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Case1:05-cv-01458-UNA-AK Document 29 Filed 10/26/2006 Page 1 of 36 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



AHMED DOE, et ah, 



Petitioners, 



GEORGE W. BUSH, 

President of the United States, 
et ah, 



Respondents. 



NABIL (Last Name Unknown), et ah 
Petitioners, 



GEORGE W. BUSH, 

President of the United States, 
et ah, 



Respondents. 



ABBAR SUFIAN AL HAWARY, et ah, 



Petitioners, 



GEORGE W. BUSH, 

President of the United States, 
et ah, 



Respondents. 



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



Civil Action No. 05-CV-1504 (RMC) (LFO) 



Civil Action No. 05-CV-1505 (RMC) (LFO) 



Case 1 :05-cv-01 458-UNA-AK Document 29 Filed 1 0/26/2006 Page 2 of 36 



SHAFIIQ (Last Name Unknown), et al, 



Petitioners, 



GEORGE W. BUSH, 

President of the United States, 
et al, 



Respondents. 



HAMID AL RAZAK, et al , 



Petitioners, 



GEORGE W. BUSH, 

President of the United States, 
et al, 



Respondents. 



USAMA HASAN ABU KABIR, et al, 



Petitioners, 



GEORGE W. BUSH, 

President of the United States, 
et al, 



Respondents. 



Civil Action No. 05-CV-1506 (RMC) (LFO) 



Civil Action No. 05-CV-1601 (GK) (LFO) 



Civil Action No. 05-CV-1704 (JR) (LFO) 



Case 1 :05-cv-01 458-UNA-AK Document 29 Filed 1 0/26/2006 Page 3 of 36 



MUHAMMED QASIM, et al, 



Petitioners, 



GEORGE W. BUSH, 

President of the United States, 
et al, 



Respondents. 



Civil Action No. 05-CV-1779 (JDB) (LFO) 



RESPONDENTS' OBJECTIONS TO MAGISTRATE JUDGE'S 
OCTOBER 6, 2006 REPORT AND RECOMMENDATION 

Respondents hereby object to Magistrate Judge Alan Kay's October 6, 2006 Report and 
Recommendation ("Report and Recommendation") recommending that Judge Oberdorfer 
discharge petitioners' obligations to show cause why the above-captioned cases should not be 
dismissed for lack of proper next friend standing, and instead deny respondents' motion for order 
to show cause without prejudice to renew if any counsel for petitioners fails to provide evidence 
of authority to represent a detainee within ten days of counsel's second visit with that detainee. 

As an initial matter, respondents concede that the issue of proper next friend standing is 
moot as to petitioners in Nabil v. Bush , No. 05-CV-1504 (RMC), Al Hawary v. Bush , No. 05- 
CV-1505 (RMC), and Qasim v. Bush , No. 05-CV-1779 (JDB), given that counsel for petitioners 
have provided respondents with authorizations of representation signed by the detainees on 
whose behalf habeas relief is sought in those cases. Respondents' challenge to next friend 
standing continues to be live in the remaining cases, however. Indeed, respondents' challenge 
remains especially pertinent given that counsel in two of the other cases have had direct access to 



Case 1 :05-cv-01 458-UNA-AK Document 29 Filed 1 0/26/2006 Page 4 of 36 

counsel of some nature, yet no direct authorization of representation has been provided. Counsel 
in Kabir v. Bush , No. 05 -CV- 1704 (JR), has made an initial visit to the petitioners in that case 
but has not yet provided signed authorizations of representation to respondents. 1 Further, 
petitioner Shafiiq in Shafiiq v. Bush , No. 05-CV-1506 (RMC) was charged with offenses triable 
by military commission under the procedures that were in effect prior to the Supreme Court's 
decision in Hamdan v. Rumsfeld , 548 U.S. — , 126 S. Ct. 2749 (U.S. June 29, 2006), and was 
provided access to defense counsel as part of those procedures. Respondents have not been 
provided with an authorization of representation signed by petitioner Shafiiq, however. Counsel 
should be required in these circumstances to explain why no direct authorization from the 
detainee cannot be provided. 

