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

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EXHIBIT 4 



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UNITED STATES DISTRICT COURT 
DISTRICT OF COLUMBIA 



Civil Action No. 05-CV-00723 (RWR)(AK) 



SALIM MUHOOD ADEM, 
Petitioner, 
v. 

GEORGE W. BUSH, et al 
Respondents. 



MEMORANDUM OPINION 

Pending before the Court is Petitioner Adem's Motion to Hold Respondents in Contempt 
of the Protective Order [23] ("Pet'r Contempt Mot."), the Respondents' Opposition [26] 
("Resp'ts Contempt Opp'n") 1 and Petitioner's Reply [28] ("Pet'r Contempt Reply"), as well as 
Petitioner's Motion to Expedite Petitioner Access to Counsel [31] ("Pet'r Mot. to Exp."), 2 a 
Supplement to the Motion to Expedite [32] ("Pet'r Supp."), 3 Respondents* Opposition to the 



'Respondents' Opposition to Petitioner's Motion for Contempt was also filed as a 
separate Motion for an Order to Show Cause Why the Case Should not Be Dismissed for Lack of 
Proper Next Friend Standing [27] ("Resp'ts' Show Cause Mot."). The Petitioner filed a 
Response [28] on Jan. 3, 2006, which was also filed as his Reply in Support of the Motion for 
Contempt. Respondents filed a Reply [30] ("Resp'ts' Show Cause Reply") on Jan. 13, 2006. 
The Motion for an Order to Show Cause is not technically pending before this Court. However, 
because Respondents' opposition and motion are identical, the Court's opinion inevitably 
addresses some of the issues raised by Respondents' Motion for an Order to Show Cause and the 
responsive pleadings. 

2 The Motion to Expedite Petitioner Access to Counsel and the Supplement seek 
substantially the same relief as Petitioner's original Motion to Hold Respondents in Contempt, 
namely, an order directing that Petitioner be allowed to meet with his counsel. 

3 On November 2, 2005, in recognition of "the need to promote orderly and efficient case 
management of all habeas petitions . . . relating to the rights of [Guantanamo] detainees," Judge 



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Motion to Expedite and the Supplement [33]/[34] ("Resp'ts Opp'n to Mot. to Exp."), and 
Petitioner's Reply in Support of his Motion to Expedite [35] ("Pet'r Exp. Reply"). 

In his motions, Petitioner claims that Respondents have refused and continue to refuse 
counsel access to Petitioner as required by the Protective Order. The Government insists that 
counsel provide written evidence of their authorization to represent the Petitioner before counsel 
will be allowed to meet with him. Upon consideration of the filings submitted by the parties, 
and following a conference with counsel for Petitioner and Respondents, the Court finds that a 
plain reading of the Protective Order dictates that Petitioner's counsel be allowed to meet with 
their client in order to obtain the very authorization of representation that Respondents insist be 
provided prior to any visits. Respondents are ordered to comply with the Protective Order and 
allow counsel to visit with Adem. 

Factual and Procedural Background 

At their core, the issues presented to this Court are about the right of detainees at 
Guantanamo to have access to counsel if they so choose. At some point in late 2004, well over a 
year ago, Petitioner Salim Muhood Adem asked for a lawyer to help him challenge his 
potentially indefinite detention without charge by the United States at the Naval Base in 
Guantanamo Bay, Cuba. Al-Rawi Decl. f 5, attached as Exhibit A to Clingman Dec!., attached 



Kessler, acting as Chair of the Calendar and Case Management Committee referred all motions 
"pertaining to interpretation or construction of any protective order" entered in any of the 
Guantanamo habeas cases to the undersigned for resolution pursuant to LCvR 72.2(a). A party 
may seek reconsideration of a ruling by a magistrate judge within 10 days after being served with 
the magistrate judge's order. LCvR 72.2(b). Rulings issued by a magistrate judge pursuant to 
LCvR 72.2 are reviewed by the district court judge, in this case Judge Roberts, on a "clearly 
erroneous" or "contrary to law" standard. LCvR 72.2(c). 



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as Exhibit 1 to Pet'r Mot. to Exp. Adem, who does not speak English, communicated his 
request for counsel to a fellow detainee, Mr. Bisher Al-Rawi, while they were housed together in 
Camp Delta. Al-Rawi Decl. 1| 5. Adem knew that Al-Rawi, who speaks both English and 
Arabic, was represented by counsel and "he specifically requested that [Al Rawi] try to get him 
an attorney." Id. Al-Rawi passed Adem's request for counsel to his own lawyer, Brent Mickum, 
Esq. Id. fH 2-3. Mr. Mickum, in turn, found Adem a lawyer through the Center for 
Constitutional Rights, whose lawyers are "of counsel" in the majority of Guantanamo habeas 
cases. 

Murray Fogler, Esq. volunteered to represent Adem free of charge and filed a habeas 
petition on his behalf in April of 2005. On Nov. 10, 2005, having obtained their security 
clearances, counsel for Adem requested permission to meet with their client. Fogler Decl. f 6, 
Dkt. No. 25. Respondents, however, refused to permit counsel to meet with Adem absent 
written evidence either in the form of a "next friend" petition or directly from Adem authorizing 
counsel to represent him. Id. Uf 7-9. 

On December 9, 2005, Petitioner filed the instant Motion to Hold Respondents in 
Contempt for refusing to permit counsel to meet with Adem in violation of the Protective Order. 
Respondents filed their Opposition on December 22, 2006. On December 29, 2005, this Court 
met with counsel for Petitioner and Respondents. Petitioner's counsel agreed that they would 
seek additional information from Al-Rawi regarding the circumstances of his relationship with 
Adem. The undersigned deferred ruling on Petitioner's motions pending receipt of the additional 



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information, which counsel submitted in early February. 4 

Adem has now had a lawyer for nearly a year. However, it is unclear if Adem even 
knows that his lawyer exists because Respondents refuse to acknowledge counsel's authority to 
represent him. Counsel for Adem seek to meet with their client in order to confirm that he does, 
in fact, want representation. See Pet'r Contempt Mot. at 2. Respondents insist that before 
counsel will be allowed to meet with their client, the Protective Order requires that they provide 
evidence of their authority to represent him. 5 See Resp'ts Contempt Opp'n at 5. Alternatively, 
Respondents argue that Adem may convert his direct petition to a "next friend" petition. Id. at 11. 
However, as the pleadings in this and other Guantanamo habeas cases demonstrate, Respondents 
do not consider Al-Rawi to be a proper "next friend." Id. at 1 1-20. According to Respondents, 



4 See Clhigman Decl. % 4, attached as Exhibit 1 to Pet'r Mot. to Exp.l; Al-Rawi Decl. Hf 
2-8, attached as Ex. A to Clingman Decl; Gutierrez (Al-Rawi) Decl. fflj 6-29, attached as Exhibit 
B to Pet'r Supp. to Mot. to Exp. 

5 In response to Petitioner's objection that such evidence is hard to come by without ever 
seeing their client, Respondents suggested that counsel mail their client a letter. Notwithstanding 
their objection that the Protective Order does not limit counsel to obtaining authorization of 
representation through the mail, counsel for Adem attempted to mail their client a letter, only to 
find themselves in another catch-22. Because Respondents do not acknowledge counsel's 
authority to represent their client, Respondents refused to allow counsel to utilize the procedures 
put in place for "legal mail" under the Protective Order. Pet'r Mot. to Exp. at 3-4. 

The Amended Protective Order and Revised Access Procedures, (collectively "the 
Protective Order"), govern detainees' access to the outside world. The Protective Order was 
initially entered by Judge Joyce Hens Green in In re Guantanamo Detainee Cases, 344 F. Supp. 
2d 174 (D.D.C. 2004). The Revised Access Procedures are attached as Exhibit A to the 
Amended Protective Order. The Protective Order provides for two different mail systems: one 
for legal mail and one for non-legal mail. See Protective Order, Ex. A § IV. "Legal mail" 
includes any "letters written between counsel and a detainee that are related to the counsel's 
representation of the detainee." Id., Ex. A § JJ.E. Detainees may also send non-legal mail, 
including letters to family, but non-legal mail is subject to review and censorship by military 
personnel at Guantanamo and takes much longer to process than legal mail. Id., Ex. A § IV. 



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only a family member or a close personal friend has standing to assert the interests of Adem 
through the "next friend" device. Otherwise, argue Respondents, how can the Court be assured 
that Adem really does want to challenge his detention? Id. at 18-19. 

For reasons explained in this memorandum opinion, Respondents' arguments are 
misplaced. The Protective Order manifestly does not require evidence of authority to represent a 
detainee as a prerequisite to counsel meeting with a detainee. Rather, the Protective Order 
plainly provides that counsel who purportedly represent a particular detainee must provide 
evidence of their authority to represent that detainee within 10 days of counsel's second visit 
with the detainee. See Protective Order, Ex. A § III.C.2 Because Adem, through counsel, has 
filed a direct petition, the Court's Order rests on this holding alone. 

