Case 1 :05-cv-01 458-UN A-AK Document 1 3-2 Filed 1 1 /1 8/2005 Page 1 of 1 1
Fifth Amendment and the Bill of Rights. Section 2241 (c)(1) embodies the common law
protection of individual liberty- the right to independent judicial review of executive
detention to ensure that no person is deprived of liberty by authority of the federal
government without the protections of due process of law.
Habeas Corpus, as originally enacted in the Judiciary Act of 1789 and as it exists
under Section 2241 (c)(1) today, guarantees to every person detained under federal
authority to whom the writ extends to the right to judicial review of the legality of the
detention. As Chief Justice Marshall explained in Ex parte Watkins, 28 U.S. 193, 202
[Hjabeas corpus is a high prerogative writ, known to the
common law, the great object of which is the liberation of
those who may be imprisoned without sufficient cause. It is
in the nature of a writ of error, to examine the legality of the
On numerous occasions the Supreme Court has made it clear that the weight of
the Great Writ overwhelms procedural irregularities.
In Frank v. Magnum, 232 U.S. 309, 346-350 (1915) Justice Holmes, dissenting,
indicated his displeasure over the majority's adherence to procedural regularity when
the fairness of a criminal trial was at stake. The trial of the defendant-Petitioner was
occasioned by a display of extraordinary public bitterness directed to the defendant.
While his Habeas petition was procedurally wanting, Justice Holmes opined that the
Petition should have been entertained, as protecting due process from the influence of
mob rule was more important than honoring procedural bars.
Case 1:05-cv-01458-UNA-AK Document 13-2 Filed 11/18/2005 Page 2 of 11
In Harris v. Nelson, 394 U.S. 286, 290-91 (1969), Justice Fortas wrote for the
The writ of habeas corpus is the fundamental instrument for
safeguarding individual freedom against arbitrary and
lawless state action. Its pre-eminent role is recognized by
the admonition in the Constitution that: "The Privilege of
the Writ of Habeas Corpus shall not be suspended...." ...The
scope and flexibility of the writ - its capacity to reach all
manner of illegal detention - its ability to cut through
barriers of form and procedural mazes - have always been
emphasized and jealously guarded by courts and lawmakers.
The very nature of the writ demands that it be administered
with the initiative and flexibility essential to insure that
miscarriages of justice within its reach are surfaced and
corrected, (emphasis added)
IV. Petitioner Ahmed Doe and "Next Friend" Acted According to
Respondents' Own Directions
Respondents attached to their Motion for an Order to Show Cause, and Petitioner
attached to his opposition, a Declaration of Frank Sweigart, in which he explains the
"steps taken by the Department of Defense to notify detainees (at Guantanamo) of their
right to challenge the legality of their detention by filing habeas corpus petitions in
Federal Court." (Respondents' Motion, "Exhibit B")
Sweigart declares that in December, 2004, the Department of Defense began to
notify detainees of their post - Rasul right to file a petition. He further declares that
"the notification tells the detainees that they have the option of asking a friend , family
member, or lawyer to file a petition on their behalf (emphasis added, % 3). As the
Petition of Ahmed Doe plainly shows, this is precisely what Petitioner did - - he asked a
friend, in this case a fellow detainee Omar Deghayes, to obtain a lawyer to assert any
legal right he may have. (See "Exhibit A"; attached to the Petition.)
Case 1 :05-cv-01 458-UN A-AK Document 1 3-2 Filed 1 1 /1 8/2005 Page 3 of 1 1
Attached to the Sweigart Declaration is a copy of the very "Notification" which
Mr. Sweigart declares was distributed to the Guantanamo detainees. It states, at
You may ask a civilian judge to look into the lawfulness of
your detention through a process called a petition for a writ
of habeas corpus. You may ask a friend or a family member
or a lawyer to file such a petition with the court,
As stated above, this is precisely what Petitioner Ahmed Doe did. It is to be noted that
the "Notification" did not require the inmate to "ask a friend whose status is in accord
with federal statutes or whose qualifications are consonant with the Whitmore
guidelines." It offered legal recourse to a civilian court by asking a friend or a lawyer to
file a petition.
