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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Habeas Corpus, as originally enacted in the Judiciary Act of 1789 and as it exists 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. 


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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 

paragraph 6: 

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, 
(underlining added) 

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. 


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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). 


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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 

Respectfully submitted, 

I si Kevin G. Boris 

Kevin G. Boris 

Louis A. Ruprecht 


306 Main Street 

Millburn, NJ 07041 

(973) 379-2446 

Of Counsel: 

Barbara Olshansky (NY0057) 


666 Broadway, 7th Floor 

New York, New York 10012 

Tel: (212)614-6439 

Fax: (212)614-6499 

Counsel for Petitioners Ahmed Doe and 
Omar Deghayes 


Case 1:05-cv-01458-UNA-AK Document 13-2 Filed 11/18/2005 Page 9 of 11 


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 


Ahmed "Doe", et al 



President of the United States, 
et al. , 


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


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. 


I declare under penalty of perjury that the foregoing is true and correct. 

Executed on 1 8 November, 2005 

Kevin G. Boris