However, as is explained in greater detail below, even if counsel had filed Adem's 
habeas petition through Al-Rawi as "next friend," the Protective Order would still grant counsel 
two visits with Adem directly (plus 10 days) before any challenge to Al-Rawi's standing as next 
friend would be ripe. Had Adem's habeas petition been filed through Al-Rawi as 'next friend,' 
upon receiving evidence of counsel's authority to represent Adem directly, the Court would 
simply convert the "next friend" petition into a direct petition. If, on the other hand, evidence of 
counsel's authority to represent Adem is not forthcoming within ten days of counsel's second 
visit with Adem, then, and only then, would a motion to dismiss for lack of proper "next friend" 
standing be appropriate. 



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Analysis 

I. History of the Protective Order and the Use of "Next Friends " in Guantanamo Habeas 

Cases 

It appears to the Court that the dispute between Adem and Respondents is the result of 

unnecessary confusion over the use of the terms "friend" and "next friend." This confusion is 

unfortunate, but perhaps understandable given the history of the Guantanamo habeas cases. On 

June 28, 2004, the Supreme Court ruled that the District Court had jurisdiction to consider 

aliens' "habeas corpus challenges to the legality of their [executive] detention at the Guantanamo 

Bay Naval Base." Rasul v. Bush, 542 U.S. 466, 484 (2004). 

Petitioners contend that they are being held in federal custody in violation of the laws of 
the United States. No party questions the District Court's jurisdiction over petitions' 
custodians. Section 2241, by its terms, requires nothing more. 

Mat 483-84 

Prior to Rasul, the Government claimed authority to hold detainees at Guantanamo 

completely incommunicado and without access to counsel. Id. at 471-72. Until Rasul, therefore, 

the detainees at Guantanamo had neither access to the attorneys claiming to represent them nor 

the ability to personally seek relief from the courts reviewing their claims. Thus, Rasul and the 

related habeas cases were necessarily filed through other individuals, primarily relatives, acting 

as "next friends" as that term is traditionally used in the law. Id. at 47 1 . A "next friend," as 

traditionally understood, functions as a guardian ad litem, standing in the shoes of the real party 

in interest throughout the entire litigation when the real party in interest is unable to represent 

himself or herself. 6 



6 "Next friend" standing is a procedural mechanism by which a lawsuit is prosecuted or 
defended by someone other than the real party in interest. The practice of a "next friend" 



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Once Rasul rejected the proposition of Guantanamo Bay as a legal black hole, the "next 
friend" device, at least as the term is traditionally understood in its legal context, became 
unnecessary to sustain a habeas petition because detainees could eventually access counsel 
directly. On July 19, 2004, the Court of Appeals for the D.C. Circuit remanded Rasul and the 
related cases back to the District Court for further proceedings in light of the Supreme Court's 
opinion. On remand, the Government began drafting proposed procedures that would govern 
detainees' access to counsel. See Rasul v. Bush, No. 02-299 (D.D.C. July 26, 2004) (Dkt. No. 
51) (order instructing parties to file a joint status report and briefing schedule regarding proposed 
procedures for counsel access to detainees); Al Odah v. United States, No. 02-828 (D.D.C. July 
23, 2004) (Dkt. No. 38) (order setting briefing schedule on issue of "all proposed procedures 
with respect to counsel access that the Government intends to apply to the Guantanamo Bay 
detainees"). 

On Oct. 20, 2004, Judge Kollar-Kotelly ruled on the merits of the Government's 
proposed procedures. Al Odah v. United States, 346 F. Supp. 2d 1, 5-14 (D.D.C. 2004). Al 



standing in the shoes of the real party in interest is an "ancient and fully accepted" practice, U.S. 
ex rel Bryant v. Houston, 273 F. 915, 916 (2d Cir. 1921), deriving from early English statutes, 
see Whitmore v. Arkansas, 495 U.S. 149, 162 (1990) (tracing development of "next friend" 
doctrine in habeas proceedings to English Habeas Corpus Act of 1679). Traditionally, a "next 
friend" stands in the shoes of the real party in interest when he or she cannot maintain the suit 
due to inaccessability, see Whitmore, 495 U.S. at 162-63, incapacity, see Abbott v. Hancock, 3 1 
S.E. 268, 269 (N.C. 1898) ("next friend" permitted to prosecute tort action on behalf of an 
"insane" person); Garnett v. Garnett, 1 14 Mass. 379 (1874) ("next friend" permitted to bring 
divorce action on behalf of "insane" person), or infancy, Blumenthal v. Craig, 81 F. 320, 321-22 
(3d Cir. 1 897). "A 'next friend' does not himself become a party to the habeas corpus [or other] 
action. . . but simply pursues the cause on behalf of the detained [or incapacitated] person, who 
remains the real party in interest." Whitmore, 495 U.S. at 163. In that sense, "[a] 'next friend' 
resembles ... a guardian ad litem" who prosecutes or defends the case from start to finish on 
behalf of another. Morgan v. Potter, 157 U.S. 195, 198 (1895). 



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Odah set the parameters for the final Amended Protective Order and Revised Access Procedures 
subsequently approved by Judge Joyce Hens Green in In re Guantanamo Cases, 344 F. Supp. 2d 
1 74 (D.D.C. 2004). 7 In Al Odah, petitioners had challenged the government's proposed 
procedures for counsel access, which contained significant restrictions on attorney-client 
communications, including real-time monitoring of counsel meetings with detainees. Al Odah, 
346 F. Supp. 2d at 3-4. The Government took the position that detainees' access to counsel 
existed purely at the pleasure of the Government, with restrictions to be imposed as it saw fit. Id. 
at 3. Al Odah flatly rejected the Government's position, id. at 5-8, and with it certain of the 
Government's proposed procedures, id. at 9-14. Al Odah held that the Guantanamo detainees are 
entitled to be represented by counsel and that this Court has the authority to "craft the procedures 
necessary" to enforce that right. Id. at 7. On that basis, Al Odah rejected the Government's 
proposal that it be allowed to monitor counsels' meetings with their clients and conduct a 
classification review of counsels' notes and mail between counsel and detainees. Id. at 9-12. 

Instead, Judge Kollar-Kotelly proposed a compromise framework under which counsel 
would have completely unmonitored access to their clients, but which would permit the 
government to conduct a classification review of attorney notes and detainee legal mail only if 



'The judges of this District Court transferred the Guantanamo Bay habeas cases to Judge 
Green for coordination and management, including rulings on all common procedural issues, on 
Sept. 14, 2004, after briefing on the Government's proposed procedures for counsel access mAl 
Odah had been completed and a hearing held before Judge Kollar-Kotelly. Al Odah, 346 F. 
Supp. 2d at 5 n.5. 



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the attorney who received the information wished to disclose the information to anyone else, 
including other counsel. Id. at 13-14. This framework subsequently became the basis for the 
Protective Order that now governs counsel access to detainees held at Guantanamo. See Resp'ts' 
Response on Proposed Procedures for Counsel Access, Al Odah, 02-828 (D.D.C. Nov. 4, 2004) 
(Dkt. No. 135) (acceding to '"closed universe' approach proposed by Judge Kollar-Kotelly"). 

Following Rasul mdAl Odah, the Government began, on a rolling basis, to notify 
detainees that they had "the right to challenge the legality of their detention by filing habeas 
corpus petitions in federal court." (Second) Sweigart Decl. fH 2-5, attached as Exhibit A to 
Resp'ts' Contempt Opp'n. The "notification" 8 consists of approximately two paragraphs 
instructing detainees that they may challenge their detention "through a process called a petition 
for a writ of habeas corpus.'* (Second) Sweigart Dec!., Exs. A-C. 

The notification tells detainees they may either file a "petition" themselves or they 
"may ask a friend or family member or a lawyer to file such a petition with the 



8 The Department of Defense (DoD) issued three different types of notifications to 
detainees, depending on whether the detainee had been determined 1) an enemy combatant 
whose status may be reviewed by the Administrative Review Board (ARB), 2) an enemy 
combatant not eligible for ARB consideration because he is triable by Military Commission, or 
3) a non-enemy combatant. (Second) Sweigart Decl. f1| 3-5, Exs. A-C. Although each 
notification contains slightly different information, all three contain the same two paragraphs 
informing detainees of their right to seek review of the legality of their detention. 

'The notification fails to provide any explanation of what a petition for habeas corpus is 
or how a detainee would go about getting one. (Second) Sweigart Decl., Exs. A-C. Some 
detainees were apparently so confused about what to do with the notice that they "simply mailed 
the entire [blank] sheet itself back to the court because they did not know what else to do to get 
legal assistance." Gutierrez (Kabir) Decl. \ 12, Razakah v. Bush, 05-2370 (D.D.C. Feb. 3, 2006) 
(Dkt. No. 8). 



