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

Case 1 :05-cv-01458-UNA-AK Document 21 Filed 07/07/2006 Page 1 of 32 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



Hicks (Rasul) v. Bush 
Al Odah v. United States 
Habib v. Bush 
Kurnaz v. Bush 
Khadr v. Bush 
Begg v. Bush 

Khalid (Benchellali) v. Bush 
El-Banna v. Bush 
Gherebi v. Bush 
Boumediene v. Bush 
Anam v. Bush 
Almurbati v. Bush 
Abdah v. Bush 
Hamdan v. Bush 
Al-Qosi v. Bush 
Paracha v. Bush 
Al-Marri v. Bush 
Zemiri v. Bush 
Deghayes v. Bush 
Mustapha v. Bush 
Abdullah v. Bush 



Case No. 02-CV-0299 (CKK) 

Case No. 02-CV-0828 (CKK) 

Case No. 02-CV-1130 (CKK) 

Case No. 04-CV-1135 (ESH) 

Case No. 04-CV-l 136 (JDB) 

Case No. 04-CV-l 137 (RMC) 

Case No. 04-CV-l 142 (RJL) 

Case No. 04-CV-l 144 (RWR) 

Case No. 04-CV-l 164 (RBW) 

Case No. 04-CV-l 166 (RJL) 

Case No. 04-CV-l 194 (HHK) 

Case No. 04-CV-1227 (RBW) 

Case No. 04-CV-l 254 (HHK) 

Case No. 04-CV-l 5 19 (JR) 

Case No. 04-CV-l 937 (PLF) 

Case No. 04-CV-2022 (PLF) 

Case No. 04-CV-2035 (GK) 

Case No. 04-CV-2046 (CKK) 

Case No. 04-CV-2215 (RMC) 

Case No. 05-CV-0022 (JR) 

Case No. 05-CV-0023 (RWR) 



Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 2 of 32 



Al-Mohammed v. Bush 
El-Mashad v. Bush 

Al-Adahi v. Bush 
Al-Joudi v. Bush 
Al-Wazan v. Bush 
Al-Anazi v. Bush 
Alhami v. Bush 
Ameziane v. Bush 
Batarfi v. Bush 
Sliti v. Bush 
Kabir v. Bush 
Qayed v. Bush 
Al-Shihry v. Bush 
Aziz v. Bush 
Al-Oshan v. Bush 
Tumani v. Bush 
Al-Oshan v. Bush 
Salahi v. Bush 



Mammar v. Bush 



Al-Sharekh v. Bush 



Magram v. Bush 



Case No. 05-CV-0247 (HHK) 

Case No. 05-CV-0270 (JR) 
(Consolidated with 05-CV-833) 

Case No. 05-CV-0280 (GK) 

Case No. 05-CV-0301 (GK) 

Case No. 05-CV-0329 (PLF) 

Case No. 05-CV-0345 (JDB) 

Case No. 05-CV-0359 (GK) 

Case No. 05-CV-0392 (ESH) 

Case No. 05-CV-0409 (EGS) 

Case No. 05-CV-0429 (RJL) 

Case No. 05-CV-0431 (RJL) 

Case No. 05-CV-0454 (RMU) 

Case No. 05-CV-0490 (PLF) 

Case No. 05-CV-0492 (JR) 

Case No. 05-CV-0520 (RMU) 

Case No. 05-CV-0526 (RMU) 

Case No. 05-CV-0533 (RJL) 

Case No. 05-CV-0569 (JR) 
(Consolidated with 05-CV-0881) 
(Consolidated with 05-CV-0995) 

Case No. 05-CV-0573 (RJL) 

Case No. 05-CV-0583 (RJL) 

Case No. 05-CV-0584 (CKK) 



Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 3 of 32 



Al Rashaidan v. Bush 
Mokit v. Bush 
Al Daini v. Bush 
Errachidi v. Bush 
Ahmed v. Bush 
Battayav v. Bush 
Adem v. Bush 
Aboassy v. Bush 
Hamlily v. Bush 
Imran v. Bush 
Al Habashi v. Bush 
Al Hamamy v. Bush 
Hamoodah v. Bush 
Khiali-Gul v. Bush 
Rahmattullah v. Bush 
Mohammad v. Bush 
Nasrat v. Bush 
Rahman v. Bush 
Bostan v. Bush 
Muhibullah v. Bush 
Mohammad v. Bush 
Wahab v. Bush 
Chaman v. Bush 



Case No. 05-CV-0586 (RWR) 
Case No. 05-CV-0621 (PLF) 
Case No. 05-CV-0634 (RWR) 
Case No. 05-CV-0640 (EGS) 
Case No. 05-CV-0665 (RWR) 
Case No. 05-CV-0714 (RBW) 
Case No. 05-CV-0723 (RWR) 
Case No. 05-CV-0748 (RMC) 
Case No. 05-CV-0763 (JDB) 
Case No. 05-CV-0764 (CKK) 
Case No. 05-CV-0765 (EGS) 
Case No. 05-CV-0766 (RJL) 
Case No. 05-CV-0795 (RJL) 
Case No. 05-CV-0877 (JR) 
Case No. 05-CV-0878 (CKK) 
Case No. 05-CV-0879 (RBW) 
Case No. 05-CV-0880 (ESH) 
Case No. 05-CV-0882 (GK) 
Case No. 05-CV-0883 (RBW) 
Case No. 05-CV-0884 (RMC) 
Case No. 05-CV-0885 (GK) 
Case No. 05-CV-0886 (EGS) 
Case No. 05-CV-0887 (RWR) 



Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 4 of 32 



Gul v. Bush 
Basardh v. Bush 
Nasrullah v. Bush 
Shaaban v. Bush 
Sohail v. Bush 
Tohirjanovich v. Bush 
Al Karim v. Bush 
Al-Khalaqi v. Bush 
Sarajuddin v. Bush 
Kahn v. Bush 
Mohammed v. Bush 
Mangut v. Bush 
Hamad v. Bush 
Khan v. Bush 
Zuhoor v. Bush 
Ali Shah v. Bush 
Salaam v. Bush 
Al-Hela v. Bush 
Mousovi v. Bush 
Khalifh v. Bush 
Zalita v. Bush 
Ahmed v. Bush 
Aminullah v. Bush 



Case No. 05-CV-0888 (CKK) 
Case No. 05-CV-0889 (ESH) 
Case No. 05-CV-0891 (RBW) 
Case No. 05-CV-0892 (CKK) 
Case No. 05-CV-0993 (RMU) 
Case No. 05-CV-0994 (JDB) 
Case No. 05-CV-0998 (RMU) 
Case No. 05-CV-0999 (RBW) 
Case No. 05-CV-1000 (PLF) 
Case No. 05-CV- 1001 (ESH) 
Case No. 05-CV-1002 (EGS) 
Case No. 05-CV- 1008 (JDB) 
Case No. 05-CV-1009 (JDB) 
Case No. 05-CV-1010 (RJL) 
Case No. 05-CV-1011 (JR) 
Case No. 05-CV-1012 (ESH) 
Case No. 05-CV-1013 (JDB) 
Case No. 05-CV- 1048 (RMU) 
Case No. 05-CV-1124 (RMC) 
Case No. 05-CV-1189 (JR) 
Case No. 05-CV-1220 (RMU) 
Case No. 05-CV- 1234 (EGS) 
Case No. 05-CV-1237 (ESH) 



Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 5 of 32 



Ghalib v. Bush 
Al Khaiy v. Bush 
Bukhari v. Bush 
Pirzai v. Bush 
Peerzai v. Bush 
Alsawam v. Bush 
Mohammadi v. Bush 
Al Ginco v. Bush 
Ullah v. Bush 
Al Bihani v. Bush 
Mohammed v. Bush 
Saib v. Bush 
Hatim v. Bush 
Al-Subaiy v. Bush 
Dhiab v. Bush 
Ahmed Doe v. Bush 
Sadkhan v. Bush 
Faizullah v. Bush 
Faraj v. Bush 
Khan v. Bush 
Ahmad v. Bush 
Amon v. Bush 
Al Wirghi v. Bush 



Case No. 05-CV-1238 (CKK) 
Case No. 05-CV-1239 (RJL) 
Case No. 05-CV-1241 (RMC) 
Case No. 05-CV-1242 (RCL) 
Case No. 05-CV-1243 (RCL) 
Case No. 05-CV-1244 (CKK) 
Case No. 05-CV-1246 (RWR) 
Case No. 05-CV-1310 (RJL) 
Case No. 05-CV-1311 (RCL) 
Case No. 05-CV-1312 (RJL) 
Case No. 05-CV-1347 (GK) 
Case No. 05 -CV- 1353 (RMC) 
Case No. 05-CV-1429 (RMU) 
Case No. 05-CV-1453 (RMU) 
Case No. 05-CV-1457 (GK) 
Case No. 05-CV-1458 (ESH) 
Case No. 05 -CV- 1487 (RMC) 
Case No. 05 -CV- 1489 (RMU) 
Case No. 05-CV-1490 (PLF) 
Case No. 05-CV-1491 (JR) 
Case No. 05-CV-1492 (RCL) 
Case No. 05-CV-1493 (RBW) 
Case No. 05-CV-1497 (RCL) 



Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 6 of 32 



Nabil v. Bush 
Al Hawary v. Bush 
Shafiiq v. Bush 
Kiyemba v. Bush 
Idris v. Bush 

Attash v. Bush 
Al Razak v. Bush 
Mamet v. Bush 
Rabbani v. Bush 
Zahir v. Bush 

Akhtiar v. Bush 
Ghanem v. Bush 
Albkri v. Bush 
Al-Badah v. Bush 
Almerfedi v. Bush 
Zaid v. Bush 
Al-Bahooth v. Bush 
Al-Siba'i v. Bush 
Al-Uwaidah v. Bush 
Al-Jutaili v. Bush 
Ali Ahmed v. Bush 
Khandan v. Bush 



Case No. 05-CV-1504 (RMC) 

Case No. 05-CV-1505 (RMC) 

Case No. 05 -CV- 15 06 (RMC) 

Case No. 05-CV-1509 (RMU) 

Case No. 05-CV-1555 (JR) 
(Consolidated with 05-CV-1725) 

Case No. 05-CV-1592 (RCL) 

Case No. 05-CV-1601 (GK) 

Case No. 05-CV-1602 (ESH) 

Case No. 05-CV- 1607 (RMU) 

Case No. 05-CV-1623 (RWR) 
(Consolidated with 05-CV-01236) 

Case No. 05-CV-1635 (PLF) 

Case No. 05-CV-1638 (CKK) 

Case No. 05-CV- 1 639 (RBW) 

Case No. 05-CV- 1641 (CKK) 

Case No. 05-CV- 1645 (PLF) 

Case No. 05-CV-1646 (JDB) 

Case No. 05-CV- 1666 (ESH) 

Case No. 05-CV- 1667 (RBW) 

Case No. 05-CV- 1 668 (GK) 

Case No. 05-CV- 1 669 (TFH) 

Case No. 05-CV- 1 678 (GK) 

Case No. 05-CV- 1697 (RBW) 



Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 7 of 32 



Kabir (Sadar Doe) v. Bush 
Al-Rubaish v. Bush 
Qasim v. Bush 
Sameur v. Bush 
Al-Harbi v. Bush 
Aziz v. Bush 
Hamoud v. Bush 
Al-Qahtani v. Bush 
Alkhemisi v. Bush 
Gamil v. Bush 
Al-Shabany v. Bush 
Othman v. Bush 
AH Al Jayfi v. Bush 
Jamolivich v. Bush 
Al-Mudafari v. Bush 
Al-Mithali v. Bush 
Al-Asadi v. Bush 
Alhag v. Bush 
Nakheelan v. Bush 
Al Subaie v. Bush 
Ghazy v. Bush 
Al-Shimrani v. Bush 
Amin v. Bush 



Case No. 05-CV-1704 (JR) 

Case No. 05-CV-1714 (RWR) 

Case No. 05-CV-1779 (JDB) 

Case No. 05-CV-1806 (CKK) 

Case No. 05-CV- 1857 (CKK) 

Case No. 05-CV- 1 864 (HHK) 

Case No. 05-CV- 1894 (RWR) 

Case No. 05-CV- 1 97 1 (RMC) 

Case No. 05-CV-1983 (RMU) 

Case No. 05-CV-2010 (JR) 

Case No. 05-CV-2029 (JDB) 

Case No. 05-CV-2088 (RWR) 

Case No. 05-CV-2104 (RBW) 

Case No. 05-CV-21 12 (RBW) 

Case No. 05-CV-2185 (JR) 

Case No. 05-CV-2186 (ESH) 

Case No. 05-CV-2197 (HHK) 

Case No. 05-CV-2199 (HHK) 

Case No. 05-CV-2201 (ESH) 

Case No. 05-CV-2216 (RCL) 

Case No. 05-CV-2223 (RJL) 

Case No. 05-CV-2249 (RMC) 

Case No. 05-CV-2336 (PLF) 



Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 8 of 32 



Al Sharbi v. Bush 


) Case No 


Ben Bacha v. Bush 


) Case No 


Zadran v. Bush 


) Case No 


Alsaaei v. Bush 


) Case No 


Razakah v. Bush 


) Case No 


Al Darbi v. Bush 


) Case No 


Haleem v. Bush 


) Case No 


Al-Ghizzawi v. Bush 


) Case No 


Awad v. Bush ] 


) Case No 


Al-Baidany v. Bush 


) Case No 


Al Rammi v. Bush 


) Case No 


Said v. Bush ] 


) Case No 


Al Halmandy v. Bush 


) Case No 


Mohammon v. Bush 


) Case No 


Al-Quhtani v. Bush 


) Case No 


Thabid v. Bush ' 


) Case No 


Al Yafie v. Bush ] 


) Case No 


Rimi v. Bush ] 


) Case No 


Almjrd v. Bush 


) Case No 


Al Salami v. Bush 


) Case No 


Al Shareef v. Bush 


) Case No 


Khan v. Bush 


) Case No 


Hussein v. Bush ] 


) Case No 



05-CV-2348 (EGS) 
05-CV-2349 (RMC) 
05-CV-2367 (RWR) 
05-CV-2369 (RWR) 
05-CV-2370 (EGS) 
05-CV-2371 (RCL) 
05-CV-2376 (RBW) 
05-CV-2378 (JDB) 
05-CV-2379 (JR) 
05-CV-2380 (CKK) 
05-CV-2381 (JDB) 
05-CV-2384 (RWR) 
05-CV-2385 (RMU) 
05-CV-2386 (RBW) 
05-CV-2387 (RMC) 
05-CV-2398 (ESH) 
05-CV-2399 (RJL) 
05-CV-2427 (RJL) 
05-CV-2444 (RMC) 
05-CV-2452 (PLF) 
05-CV-2458 (RWR) 
05-CV-2466 (RCL) 
05-CV-2467 (PLF) 



Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 9 of 32 

Al-Delebany v. Bush ) Case No. 05-CV-2477 (RMU) 

Al-Harbi v. Bush ) Case No. 05-CV-2479 (HHK) 

Feghoul v. Bush ) Case No. 06-CV-0618 (RWR) 

Rumi v. Bush ) Case No. 06-CV-0619 (RJL) 

RESPONDENTS' MOTION FOR PROCEDURES 

RELATED TO REVIEW OF CERTAIN DETAINEE MATERIALS 

AND REQUEST FOR EXPEDITED BRIEFING 1 

Respondents hereby respectfully submit this motion and memorandum to inform the 
Court and counsel regarding the disposition of certain materials associated with Guantanamo 
detainees, including petitioners, that have been impounded for purposes of an ongoing 
investigation by the Naval Criminal Investigative Service ("NCIS") into the circumstances of the 
recent suicides of three detainees, as well as any broader plot or planning for other such attempts 
in the past or future. Respondents also request that the Court establish procedures authorizing 
the review of impounded materials that may have been created by detainees to provide to their 
counsel, or that may have been provided to detainees by their counsel, and therefore may 
potentially be subject to privilege. Respondents also seek an expedited briefing schedule 
regarding this matter. 