Finally, respondents note that, as of this date, they have been unable to identify petitioner 
Ahmed Doe in Ahmed Doe v. Bush , No. 05-CV-1458 (ESH), as a detainee at Guantanamo Bay. 
Thus, not only is respondents' challenge to next friend standing appropriate, the Magistrate 
Judge's Report and Recommendation, which contemplates direct counsel access to the alleged 
detainee on behalf of whom the Ahmed Doe case was brought, is inappropriate and, in fact, 
makes no sense. 

As explained below, the Report and Recommendation should be rejected for several 
generally applicable reasons, as well. First of all, the Detainee Treatment Act of 2005 creates an 
exclusive review mechanism in the D.C. Circuit to address the validity of the detention of aliens 



1 Respondents provided counsel access to petitioners in this case pursuant to Magistrate 
Judge Kay's May 11, 2006 Memorandum Order granting counsel's motion for access to 
petitioners. See Kabir v. Bush , No. 05-CV-1704 (JR) (LFO) (AK) (Memorandum Order dated 
May 11, 2006) (dkt. no. 33), recons. denied , Order dated August 25, 2006 (dkt. no. 48). 

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detained as enemy combatants at Guantanamo Bay, including such individuals who are subject to 
the Report and Recommendation in the above-captioned cases. Moreover, the Military 
Commissions Act of 2006, amends 28 U.S.C. § 2241 to eliminate altogether district court 
jurisdiction to consider habeas petitions, as well as other actions filed on behalf of aliens detained 
by the United States as enemy combatants, and is expressly applicable to pending cases, 
including the above-captioned such cases. Therefore, the Magistrate Judge had no jurisdictional 
basis to recommend any relief in these cases, and no jurisdictional basis for the recommended 
relief currently exists, in any event. 

In addition, the Magistrate Judge clearly erred in concluding that the governing protective 
order and counsel access procedures in the Guantanamo habeas litigation do not require counsel 
to supply proof of authority to represent a detainee prior to being permitted privileged access to 
the detainee. To the contrary, the language, structure, and history of the counsel access 
procedures evidence a two-layer requirement regarding counsel's authority to bring and then 
maintain a habeas petition on behalf of a Guantanamo detainee. First, in cases such as these 
brought by a putative "next friend," prior to having privileged access to the detainee, counsel 
must produce sufficient evidence of counsel's authority to represent the detainee through a 
proper "next friend." Second, after having the opportunity to meet with the detainee, counsel 
must submit evidence of the detainee's authorization for counsel to represent him. The 
Magistrate Judge clearly erred by conflating these separate, and practical, authorization 
requirements into a single requirement that counsel who purportedly represents a particular 
detainee must be provided with privileged access to the detainee on demand and then need only 
produce evidence of authority to represent the detainee after conducting privileged meetings with 

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Case 1 :05-cv-01 458-UNA-AK Document 29 Filed 1 0/26/2006 Page 6 of 36 

the detainee. In reaching this conclusion, the Magistrate Judge created an extra-legal scheme for 
establishing jurisdiction in the Guantanamo habeas cases that is contrary to law, including the 
plain terms of the habeas statute and the well-established jurisprudence regarding next friend 
standing. Further, by recommending that the government provide direct, privileged access to 
wartime detainees in a military detention facility for counsel merely purporting to represent a 
detainee, without any showing by counsel of proof of appropriate authority to represent the 
detainee directly or through a next friend satisfying appropriate standing requirements, the 
Magistrate Judge's Report and Recommendation offends separation of powers. 

For these reasons, as more fully explained below, respondents object to the Magistrate 
Judge's Report and Recommendation and request that it be rejected by this Court. 

BACKGROUND 

The above-captioned petitions for writ of habeas corpus were filed by counsel on behalf 
of individuals alleged to be detained at Guantanamo Bay, through other detainees purporting to 
act as next friends on behalf of the named petitioners. These cases were part of scores of habeas 
petitions on behalf of Guantanamo detainees pending at the time of filing, and some of more than 
200 currently pending, generally all of which have been stayed, formally or otherwise, pending a 
ruling from the D.C. Circuit Court of Appeals in related appeals before it, including regarding the 
effect of the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 on the 
jurisdiction of the district court over these cases. 