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court."* Id. Once a habeas petition is docketed and the Protective Order entered, counsel may 
meet with their detainee client. See Protective Order, Ex. A § HI.C. Within ten days of their 
second meeting, counsel must provide DoD with "evidence of his or her authority to represent 
the detainee." Id. § IH.C.2. Thus, after Rasul and the creation of the Protective Order, the legal 
fiction of a "next friend" became largely irrelevant except as a mechanism for identifying those 
detainees who seek to challenge their detention in the first instance." In those habeas cases 
initiated since the creation and entry of the Protective Order, the detainees who initiated a habeas 
petition on behalf of a fellow detainee generally do not seek to serve as a "next friend" in the 
traditional sense, but are simply passing on another detainee's request for help, a fact that can be 
confirmed once counsel meets directly with the detainee. 12 

Unfortunately, post-Rasul and entry of the Protective Order, counsel for both 
Respondents and Petitioners continued to use the term "next friend," even though the term's 



10 The notification instructs detainees to write to the District Court in order to challenge 
their detention, but provides little in the way of explanation about what detainees should write: 

If you do not have a lawyer or a family member or friend who could file this petition for 
you, you may file your own petition. According to prior court rulings, petitions should be 
sent to: 

United States District Court for the District of Columbia 
333 Constitution Ave., NW 
Washington, DC 20001. 
(Second) Sweigart Decl., Exs. A-C. 

"A "next friend" might still be necessary if, however, a detainee is incapacitated or 
otherwise unable to personally verify his intent to challenge his detention. 

n See Gutierrez (Kabir) Decl. Iff 19-20; Gutierrez (Al-Rawi) Decl.Uf 14-22; Al-Rawi 
Decl. fH 2-9. 

10 



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traditional legal context no longer applied. This led the District Court in several instances to 
understandably assume that the so called "next friends" were in fact seeking to stand in the shoes 
of named detainees in the traditional sense, throughout the course of the habeas litigation. 

In Hamily v. Bush, Judge Bates sua sponte issued an order to show cause why the case 
should not be dismissed for lack of "next friend" standing. Hamily, No. 05-763 (D.D.C. Oct. 3, 
2005) (Dkt. No. 1 6) (Order to Show Cause). In Hamily, the detainee had filed a habeas petition 
through a fellow detainee, Shaker Aamer, as 'next friend' on April 15, 2005. Judge Bates issued 
the order to show cause because there was insufficient information in the record to determine 
whether Aamer could maintain "next friend" standing. Id. at 2. In fact, when the 'show cause' 
order was issued, counsel had already met directly with Hamily and obtained authorization of 
representation. However, counsel had failed to notify the Court of that fact. Smith Decl. 1fl| 3- 
14, Hamily v. Bush, No. 05-763 (Oct. 31, 2005) (Dkt. No. 20). Upon learning that Hamily had 
personally requested counsel to challenge his detention, Judge Bates converted the case into a 
direct petition and substituted Hamily as the sole petitioner. Hamily, No. 05-763 (Oct. 3 1 , 2005) 
(Dkt. No. 19). 

From the time the Protective Order was first entered until approximately mid-summer 
2005, the Government raised no objection to the practice of detainees initiating a habeas petition 
through a fellow detainee who was a friend because once the detainee confirmed his request for 
counsel, the question of 'next friend' standing was moot. 13 See Resp'ts' Response at 1-2, Ahmed 
v. Bush, No. 05-665 (June 23, 2005) (Dkt. No. 14) (taking no position on issue of "next friend" 



13 The issue of 'next friend' standing appears to have been raised for the first time sua 
sponte in Ahmed v. Bush, No. 05-665 (May 24, 2005) (Dkt. No. 12) . 

11 



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standing other than to argue that the fellow detainee should only be permitted to serve as a "next 
friend" until such time as counsel could meet with Ahmed directly); see also Tarver Decl. *j% 2-6, 
attached as Ex. 2 to Pet'r Mot. to Exp. (noting that counsel was permitted to meet directly with 
detainees who had filed habeas petitions through fellow detainees); SIM v. Bush, No. 05-429 
(D.D.C. 2005) {habeas petitions of seventeen detainees brought by three fellow detainees as 
'next friends' without challenge). 

After Hamily and Ahmed, however, Respondents began challenging the standing of 
fellow detainees to serve as "next friends." At the same time, Respondents also refused to allow 
counsel to meet with the detainee who was the real party in interest, thereby placing counsel in a 
Sisyphean quagmire by preventing counsel from obtaining the authorization necessary to convert 
the case to a direct petition. As a result, the cases in which Respondents are challenging the 
standing of fellow detainees to initiate a petition as a "next friend" have been at a standstill since 
approximately October of 2005. 14 



14 In Oct. of 2005, a number of pending motions challenging "next friend" standing in 
Guantanamo habeas cases were transferred to Judge Oberdorfer pursuant to LCvR 40.6. See 
Ahmed Doe v. Bush, No. 05-1458 (Oct. 13, 2005) (Dkt. No. 8); Nabil v. Bush, No. 05-1504 (Oct. 
25, 2005) (Dkt. No. 8); Al Hawary v. Bush, No. 05-1505 (Oct. 25, 2005) (Dkt. No. 10); Shafiiq v. 
Bush, No. 05-1506 (Oct. 25, 2005) (Dkt. No. 10); Idris v. Bush, 05-1555 (Oct. 21, 2005) (Dkt. 
No. 6); Al Razak v. Bush, 05-1601 (Minute Order dated Nov. 14, 2005); Kabir v. Bush, 05-1704 
(Nov. 1, 2005) (Dkt. No. 18); Qasim v. Bush, 05-1779 (Oct. 31, 2005) (Dkt. No. 4); Zakirjan v. 
Bush, 05-2053 (Oct. 21, 2005) (Dkt. No. 17); Muhammedv. Bush, 05-2087 (Nov. 11, 2005) 
(Dkt. No. 1 1). In response to Petitioners' allegations that Respondents were preventing counsel 
from obtaining direct authorizations from their detainee-clients, Judge Oberdorfer ordered 
Petitioners and Respondents to confer with this Court to determine "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 of 
Oberdorfer, J., dated Nov. 4, 2005. 

Pursuant to Judge Oberdorfer's Order, this Court held a conference with counsel for the 
Petitioners and Respondents in those cases in which a 'next friend' challenge had been raised. 
The Court instructed Petitioners' counsel to meet with as many of the "next friends" as possible 

12 



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II. Existing Procedures for Providing Detainees with Meaningful Access to Counsel and the 
Court 



The DoD "notifications" instruct detainees that they may either file a petition themselves 
or they "may ask a friend or family member or a lawyer to file such a petition with the court." 
(Second) Sweigart Decl., Exs. A-C. The District Court received approximately 56 "pro se 
petitions'" 5 in response to the DoD notifications. 16 Respondents point to these pro se petitions as 



to seek additional information about the circumstances of their relationships with the detainees 
who are the real parties in interest. Gitanjali Gutierrez, who is of counsel in many of the 
Guantanamo habeas cases, met with Mr. Al-Rawi, Mr. Kiyemba and Mr. Kabir. These meetings 
shed some light on the ways detainees may have understood their legal rights and the process for 
challenging their detention in federal court. See Gutierrez (Al-Rawi Deck); Gutierrez (Kabir) 
Decl. Respondents have since transferred Jamal Kiyemba to the custody of the government of 
Uganda. See Respondents' Notice of Transfer, Deghayes v. Bush, 04-2215 (Feb. 9, 2006) (Dkt. 
No. 39). Kiyemba, who speaks English, had relayed the requests of three other detainees for a 
lawyer to his lawyer. SeeNabil v. Bush, No. 05-1504; Shafiq v. Bush, No. 05-1506; Muhammed 
v. Bush, No. 05-2087. 

Adem's petition is presently filed as a direct petition, and was therefore not one of the 
cases referred to Judge Oberdorfer. Rather, the motions currently before the Court were referred 
directly to the undersigned by Judge Roberts. However, because Respondents argue that Adem's 
petition should have been filed as a 'next friend,' many of the issues are identical. 

15 The term "pro se petition" is something of a euphemism in this context. Because the 
notifications provided no explanation about the meaning oi "habeas corpus" or what steps a 
detainee should take to challenge his detention, the responses received by the District Court 
varied widely. The Court received lengthy letters of several pages as well as letters that consisted 
of little more than a few sentences asking for an explanation for their detention. The Court 
treated these inquiries as pro se petitions. 