As explained below, respondents seek authorization for a "Filter Team" that would 
review the impounded materials. That Filter Team will be composed of Department of Defense 
attorneys and other personnel and translators who have not and will not take part in litigation or 



1 This filing also serves as respondents' opposition to petitioner's Motion to Modify Stay 
to Direct Respondents to Return Impounded Privileged Legal Material, filed July 5, 2006, in 
Abdullah v. Bush, No. 05-CV-0023 (RWR). 

-1 - 



Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 1 of 32 

other proceedings involving detainees, and who will operate under appropriate nondisclosure 
obligations. Once authorized, the Filter Team will identify documents relevant to the ongoing 
investigation such that any relevant but potentially privileged materials will remain privileged 
pending the Court's consideration of privilege issues with respect to those materials. 

For the reasons explained below, the Court should authorize the inclusion of attorney- 
client communications in the review of detainee materials by the Filter Team. 2 Furthermore, 
given that the ongoing investigation pertains to the safety and security of detainees and personnel 
at Guantanamo Bay and should be permitted to proceed expeditiously, the Court is requested to 
require that petitioners file any response to this motion within ten (10) calendar days, i.e., July 
17, 2006, with respondents' reply due July 21, 2006. 3 



2 The ongoing NCIS investigation will involve review of materials of all Guantanamo 
Bay detainees, except those who have been classified as no longer enemy combatants 
("NLECs"). Accordingly, respondents are filing this motion in all of the pending Guantanamo 
detainee habeas cases, including those currently on appeal, with the exception of the four cases 
that exclusively involve NLECs. See Qassim v. Bush, 05-CV-497 (JR); Mamet v. Bush, 05-CV- 
1886 (EGS); Zakirjan v. Bush, 05-CV-2053 (HHK); Muhammedv. Bush, 05-CV-2087 (RMC). 
A fifth case - El-Mashad v. Bush, 05-CV-270 (JR) - involves both enemy combatant and NLEC 
detainees, thus the motion in that case is directed only with respect to the enemy combatant 
detainees (Adel Fattouh Aly Alhmed Algazzar and Sherif El-Mashad). 

3 This motion is without prejudice to respondents' position that the Court lacks 
jurisdiction in these cases, aside fromHamdan v. Rumsfeld, No. 04-CV-1519 (JR), in light of the 
Detainee Treatment Act of 2005, Pub. L. No. 109-148, tit. X, 119 Stat. 2680 ("the Act"). The 
Act, among other things, amends 28 U.S.C. § 2241 to eliminate court jurisdiction to consider 
habeas petitions and other claims by aliens held as enemy combatants at Guantanamo Bay, id. 

§ 1005(e)(1), and to create an exclusive review mechanism in the D.C. Circuit to address the 
validity of the detention of such aliens and final decisions of any military commissions, id. 
§ 1005(e)(1), (e)(2), (e)(3). Section 1005(e)(2) of the Act states that the D.C. Circuit "shall have 
exclusive jurisdiction to determine the validity of any final decision of a Combatant Status 
Review Tribunal that an alien is properly detained as an enemy combatant," and it further 
specifies the scope and intensiveness of that review. While the Supreme Court in Hamdan, held 
that § 1005(e)(1) did not apply to habeas petitions pending prior to the enactment of the Act, it 
recognized that the exclusive review provisions of the Act did expressly apply to cases pending 

-2- 



Case 1 :05-cv-01458-UNA-AK Document 21 Filed 07/07/2006 Page 1 1 of 32 

BACKGROUND 

On June 10, 2006, three detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, were 
found in their cells, each apparently having committed suicide using torn bedsheets as ligatures 
to hang themselves. See, e.g., Sara Wood, Three Guantanamo Bay Detainees Die of Apparent 
Suicide, at http://www.defenselink.mil/news/Jun2006/20060610_5379.html. These suicides 



prior to enactment. See Hamdan v. Rumsfeld, 548 U.S. — , slip op. at 7-20 (U.S. June 29, 2006). 
While the petitioner in Hamdan escaped the Act by virtue of the fact that his challenge did not 
involve a final decision of a military commission within the exclusive jurisdiction of the Court of 
Appeals under § 1005(e)(3), the Court reserved the question of the effect of the exclusive review 
provisions of the Act on other cases, stating that "[fjhere may be habeas cases that were pending 
in the lower courts at the time the DTA was enacted that do qualify as challenges to 'final 
decision[s]' within the meaning of subsection (e)(2) or (e)(3). We express no view about 
whether the DTA would require transfer of such an action to the District of Columbia Circuit." 
Hamdan, slip op. at 18 n.14. The cases at bar, aside from Hamdan, are just such cases, i.e., 
challenges to petitioners' designation as enemy combatants through Combatant Status Review 
Tribunals, and given the Act's investment of exclusive review in the Court of Appeals, the 
District Court lacks jurisdiction over the cases for it is well-settled that an exclusive-review 
scheme, where applicable, precludes the exercise of jurisdiction under more general grants of 
jurisdiction, including habeas corpus. Cf, e.g., 5 U.S.C. § 703 ("form of proceeding for judicial 
review is the special statutory review proceeding relevant to the subject matter in a court 
specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, 
including actions for . . . writs of . . . habeas corpus"); Thunder Basin Coal Co. v. Reich, 510 
U.S. 200, 207-09 (1994) ("exclusive" jurisdiction under federal Mine Act precludes assertion of 
district court jurisdiction); FCC v. ITT World Communications, Inc., 466 U.S. 463, 468 (1984) 
(Hobbs Act) ("The appropriate procedure for obtaining judicial review of the agency's 
disposition of these issues was appeal to the Court of Appeals as provided by statute."); Laing v. 
Ashcroft, 370 F.3d 994, 999-1000 (9th Cir. 2004) ("§ 2241 is ordinarily reserved for instances in 
which no other judicial remedy is available"); Lopez v. Heinauer, 332 F.3d 507, 511 (8th Cir. 
2003) ("Because judicial review was available . . . the district court was not authorized to hear 
this § 2241 habeas petition."). See also Telecommunications Research and Action Center v. 
FCC, 750 F.2d 70, 77 (D.C. Cir. 1984) ("even where Congress has not expressly stated that 
statutory jurisdiction is 'exclusive' . . . , a statute which vests jurisdiction in a particular court 
cuts off original jurisdiction in other courts in all cases covered by that statute") (footnote 
omitted); id. at 75, 78-79 (request for relief in district court that might affect Court of Appeals' 
future, exclusive jurisdiction is subject to the exclusive review of the Court of Appeals). 