In each of the above-captioned cases except Shafiiq v. Bush , the Court, as was routine at 
the time in all of the Guantanamo detainee cases pending before it, entered in these cases the 
Protective Order entered in other Guantanamo detainee cases pending before other Judges of this 

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Court. See In re Guantanamo Detainee Cases , 344 F. Supp. 2d 174 (D.D.C. Nov. 8, 2004) 
("Protective Order"); Order Supplementing and Amending Filing Procedures Contained in 
November 8, 2004 Amended Protective Order in In re Guantanamo Detainee Cases , No. 02-CV- 
0299, et al. (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). The first two paragraphs of the Protective Order set forth its premises, function, and 
scope: 

1 . This case likely involves classified national security 
information or documents, the storage, handling and control of 
which require special security precautions, and access to which 
requires a security clearance and a "need to know." This case may 
also involve other protected information or documents, the storage, 
handling and control of which may require special precautions in 
order to protect the security of United States government personnel 
and facilities, and other significant government interests. 

2. The purpose of this Protective Order is to establish the 
procedures that must be followed by all petitioners' counsel, their 
respective petitioner(s), all other counsel involved in this case, 
translators for the parties, and all other individuals who receive 
access to classified national security information or documents, or 
other protected information or documents, in connection with this 
case, including the privilege team as defined in Exhibit A. 

id, mi, 2. 

To serve this overarching function of "preventing] the unauthorized disclosure or 
dissemination of classified national security information and other protected information," id at 
1, the Protective Order further provides that "Petitioners ' counsel are bound by the terms and 
conditions set forth in the 'Revised Procedures for Counsel Access to Detainees At the U.S. 
Naval Base in Guantanamo Bay, Cuba,' and the procedures for handling mail and documents 
brought into and out of counsel meetings, attached hereto as Exhibit A." Id, \ 6 (emphasis 

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Case 1 :05-cv-01 458-UNA-AK Document 29 Filed 1 0/26/2006 Page 8 of 36 

added). Moreover, "[t]his Protective Order specifically incorporates by reference all terms and 
conditions established in the procedures contained in Exhibit A to the extent they place 
limitations on petitioners ' counsel in their access to and interaction with petitioners or handling 
of information." Id. (emphasis added). 

The Revised Procedures for Counsel Access to Detainees at the U.S. Naval Base in 
Guantanamo Bay, Cuba, annexed to the Protective Order as Exhibit A, in turn, set certain terms, 
conditions, and limitations for habeas counsel's access to properly represented detainees and sets 
out procedures and requirements for the handling of information obtained from and delivered to 
detainees. For example, it requires that visiting counsel obtain a security clearance, see id, Ex. 
A, § III.A, and must sign an affirmation acknowledging his or her agreement to comply with the 
counsel access procedures. See id, Ex. A, § III.B. Further, it provides that "[p]rior to being 
permitted access to the detainee," counsel must "provide evidence of his or her authority to 
represent the detainee." Id, Ex. A, § III.C.l. In other Guantanamo detainee cases, this evidence 
has typically taken the form of letters from detainees directly authorizing a challenge to their 
detention, or affidavits and authorizations of "next friends" who have filed petitions on behalf of 
detainees. In a proper "next friend" case, because the detainee "remains the real party in 
interest," see Whitmore v. Arkansas , 495 U.S. 149, 163 (1990), the access procedures further 
require a second, subsequent type of authorization, directly from the detainee, once counsel in a 
proper next friend case is provided access to the detainee. 2 See Protective Order, Ex. A, 



2 This two-layer requirement regarding counsel's authority to bring and then maintain the 
lawsuit was appropriately established in light of the fact that the Guantanamo habeas cases 
pending at the time the access procedures were negotiated and established were uniformly "next 
friend" cases. 

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§ III.C.2. (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 a second 
visit with a detainee"). 