,6 See Resp'ts' Contempt Opp'n at 13 n. 9 (listing Khiali~Gul v. Bush, No. 05-877; 
Rahmattulah v. Bush, No. 05-878; Mohammad v. Bush, No. 05-879; Nasrat v. Bush, No. 05-880; 
Slahi v. Bush, No. 05-881; Rahman v. Bush, No. 05-882; Bostan v. Bush, No. 05-883; 
Muhibullah v. Bush, No. 05-884; Mohammad v. Bush, No. 05-885; Wahab v. Bush, No. 05-886; 
Chaman v. Bush, No. 05-887; Gul v. Bush, No. 05-888; Basardh v. Bush, No. 05-889; Khan v. 
Bush, No. 05-890; Nasrullah v. Bush, No. 05-89 1 ; Shaaban v. Bush, No. 05-892; Sohail v. Bush, 
No. 05-993; Tohirjanovich v. Bush, No. 05-994; Slahi v. Bush, No. 05-995; Mohammad v. Bush, 
No. 05-996; Khudaidad v. Bush, No. 05-997; Al Karim v. Bush, No. 05-998; Al-Khalaqi v. Bush, 
No. 05-999; Sarajuddin v. Bush, No. 05-1000; Kahn v. Bush, No. 05-1001; Mohammed v. Bush, 

13 



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evidence that detainees are able to challenge their detention without seeking the assistance of a 
fellow detainee, arguing in effect that Adem must not want to challenge his detention because he 
did not submit apro se petition directly to the Court. Resp'ts' Contempt Opp'n at 13-15. The 
evidence suggests, however, that DoD's attempts to notify detainees of their right to challenge 
their detention have been marginally effective at best. 

First, it appears that there was significant confusion among detainees about what the DoD 
notifications were and what the detainees should do with them. See Gutierrez (Al-Rawi) Decl. ffl[ 
6-12. As noted previously, the DoD notice informed detainees that they could "ask a civilian 
judge to look at the lawfulness of your detention through a process called a petition for a writ of 
habeas corpus" without providing any further explanation. See (Second) Sweigart Deck, Exs. A- 
C. According to Al-Rawi, "[n]o U.S. personnel are available at the base to answer any 
detainee's questions about how to obtain a lawyer or what a habeas petition is." Gutierrez (Al- 
Rawi) Decl. % 12; see also Gutierrez (Kabir) Decl. f 18 (noting that the Military Police "were 
prohibited from helping the detainees with any legal or other questions about the notification"). 
Petitioner asserts that detainees who tried to ask their "personal representative" for an 



No. 05-1002; Mangut v. Bush, No. 05-1008; Hamad v. Bush, No. 05-1009; Khan v. Bush, No. 
05-1010; Zuhoor v. Bush, No. 05-101 1 ; All Shah v. Bush, No. 05-1012; Salaam v. Bush, No. 05- 
1013; Mammar v. Bush, No. 05-1233; Ahmed v. Bush, No. 05-1234; Baqi v. Bush, No. 05-1235; 
Abdulzaher v. Bush, No. 05-1236; Aminullah v. Bush, No. 05-1237; Ghalih v. Bush, No. 05- 
1238; Al Khaiy v. Bush, No. 05-1239; Altaiy v. Bush, No. 05-1240; Bukhari v. Bush, No. 05- 
1241; Pined v. Bush, No. 05-1242; Peerzai v. Bush, No. 05-1243; Alsawam v. Bush, No. 05- 
1244; Mohammadi v. Bush, No. 05-1246; Al Ginco v. Bush, No. 05-13 10; Ullah v. Bush, No. 05- 
131 1; AlBihani v. Bush, No. 05-1312; Sadkhan v. Bush, No. 05-1487; Faizullah v. Bush, No. 05- 
1489; Faraj v. Bush, No. 05-1490; Khan v. Bush, No. 05-1491 ; Ahmad v. Bush, No. 05-1492; 
Amon v. Bush, No. 05-1493; Idris v. Bush, No. 05-1555; Jamolivich v. Bush, No. 05-21 12). 



14 



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explanation of a habeas petition "received no response." 17 See Gutierrez (Al-Rawi) Decl. 1 12. 
As one detainee complained in his letter directly to the Court: 

Here we are, sending you the so-called petition, Writ of habeas corpus. And I don't know 
any details about it. I have asked the camp administration for a lawyer about four to six 
months ago and there was no attention given to the matter. Please, send a lawyer with 
either a verbal or written message [in response] to this letter so that I can be understand 
that [sic] the petition is and what this court is all about. 

AlBihani v. Bush, 05-1312 (June 30, 2005) (Dkt. No. 1). 

Language issues appear to have compounded the confusion. The DoD notice was 
translated into Arabic and several other languages, but, according to one detainee who speaks 
both Arabic and English, the Arabic version was much more difficult to understand. Gutierrez 
(Kabir) Decl. f 18. This same detainee did not understand what a habeas corpus petition was 
until he spoke to his own lawyer. Id. Additionally, those detainees who are illiterate in their own 
language had "to ask another detainee to read the notification to him, if he was in a camp where 
this was even possible." Id. 

According to Al-Rawi, after receiving the DoD notice, a group of Afghani detainees 
decided to try to write to the Court because they thought they had nothing to lose. Id. % 8. 
However, Al-Rawi believed that the only reason the Afghani detainees were able to send letters 
to the Court is because one of the Afghani detainees spoke some English and because these 
particular detainees were held in a group setting. Id. % 9. According to Al-Rawi, the Afghani 
detainees discussed the DoD notice and wrote their letters to the Court as a group. Id. However, 
this kind of collective action "cannot happen in other blocks because the prisoners cannot easily 



"The Court assumes that the "personal representative" referred to in the Declaration is 
the same personal representative assigned to assist the detainee in the Combatant Status Review 
Tribunal. 



15 



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speak as a group to discuss their options for challenging their detention." 18 Id. 

Petitioner alleges, however that most detainees did not trust that "writing a simple letter 
would do anything" Gutierrez (Al-Rawi) Decl. Iffl 6-7. According to Al-Rawi, "the authorities at 
Guantanamo have deceived the prisoners so consistently and so often" the detainees simply do 
not trust anything they are told by their captors. Id. \ 6. Rather, "most detainees only trusted 
contacting other detainees who had actual habeas lawyers as a means of securing legal 
representation." Id., % 14. According to Al-Rawi, "[t]his was because the other prisoners had 
had time to get to know their lawyers, and learn whether they could be trusted." Id. Al-Rawi 



18 The circumstances under which the District Court received the 56 pro se petitions lends 
credence to Al-Rawi's allegations. All but one of the pro se petitions were submitted by 
detainees between mid-February and late May. At least 34 were submitted by detainees during 
the month of March, (some are undated), although it appears to have taken anywhere from two to 
four months before they were delivered to the Court. See Khiali-Gul v. Bush, No. 05-877; 
Rahmattulah v. Bush, No. 05-878; Mohammad v. Bush, No. 05-879; Nasrat v. Bush, No. 05-880; 
Slahi v. Bush, No. 05-881; Rahman v. Bush, No. 05-882; Boston v. Bush, No. 05-883; 
Muhibullah v. Bush, No. 05-884; Mohammad v. Bush, No. 05-885; Wahab v. Bush, No. 05-886; 
Chaman v. Bush, No. 05-887; Basardh v. Bush, No. 05-889; Khan v. Bush, No. 05-890; 
Nasrullah v. Bush, No. 05-891; Shaaban v. Bush, No. 05-892; Sohail v. Bush, No. 05-993; 
Tohirjanovich v. Bush, No. 05-994; Mohammad v. Bush, No. 05-996; Khudaidad v. Bush, No. 
05-997; AlKarim v. Bush, No. 05-998; Al-Khalaqi v. Bush, No. 05-999; Sarajuddin v. Bush, No. 
05-1000; Kahn v. Bush, No. 05-1001 ; Mohammed v. Bush, No. 05-1002; Mangut v. Bush, No. 
05-1008; Hamad v. Bush, No. 05-1009; Khan v. Bush, No. 05-1010; Zuhoor v. Bush, No. 05- 
1011; Mi Shah v. Bush, No. 05-1012; Salaam v. Bush, No. 05-1013; Ghalib v. Bush, No. 05- 
1238; Peerzai v. Bush, No. 05-1243; Alsawam v. Bush, No. 05-1244; Mohammadi v. Bush, No. 
05-1246. 

Of these 34 petitions, nearly half were written over a period of four days (March 1 to 
March 4), appear to be written by Afghani detainees and are strikingly similar in style and 
content. See Khiali-Gul v. Bush, No. 05-877; Rahmattulah v. Bush, No. 05-0878; Mohammad v. 
Bush, No. 05-879; Nasrat v. Bush, No. 05-880; Rahman v. Bush, No. 05-882; Boston v. Bush, 
No. 05-883; Muhibullah v. Bush, No. 05-884; Mohammad v. Bush, No. 05-885; Wahab v. Bush, 
No. 05-886; Chaman v. Bush, No. 05-887; Basardh v. Bush, No. 05-889; Khan v. Bush, No. 05- 
890; Nasrullah v. Bush, No. 05-891; Sohail v. Bush, No. 05-993; Ghalib v. Bush, No. 05-1238. 
Significantly, one of these fifteen petitions was written in English by an Afghani detainee. Sohail 
v. Bush, No. 05-993. 