The effect of the Hamdan decision on this Court's jurisdiction is pending before the 
Court of Appeals, and respondents have requested supplemental briefing on the subject. 

-3- 



Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 1 2 of 32 

followed an incident less than a month before (on May 18, 2006) in which two detainees 
overdosed on medications that they had illicitly hoarded during medical treatment and responses 
to sick calls regularly provided by Guantanamo staff. See, e.g., Kathleen T. Rhem, Skirmish With 
Guards, Two Suicide Attempts Test Guantanamo Procedures, at 

http://www.defenselink.mil/news/May2006/20060519_5177.html. On the same day as the May 
18 overdose incident, a number of detainees in Camp 4, a communal housing facility at 
Guantanamo, ambushed and attacked guards using weapons fashioned from fans and other 
materials in the housing bay. Id. In addition, recent searches of detainees' cells at Guantanamo 
have uncovered other hoarding of medicines, including in detainees' waistbands and even in a 
detainee's prosthetic limb. See Carol J. Williams, Commander: Suicide Plots Continuing, Miami 
Herald, June 28, 2006, at 7A, at 
http://www.miami.com/mld/miamiherald/news/nation/14920247.htm. 

The NCIS Investigation. Because the U.S. Navy has primary jurisdiction over 
Guantanamo Bay, the NCIS began an investigation to determine the circumstances and cause of 
death with respect to the recent suicides. See Declaration of Rear Admiral Harry B. Harris ]j 2 
("Harris Decl.") (attached hereto as Exhibit A) 4 ; Declaration of Special Agent in Charge Carol 
Kisthardt 1 2 ("Kisthardt Decl") (attached hereto as Exhibit B). The NCIS is the primary 
criminal investigative service of the Navy, and it investigates all deaths associated in any way 
with the Navy. See SECNAV Instruction 5430.107, Mission and Functions of the Naval 
Criminal Investigation Service ]j 6, at neds.daps.dla.mil/directives/5430_107.pdf The NCIS 



4 Admiral Harris serves as Commander, Joint Task Force-Guantanamo, the entity 
responsible for detention operations at Guantanamo in support of the Global War on Terrorism. 
Harris Decl. If 1 . 

-4- 



Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 1 3 of 32 

conducts its investigations and mission independently. Id. Commands with matters under 
investigation must assist the investigation and provide support as needed; moreover, commands 
may not impede or interfere with such investigations. Id. 

The NCIS investigation began with searches of the cells of the deceased detainees. See 
Kisthardt Decl. ]} 3. Handwritten notes were found on the detainees that appeared to be suicide 
notes. Id. NCIS also discovered a handwritten note hidden in the mesh wall of one of the 
deceased detainee's cell; when translated, that note proved to be related to the suicides, but it 
appeared to be written by someone other than the detainee who died in the cell in which the note 
was found. Id. That particular note was written on notepaper that was stamped on the back as 
privileged attorney-client material. Id. In that vein, JTF-Guantanamo authorities, until recently, 
have permitted habeas counsel to provide represented detainees with paper on which detainees 
could draft letters to counsel. Presumably, the stamped paper used for the suicide note was 
something provided by one of the habeas counsel, although the two deceased detainees who had 
been identified as putative habeas petitioners, see Notice, Al-Harbi v. Bush, 05-CV-1857 (CKK) 
(dkt. no. 21); Notice, Al-Salami v. Bush, 05-CV-2452 (PLF) (dkt. no. 16), had never been visited 
by habeas counsel. It seems likely, therefore, that the stamped paper had been supplied to the 
deceased detainees by other detainees. 

Upon the discovery of these notes, which indicated the passing of materials and messages 
between detainees and that some level of planning or coordination of the suicides had taken 
place, NCIS investigators expanded their search to the other occupied cells in the same cell block 
of the deceased detainees for additional evidence regarding the circumstances of the deaths of the 
three detainees, including handwritten notes reflecting suicide notes or possible suicide pacts. 

-5- 



Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 1 4 of 32 

Kisthardt Decl. ]( 3. That search uncovered notes found in a living detainee's cell that, once 
translated, appeared to have been written by at least two of the deceased detainees and, thus, were 
relevant to the NCIS investigation. These notes were hand-written, in Arabic, on stationery that 
had been stamped as confidential attorney-client materials. Id. 

The discovery of these materials led the NCIS to expand its investigatory efforts to 
include all materials in all enemy combatant detainees' cells, in order to investigate fully the 
circumstances surrounding the deaths of the three detainees and to determine whether other 
suicides were planned or likely to be planned. 5 Id. If 3. On or about June 14, 2006, the NCIS 
impounded detainees' written materials, most of which were contained in the plastic bins in 
which detainees are permitted to store their personal items and papers, including any legal 
material and other correspondence. 6 See id. (Detainees' Korans and the like were not 
impounded.) Approximately 1,100 pounds of materials were collected, much of which was 



5 Documents of the three remaining detainees who have been classified as no longer 
enemy combatants have not been impounded and are not currently the subject of investigation. 
See supra note 2. 

6 Typically, detainees who are housed in cells are limited in the amount of material they 
may have in their cells at any particular time; thus, the plastic bins are kept outside a detainee's 
cell, and the detainee may request items from the bin, and return items to the bin, through the 
guards on duty in the cell block. In Camp 4, however, detainees are housed in open bays, not 
cells, and have unrestricted access to their personal bins. 

With respect to a number of the bins belonging to detainees who were in Camp 4 at the 
time of the May 18, 2006 disturbance in the camp, it should be noted that during the melee 
between the detainees and guard personnel, a number of detainee bins were disrupted and their 
contents scattered. During clean-up after the incident by Guantanamo personnel, materials, 
including some legal materials, were found to have been contaminated with biologically 
hazardous matter, such as feces and bodily fluids, that were used by detainees in the attack on the 
guards. These contaminated materials were destroyed for health and safety reasons. Also, a 
number of the scattered legal materials were not readily identifiable as pertaining to a particular 
detainee such that they could be returned to a detainee's bin. 

-6- 



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written in languages other than English. Id. fflj 4-5. The materials collected from each detainees' 
cell and effects were separately bagged for eventual sorting and review. Id. \ 4. Once the 
materials were gathered, on June 18, 2006, NCIS personnel began sorting materials from bags 
pertaining to eleven detainees. Id. ^5. This process involved separating privileged information 
from non-privileged and conducting a preliminary scan of non-privileged materials for relevancy 
to the investigation. Id. K 5. Almost immediately, the sorting process revealed documents of 
interest. A document containing instructions on tying knots was discovered. Further, the review 
recovered a JTF-Guantanamo- generated e-mail containing information regarding cell locations 
of detainees and other details regarding camp operational matters - information that typically 
would be classified or otherwise sensitive. Id. The latter discovery led investigators to examine 
other materials from the same detainee to determine whether there were other potentially 
classified U.S. Government documents in the detainee's possession, including in three envelopes 
that were marked as attorney-client privileged information. Id. An NCIS investigator scanned 
the contents of the three envelopes to see that one of them contained a document with a "Secret" 
classification marking that was lined out and marked "Unclassified." Id. A second envelope 
contained a typed document stamped "FOUO," i.e., For Official Use Only, a designation for 
materials typically subject to special handling. Id. The documents in the third envelope did not 
bear any classification or special handling markings. Id. The NCIS investigators, however, did 
not read the contents of any of the documents in the three envelopes. Id. 