Respondents in these cases reviewed the submissions from the purported "next friends" 
in these cases and filed motions for an order to show cause why the cases should not be 
dismissed for lack of a showing that the putative "next friend" satisfied standing requirements 
articulated by the Supreme Court in Whitmore v. Arkansas , 495 U.S. 149 (1990). See Whitmore , 
495 U.S. at 163 ('"[N]ext friend' standing is by no means granted automatically to whomever 
seeks to pursue an action on behalf of another."). As explained in the motions, a purported next 
friend must satisfy the "two firmly rooted prerequisites" articulated by the Supreme Court in 
Whitmore : (1) he must demonstrate that the detainee on whose behalf he claims to file a petition 
for writ of habeas corpus cannot challenge the legality of his detention himself; and (2) he must 
have a significant relationship with this detainee in order to demonstrate that he is truly dedicated 
to this detainee's best interests. Id. at 163-64. Absent such a showing, court jurisdiction over a 
petition is lacking, and the case must be dismissed. See , e.g. Resps' Mot. for Order to Show 
Cause Why Case Should Not Be Dismissed for Lack of Proper "Next Friend" Standing in Ahmed 
Doe v. Bush (dkt. no. 2). In addition to noting the absence of the requisite showing in these 
cases, the motion further explained the various avenues available to detainees such as petitioners 
in these cases for directly accessing the Court or initiating a challenge to the legality of their 
detention themselves. 

Respondents' motions for order to show cause in these cases were subsequently 
transferred by the Judges presiding over the cases to Judge Oberdorfer for decision pursuant to 

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Case 1 :05-cv-01 458-UNA-AK Document 29 Filed 1 0/26/2006 Page 1 of 36 

Local Civil Rule 40.6(a). See, e^, Ahmed Doe (dkt. no. 8). On November 4, 2005, Judge 

Oberdorfer granted respondents' motions for order to show cause, citing the Supreme Court's 

Whitmore requirements for next friend standing. See November 4, 2005 Order in Ahmed Doe 

(dkt. no. 10). Judge Oberdorfer ordered additional briefing, scheduled a hearing for December 5, 

2005, and further ordered: 

that Petitioners and Respondents consult with Magistrate Judge Kay as soon as is 
practicable (but in any event before the hearing) to discuss 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 id at 5. 3 After consultation with Magistrate Judge Kay pursuant to Judge Oberdorfer's 

directive, the parties agreed that counsel for petitioners would endeavor to establish adequate 

next friend standing in these cases, and the December 5, 2005 hearing was continued pending 

these additional efforts by counsel. See, ej^, Ahmed Doe v. Bush , No. 05 -CV- 145 8 (ESH) (dkt. 

nos. 10, 16). The parties consulted with Magistrate Judge Kay on several occasions over the 

following months regarding this issue. Although counsel for petitioners attempted to satisfy the 

Whitmore requirements for next friend standing in certain of the above-captioned cases by 

seeking additional information from the purported "next friends," their supplemental submissions 

failed to meet the Whitmore requirements in respondents' view. 

On December 30, 2005, the Detainee Treatment Act of 2005, Pub. L. No. 109-148, tit. X, 

119 Stat. 2680 ("the DTA"), became law. The DTA, among other things, created an exclusive 



3 Respondents filed a motion for clarification, or in the alternative, reconsideration, of 
Judge Oberdorfer's directive requiring the parties to consult with Magistrate Judge Kay regarding 
how counsel may obtain access to the detainees. See , e.g. , Ahmed Doe (dkt. no. 1 1). Judge 
Oberdorfer denied respondents' motion. See, e.g. , id. (Minute Order dated November 17, 2005). 

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Case 1 :05-cv-01 458-UNA-AK Document 29 Filed 1 0/26/2006 Page 1 1 of 36 

review mechanism in the D.C. Circuit, applicable to pending cases, to address the validity of the 
detention of such aliens held as enemy combatants. Id § 1005(e)(1), (h)(2). Moreover, on 
October 17, 2006, the Military Commissions Act of 2006, Pub. L. No. 109-366 (2006) ("the 
MCA"), became law. The MCA, among other things, amends 28 U.S.C. § 2241 to eliminate 
altogether district court jurisdiction to consider habeas petitions, as well as any other action 
"relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement," 
of aliens detained by the United States as enemy combatants. See icL § 7. The MCA expressly 
applies the amendment "to all cases, without exception, pending on or after the date of the 
enactment of this Act," which would include such above-captioned cases, thereby unambiguously 
divesting this Court of jurisdiction over these actions. 4 