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also stated that he knew, based on conversations with Adem directly, that Adem does not trust 
his military captors and would therefore view anything fiom the military with suspicion. See Al- 
Rawi Decl. 1 8. 

Additionally, the DoD notices told detainees to write to a "court," whereas the detainees 
"were seeking an 'attorney' to help them."" Gutierrez (Kabir) Decl. f 9. Detainees have no way 
of knowing what kind of institution the United States District Court for the District of Columbia 
is and whether it is associated with the military. Id. % 8. According to Al-Rawi, the view of most 
detainees that it was useless to try to write the Court has been confirmed by the fact that, as of 
yet, no detainee who sent a letter to the Court has been able to meet with a lawyer. 20 Gutierrez 



"In September 2005, DoD began to notify some detainees that they could obtain a lawyer 
by sending a form to the American Bar Association (ABA). (Second) Sweigart Decl. % 7. The 
ABA notice uses so much legal and technical language that the Court doubts it would mean 
much of anything to an individual not already familiar with the United States legal system. Id, 
Ex. E. More importantly, however, it is unclear whether any detainees have received the notice, 
other than the 56 detainees who already sent pro se petitions to the District Court. Id. % 7. 
Respondents assert that they have delivered the notice "to all pro se petitioners who are not 
already represented by counsel." Id. Since the District Court appointed Federal Public 
Defenders to serve as counsel to the unrepresented pro se petitioners within a month of DoD 
mailing the ABA notice, it is unclear what relevance the notice has for those detainees. 
Additionally, Respondents state that they "will continue to deliver" the ABA notice to all "other 
detainees who request the assistance of counsel." Id. Respondents do not claim that the ABA 
notice has yet been sent to any detainee other than those detainees who have already 
communicated with the Court. Perhaps this is merely an oversight, but Respondents also fail to 
explain how delivery of the ABA notice is triggered. Does a request to another detainee count? 
If so, how does DoD learn about the request? What about a statement to a guard or the detainee's 
"personal representative"? Is the detainee obliged to make some sort of formal request for 
counsel in writing? Given Respondents' insistence on the niceties of form, these are hardly 
empty questions. 

20 The Court received the majority of the 56 pro se petitions in May of 2005. In October 
of 2005, the Court appointed Federal Public Defender Offices to represent the pro se detainees. 
Although the District Court mailed an acknowledgment to each detainee who had personally 
submitted some sort of request for assistance, it appears that the notices, written in English, may 
never have been translated. Gutierrez (Al-Rawi) Decl. % 10. As a result, those detainees who 

17 



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(Al-Rawi)Decl. 11 10-11. 

Al-Rawi, who speaks English, and who is himself represented by counsel, offered to help 
other detainees file a habeas petition because the DoD notice "specifically said that he could." Id. 
11 16-20. Al-Rawi claims that he knows Adem personally because they lived together for some 
period of time in Camp Delta. Al-Rawi Decl. 1 5. Adem specially asked Al-Rawi to help him 
get a lawyer. 21 Id. fl 3-6. Several other detainees did the same. See Gutierrez (Al-Rawi) Decl. 
11 14-21. Al-Rawi sent a letter to Mr. Mickum, his own lawyer, listing the names of the 
detainees who had come to him asking for help in getting a lawyer. Resp'ts' Show Cause Reply, 
Ex. A110. Al-Rawi listed Adem's name, his ISDN number and his home country (Sudan). Id. 
He also noted that Adem had attempted to write directly to Mr. Mickum, but the letter apparently 

never arrived. 

According to Al-Rawi, when he "gave his attorney authorizations from other detainees, 
he was conveying 'their words, their wishes.'" Gutierrez (Al-Rawi) Decl. 1 18. Adem and other 
detainees sought help from Al-Rawi because he had a lawyer whom he trusted and also because 
he spoke English and could help translate detainees' requests for a lawyer. Id. H 18-19. 



received a letter from the Court may have no idea that the Court is presently reviewing the 
legality of their detention. After waiting several months for security clearances, several 
appointed counsel are scheduled to meet with clients for the first time m early March 2006. It is 
the Court's understanding, however, that as of mid-February, nearly a year after the pro se 
petitions were written by the detainees, not a single detainee represented by appomted Federal 
Public Defender counsel had met or spoken with his lawyer. 

2I A1-Rawi also filed as a 'next friend' in Idris v. Bush, No. 05-1555, consolidated with 
Edriesv Bush No 05-1725. Respondents initially challenged Al-Rawi's standing to act as a 
•next friend' in that case as well, but the case was converted to a direct petition after determining 
that the petitioner had written a letter directly to the Court. Idris' letter to the Court took six 
months to arrive. 

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According to Al-Rawi, the detainees who sought his help "held out some hope that their 
translated requests would reach a lawyer who could help them if Al-Rawi gave the request 
directly to his lawyer, rather than sending the letter in an abyss by mailing it through the military 
mail system. 22 Id. % 19. The detainees whose requests Al-Rawi forwarded to his counsel 
"continue to ask him if he has heard back from his lawyer." Id. % 21. They "want to know what 
is happening with their request for a lawyer" and "are starting to believe that it is the habeas 
lawyers' fault for not meeting them." Id. 

Careful review of the pleadings and the Amended Protective Order and Revised 
Procedures for Counsel Access convinces this Court that Respondents' arguments are without 



22 Respondents and Petitioner make widely divergent claims about the reliability of the 
non-legal mail system in Guantanamo. Respondents attest that detainees have "the opportunity 
to send and receive mail" and that "[d]etainees cannot lose mail privileges for any reason, 
including as part of disciplinary action or interrogation." (Second) Sweigart Deck, Ex. D. 
According to Respondents, the non-legal mail system works smoothly and non-legal mail is 
generally processed within 14 days on average. Id. Petitioner, on the other hand, notes that 
"there is anecdotal evidence that it takes months for regular correspondence to reach a detainee." 
Pet'r Mot. to Exp. at 3-4. 

It appears from evidence in other habeas cases that Petitioner's concerns may not be 
entirely misplaced. Although most of the pro se petitions received by the Court took 
approximately two months to be delivered, several pro se petitions did not arrive until 3 to 6 
months after detainees sent them. See Idris v. Bush, No. 05-1555 (Aug. 2, 2005) (written on Feb. 
12; received on Aug. 2); Mammar v. Bush, 05-1233 (June 22, 2005) (written on Jan. 30; received 
onJune 22); Aminullah v. Bush, 05-1237 (June 22, 2005) (written on Feb. 22; received on June 
22); Ghalib v. Bush, 05-1238 (June 22, 2005) (written on March 3; received on June 22); 
Mo'hammadi v. Bush, No. 05-1246 (June 22, 2005) (written on March 23; received on June 22); 
Peerzai v. Bush, No. 05-1243 (June 22, 2005) (same); Alsawam v. Bush, No. 05-1244 (June 22, 
2005) (written on March 14; received on June 22). See also Pet'rs Mot. for an Order Amending 
Protective Order for Non-Enemy Combatants at 7 n.7, Qassim v. Bush, 05-497 (Dkt. No.42) 
(detainee's letter to his lawyer informing him that CSRT had exonerated him arrived exactly 100 
days after it was mailed from Guantanamo); Gutierrez (Kabir) Deck f 13 (detainee "has not 
received one letter from his attorney in six months, even though his attorney has written to him 
several times"); Smith Deck f 80, attached as Exhibit 2 to Pet'r Response to Order to Show 
Cause, Nabil v. Bush, 05-1504 (Nov. 18, 2005) (Dkt. No. 17) (noting routine delay of six months 
for detainee-client letters to arrive). 

19 



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merit. Adem, who has been detained incommunicado without charge by the United States, who 
does not speak English, who has no access to family or friends, has indicated to a fellow detainee 
who is represented by counsel that he wishes to challenge his potentially indefinite detention 
without charge. Rasul and Al Odah give him the right to have counsel. The Protective Order 
provides the mechanisms by which detainees may access the counsel to wh.ch they are entitled. 
Petitioner Adem's counsel have fully complied with the procedures necessary to meet with 
Adem. Nothing more is necessary. 

