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

Case 1:05-cv-01458-UNA-AK Document 26-2 Filed 10/06/2006 Page 1 of 1 1 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



AHMED DOE, et al. 



9 «-»■ ^^t" 5 



Petitioners, 



GEORGE W. BUSH, et al. 



Respondents. 



No. 1:05-CV-1458 (ESH)(LFO) 



NABE. (Last Name Unknown), et al. 
Petitioners, 



GEORGE W. BUSH, et al. 



Respondents. 



No. 1:05-CV-1504 (RMC)(LFO) 



ABBAR SUFIAN AL HAWARY, et al. 



Petitioners, 



GEORGE W. BUSH, et al. 
Respondents. 



No. 1:05-CV-1505 (RMC)(LFO) 



Case 1:05-cv-01458-UNA-AK Document 26-2 Filed 10/06/2006 Page 2 of 1 1 



SHAFIIQ (Last Name Unknown), et al. 



Petitioners, 



GEORGE W. BUSH, et al, 



Respondents. 



No. 1:05-CV-1506 (RMC)(LFO) 



HAMID AL RAZAK, et al. 



Petitioners, 



GEORGE W. BUSH, et al. 



Respondents. 



No. 1:05-CV-1601 (GK)(LFO) 



USAMA HASAN ABU KABIR, et al 



, wr i^t. , 



Petitioners, 



GEORGE W. BUSH, et al. 
Respondents. 



No. L05-CV-1704 (JR)(LFO) 



Case 1:05-cv-01458-UNA-AK Document 26-2 Filed 10/06/2006 Page 3 of 1 1 



MUHAMMED QASIM, et al. 



Petitioners, 



GEORGE W. BUSH, et al, 



Respondents. 



No. 1:05-CV-1779 (JDB)(LFO) 



REPORT AND RECOMMENDATION 

In several Guantanamo Bay habeas cases pending in the District Court, the Government 
moved for an order to show cause why Petitioners' cases should not be dismissed for lack of 
proper "next friend" standing. In the above-captioned cases. Judges Huvelle, CoUyer, Urbina, 
Kessler, Robertson and Bates transferred the Government's motion to Judge Oberdorfer for 
decision pursuant to Local Civil Rule 40.6(a). This Report and Recommendation is submitted to 
Judge Oberdorfer in response to his directive to the undersigned 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 
ofNovember4, 2005.' 

As explained in greater detail below, in late March, 2006, 1 began ordering Respondents 
to permit counsel to meet with the detainees directly, as required by the Protective Order. As of 
October 5, 2006, detainees in at least four of the above-captioned cases - Qasim v. Bush, 05-1779 
(JDB); Kiyemba v. Bush, 05-1509 (RMU); Kabir v. Bush, 05-1704 (JR); Nabil v. Bush, 05-1504 - 



'Respondents sought reconsideration of that Order, which Judge Oberdorfer denied. See 
Minute Order of November 17, 2005. 



Case 1:05-cv-01458-UNA-AK Document 26-2 Filed 10/06/2006 Page 4 of 1 1 

have met directly with their counsel. At least two of these detainees, Muhammed Qasim and 
Nabil, have aheady authorized counsel to represent them directly.^ Respondents' Motion to 
Dismiss for Lack of Proper Next Friend Standing is thus already moot in Qasim and Nabil, and 
may well become moot in the remaining cases. Therefore, I recommend that you deny 
Respondents' Motion without prejudice to renew if, within ten (10) days of counsel's second 
visit with a detainee, counsel fails to submit evidence of his or her authorization to represent that 
detainee. 
/. Protective Order and Detainees' Access to Counsel 

On March 21, 2006, in a case referred to me by Judge Roberts,^ I ordered the Government 
to permit counsel to meet with a detainee to confirm his "alleged" request for representation to 
challenge his detention. See Adem v. Bush, 425 F. Supp. 2d 7 (D.D.C. 2006), aff'd. No. 05-723, 
2006 WL 1 193853 at *3-7 (D.D.C. April 28, 2006). la. Adem, as in the above-captioned cases, a 
detainee had asked a fellow detainee for help in finding a lawyer to help him challenge his 
detention. Adem asked Bisher Al Rawi, a fellow detainee who spoke English and who was 
already represented by counsel, to help him get a lawyer. Al Rawi forwarded Adem's request to 
his lawyer, who in turn found Adem a lawyer who filed suit on Adem's behalf Respondents, 
however, refiised to allow Adem to meet with counsel. Respondents took the position that the 



^Petitioners' counsel in the remaining cases have not yet reported back to the undersigned 
regarding the results of counsel's meeting with their clients. As explained in greater detail in this 
Report and Recommendation, counsel for Petitioners are permitted two visits with the detainees 
before they must submit an authorization of direct representation. 

