourse a
Guantanamo prisoner may have if he has no family members to contact nor any friends
in confinement with him who satisfy the degree of intimacy required by the Whitmore
tests.
According to Clive Statford-Smith, who represents a number of Guantanamo
prisoners as co-counsel for the Center for Constitutional Rights, and who has traveled
extensively in the Mid-East seeking family members of the prisoners, to request that a
family member be a "next friend" might put the said family member in danger in the
foreign country of one's residence. (Exhibit "A" attached to Petitioner's Opposition to
Motion for Order to Show Cause, f 74.)
Surely the letter of "next friend" Omar Deghayes constitutes sufficient evidence
of a prima facie right of Ahmed Doe to at least engage in two personal visits with the
undersigned before Respondents' relief is granted.
The fact that the circumstances of both Ahmed Doe's and Omar Deghayes'
confinement are unique is beyond dispute. It is indeed these special conditions which
occasioned Judge Kollar-Kotelly to rule in (post-Rasul) Al Odah v. United States, 346
F.Supp. 2d 1, 8 (D.D.C. 2004) that Petitioners at Guantanamo have the right to
assistance of counsel in pursuant to the federal Habeas Corpus statute. After noting
their years of isolation and the circumstances of their capture, Judge Kollar-Kotelly
wrote to say that they are '"seriously impaired' is an understatement. ..It is simply
impossible to expect Petitioners to grapple with the complexities of a foreign legal
system and present their claims to this Court without legal representation." While the
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Court was speaking of legal representation itself, it is submitted that the circumstances
occasioning the Judge's conclusion have not changed. They over-shadow everything in
this case,
III. Petitioner's Right to Invoke The Great Writ of Habeas Corpus. Whether
Framed in Common Law, or Constitutional, or Statutory Terms. Transcends Procedural
Formalities
Long before our Constitution was adopted, the common law protected against
executive detention imposed without due process, and Habeas Corpus existed as a
means to enforce the common law right to due process. As Justice Scalia recently
explained, common law protections against executive detentions, recognized by
Blackstone in his Commentaries [Vol. I, 122-32 (1705)] and our Constitutional
founders, were built upon two central ideas: "due process as the right secured, and
habeas corpus as the instrument by which due process could be insisted upon." Hamdi v.
Rumsfeld, 124 S.Ct. 2633, 2661 (2004) (Scalia, J., dissenting).
The original habeas corpus provision, found in 28 U.S.C. ยง 2241 (c)(1), entitles
anyone held "in custody under or by color of the authority of the United States" to
obtain judicial review of the legality of the detention. That provision derives not from
the Constitution, but from the common law. Rasul v. Bush, U.S. , 124 S.Ct.
2686 at 2691-92.
As the Supreme Court pointed out in Rasul, the statutory entitlement to judicial
review of federal detentions is part of our common law heritage, "throwing its root deep
into the genius of our common law." 124 S.Ct. at 2692. That provision was adopted in
the first Judicial Act enacted by the First Congress in 1789 - prior to the adoption of the
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