01 Counsel Access to Detainees Under the Protective Order 

The "Amended Protective Order and Procedures for Counsel Access at the United States 
Naval Based in Guantanamo Bay, Cuba" ("Protective Order") and the "Revised Procedures for 
Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay, Cuba 
("Revised Access Procedures"), attached to the Protective Order as Exhibit A, govern the 
procedures by which counsel for Guantanamo detainees may meet and communicate with their 
clients. The Protective Order and Revised Access Procedures were initially entered by Judge 
Joyce Hens Green in November 2004 in In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174 
(D.D.C. 2004), and have since been entered in the vast majority of Guantanamo habeas cases 
currently pending in the District Court. The Protective Order and Revised Access Procedures 
were entered in Adem's case on June 3, 2006. See Dkt. No. 12. On June 6, 2005, Judge Roberts 
stayed Adem's case pending resolution of the appeals in In re Guantanamo Detainee Cases, 355 
F. Supp. 2d 443 (D.D.C. 2005), but provided that Petitioner could seek relief as necessary under 
the Protective Order. See Dkt. No. 13. The Protective Order and Revised Access Procedures 



20 



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remain in effect in Adem's case. 

As an initial matter, the Court respectfully declines Respondents' invitation to defer 
ruling on Adem's motion pending resolution of the jurisdictional and retroactivity questions 
raised by the Detainee Treatment Act of 2005 (the "DTA"). 23 The issues raised by Adem's 
motion seeking access to counsel pursuant to the Amended Protective Order do not implicate any 
of the jurisdictional questions currently pending in the D.C. Circuit and the Supreme Court. 

Respondents concede, as they must, that the Protective Order remains in effect in Adem's 
case and in each of the Guantanamo habeas cases in which it was entered. Counsel for other 
detainees continue to visit their clients according to its terms. Indeed, under no circumstances 
would DoD permit counsel to visit detainees in Guantanamo Bay without counsel's signed 
agreement to abide by the Protective Order. When an attorney wishes to share information 
learned from a detainee with other co-counsel, members of the DoD Privilege Review Team 
continue to conduct classification reviews of detainee mail and attorneys' notes as required by 
the Protective Order. The acknowledgments signed by habeas counsel agreeing to abide by the 
terms of the Protective Order remain in effect, see Protective Order, Ex. C, "Acknowledgment," 
and counsel remains subject to this District Court's contempt power, see Armstrong v. Executive 
Office of the President, 1 F.3d 1274, 1289 (D.C. Cir. 1993). Were the situation reversed, and 
were counsel for a detainee alleged to have violated the Protective Order, the Court has no doubt 
that Respondents would seek relief immediately. 



23 On December 30, 3005, President Bush signed into law the Detainee Treatment Act of 
2005, Pub. L. No. 109-148, Tit. X, 1 19 Stat. 2680 (the "DTA"). Respondents argue that the DTA 
divests the District Court of jurisdiction over the Guantanamo habeas petitions, including those 
already filed prior to the DTA's passage. 



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"[A] protective order, like any ongoing injunction, is always subject to the inherent power 
of the district court" Poliautn , Garden Way, Inc., 989 F.2d 527, 535 (1st Or. 1993); see also 
Armstrong, 1 F.3d at 1289 (recognizing courts' inherent power to enforce compliance with then 
lawful orders"); Broderick , Donaldson, _ F.3d _ 2006 WL 305505 at *6 (D.C. Or. Feb. 10, 
2006) (same); cf. Gambale v. Deutsche Bank AG, 377 F.3d 133, 140-41 (2d Cir. 2004) 
(recognizing court's jurisdiction to modify protective orders that remam in effect, even after 
dismissal of the underlying litigation); United Nuclear Corp. v. CranfordJns. Co., 905 F.2d 
1424, 1427 (10th Cir. 1990) (same), cert, denied, American Special Risk Ins. Co. v. Rohm & 
Haas Co., 498 U.S. 1073 (1991). It would be untenable for the District Court to be put in a 
position where it is powerless to enforce its own protective order, presently in effect and over 
which it has continuing control. 24 

The question of when, and under what circumstances the existing Protective Order 
permits Aden, to meet with his lawyer has no bearing on the question of which Court has 
jurisdiction to review the merits of Petitioner's challenge to his detention. 25 It has been over a 
year since Adem first tried to get a lawyer to help him challenge his detention. It is simply 



^Respondents appear to concede this point, as they do not argue fliat this Court lacks 
jurisdiction to resolve disputes involving construction of the Protective Order. Rather, 
Respondents suggest that it would be more "appropriate" to M^«»»^ * 
further guidance by the D.C. Circuit or the Supreme Court regarding the effect of the DTA. 
Resp'ts' Reply at 1 n.l.; Resp'ts' Opp'n to Mot. to Exp. at 2. 

^'Presumably, counsel for Adem would also represent him in any proceedings before the 
D C Circuit Thus the need to resolve questions regarding the logistics of counsel access will 
?ema™sul even if the D.C. Circuit and the Supreme Court determine that the DTA appl.es 
olose habeas ^ S currently pending in the District Court. Moreover, it will undoubtedly take 
Ittls forTe courts to grapple with the jurisdiction and retroactivity questions presented by the 
DTA Forcing Adem to wait until all such proceedings and appeals are cone uded before 
permitting him to speak with his lawyer renders his right to counsel meaningless. 

22 



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unacceptable to wait any longer. 

The Protective Order and the Revised Access Procedures govern in-person meetings with 
detainees, procedures for sending and receding legal mail, handlmg of classified information and 
any other access and communications tssues involving Guantanamo detainees who are seeking 
habeas relief in this Distnct Court. The requirements for in-person access to detainees by their 
counsel are laid out in Section III of the Revised Procedures. Protective Order, Ex. A § in. 

Under Section III of the Protective Order, habeas counsel must verify that they represent 
the detainee in question. 26 Id., Ex. A § ffl.C. The Protective Order divides the verification 
process into two steps: 1) notification of representation" and 2) evidence of authority to represent 
the detainee. Id. Respondents argue that counsel must comply with both steps of the 
verification process before being allowed to visit with their client. Resp'ts Contempt Opp'n at 5. 
According to Respondents, the Protective Order "provides that <[p]rior to being permitted access 
to the detainee,' counsel must 'provide evidence of his or her authority to represent the 
detainee.'" Resp'ts Contempt Opp'n at 5. 

Respondents quote the Protective Order in such a way that the phrase "prior to being 
permitted access to the detainee" appears linked to the phrase "evidence of authority to represent 
the detainee." Id. In fact, the phrase "prior to being permitted access to the detainee" only 



26 In addition to providing DoD with verification of representation, Counsel must also 
hold a valid security clearance at the Secret level or higher, see Protective Order, Ex. A § IH.A, 
and must sign an affirmation acknowledging that they agree to "folly comply with the[] 
procedures" in the Protective Order, id. § HI.B.1 

"The Notification of Representation must include "counsel's licensing information, 
business and email addresses and phone numbers, as well as the name of the detainee bemg 
represented." Id., Ex. A § IH.C.l. 

23 



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modifies the "notification of representation" requirement. Protective Order, Ex. A § HI.C.l. By 
selectively combining two sentences into one, Respondents transform the meaning of the 

Protective Order. 

Paragraph (1) of Section ffl.C of the Revised Procedures lists two requirements for 
verification: "notification of representation" and "evidence of [counsel's] authority to represent 
the detainee." However, while paragraph (1) makes the "notification of representation" a 
prerequisite to counsel's access to a detainee, it imposes no time frame for the evidence of 
authority to represent the detainee. 

Prior to being permitted access to the detainee, counsel must provide DoD with a 
Notification of Representation. This Notification must include the counsel's licensing 
information, business and email addresses and phone number, as well as the name of the 
detainee being represented by the counsel. Additionally, counsel shall provide evidence 
of his or her authority to represent the detainee. 

W„Ex.A, §C.l 

If paragraph C.l contained the only reference to any time frame for submitting "evidence 
of authority," Respondents' interpretation might well be correct. The reference to "evidence of 
authority" in C.l simply states "additionally," but provides no time by when counsel must 
provide the evidence to DoD. Standing alone, it might be reasonable to assume that the phrase 
"[p]rior to being permitted access to the detainee" was intended to apply to the "evidence of 
authority" requirement as well as the "notification of representation" requirement. The problem 
with Respondents' argument, however, is that the very next paragraph establishes a different 
deadline for providing the very "evidence of authority" referred to in paragraph C.l. 

Paragraph C.l ends with a sentence that imposes a requirement on counsel to submit 
evidence of their authority to represent the detainee to DoD. Paragraph C.2 begins by 

24 



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establishing the deadline for counsel to fulfil this requirement: 

Counsel shall provide evidence of his or her authority to represent the detainee as soon as 
practicable and in any event no later than ten (10) days after the conclusion of a second 
visit with the detainee. 