The initial sorting process of the bags pertaining to the eleven detainees made clear that 
review and translation of the collected detainee materials would be a burdensome undertaking 
given the volume of materials and the apparent multitude of foreign languages. Id. Further, the 

-7- 



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sorting process revealed the likelihood that actual attorney-client communications would be 
encountered. See id. Accordingly, further review of the materials was suspended until 
appropriate procedures and staffing could be developed appropriate for the scope of the 
undertaking and accounting for the possibility of the review team encountering potentially 
privileged attorney-client communications. Id. 

The materials uncovered in these initial searches comprising a very small amount of 
detainee materials demonstrated, however, that detainees had developed practices for misusing 
the existence of a privileged attorney-client communication system, presumably to shield the 
communications from the suspicion or scrutiny of JTF-Guantanamo guards, who have not been 
permitted to inspect or review attorney-client communications. Detainees had further developed 
ways of obtaining documents like the JTF-Guantanamo e-mail discovered. 

After learning of the developments in the NCIS investigation, and in order to help prevent 
any additional loss of life and ensure the safety of detainees and military personnel at 
Guantanamo, Admiral Harris, the Commander, JTF-Guantanamo, determined that there was a 
need for a complete investigation addressing fully the circumstances of the suicides, including 
whether a coordinated plan existed for the suicides involving the encouragement, assistance, or 
direction of other detainees or individuals, as well as the existence of any other plots or plans for 
additional detainee suicides. See Harris Decl. ]j 4. The Commander requested that NCIS include 
these matters within its investigation, and NCIS is proceeding consistent with the request. Id. 

Procedures for Review of Detainee Documents. A major component of the current 
investigation is the review of the currently impounded detainee materials. Those materials, at 
least in cases in which the Protective Order applicable in other Guantanamo detainee habeas 

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Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 1 7 of 32 

cases has been entered, 7 will likely include some number of attorney-client communications 
potentially subject to attorney-client privilege. 

Because the Protective Order contemplates that communications between habeas counsel 
and their clients "for purposes of litigating the cases" generally take place in a privileged 
context, 8 the Government intends that the review of all of the impounded materials be performed 



7 See Amended Protective Order and Procedures for Counsel Access to Detainees at the 
United States Naval Base in Guantanamo Bay, Cuba, In re Guantanamo Detainee Cases, 344 F. 
Supp. 2d 174 (D.D.C. Nov. 8, 2004); Order Supplementing and Amending Filing Procedures 
Contained in November 8, 2004 Amended Protective Order in In re Guantanamo Detainee 
Cases, No. 02-CV-0299, etal (D.D.C. Dec. 13, 2004); Order Addressing Designation 
Procedures for "Protected Information" in In re Guantanamo Detainee Cases, No. 02-CV-0299, 
et al. (D.D.C. Nov. 10,2004). 

8 See Revised Procedures for Counsel Access to Detainees at the U.S. Naval Base in 
Guantanamo Bay, Cuba, § I (annexed to the Protective Order as Exhibit A) ("Access 
Procedures"). The Access Procedures permit privileged counsel visits and privileged "legal 
mail" between counsel and a represented petitioner for purposes of litigating these cases, where 
"legal mail" is defined as 

Letters written between counsel and a detainee that are related to the counsel's 
representation of the detainee, as well as privileged documents and publicly filed 
legal documents relating to that representation. 

Id. § n.E. In several of the Guantanamo cases, however, the parties have agreed to revisions to 
the Access Procedures that contemplate substantive review by a DoD privilege team, and 
potentially other JTF-Guantanamo personnel, of articles and publications intended to be provided 
by counsel to detainees. See Stipulation and Order filed May 3, 2006 in Al Joudi v. Bush, No. 
05-CV-301 (GK); Al Oshan v. Bush, No. 05-520 (RMU); Al Subaiy v. Bush, No. 05-CV-1453 
(RMU); Al Shareefv. Bush, No. 05-2458 (RWR). 

Counsel, however, are not permitted to share classified information or information 
designated by the Government as "protected information" with detainees. See Protective Order 
THf 30, 39. Further, neither counsel nor detainees are permitted to use the privileged mail system 
for non-legal mail or communications, including communications to/from detainees from/to 
others besides their counsel; the Access Procedures contemplate and require that non-legal 
communications be routed through the normal mail process at Guantanamo Bay, which includes 
content screening maintained for national security, intelligence, and physical and personnel 
security purposes. See Access Procedures § IV.B.4.-5. (counsel may not use legal mail channels 

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Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 1 8 of 32 

by a "Filter Team." The Filter Team will be composed of individuals meeting the qualifications 
of the DoD "Privilege Team" created by the Protective Order, 9 that is, they will be DoD 
"attorney [s], intelligence, or law enforcement personnel [or translators] who have not taken part 
in, and, in the future, will not take part in, any domestic or foreign court, military commission or 
combatant status tribunal proceedings involving the detainee." See Access Procedures § II.D. At 
present, it is anticipated that the Filter Team will be composed of Navy JAG attorneys assisted by 
DoD translators as necessary, but, again, only those who have not taken part in and will not take 
part in litigation and other proceedings pertaining to the detainees. It is anticipated that the Filter 
Team will disclose to NCIS investigators any documents it discovers that would be relevant to 
the NCIS investigation, while documents determined not to be relevant to the investigation will 



as conduit for non-legal mail; non-legal mail subject to review by military); see also id. § VI. C. 
(messages to others besides counsel to be processed as non- legal mail); § IV.A.5. (non- legal mail 
communications to detainees to be sent to detainee through normal, non-privileged mail 
channels). Furthermore, counsel are required to disclose to the Government any information 
learned from a detainee involving future events that threaten national security or involve 
imminent violence. Id. § IX.C. 

9 In recognition of the unique, wartime setting of these cases and detentions, including 
that information possessed by detainees could have national security or physical and personnel 
security implications warranting potential treatment of the information as classified information, 
the Access Procedures require that communications from detainees and information learned from 
them be treated as presumptively classified. See Access Procedures §§ UFA., rV.A.6., VI. 
Counsel, however, may submit such materials to the DoD Privilege Team for review to 
determine its classification. See Access Procedures §§ rV.A.6., VII. The Privilege Team is "[a] 
team comprised of one or more DoD attorneys and one or more intelligence or law enforcement 
personnel who have not taken part in, and, in the future, will not take part in, any domestic or 
foreign court, military commission or combatant status tribunal proceedings involving the 
detainee." Id. § II.D. Absent Court authorization or the consent of counsel submitting the 
information to the Privilege Team, the Privilege Team cannot disclose to anyone information 
learned from their review activities, except that the Privilege Team may disclose information 
indicating an "immediate and substantial harm to national security" or "imminent acts of 
violence" to officials with a role in responding to such potential harms or violence. See id. 
§ VII. A., D.-F. 

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Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 1 9 of 32 

be returned, either to the detainee if privileged attorney-client communication or, otherwise, to 
JTF-Guantanamo for appropriate action. 