There is no principle of logic which dictates that since some detainees filed
through a "next friend" and others filed pro se, those who filed by the former method
have or should have any less legal legitimacy than those who filed by the latter. Both
methods were advised or recommended by Respondents. Nor does it seem obligatory or
necessary for Petitioner to "demonstrate" why he did not file a petitionpro se
(suggested in Respondents' Motion, p. 7). Surely, neither method is privileged over the
other, nor can Petitioner's "failure" to file pro se possibly substantiate a conclusion that
he is any less desirous of challenging his detention (possibly for the remainder of his
natural life) than those who filed by other methods. It stains the imagination to supp
that Ahmed Doe, who may or may not speak English, who may or may not be literate,
who likely does not know what Habeas Corpus means, who has no familiarity with the
Case 1:05-cv-01458-UNA-AK Document 13-2 Filed 11/18/2005 Page 4 of 11
American legal system and who has no knowledge how to file a paper in Federal District
Court could possibly proceed pro se.
Respondents are not only bound by the very procedures they offered to
Guantanamo prisoners, but, until quite recently, Respondents have explicitly admitted
the propriety of fellow detainees acting as legitimate "next friends" without regard to
the fulfillment of the Whitmore guidelines. See Respondents' Motion to Dismiss in
John does 1-570 v. Bush, 05-CV-0313 (CKK) (D.D.C.) at pp 15-16. In that Motion,
Respondents disputed an attempt by attorneys to pursue a petition for Habeas Corpus on
behalf of 570 nameless inmates at Guantanamo and moved for dismissal, citing
Whitmore for the principle that the attorneys had not been authorized by the nameless
inmates and lacked a significant relationship with them. To distinguish and disparage
this John Doe attempt at representation, Respondents argued that the "vast majority of
these detainees have filed petitions through other individuals acting as legitimate next
friends - family members, an attorney who already represented the detainee in pending
military commission proceedings, and fellow detainees." (Emphasis added.) In this
case, however, Respondents take the contrary, indeed contradictory, position and now
seek to challenge that which they previously argued was proper method for a prisoner's
right to obtain access to the court.
V. The Respondents' Conduct and the Circumstances of Ahmed Doe's
Detention Provide Cause for the Court to Excuse Any Alleged Defects In His
Allegations of Standing And to Order Respondents to Cooperate In Affording Counsel
An Opportunity to Consult With Ahmed Doe and His Next Friend, Om ar Deghaves
Case 1:05-cv-01458-UNA-AK Document 13-2 Filed 11/18/2005 Page 5 of 11
Petitioners have demonstrated standing under Whitmore. But if there are
lingering concerns, these should be excused because they were caused by the
The Great Writ excuses procedural irregularities because it "is not now and never
has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand
purpose - the protection of individuals against erosion of their right to be free from
wrongful restraints upon their liberty." Peyton v. Rowe, 391 U.S. 54, 66 (1968)
(citations omitted). In Harris v. Nelson, the Supreme Court instructed:
The writ of habeas corpus is the fundamental instrument for
safeguarding individual freedom against arbitrary and lawless state
action. Its pre-eminent role is recognized by the admonition in the
Constitution that: "The Privilege of the Writ of Habeas Corpus
shall not be suspended. ..." . . .The scope and flexibility of the writ -
its capacity to reach all manner of illegal detention - its ability to
cut through barriers of form and procedural mazes - have always
been emphasized and jealously guarded by courts and lawmakers.
The very nature of the writ demands that it be administered with the
initiative and flexibility essential to insure that miscarriages of
justice within its reach are surfaced and corrected.