^Judge Roberts referred Petitioner's motion for access to counsel to me for resolution 
pursuant to the Calendar and Case Management Committee's referral to me of all motions 
"pertaining to interpretation or construction of any protective order" entered in any of the 
Guantanamo habeas cases for resolution pursuant to LCvR 72.2(a). 



Case 1:05-cv-01458-UNA-AK Document 26-2 Filed 10/06/2006 Page 5 of 1 1 

Protective Order"* required counsel to submit evidence of their authority to represent a detainee 
before being permitted access to him, even for the sole purpose of confirming Petitioner's verbal 
request for counsel. Respondents further asserted that such evidence must take the form of either 
a proper next friend petition or a written, signed authorization from the detainee himself 

With respect to the narrow question of the timing of counsel's submission of evidence of 
authorization to represent a detainee, I ruled that a plain reading of the Protective Order dictates 
that counsel for a detainee submit such evidence within ten (10) days of counsel's second visit 
with a detainee. Adem, 425 F. Supp. 2d at 20-23. I further ruled that Respondents' pending 
challenge to Petitioner's next friend standing did not prevent this Court from granting access to 
counsel under the terms of the Protective Order. Id. at 23-24. I explained that the issue facing 
the Court was not whether Petitioner could demonstrate a sufficiently close relationship with his 
fellow detainee to maintain traditional next friend standing. Rather, the question facing the Court 
was whether the Court's authority to '"craft [the] procedures necessary' to allow [a detainee] to 
'present the facts surrounding [his] confinement to the Court'" was so inherently limited that 
Respondents could "insist on a written /?rc> 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." Id. at 24. I found that the Court's authority was not so 



"^Li recognition of the security concerns attendant to the Guantanamo habeas cases, the 
Protective Order sets procedures that counsel must follow in order to meet and communicate 
with their clients. The Protective Order was initially approved and entered by Judge Joyce Hens 
Green in/n re Guantanamo Cases, 344 F. Supp. 2d 174 (D.D.C. 2004), following intense 
negotiation and litigation over its terms. See Adem v. Bush, 425 F. Supp. 2d 7, 10-14 (D.D.C. 
2006) (reviewing history of negotiation and entry of Protective Order), aff'd. No. 05-723, slip 
op., 2006 WL 1 193853 (D.D.C. April 28, 2006). It has since been entered in the vast majority of 
Guantanamo habeas cases pending before the District Court. 



Case 1:05-cv-01458-UNA-AK Document 26-2 Filed 10/06/2006 Page 6 of 1 1 

limited and that Respondents were obliged to follow the Protective Order in cases in which it had 
been entered. In doing so, I noted that if Petitioners' counsel did not submit evidence of their 
authority to represent a particular detainee within 10 days of their second visit, that Respondents' 
motion to dismiss for lack of next friend standing would then become ripe.^ Id. 

Based on the reasoning in Adem, I ordered the Government to grant detainees access to 
their counsel in multiple other cases with pending next friend challenges, including several of the 
above-captioned cases. See Kabir v. Bush, 05-1704 (D.D.C. May 1 1, 2006); Said v. Bush, 05- 
2384 (D.D.C. May 23, 2006); Kiyemba v. Bush, 05-1509 (D.D.C. June 29, 2006); Zalita v. Bush, 
05-1220 (D.D.C. July 21, 2006); Alkhemisi v. Bush, 05-1983 (D.D.C. Jul 21, 2006); Qasim v. 
Bush, 05-1779 (D.D.C. August 2, 2006); Thabid v. Bush, 05-2398 (D.D.C. August 2, 2006). 
Every District Court Judge to reach the issue has upheld this interpretation of the Protective 
Order. See Razakah v. Bush, 05-2370 (D.D.C. May 18, 2006) (EGS) (order granting motion for 
access to counsel, notwithstanding Respondents' pending challenge to Petitioner's next friend 
standing, based on substantially the same reasons articulated in Adem v. Bush); see also 
Mohammon v. Bush, No. 05-2386, Order at 4 n.5 (D.D.C. June 27, 2006) (RBW) (rejecting 
government's argument that allegedly defective next friend standing strips court of authority to 
grant access to counsel); Adem v. Bush, No. 05-723, 2006 WL 1 193853 at *3-7 (D.D.C. April 28, 
2006) (RWR) (denying motion for reconsideration and affirming order granting access to 
counsel); Thabid v. Bush, 05-2398 (D.D.C. August 17, 2006) (ESH) (denying Respondents' 



^It is by no means certain that Respondents motion will become moot. Some detainees 
may be physically or mentally incapable of authorizing counsel to represent them, perhaps due to 
participation in a hunger strike or mental instability arising from their prolonged detention. 
Alternatively, some detainees may simply refuse to authorize counsel to represent them. 