With respect to attorney-client communications potentially subject to privilege, the Court 
should authorize review of such materials by the Filter Team. To the extent that documents are 
determined upon such review to be relevant to the NCIS investigation, the Filter Team would 
seek Court permission for disclosure of the documents to the NCIS investigators; in such 
proceedings, the applicability of the attorney-client privilege, and any applicable exception, could 
be considered and addressed by the Court. Documents determined not to be relevant to the NCIS 
investigation would be returned to the detainee concerned. 10 This protocol, however, should be 
without prejudice to the Filter Team disclosing the material without such notice in appropriate 
circumstances, e.g., when the information pertains to future events that threaten national security 
or involve imminent violence, situations in which the current Access Procedures already 
contemplate and require disclosure of the relevant information to JTF-Guantanamo. See Access 
Procedures § VII. A., D.-F (DoD Privilege Team permitted to disclose such information 



10 It is further contemplated that because the applicable Protective Order and Access 
Procedures prohibit habeas counsel from sharing of certain types of materials with detainees - 
see supra note 8 (counsel may neither share classified or protected materials with detainees nor 
deliver communications between detainees and others through legal mail channels); see also 
Access Procedures §§ IV.A.7, V.B. (counsel prohibited from providing detainees information 
relating to "ongoing or completed military, intelligence, security, or law enforcement operations, 
investigations, or arrests, or the results of such activities, by any nation or agency or current 
political events in any country that are not directly related to counsel's representation of that 
detainee; or security procedures at GTMO (including names of U.S. Government personnel and 
the layout of camp facilities) or the status of other detainees, not directly related to counsel's 
representation") - if such prohibited materials are discovered in the course of review, the Filter 
Team would not be constrained from bringing the matter to the Court's attention for appropriate 
action. See Protective Order ]f 49 (violations of Protective Order to be brought to Court's 
attention); cf. id. ]} 28 (Court Security Officers to report violations of Protective Order 
discovered in administration of secure facility for habeas counsel). 

-11- 



Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 20 of 32 

discovered in documents during classification review); id. § IX. C (petitioners' counsel required 
to disclose such information learned from a detainee). 

Because the review by the Filter Team may require the Filter Team to raise disclosure of 
specific attorney-client communications with the Court, it is necessary that the Court also 
authorize a Filter Litigation Team to represent the Filter Team in such matters. The Filter Team, 
comprising DoD employees, cannot appear in court on its own to represent itself, see 28 U.S.C. 
§516," and it obviously could not share potentially privileged information learned during its 
review with current litigation counsel for respondents - even for the purpose of permitting 
current litigation counsel to defend or represent the Filter Team. The Filter Team should be 
permitted to disclose potentially privileged or protected information to the Filter Litigation Team, 
which would operate under the same type of constraints on disclosure of the information as the 
Filter Team. Similarly, because of the Filter Litigation Team's access to potentially privileged 
information, the Filter Litigation Team would be composed of Department of Justice attorneys 
who would be prohibited from participating in litigation on the merits of the habeas petitions of 
Guantanamo Bay detainees or other cases brought by or against the petitioners. 

A proposed order regarding the matters and procedures set out above for which Court 
authorization or approval is appropriate is submitted herewith. Review of the impounded 
documents awaits the Court's consideration of this motion. 



11 28 U.S.C. §516 provides: 

Except as otherwise authorized by law, the conduct of litigation in which 
the United States, an agency, or officer thereof is a party, or is interested, and 
securing evidence therefor, is reserved to officers of the Department of Justice, 
under the direction of the Attorney General. 

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Case1:05-cv-01458-UNA-AK Document 21 Filed 07/07/2006 Page 21 of 32 

ARGUMENT 

The legitimacy of and need for the temporary impoundment and review of detainee 
papers in the course of the NCIS investigation cannot be gainsaid in the current context. Three 
detainees have committed suicide, with two others having attempted to do so in the preceding 
weeks. Detainees in Camp 4 were able to launch a coordinated ambush attack on guards there. 
The three successful suicides occurred on the same day, in essentially the same manner, and 
evidence exists that the deceased detainees had secreted suicide notes between themselves and at 
least one other living detainee. In addition, a note providing instructions concerning the tying of 
knots has been uncovered among detainee documents, along with a potentially classified e-mail 
from a camp officer somehow provided a detainee. Importantly, several of the suicide notes and 
other documents were written or contained on paper bearing an attorney-client confidentiality 
stamp, indicating, at the very least, that detainees are (mis)using materials on their face reserved 
for privileged legal communications for purposes other than such communications. No doubt 
this practice was developed in an attempt to shield those improper communications or writings 
and others like them from the suspicion of guard force personnel or from scrutiny by those 
personnel because guards have not been permitted to review or interfere with attorney-client 
communications between detainees and counsel. Further, detainees apparently have developed 
some means of obtaining documents like the JTF-Guantanamo e-mail found in the sample 
sorting of detainee documents. 

The Supreme Court has long recognized, even in the context of the detention of U.S. 
individuals possessing constitutional rights, that prison officials must be permitted to take all 
reasonable steps to mitigate and address potential threats to the security of detention facilities and 
the safety of personnel and detainees in those facilities, including with respect to searches of 

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Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 22 of 32 

detainee quarters and materials. See, e.g., Bell v. Wolfish, 441 U.S. 520, 555-57 (1979) 
(upholding, inter alia, security-related searches of cells and persons of prisoners); Hudson v. 
Reno, 468 U.S. 517 (1984) (upholding random shake-down searches of prisoner cells outside of 
prisoner's presence); Block v. Rutherford, 468 U.S. 576 (1984) (same with respect to pretrial 
detainees); see also Turner v. Safley, 482 U.S. 78 (1987) (prison practice impinging on prisoner's 
constitutional right is nonetheless valid if reasonably related to legitimate penological interests). 
Such deference should apply with even greater force with respect to actions taken in response to 
specific security issues raised at a military detention facility such as Guantanamo during a time of 
war, including where, as here, the security issues bear the hallmarks of coordinated planning by 
detainees against their captors. See Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2640 (2004) (plurality 
opinion) ("The capture and detention of lawful combatants and the capture, detention, and trial of 
unlawful combatants is to prevent captured individuals from returning to the field of battle and 
taking up arms once again."). See also Hamdi, 124 S. Ct. at 2647 (plurality opinion) (stating that 
"[w]ithout doubt, our Constitution recognizes that core strategic matters of warmaking belong in 
the hands of those who are best positioned and most politically accountable for making them"); 
Almurbati v. Bush, 366 F. Supp. 2d 72, 81 (D.D.C. 2005) (Walton, J.) (indicating that "it is a 
fundamental principle under our Constitution that deference to the Executive Branch must be 
afforded in matters concerning the military and national security matters."); Khalid v. Bush, 355 
F. Supp. 2d 31 1, 328 (D.D.C. 2005) (Leon, J.) (explaining that management of wartime 
detainees' confinement conditions is the province of the Executive and Legislative branches, thus 
precluding judicial scrutiny of such conditions), appeal pending. 

The Court, accordingly, should authorize review of the collected detainee materials by the 
Filter Team to the extent such materials include attorney-client communications, and should 

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establish a procedure under which, to the extent that documents are determined upon such review 

to be relevant to the NCIS investigation, the Filter Team seeks Court permission for disclosure of 

the documents to the NCIS investigators. As explained below, such review, for the purposes of 

identifying documents that may be relevant to investigation of the complete circumstances of the 

recent suicides, including whether a coordinated plan existed for the suicides involving the 

encouragement, assistance, or direction of other detainees or individuals, as well as the existence 

of any other plots or plans for additional detainee suicides, is reasonable in light of the evidence 

uncovered to date of abuse of the attorney-client correspondence system by detainees. 

A. Authorization of Filter Team Review of Attorney-Client Materials is 
Warranted. 

The extraordinary circumstances of the situation with respect to the Guantanamo 

detainees warrants Court authorization of the Filter Team review of any attorney-client 

communications between counsel and petitioners contained in the detainee documents to be 

reviewed. The attorney-client privilege, while venerable, is not without limits. It, of course, 

applies only to communications between lawyer and client for purposes of legal representation. 