On October 6, 2006, Magistrate Judge Kay issued a Report and Recommendation in 
response to Judge Oberdorfer's directive regarding "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." In support of his recommendation 
that Judge Oberdorfer discharge petitioners' obligations to show cause why the above-captioned 
cases should not be dismissed for lack of proper next friend standing, and instead deny 
respondents' motion for order to show cause without prejudice to renew if any counsel for 
petitioners fails to provide evidence of authority to represent a detainee within ten days of 
counsel's second visit with that detainee, the Magistrate Judge relied on his March 21, 2006 



4 The effect of the DTA on cases such as these, i.e. , the extent to which the vesting of 
exclusive review in the Court of Appeals deprives this Court of jurisdiction to proceed, remains 
pending before the Court of Appeals. The D.C. Circuit also recently ordered supplemental 
briefing on the effect of the MCA on the pending appeals, to be completed by November 20, 
2006. 

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Case 1 :05-cv-01 458-UNA-AK Document 29 Filed 1 0/26/2006 Page 1 2 of 36 

decision in another Guantanamo detainee case, Adem v. Bush , 425 F. Supp. 2d 7 (D.D.C. 2006), 
recons. denied , 2006 WL 1 193853 (D.D.C. Apr. 28, 2006). In his decision in the Adem case, as 
well as in a number of subsequent decisions involving a similar issue, 5 the Magistrate Judge 
construed the Access Procedures applicable in the Guantanamo habeas cases not to require 
counsel to supply any proof of authority to represent a detainee prior to being permitted 
privileged access to the detainee. 

In explaining the rationale and basis for the Report and Recommendation, the Magistrate 
Judge rejected the Detainee Treatment Act of 2005 as any impediment to the relief 
recommended. The Magistrate Judge asserted that "[t]he 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." Report and Recommendation at 6. The Report and 
Recommendation characterizes the relief as merely enforcement of the extant Protective Order 
and Access Procedures, see id at 7, and also asserts the jurisdiction to recommend such relief on 



5 See Zalita v. Bush , No. 05-CV-1220 (RMU) (AK) (Memorandum Order dated July 21, 
2006) (dkt. no. 14), motion for recons. pending (dkt. no. 17); Saib v. Bush , No. 05-CV-1353 
(RMC) (AK) (Memorandum Order dated October 6, 2006) (dkt. no. 45), motion for recons. 
pending (dkt. no. 49); Kiyemba v. Bush , No. 05-CV-1509 (RMU) (AK) (Memorandum Order 
dated June 29, 2006) (dkt. no. 60), recons. denied , 2006 WL 2255736 (D.D.C. Aug. 6, 2006); 
Kabir v. Bush , No. 05-CV-1704 (JR) (LFO) (AK) (Memorandum Order dated May 11, 2006) 
(dkt. no. 33), recons. denied , Order dated August 25, 2006 (dkt. no. 48); Qasim v. Bush , No. 05- 
CV-1779 (JDB) (AK) (Memorandum Order dated August 2, 2006) (dkt. no. 21), recons. denied 
as moot , Minute Order dated August 28, 2006; Alkhemisi v. Bush , No. 05-CV-1983 (RMU) 
(AK) (Memorandum Order dated July 21, 2006) (dkt. no. 13), motion for recons. pending (dkt. 
no. 16); Said v. Bush , No. 05-CV-2384 (RWR) (AK) (Memorandum Order dated May 23, 2006) 
(dkt. no. 23), recons. denied , Minute Order dated May 26, 2006; Thabid v. Bush , No. 05-CV- 
2398 (ESH) (AK) (Memorandum Order dated August 2, 2006) (dkt. no. 18), recons. denied , 
Memorandum Opinion and Order dated August 17, 2006 (dkt. no. 22); see also Razakah v. Bush , 
No. 05-C V-2370 (EGS) (Order dated May 18, 2006) (dkt. no. 23). 