394 U.S. 286, 290-91 (1969)(emphasis added).
As this Court is well aware, prisoners seeking habeas relief ordinarily fall into
two categories, (1) federal prisoners, under 28 U.S.C. § 2255, and (2) state prisoners,
under 28 U.S.C. § 2254. Unlike the Guantanamo detainees, traditional prisoners are
afforded a wide variety of rights and protections: they are informed of the crime they
are charged with; they are represented by counsel; they are tried by a jury of their peers;
they have an appeal; and they have procedural remedies to challenge their incarceration.
Case 1:05-cv-01458-UNA-AK Document 13-2 Filed 11/18/2005 Page 6 of 11
Yet, after all of these procedural protections, the Great Writ is still available to
traditional prisoners in appropriate circumstances. 1
Even more remarkably, in habeas cases arising under 28 U.S.C. §§ 2254 and 2255
the federal courts can excuse procedural defects that would otherwise defeat jurisdiction
if cause and prejudice are demonstrated. See Murray v. Carrier, All U.S. 478, 485
(1986); United States v. McKie 13 F. 3d 1149, 1154, (D.C. Cir. 1996). Under the cause
and prejudice test, a petitioner demonstrates cause by showing "that some objective
factor external to the defense impeded efforts to comply with the State's procedural
rule". High v. Ignacio, 408 F.3d 585, 590 (9th Cir. 2005) (quoting Pizzuto v. Arave, 280
F.3d 949, 975 (9th Cir. 2002)). "Thus, cause is an external impediment such as
government interference or reasonable unavailability of a claim's factual basis." Id.
(emphasis added); see also Lattimore v. DuBois, 152 F.Supp. 2d 67, 81 (D. Mass. 2001)
(trial court's failure to appoint counsel, conduct hearing and require pleadings
constituted objective factor impeding procedural compliance), rev 'd on other grounds,
311 F.3d. 46 (1 st Cir. 2002); Bliss v. Lockhart, 891 F.2d 1335, 1342 (8th Cir. 1989)
(finding cause, prejudice and potential miscarriage of justice excused procedural
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears that the applicant has exhausted the
remedies available in the courts of the State; or there is an absence of available State corrective
process; or circumstances exist that render such process ineffective to protect the rights of the
28 U.S.C. § 2254(b)(l ((emphasis added).
Case 1 :05-cv-01 458-UN A-AK Document 1 3-2 Filed 1 1 /1 8/2005 Page 7 of 1 1
If this Court can excuse procedural defects that would otherwise deprive it of
jurisdiction in traditional habeas cases where the prisoners have been afforded many
procedural protections, then surely this Court has a similar power here where prisoners
have been afforded no such protections.
There is no doubt that cause exists here to excuse any technical defects or
information gaps in Ahmed Doe's Petition. If such gaps exist, they are a direct result of
the external circumstances created by the Respondents, who control all of the
circumstances of Ahmed Doe's incarceration and all of the information available
concerning Ahmed Doe.
But in fact, it is not necessary that procedural defects be excused. Rather, to the
extent there are any lingering question about standing, these questions can be removed if
this Court simply requires the consultative process to proceed. The opportunity for
Ahmed Doe to consult directly with counsel would assure that he understands the rights
available to him and would allow counsel to obtain Ahmed Doe's written instructions.
In this way, the Court can be assured that Ahmed Doe has made an informed decision,
rather than having to infer that Ahmed Doe does not want counsel and wishes to stay in
detention indefinitely, as the Respondents would have.
Respondents themselves confirm the reasonableness of allowing the consultative
process to proceed:
Even if the Court finds that petitioners have established next friend
standing so that the Court can exercise jurisdiction over the
petitions, the next friends should not be permitted to serve in this
capacity beyond the time when counsel are permitted to meet with
the detainees for whom habeas relief is sought, (citations
omitted)... (permitting counsel two visits with a detainee before an
Case 1:05-cv-01458-UNA-AK Document 13-2 Filed 11/18/2005 Page 8 of 11
authorization of representation by the detainee must be provided to
respondents.) At that time, counsel should determine these
detainees ' wishes concerning pursuing a challenge to their
detention through the habeas petitions in these cases, such that the
cases can then either be converted into direct petitions or be
Respondents' Motion to Show Cause, footnote 12. Emphasis
For all these reasons, or any one of them, the Habeas Corpus Petition should not
be dismissed for lack of proper "next friend" standing.