See United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). The privilege further '"is based 

in policy, rather than in the Constitution, and therefore cannot stand in the face of countervailing 

law or strong public policy and should be strictly confined within the narrowest possible limits 

underlying its purpose."' See United States v. Grant, 2004 WL 1 171258 at *2 (S.D.N.Y. May 25, 

2004) (quoting United States v. Stewart, 2002 WL 1300059 at * 5 (S.D.N.Y. Jan. 11, 2002) and 

United States v. Golberger & Dubin, P.C., 935 F.2d 501, 504 (2d Cir. 1991)); cf. United States v. 

Skeddle, 989 F. Supp. 890, 900 (N.D. Ohio 1997) (discussing state law privilege); Leonen v. 

Johns-Manville, 135 F.R.D. 94, 100 (D.N.J 1990) (same). Thus, for example, the privilege, 

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Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 24 of 32 

though otherwise applicable, does not apply to communications made in furtherance of 
committing a crime or tort. See United States v. Zolin, 491 U.S. 554, 562-63 (1989); United 
States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). In addition, the Access Procedures further 
limit the privilege in cases where they are applicable by restricting privileged communications 
only to those "for purposes of litigating these cases," Access Procedures § I, with requirement 
that any information learned from detainees involving future events that threaten national 
security or imminent violence be disclosed, i.e., regardless of whether communications are in 
furtherance of such threats, id. § VII. A., D.-F (DoD Privilege Team permitted to disclose such 
information discovered in documents during classification review); id. § IX. C (counsel required 
to disclose such information). 

Here, the purpose of the review of the detainee materials, including any relevant 
documents among them containing attorney-client communications, would be to fully uncover 
the complete circumstances of the suicides, including the extent to which coordination among 
and assistance from other detainees or others existed, as well as any other plans for additional 
detainee suicides or other violence. The strong public policy interests in potentially saving lives 
and in maintaining security and order within a wartime detention facility outweighs any limited 
incursion into attorney-client materials under safeguards ordered by the Court that would be 
involved in the Filter Team review. 

The review would be seeking documents pertaining to any planned detainee suicides, past 
or future, as well as clues to how detainees are able to coordinate such matters among themselves 
and obtain documents such as the e-mail that was discovered in the initial phase of the 
investigation. Of course, such documents may be among documents in no way appearing or 
marked as attorney-client material, but relevant materials also could possibly include writings 

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such as the suicide notes found so far, that is, notes drafted on stationery marked with attorney- 
client confidentiality markings or stamps, but in no way actual attorney-client communications, 
much less privileged communications. Consistent with the detainees' demonstrated creative 
abilities to use the attorney-client communication system contemplated by the Protective Order to 
attempt to shield writings that are not attorney-client communications from suspicion or scrutiny 
of Guantanamo personnel, other such possibilities include notes purportedly drafted to counsel 
but never mailed, intentionally or otherwise, or messages otherwise disguised as legal 
communications. Attorney-client privilege would not apply to such materials, which are not 
attorney-client communications, though the status of the material as such would not necessarily 
be readily discernable absent translation, which would necessarily involve some review of the 
material. Furthermore, such materials could very well be intermingled among legitimate 
attorney-client communications within a detainee's collected materials, including in envelopes in 
which attorney communications to detainees may be kept. There could also be hand-written 
notes written on otherwise legitimate attorney-client materials. Any applicable privilege would 
not apply to any such materials except to the extent that legitimate attorney-client materials in the 
hands of detainees serve as carrier medium for the unprivileged information. Again, however, 
absent translation of the information, which necessarily involves some review of the materials, 
such notes are not likely to be discernable. 

Thus, the primary object of the review is not aimed at legitimate attorney-client 
communications permitted under the Protective Order regime, but at documents relevant to the 
NCIS investigation. Under the circumstances, and in light of relevant evidence so far uncovered, 
as well as the fact that translation will be required for many of the documents in order to 
ascertain the nature of the materials, the review must necessarily include review of attorney- 

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client materials. The Government anticipates that legitimate attorney-client communications 
under the Access Procedures not bearing on the investigation, especially those in English, can be 
identified quickly and set aside without detailed further review and returned to detainees. 
Materials in foreign languages, especially those that are not typewritten or on law firm letterhead, 
however, will require more detailed review to ascertain their relevancy to the NCIS investigation. 

In any event, Filter Team review of materials that, when translated, ultimately appear to 
be attorney-client communications would not undermine or unduly impair the attorney-client 
privilege. The Filter Team will operate under the same type of constraints as members of the 
Access Procedures Privilege Team, responsible for classification review of materials intended to 
be kept privileged. Thus, the Filter Team members would not be involved in past or future 
litigation proceedings involving detainees and would operate under nondisclosure constraints 
ordered by the Court. No substantial question regarding fundamental litigation fairness, 
therefore, would arise. While the Filter Team will be familiar with the NCIS investigation, such 
that it can quickly and effectively determine whether any materials reviewed are relevant to the 
suicide-related issues being investigated and potentially not subject to privilege, it would make 
no disclosure of reviewed attorney-client communications without the Court's consideration and 
resolution of the propriety of any privilege claim. 

To the extent petitioners would attempt to argue that the review of attorney-client 
communications by the Filter Team will undermine the privilege by chilling future 
communications between a detainee and his counsel, such an argument should be rejected. The 
current situation and need for review of detainee materials has arisen as a result of manifest 
abuse of the legal mail system by detainees, and possibly others, such that the purported attorney- 
client materials among the detainees' documents may harbor information relevant to the pending 

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investigation as well as information regarding plans or coordination respecting the prior suicides 
or possible future suicides. Furthermore, it is anticipated that procedures at Guantanamo that 
accommodated detainees in ways that may have given them opportunities to abuse the legal mail 
system - for example, permitting counsel to provide detainees with notepaper stamped with 
attorney-client confidentiality markings - will be revised going forward to make it more difficult 
for detainees to abuse the system. Such reform will mitigate the need for review of detainee 
attorney-client materials in the future and, thus, concerns that future legitimate attorney-client 
communications would be subject to review. 

The appropriateness of the use of filter teams for review of attorney-client materials has 
been recognized and sanctioned in other important contexts, also - namely, in the review of 
attorney-client materials seized by law enforcement officials pursuant to search warrants. For 
example, in United States v. Grant, 2004 WL 1 171258 (S.D.N.Y. May 25, 2004), the 
government, pursuant to a warrant, seized a large number of documents from a business and 
residence, including, specifically, documents concerning certain legal proceedings and 
"assessments of legal liability." Id. at *1. The court considered proposals of the parties 
regarding review of the attorney-client materials, which the government had segregated from the 
seized documents, for responsiveness to the warrant and consideration of privilege prior to any 
disclosure of the documents for possible use in a criminal proceeding. The parties from whom 
the documents were seized urged that any review should be conducted by the court or a special 
master, citing the likelihood of privileged information in the materials and the alleged absence of 
a showing of necessity for the government to invade the privilege. Id. The government proposed 
that a "privilege team" of government attorneys not involved in the criminal matter be permitted 



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to review the documents and notify the opposing party of relevant documents that would be 
disclosed, so that any claim of privilege could then be raised and considered by the Court. Id. 

The court accepted the use of a government privilege team as the appropriate method of 
proceeding, noting that the procedure would permit the assertion of any claim of privilege prior 
to disclosure of any documents, while the alternative, an initial ex parte review of the documents 
by a judicial officer or master appealable to the court, would force the government to contest a 
nondisclosure ruling "[unjaided by the contents of the documents" to support any exception to 
application of privilege. Id. at *2. The court noted, "Although some of these documents likely 
contain attorney-client privileged communications, the Government should be allowed to make 
fully informed arguments as to the privilege if the public's strong interest in the investigation and 
prosecution of criminal conduct is to be adequately protected." Id. The court also was mindful 
that initial review of the documents by a government privilege team would reduce the burden on 
the court, narrow possible disputes over disclosure, and expedite the matter. Id. at *3. At 
bottom, the court concluded that the government's interest "outweigh[ed] the limited incursion 
into the attorney client privilege" that the privilege team process permitted. Id. 