Case 1:05-cv-01458-UNA-AK Document 26-2 Filed 10/06/2006 Page 7 of 1 1 

motion for order to show cause why case should not be dismissed for lack of proper next friend 
standing and affirming order granting access to counsel); Kabir v. Bush, 05-1704 (D.D.C. August 
25, 2006) (JR) (affirming order granting access to counsel); Kiyemba v. Bush, 05-1509 (D.D.C. 
August 7, 2006) (RMU) (same). 
//. Jurisdiction 

The question of jurisdiction in the Guantanamo habeas cases has been an ongoing one. 
From the beginning, Respondents have argued that the Court lacks jurisdiction to hear these 
cases. Twice now, the Supreme Court has rejected Respondents' claim that the federal courts are 
off limits to detainees seeking to challenge the lawfulness of their detention. See Rasul v. Bush, 
542 U.S. 466, 483-84 (2004) (finding district court had jurisdiction to hear detainees' challenges 
to the legality of their detention); Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2762-69 (2006) 
(rejecting government's argument that Detainee Treatment Act of 2005 ("DTA") retroactively 
divested federal courts of jurisdiction to hear detainees' habeas petitions). 

Following the Supreme Court's ruling 'm. Hamdan that the jurisdiction-stripping 
provisions of the DTA do not apply retroactively. Respondents argued that jurisdiction over 
Petitioners' habeas petition was nonetheless barred by the DTA's separate exclusive review 
provisions. The DTA vests "the District of Columbia Circuit Court of Appeals with exclusive 
authority to review the validity of any final decision of a Combatant Status Review Tribunal 
[CSRT] that an alien is properly detained as an enemy combatant." Detainee Treatment Act of 
2005, Pub. L. 109-148, § 1005(e)(2), 119 Stat. 2739, 2741-42. In granting access to counsel 
pursuant to the Protective Order, I found that the Court did not need to reach the question of 
whether a habeas petition challenging the very legitimacy of the CSRTs and Petitioners' 



Case 1:05-cv-01458-UNA-AK Document 26-2 Filed 10/06/2006 Page 8 of 1 1 

continued detention - questions far beyond the narrow confines of Section 1005(e)(2) - would 
nevertheless be bundled into the Circuit's exclusive jurisdiction when paired with a challenge to 
a final decision of a CSRT. See Hamdan, 126 S. Ct. at 2769 (finding "nothing absurd about a 
scheme" that creates two separate systems of review for challenges to detainees' confinement); 
id. at 2815 (Scalia, J., dissenting) (criticizing majority for creating a "dual-review mechanism" 
for habeas petitions pending on the date of the DTA's enactment). The question of when, and 
under what circumstances the existing Protective Order permits Petitioners to meet with their 
lawyers has no bearing on the question of which Court has jurisdiction to review the merits of 
Petitioners' challenge to their detention.*' See Adem, No. 05-723, slip op. at 16-17 (D.D.C. April 
28, 2006) (RWR); see also Nasrullah v. Bush, 05-891 (D.D.C. June 12, 2006) (RBW) (rejecting 
government's argument that the Detainee Treatment Act divested District Court of its authority 
to appoint counsel to represent Guantanamo Bay detainees); Al Salami v. Bush, 05-2452 (D.D.C. 
April 13, 2006) (PLF) ("[djetainees' right to meet with counsel under the Protective Order is 
independent of the (stiU-unresolved) question of the Court's jurisdiction to rule on their habeas 
petitions"). 

"[A] protective order, like any ongoing injunction, is always subject to the inherent power 
of the district court." Poliquin v. Garden Way, Inc., 989 F.2d 527, 535 (1st Cir. 1993); see also 
Armstrong v. Executive Office of the President, 1 F.3d 1274, 1289 (D.C. Cir. 1993) (recognizing 
courts' "inherent power to enforce compliance with their lawful orders"); Broderick v. 
Donaldson, 437 F.3d 1226, 1234 (D.C. Cir. 2006) (same); cf Gambale v. Deutsche Bank, AG, 



""Presumably, counsel for Petitioners would also represent them in any proceedings before 
the D.C. Circuit. Thus, the need to resolve questions regarding the logistics of counsel access 
remains an issue. 



Case 1:05-cv-01458-UNA-AK Document 26-2 Filed 10/06/2006 Page 9 of 1 1 

377 F.3d 133, 140-41 (2d Cir. 2004) (recognizing court's jurisdiction to modify protective orders 
that remain in effect, even after dismissal of the underlying litigation). The Protective Order 
remains in effect in all 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. The acknowledgments signed by 
habeas counsel agreeing to abide by the terms of the Protective Order remain in effect and 
counsel remains subject to this District Court's contempt power. 