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the ground that counsel would "presumably" represent petitioners in any proceeding in the Court 
of Appeals under the exclusive review provisions of the Detainee Treatment Act, so "the need to 
resolve questions regarding the logistics of counsel access will remain an issue." Id. at 6, n.6. 
The Magistrate Judge also disregarded the effect of the Military Commissions Act of 2006, 
although not yet law at the time the Report and Recommendation was issued, because "any 
challenge to the constitutionality of Congress' most recent attempt to repeal habeas jurisdiction 
in these cases will undoubtedly find its way to the Supreme Court yet again." Id. at 7, n.7. 

Further, the Magistrate Judge characterized the Access Procedures as making next friend 
issues in these cases essentially irrelevant. According to the Magistrate Judge, "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." See Report and Recommendation 
at 3-4. The Magistrate Judge cited his opinion in Adem in support of his conclusion that the 
Court had the authority to '"craft [the] procedures necessary' to allow [a detainee] to 'present the 
facts surrounding [his] confinement to the Court'" so that respondents could not properly "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." 6 See Report and Recommendation at 4. See also Adem , 425 F. Supp. 2d at 13 



6 The Magistrate Judge arrived at this conclusion even though respondents had taken 
steps to notify detainees of their ability to challenge their detention through petitions for writs of 
habeas corpus sent directly to the Court or filed through family members or friends. For 
example, beginning in December 2004, the Department of Defense provided written notifications 
to all detainees at Guantanamo Bay which informed them of their right to file petitions for writ of 
habeas corpus in federal court if they desired to challenge the lawfulness of their detention. The 
detainees were informed that they could ask a friend, family member, or lawyer to file a petition 
on their behalf, and they were also provided with the address of the United States District Court 
in the event that they desired to submit their own petitions to the Court through the mail system 

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(noting parties' and Judges' assertedly erroneous use of the term "next friend" "though the term's 
traditional legal context no longer applied"). 

Accordingly, the Magistrate Judge did not conclude that the next friend petitioners in the 
above-captioned cases satisfy applicable next friend standing requirements under Whitmore so 
that the Court could exercise jurisdiction over these cases and compel respondents to permit 
counsel direct, privileged access to a wartime detainee at Guantanamo Bay, a secure military 
detention facility. Rather, applying his construction of the Access Procedures, the Magistrate 
Judge recommended that Judge Oberdorfer discharge petitioners' obligations to show cause why 
the above-captioned cases should not be dismissed for lack of proper next friend standing, and 
instead permit counsel direct access to the detainees so that counsel for petitioners may submit 
evidence of authority to represent a detainee within ten days of counsel's second visit with that 
detainee. 



administered by the Department of Defense. See Second Declaration of Frank Sweigart, Tffl 3-5 
& Exs. A-C (Exhibit A to Resps' Reply in Support of Mot. for Order to Show Cause Why Case 
Should Not Be Dismissed for Lack of Proper "Next Friend" Standing in Qasim v. Bush , No. 05- 
CV- 1 779 (JDB), dkt. no. 2) ("Second Sweigart Declaration"). 

In addition to these written notifications provided to all detainees at Guantanamo Bay 
which advised them of their right to file petitions for writ of habeas corpus and options for doing 
so, the Department of Defense also delivered to detainees who indicated a desire to challenge the 
legality of their detention a notification providing these detainees with a form to complete and 
mail to the American Bar Association, which agreed to recruit volunteers counsel for detainees 
desiring representation. Beginning in September 2005, the Department of Defense delivered 
(and will continue to deliver on an ongoing basis) this notification to detainees who file pro se 
petitioners for writ of habeas corpus and are not already represented by counsel, as well as other 
detainees who indicate to Guantanamo personnel that they desire or request the assistance of 
counsel. See id, | 7 & Ex. E. 

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OBJECTIONS TO THE REPORT AND RECOMMENDATION 

Under Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1)(B), when a 

District Court refers a matter to a Magistrate Judge for proposed findings of fact and 

recommendations for disposition, the Court reviews that Magistrate Judge's report and 

recommendation de novo, where a party has raised objections. See Fed. R. Civ. P. 72(b); 28 

U.S.C. § 636(b)(1). The District Judge may accept, reject, or modify the recommendation. See 

id. ; cf Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts 

("A judge may, under 28 U.S.C. § 636(b), refer the petition to a magistrate judge to conduct 

hearings and to file proposed findings of fact and recommendations for disposition. . . The judge 

must determine de novo any proposed finding or recommendation to which objection is made. 