Likewise here, there is a strong public policy interest in fully investigating the 
circumstances and planning of the prior suicides as well as any planning or coordination of 
suicides in the future. The evidence to date indicates a manifest need for review of all of the 
detainee materials, including legal materials, in order to conduct a complete investigation into 
these matters. The Filter Team review proposed by respondents permits the NCIS to identify and 
uncover relevant documents that are not attorney-client communications, while preserving any 
privilege claims by petitioners over actual attorney-client communications and full consideration 
of arguments concerning the nonapplicability of or exception to the privilege, as appropriate. 

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And all of this is undertaken with appropriate safeguards imposed by the Court regarding the 
nondisclosure duties and qualifications of the Filter Team. Furthermore, given the sheer volume 
of the detainee materials to be reviewed, as well as the logistical burden of translation, the use of 
the Filter Team for the document review is necessary because it will have appropriate translator 
resources and the ability to make quick determinations regarding the materiality of any particular 
document or information to the ongoing investigation. The strong public policy interests in 
potentially saving lives and in maintaining security and order within a wartime detention facility 
outweighs any limited incursion into attorney-client materials under safeguards ordered by the 
Court that would be involved in the proposed Filter Team review. 12 Absent such review of 



12 Although some judges have criticized the use of filter teams in search warrant contexts, 
see, e.g., United States v. Stewart, 2002 WL 1300059 (S.D.N.Y. 2002), those concerns appear to 
have centered primarily around the implementation of the "wall" between the "taint team" and 
the prosecution team. The Stewart court was concerned, for example, that the materials seized 
under the warrant and to be reviewed were likely to contain privileged materials related to 
criminal defendants and clients unrelated to the particular criminal defendant in the case, and that 
it could not be guaranteed that the the "taint team" would not have any current or future 
involvement in criminal cases against these unrelated individuals. See Stewart, 2002 WL 
1300059 at *7. Likewise the court raised the possible perception of leaks in the wall between 
"taint team" and prosecutors as undermining public confidence in the criminal case proceedings 
and of the handling of materials by non-attorney workers on the team who were not bound by the 
same ethical considerations that would apply to lawyer members of the "taint team." Id. at *7-8. 
See Grant, 2004 WL 1 171258 at *3 (noting that "exceptional set of circumstances," not 
applicable in Grant, led to the Stewart decision). 

The unique circumstances of the situation at issue in respondents' motion warrant use of 
the Filter Team, however. Here, the issue is not merely the responsiveness of documents to the 
terms of a search warrant, but rather relevance of materials to an ongoing security investigation at 
a military detention facility during a time of war; there is a significant volume of materials that 
must be translated and reviewed for relevancy, such that familiarity with the investigation and 
translation resources are needed. Also, in contrast to the concerns expressed in Stewart, here, the 
Filter Litigation Team will operate under Court-ordered constraints of the same type as already 
implemented with respect to the DoD Privilege Team under the Protective Order Access 
Procedures, such that the Filter Team could not disclose attorney-client communications claimed 
to be privileged except as permitted by petitioners' counsel or ordered by the Court. 

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Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 30 of 32 

detainee materials by the Filter Team, a significant universe of information, which the evidence 

indicates will contain other information material to the ongoing NCIS investigation into the 

threat of and coordination regarding detainee suicides, will go unreviewed. This will leave 

detainees with opportunity to continue to use and abuse accommodations provided them, to carry 

out any plans affecting the security of the Guantanamo Bay facility. The Court, therefore, should 

permit the Filter Team's review of the detainee materials to include review of attorney-client 

communications within those materials. 

B. Appointment of a Filter Litigation Team to Represent the Filter Team in 
Court as Needed is Warranted. 

As discussed supra, because the review by the Filter Team may require the Filter Team to 

raise disclosure of specific attorney-client communications with the Court, it is necessary that the 

Court also authorize a Filter Litigation Team to represent the Filter Team in such matters. The 

Filter Team, as composed of DoD employees, cannot appear in court on its own to represent 

itself, as 28 U.S.C. § 516 "reserve[s] to officers of the Department of Justice," "the conduct of 

litigation in which the United States, an agency, or officer thereof is a party, or is interested." 

Further, the Filter Team obviously will not be able to disclose potentially privileged information 

learned during its review with current litigation counsel for respondents - even for the purpose of 

permitting current litigation counsel to defend or represent the Filter Team. The Filter Team, 

therefore, should be permitted to disclose potentially privileged or protected information to a 

Filter Litigation Team, which would make any legal presentation regarding the application of 

privilege with respect to a proposed disclosure of attorney-client communications by the Filter 

Team, while operating under the same type of constraints on disclosure of the information as the 

Filter Team. Because of the Filter Litigation Team's access to potentially privileged information, 

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Case1:05-cv-01458-UNA-AK Document 21 Filed 07/07/2006 Page 31 of 32 

the Filter Litigation Team would be composed of Department of Justice attorneys who would be 
prohibited from participating in litigation on the merits of the habeas petitions of Guantanamo 
Bay detainees or other cases brought by or against the petitioners. The Government contemplates 
that the Filter Litigation Team will be drawn from the ranks of an United States Attorney's office 
to be identified; such offices are separate, both organizationally and physically, from the 
Department of Justice Civil Division currently responsible for serving as litigation counsel for 
the Government on the merits of the Guantanamo detainee habeas petitions. Furthermore, the 
proposed Order submitted herewith provides that any filings made by the Filter Litigation Team, 
as well as petitioners' counsel, respecting potentially privileged matters would be made under 
seal, marked in a conspicuous manner to ensure proper handling, and not served upon or 
disclosed to litigation counsel for respondents, without prejudice to the public filing of 
appropriately redacted versions of such filings, as agreed upon by counsel or ordered by the 
Court. 

C. The Court Should Order Expedited Briefing. 

Finally, the Court should order expedited briefing in this matter, requiring petitioners 
response within ten calendar days, i.e., July 17, 2006, and respondents' reply within four (4) 
business days thereafter on July 21, 2006. Such expedition is warranted given the subject matter 
of the investigation, and the need for action on such security-related issues to proceed 
expeditiously. 

CONCLUSION 

For the foregoing reasons, respondents' motion should be granted. Proposed orders 
regarding the relief sought in this motion and an expedited briefing schedule are submitted 
herewith. 

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Case 1 :05-cv-01 458-UNA-AK Document 21 Filed 07/07/2006 Page 32 of 32 



Dated: July 7, 2006 Respectfully submitted, 

PETER D. KEISLER 

Assistant Attorney General 

DOUGLAS N. LETTER 
Terrorism Litigation Counsel 

/s/ Terry M. Henry 



JOSEPH H. HUNT (D.C. Bar No. 43 1 134) 

VrNCENT M. GARVEY (D.C. Bar No. 127191) 

TERRY M. HENRY 

JAMES J. SCHWARTZ 

PREEYA M. NORONHA 

ROBERT J. KATERBERG 

NICHOLAS J. PATTERSON 

ANDREW I. WARDEN 

EDWARD H. WHITE 

MARC A. PEREZ 

Attorneys 

United States Department of Justice 

Civil Division, Federal Programs Branch 

20 Massachusetts Ave., N.W. 

Washington, DC 20530 

Tel: (202)514-4107 

Fax: (202)616-8470 



Attorneys for Respondents 



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