Id, Ex. A § C.2. By its plain terms, therefore, the Protective Order and Revised Procedures 

allow counsel a maximum of two visits with a detainee, plus ten days, before counsel must 

submit evidence of his or her authority to represent the detainee. See Armstrong v. Executive 

Office of the President, 830 F. Supp. 19, 22 (D.D.C. 1993) (construing protective order's "plain 

language"). To accept Respondents' interpretation of Paragraph C.l would render Paragraph 

C.2 completely redundant. 

The Court's reading is supported by the most basic cannons of construction. It is a settled 
principle of contract 28 and statutory interpretation, for example, that when a word or phrase is 
used generally, and then later defined more narrowly, the narrow, more specific definition 
applies. See, e.g., 5 Corbin on Contracts § 24.23 (Margaret N. Kniffin & Joseph M. Perilla eds., 
1 998); Ki See Lee v. Ashcroft, 368 F.3d 2 1 8, 223 (3d Cir. 2004) (noting '"commonplace [rule] of 
statutory construction' [] that the 'specific governs the general'"). 

Moreover, the Protective Order explains the basis for imposing separate time frames for 
submission of the "notification of representation" and the "evidence of authority." The 
Protective Order grants counsel at least two visits with the detainee before counsel must submit 
evidence of their authority to represent the detainee in view of the logistical difficulties of 
meeting with Guantanamo detainees, most of whom do not speak English, and may have reason 



ls Cf. Geller v. Branic Intern. Realty Corp., 212 F.3d 734, 737 (2d Cir. 2000) (applying 
contract law principles to interpretation of protective order). 



25 



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to distrust American voters. Protective Order, Ex. A § C.2 ("The Court recognrzes that counsel 
may not be in a position to present such evidence after the initial meeting with a detainee); see 
also Tarver Decl. fl 2-13 (alleging that detainees were reluctanct to sign "any piece of paper- 
due to abuse and deception by the military). 

Respondents attempt to avoid the plain language of Paragraph C.2 by arguing that 
Paragraphs C.l and C.2 refer to two different types of evidence of authority to represent a 
detainee. Resp'ts Contempt Opp'n at 5. According to Respondents, the Protective Order 
envisions a "two-layer requirement regarding counsel's authority to bring and then maintain the 
lawsuit." Id. at 5 n.2. According to Respondents, the phrase "evidence of authority to represent 
the detainee" referred to m Paragraph C.l means either evidence from the "next friend," if the 
case has been initiated by a "next friend,"or, in the case of a direct petition, the pro se petition 
and evidence of appointment of counsel. Id. at 5. Respondents argue that the phrase "evidence 
of authority to represent the detainee" referred to in Paragraph C.2, by contrast, is a "second, 
subsequent type of authorization, directly from the detainee" that is only required when a habeas 
petition is initiated by a "next friend." 2 ' Id. 

In order to credit Respondents' "two-layer" theory, the Court would have to believe that 
the Protective Order uses the exact same phrase in immediately successive paragraphs to refer to 



29 Facing the obvious problem that the Protective Order provides for only one system of 
verification, not a two-step process for "next friend" petitions and a one-step process for direct 
petitions, Respondents invite the Court to infer a "two-layer[ed] requirement solely for next 
friend' petitions because "the Guantanamo habeas cases pending at the time the access^ 
procedures were negotiated and established were uniformly 'next friend' cases. Resp ts 
Contempt Opp'n at 5 n.2. This argument is hard to take seriously, since, at the same time the 
Protective Order was bemg negotiated, DoD was in the process of notifying all the detainees of 
their right to file a habeas petition directly with the Court. (Second) Sweigart Decl. 11 3-5. 

26 



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two distinctly different requirements despite the lack of any language indicating that such was its 
intent. The Court simply cannot fathom that such a carefully crafted Protective Order, 
painstakingly negotiated by both Petitioners and Respondents and approved by the Court to 
balance national security concerns with detainees* right to counsel as articulated in Rasul v. Bush 
and At Odah v. United States, would have been so careless in its use of language. Cf. C.I.R. v. 
Lundy, 516 U.S. 235, 250 (1996) ("interrelationship and close proximity of these provisions of 
the statute 'presents a classic case for application of the normal rule of statutory construction that 
identical words used in different parts of the same act are intended to have the same meaning'") 
(quoting Sullivan v. Stroop, 496 U.S. 478, 484 (1990)). 

Respondents' argument is also belied by the fact that a proper "next friend" petition under 
Whitmore v. Arkansas, 495 U.S. 149, 161-66 (1990) would not need to be converted into a direct 
petition in order to be prosecuted in District Court. Thus, a "proper next friend petition" is, 
standing alone, sufficient evidence of authority to represent the detainee under Paragraph C.2. 
No additional evidence from the detainee himself would be necessary. 

The phrase "evidence of authority to represent the detainee," on its face and by its plain 
terms, refers to a single requirement. The Protective Order contains no reference to multiple 
"layers" or "a second [and] subsequent type of authorization" by the detainee who is the "real 
party in interest." Resp'ts Contempt Opp'n at 5. If the Protective Order meant to require two 
entirely separate sets of "evidence of authority" from two different individuals - first the next 
friend and second the detainee himself- it would have said so. The Court cannot infer a "two- 
layer requirement" out of thin air. 



27 



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Thus, this Court finds that the Protective Order entitles counsel to two visits plus ten days 
before they must submit evidence of their authority to represent the detainee in question. The 
only information that counsel must submit to DoD before being permitted to meet with a 
detainee is the "Notification of Representation." Counsel for Adem have submitted the 
"Notification of Representation. No further evidence is required at this stage. 

IV. Petitioner 's Right to Counsel 

Respondents insist that absent written authorization directly from the Petitioner, counsel 
must proceed through a "proper next friend" petition before they may be granted access to their 
client. Resp'ts' Contempt Opp'n at 11. Whether Petitioner's habeas petition has been properly 
filed is an issue for Judge Roberts, and is not before this Court. Adem's petition for habeas 
relief has proceeded as a direct petition since April of 2005. Until otherwise notified by the Trial 
Court, the undersigned will continue to treat it as a direct petition. 

However, even if Adem's petition had been filed through Al-Rawi as a "next friend," the 
Protective Order would still require that counsel be permitted to meet with Adem in order to 
confirm his desire for representation. First, as explained above, the Protective Order does not 
distinguish between direct and "next friend" petitions in its provisions for counsel access. The 
two-step process by which counsel provide evidence of their authority to represent a detainee 
applies to all counsel, including counsel for detainees who initially filed through a "next friend." 
All habeas counsel must "provide evidence of his or her authority to represent the detainee as 
soon as practicable and in any event no later than ten (10) days after the conclusion of second 
visit with the detainee." Protective Order, Ex. A § HI.C.2. 



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Second, as Respondents themselves concede, "[i]f counsel are able to secure direct 
automation from Adem, then the next friend standing issue will become moot." 3 " Resp'ts 
Opp'n to Mot. to Exp. at 6. Once counsel meet with the detainee directly, and obtain 
authorization of representation, the case is converted into a direct petition. 31 The Government 
uses the term "next friend" but in reality, Al-Rawi is simply a "friend" who, at the explicit 
invitation of the Department of Defense, communicated Adem's direct request for counsel to 
help him challenge his detention to his lawyer. Once Adem confirms his desire for counsel to his 
own lawyers, Al-Rawi will play no further role m the case. Alternatively, if Adem is unwilling 
or unable to authorize counsel to represent him, then Respondents' "next friend" challenge will 
be ripe. 32 

Respondents, however, insist that the only acceptable way to confirm Adem's desire for 
counsel directly is to require Adem to sign a form and send it through the "non4egal mail- 
channels at Guantanamo. Thus, the issue, at this point in the case is not whether Al- Rawi's 



30 The Court expresses no opinion on the question of whether Al-Rawi has a significant 
enough relationship with Adem to maintain 'next friend' standing. 

"See Hamily v. Bush, No. 05-763 (Oct. 31, 2005) (Dkt. No. 19) (Order of J. Bates 
dismissing Shaker Aamer as next friend and substituting Adel Hamily as sole petitioner); 
Zakirjan v Bush, No. 05-2053 (Dec. 12, 2005) (Dkt. No. 24) (Order of Oberdorfer, J. dismissing 
as moot government's "Motion to Show Cause Why Case Should Not Be Dismissed for Lack of 
Proper 'Next Friend' Standing" because detainee who was real party in interest authorized 
counsel to represent him directly); Muhammed v. Bush, No. 05-2087 (Dec. 16, 2005) (Dkt. No. 
17) (same); Idris v. Bush, No. 05-1555 (Nov. 1, 2005) (Dkt. No. 8) (same). 

32 At this point nothing is known about Adem's physical or mental condition. If he has 
been participating in a hunger strike, or if he is mentally unstable as a result of long periods m 
isolation or other conditions, he may not be in a position to authorize counsel to represent him 
See, e.g., Eric Schmidt and Tim Golden, Force Feeding at Guantanamo Now Acknowledged, NY 
Times, Feb. 22, 2006, at A6. 