Moreover, it is well-settled law that "a federal court always has jurisdiction to determine 
its own jurisdiction." United States v. Ruiz, 536 U.S. 622, 628 (2002). Petitioners are entitled to 
meet with their counsel in order to litigate that very question.^ It is also well-settled that until 



^On September 28, 2006, Congress again passed legislation attempting to strip federal 
courts of jurisdiction to consider petitions for writs oi habeas corpus filed by any alien 
designated as an enemy combatant, regardless of whether they are held inside or outside the 
territorial United States. See Military Commissions Act of 2006, S. 3930, 109th Cong., 2d Sess. 
§ 7 (2006). As of the date of this Report and Recommendation, the legislation has not been 
signed by the President. Once the bill becomes law, its constitutionality will undoubtedly be the 
subject of intense litigation. See Charles Babington & Jonathan Weisman, Senate Approves 
Detainee Bill Backed by Bush: Constitutional Challenges Predicted, Washington Post, 
September 29, 2006, at Al (quoting Senator Arlen Specter describing the habeas provisions as 
'"patently unconstitutional on [their] face'" but explaining his support for the bill because '"the 
court will clean it up' by striking the habeas provisions"). The outcome of any challenge to the 
constitutionality of the legislation is by no means clear. The Supreme Court has assiduously 
avoided reaching Suspension Clause questions, but has also repeatedly rejected Congressional 
attempts to repeal habeas jurisdiction under the canon of constitutional avoidance. In INS v. St. 
Cyr, 533 U.S. 289 (2001), the Supreme Court was faced with a challenge to jurisdiction stripping 
provisions in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Despite the 
fact that the relevant section was entitled "Elimination of Custody Review by Habeas Corpus," 
id. at 308, the Court construed the statutes as not repealing habeas jurisdiction in part to avoid the 
"serious Suspension Clause issues [that] would [otherwise] be presented[,]" id. at 305. The 
Supreme Court explained that "at the absolute minimum, the Suspension Clause protects the writ 



Case1:05-cv-01458-UNA-AK Document 26-2 Filed 10/06/2006 Page 10 of 11 

such time as jurisdiction is determined not to exist, the District Court has the authority to issue 
such orders as necessary to preserve its own jurisdiction and to maintain the status quo. See 
United States v. United Mine Workers of America, 330 U.S. 258, 290-93 (1947). For example, it 
is unknown whether Respondents are presently seeking to transfer any of the Petitioners to the 
control or custody of another government, thereby divesting this Court of jurisdiction. Granting 
Petitioners access to counsel guards against inadvertent or inappropriate loss of the Court's 
jurisdiction by ensuring that counsel is available to raise these types of issues with the Court. 

Conclusion 

In light of the fact that Respondents' motion is already moot in at least two of the above- 
captioned cases, and may become moot in the remaining cases, the undersigned recommends that 
the Court, Oberdorfer, J., discharge Petitioners' obligations to show cause why their cases should 
not be dismissed for lack of proper next friend standing and deny Respondents' motion without 
prejudice to renew if any Petitioner's fails to provide evidence of their authority to represent a 
detainee within ten (10) days of their second visit. 

Review by the District Court 

The parties are hereby advised that under the provisions of Local Rule 72.3 (b) of the 
United States District Court for the District of Columbia, any party who objects to the Report and 
Recommendation must file a written objection thereto with the Clerk of this Court within 10 days 



as it existed in 1789." Id. at 301 (internal citations omitted). "At its historical core, the writ of 
habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in 
that context that its protections have been strongest." Id. Again in Hamdan, the Supreme Court 
declined to decide the Suspension Clause question, citing to the same concerns it had previously 
expressed in St. Cyr. See Hamdan, 126 S.Ct. at 2769 n.l5. Thus, any challenge to the 
constitutionality of Congress' most recent attempt to repeal AaZ^ea^ jurisdiction in these cases 
will undoubtedly find its way to the Supreme Court yet again. 

8 



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of the party's receipt of this Report and Recommendation. The written objections must 
specifically identify the portion of the report and/or recommendation to which objection is made, 
and the basis for such objections. The parties are further advised that failure to file timely 
objections to the findings and recommendations set forth in this report may waive their right of 
appeal from an order of the District Court that adopts such findings and recommendation. See 
Thomas v. Arn, 474 U.S. 140, 153-55 (1985). If this Report and Recommendation is served on 
the parties by mail, calculation of the time period for filing written objections is as follows: 10 
business days (excluding weekends and holidays) plus three calendar days (including weekends 
and holidays). See CNPq-Conselho Nacional De Desenvolvimento Cientifico E Technological v. 
Inter-Trade, Inc., 50 F.3d 56, 58 (D.C. Cir. 1995) {per curiam). 



Dated: October _6*_, 2006 /s/ 

ALAN KAY 



UNITED STATES MAGISTRATE JUDGE