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

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 



Case 1:05-cv-01458-UNA-AK Document 13 Filed 11/18/2005 Page 2 of 11 



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 



Case 1:05-cv-01458-UNA-AK Document 13 Filed 11/18/2005 Page 3 of 11 



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). 



Case 1:05-cv-01458-UNA-AK Document 13 Filed 11/18/2005 Page 4 of 11 



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. 



Case 1:05-cv-01458-UNA-AK Document 13 Filed 11/18/2005 Page 6 of 11 



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 



Case 1:05-cv-01458-UNA-AK Document 13 Filed 11/18/2005 Page 9 of 11 



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. 



Case 1:05-cv-01458-UNA-AK Document 13 Filed 11/18/2005 Page 10 of 11 



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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Case 1:05-cv-01458-UNA-AK Documents Filed 11/18/2005 Page 11 of 11 



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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