Dated: November 18, 2005
I si Kevin G. Boris
Kevin G. Boris
Louis A. Ruprecht
RUPRECHT, HART & WEEKS, LLP
306 Main Street
Millburn, NJ 07041
Barbara Olshansky (NY0057)
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, New York 10012
Counsel for Petitioners Ahmed Doe and
Case 1:05-cv-01458-UNA-AK Document 13-2 Filed 11/18/2005 Page 9 of 11
CERTIFICATE OF SERVICE
I certify that on November 17, 2005 I served a copy of the foregoing document to
the following by Electronic Service
Preeya Noronha, Esq.
United Stated Department of Justice
Civil Division, Federal Programs Branck
20 Massachussetts Ave., N.W. Room 7144
Washington, DC 20530
preeva.noronha(giusdoi . gov
Case 1 :05-cv-01458-UNA-AK Document 13-2 Filed 1 1/18/2005 Page 10 of 1 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Ahmed "Doe", et al
GEORGE W. BUSH,
President of the United States,
et al. ,
Civil Action No. 05-CV-1458 (ESH)
DECLARATION OF KEVIN G. BORIS
Declarant, KEVIN G. BORIS, comes now upon penalty of perjury and declares that the
following is true and correct to the best of his knowledge, recollection and belief:
1 . I am an attorney duly licenced to practice law in the State of New Jersey, and the
United States District Court District of New Jersey.
2. I make this Declaration in support of Petitioner's Memorandum Showing Cause
why the Petition should not be dismissed for lack of "next friend" standing.
3. I am co-counsel with The Center for Constitutional Rights, 660 Broadway, New
York, New York, in the representation of Petitioner, Ahmed Doe.
4. My law firm was put into contact with the Center for Constitutional Rights, who
advised that we could volunteer our legal services in the representation of Guantanamo inmates
on a pro bono basis, to which we agreed.
5. On or about July 11, 2005, Louis A. Ruprecht, Esq., of my firm filed a Petition for
Writ of Habeas Corpus for petitioner Ahmed Doe, via the legal avenue of "Next Friend" Omar
Deghayes, and attached Mr. Deghayes authorization as "Exhibit A" to said Petition.
Case 1:05-cv-01458-UNA-AK Document 13-2 Filed 1 1/18/2005 Page 11 of 11
6. After filing the Habeas Petition for Ahmed Doe, Louis A. Ruprecht and myself
contacted the Department of Justice for an application for security clearance to enable us to visit
Guantanamo to visit personally with Petitioner. Said applications were completed and
transmitted to the Department of Justice on or before September 23, 2005. Mr. Ruprecht and I
have both recently been interviewed by the F.B.I, in connection with this application, but to date
we have not received clearance and are thus unable to visit Petitioner Ahmed Doe in person at
Guantanamo. I am advised that proposed visits to Guantanamo require at least 20 day prior
notice, thus making a first visit to personally interview Ahmed Doe improbable until December
or January at best.
7. No factual Return or Answer has been submitted by Respondents.
8. No Protective Order has been entered in this case and I am unable at present to
enter into attorney-client correspondence with Petitioner Ahmed Doe.
9. I am thus considerably handicapped in providing this Court with first-hand
information about the personal desires of Petitioner Ahmed Doe but, until then, for the foregoing
reasons, I have no reason to doubt his desire for legal representation, expressed through the letter
of this next friend, nor do I have any reason to doubt that the next friend does not have the actual
legal interests of Petitioner in mind.
10. I can and do promise this Court that, upon visits with my client, if he
communicates his decision that I should not represent him, that no one should represent him, or
that he desires other counsel than the undersigned, I will abide by that decision and communicate
it to co-counsel and to this Court.
FURTHER DECLARANT SAYETH NOT.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on 1 8 November, 2005
Kevin G. Boris