29 



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relationship with Adem would be sufficiently close to maintain traditional "next friend" standing. 
Rather, the issue is whether the District Court's authority to "craft [the] procedures necessary" to 
allow Adem to "present the facts surrounding [his] confinement to the Court," is somehow 
inherently limited to relying on the mail. See Al Odah, 346 F. Supp. 2d at 7. The Court can 
think of no principled reason why this should be so. 

Respondents seem to be arguing that if Adem really wanted to challenge his detention, he 
would have written directly to the Court. First, Respondents cannot be heard to insist on a 
written pro se petition as the sole procedural mechanism by which a detainee may communicate 
his request for counsel or seek to challenge his potentially indefinite detention without charge, 
when DoD has already informed Adem in writing that he may challenge his detention either by 
writing directly to the Court or by asking a "friend" or a "lawyer" to file a petition for him, and 
when Respondents have previously permitted detainees to meet directly with counsel to confirm 
their oral request. 33 

Second, the evidence submitted by Adem casts doubt on Respondents' claim that "DoD 
has taken affirmative steps to facilitate legal representation for detainees who have indicated a 
desire to challenge the legality of their detention," at least in any meaningful way. 34 See Resp'ts 



"Respondents urge the Court to ignore the inconsistencies in its approach to counsel 
access under the Protective Order, but are unable to articulate any principled basis for the 
disparity. See Resp'ts Opp'n to Mot. to Exp. at 5 n.4. Respondents essentially argue that 
because their "treatment of defective 'next friend' cases" has been consistent recently, the Court 
should ignore the fact that Respondents' previously allowed counsel to meet with directly with 
the detainees who were the real parties in interest. Id. 

34 In two cases in which Respondents raised a 'next friend' challenge, counsel was able to 
meet with the detainees in person and confirm their desire for representation purely by accident. 
See Zakirjan v. Bush, No. 05-2053; Muhammed v. Bush, 05-2087. Zakirjan, who is being held 

30 



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Contempt Opp'n at 13-14. Serious questions exist regarding the extent to which detamees 
received and understood the DoD notiee. The Court doubts that most Amencans W ould 
understand the meaning of the phrase "petition for a wnt of Habeas corpus." To expeet Adem, 
who does not speak English and who "almost eertainly lack[s] a working knowledge of the 
Amencan legal system" to intuit the meaning of an ancient, Latin, legal term of art is stmply 



as a non-s 



n enemy combatant (NEC), filed a habeas petition through another NEC detainee, Abu 
Oassm, S Manning, who is counsel for Qasshn and other cheats, was m Guantanamo 
ra eeS-rhe!d-tsonNo 8 ;emberl4andNove m berl6. fe Decl. of Susa^ Baker Marunng 
TsZakMan No. 05-2053, Dkt. No. 20. During a break between meetings wtth her cheats, 
lai.?! approached Ms. Manning to ask for help obtaining a lawyer. Id 1 6. Although 
Rent's had refused to allow'any attorney to meet directly with Zakirjan, the guards allowed 

tte °™Sr mfbid^Mlnmng that he had been "trytng to obtain a lawyer for a very 
lone time "Til 9 "He ha[d] been sending his name, ISN number and request for counsel with 
r — fwl were takeJto Camp Echo to meet ^f^B^t^TZ 
Id During the same visit, Ms. Manning was also approached by Fethi Boucetta (a7k/a Dr. Abu 
MuhaTfd) who also asked her for help finding a lawyer. See Decl. of Susan Baker Manmng 
ST« Exhibit A to Pet's Mem. in Opp'n to Mot. for an Order to Show Cause M^rn^ 
7 Bush Z 05-2087 (Dec. 2, 2005) (Dkt. No. 14). Upon learning that Zakirjan and Boucetta 
had ™aUy requested counsel, Judge Oberdorfer dismissed the 'next friends' and converted 
t cases Tnto direct petitions. See Zakirjan, No. 05-2053 (Dec. 12, 2005) (Dkt. No. 24); 
Muhammed No. 05-2087 (Dec. 16, 2005) (Dkt. No. 17). 

MuHam Z Baker Manmng was able to speak directly with these two particular detainees 
because they both speak passable Engl.sh and because they are NECs being held m Camp Iguana, 
a forniity virtually guaranteed not to repeat itself. In August of 2005 Respondents began 
LSnln^nemy combatants detainees m a separate detention facility called "Camp Iguana. 
BrSdfer General lay W. Hood Decl. 1 5, attached as Ex. 1 to Resp ts ™*£&™£- ^J 
05-497 (Aug 8, 2005) (Dkt. No. 27). Camp Iguana is a "communal living facility. Id. NEC 
d taTnees hcfused in Camp Iguana have significantly greater freedom of movement than detainees 
he d as enemy combatants. They have a common bunk room, a recreation room and a recreation 
yd Tlf 5-6 There is a fence around the facility and guards posted, but detainees m Camp 
Sula are otherwise free to move about the grounds within the confines of the Camp. Id 
KSta in Camp Iguana, Zakirjan and Foucetta were able to walk up to M, 
Baker Manmng and personally ask her for help getting a lawyer, somethmg detamees in other 
part o" tfnamo'could never do. With the exception of NEC detainees, who are allowed t 
mfet with their lawyers m Camp Iguana, counsel meetings with detainees m Guantanamo take 
place in Camp Echo, a solitary confinement facility. 



31 



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absurd. See Al Odah, 346 F. Supp. 2d at 8 (explaining detainees' need for the assistance of 
counsel in presenting their claims to the District Court). 

For those who did understand it, questions remain about detainees' ability to send and 
receive non-legal mail and their willingness to trust information provided by the military. 
Gutierrez (Al-Rawi) Decl. 1f| 6-15. In fact, Petitioner has submitted evidence indicating that 
Adem wrote directly to Al-Rawi 's lawyer asking to be represented, but that the letter never 
arrived. Considering that the 56 pro se detainees who did write to the Court have already waited 
a year without seeing a lawyer, this Court can hardly fault Adem for being skeptical. 

Adem did what Respondents invited him to do in the first instance; he asked "a friend" 
that he trusted to help him challenge his detention. (Second) Sweigart Deck, Exs. A-C. Al- 
Rawi did as he was asked and counsel filed a petition on Adem's behalf. Yet, Respondents insist 
that, absent Adem's signature on a form, Al-Rawi's lack of "proper next friend standing" 
precludes this Court from further inquiring into the truth of Adem's request. It is inconceivable 
that the Court's authority to investigate Adem's request would be so constrained. Adem is 
"entitled to present the facts surrounding [his] confinement to the Court. It is equally clear that 
the Court is authorized to craft the procedures necessary to make this possible, in order that the 
Court might fully consider Petitioners' challenge to their detention." At Odah, 346 F. Supp. 2d at 
7. 

It appears that attempts to inform detainees of their rights in writing have been, at best, 
fraught with diffculty. Furthermore, the Protective Order clearly provides that counsel for Adem 
may meet with him twice before they are obliged to provide evidence of authority to represent 



32 



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him. Considering the lack of any possible prejudice to the Government from allowing Adem to 
confirm his desire for representation in person rather than in writing, and weighing the 
importance of Adem's right to counsel, which he has been attempting to exercise for over a year, 
Respondents are ordered to comply with the Protective Order and allow Adem's counsel to meet 
with him in person as soon as possible. 

The Petitioner's request that the Government be sanctioned by contempt is denied as not 
warranted. See Armstrong, 1 F.3d at 1289. 

Dated: March 14th, 2006 /s/ 



ALAN KAY 

UNITED STATES MAGISTRATE JUDGE 



33 



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EXHIBIT 5 



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EXHIBIT 6 



Case 1:05-cv-01458-UNA-AK Document 18-2 Filed 03/29/2006 Page 38 of 38 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



Ahmed "Doe", et at, 



GEORGE W. BUSH, 

President of the United States, 
et ah, 

Respondents/Defendants. 



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



rPROPOSED) CONSENT PROTECTIVE ORDER 

Upon consideration of the Motion for Entry of Consent Protective Order it is 
ORDERED that the Amended Protective Order and Procedures for Counsel Access to 
Detainees at the United States Naval Base in Guantanamo Bay, Cuba, first issued on November 8, 
2004, (344 F. Supp. 2d 174 (D.D.C. 2004) and the Order Supplementing and Amending Filing 
Procedures Contained in November 8, 2004 Amended Protective Order, first issued on December 
13, 2004, in the In re Guantanamo Bay Detainees Cases shall apply in this case It is 

FURTHER ORDERED that petitioners' counsel shall treat information designated by 
respondents as "protected" under the Amended Protective Order as "protected information" under 
the Amended Protective Order pending further order of this Court. 



DATED: 



United States District Judge