The judge may accept, reject, or modify any proposed finding or recommendation."). 

I. The Report and Recommendation Should Be Rejected Because This Court Lacks 

Jurisdiction to Provide the Relief Recommended by the Magistrate Judge. 

The Magistrate Judge's Report and Recommendation should be rejected, first of all, 

because the Detainee Treatment Act of 2005 vests exclusive jurisdiction over this action, 

including the relief recommended by the Magistrate Judge, in the D.C. Circuit. The DTA, 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 

creates 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 DTA 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 

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of that review. While the Supreme Court in Hamdan v. Rumsfeld, 548 U.S. — , 126 S. Ct. 2749, 
2762-69 (U.S. June 29, 2006), held that § 1005(e)(1) of the Detainee Treatment Act 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 prior to enactment. Although 
the petitioner in Hamdan escaped the DTA because 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 
DTA on other cases, stating that "[t]here 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 , 126 S. Ct. at 
2769, n.14. The above-captioned cases are allegedly such cases, Le., challenging petitioner's 
designation as an enemy combatant through the Combatant Status Review Tribunal. Given the 
DTA's investment of exclusive review in the Court of Appeals, the District Court lacks 
jurisdiction over these 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) 

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Case 1 :05-cv-01 458-UNA-AK Document 29 Filed 1 0/26/2006 Page 1 7 of 36 

("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). 

Moreover, on October 17, 2006, the Military Commissions Act of 2006, Pub. L. No. 109- 
366 (2006) ("the MCA"), became law. The MCA, among other things, amends 28 U.S.C. § 2241 
to eliminate altogether district court jurisdiction to consider habeas petitions, as well as any other 
action "relating to any aspect of the detention, transfer, treatment, trial, or conditions of 
confinement," of aliens detained by the United States as enemy combatants. See id. § 7. The 
MCA expressly applies the amendment "to all cases, without exception, pending on or after the 
date of the enactment of this Act," which would include such above-captioned cases, thereby 
unambiguously divesting this Court of jurisdiction over these actions. Therefore, the Magistrate 
Judge had no jurisdictional basis to recommend the relief in the Report and Recommendation, 
and no jurisdictional basis for the relief therein currently exists, in any event. 



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Notwithstanding the plain terms of the DTA, and now the MCA, the Magistrate Judge 
incorrectly concluded that "[t]he question of when, and under what circumstances the existing 
Protective Order permits Petitioners to meet with their lawyers simply has no bearing on the 
question of which Court has jurisdiction to review the merits of Petitioner's challenge to his 
detention." Report and Recommendation at 6. See Adem, 425 F. Supp. 2d at 19 ("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."). In reaching this conclusion, the Magistrate Judge avoided addressing the 
jurisdictional effect of the DTA by essentially creating a "counsel access" exception to the DTA 
that has no legal foundation. The Magistrate Judge cannot avoid the DTA's and now the MCA's 
jurisdictional ouster by framing the issue simply as one of counsel access. "Without jurisdiction 
[a] court cannot proceed at all in any cause." Steel Co. v. Citizens for a Better Env't , 523 U.S. 
83, 94 (1998). See Ex parte McCardle , 74 U.S. (7 Wall.) 506, 514 (1869) ("Jurisdiction is power 
to declare the law, and when it ceases to exist, the only function remaining to the court is that of 
announcing the fact and dismissing the cause."). In these cases, the DTA vested exclusive 
jurisdiction in the Court of Appeals, and the MCA has eliminated district court jurisdiction 
altogether, which means the Court no longer has the power to order the relief recommended by 



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the Magistrate Judge. 7 For this reason, the Magistrate Judge's Report and Recommendation 
should be rejected. 

The Magistrate Judge also concluded that his Report and Recommendation was a proper 
exercise of authority to enforce the applicable Protective Order and Access Procedures, 
notwithstanding the DTA's withdrawal of this Court's jurisdiction. See Adem, 425 F. Supp. 2d 
at 19-20. This conclusion is erroneous. As an initial matter, the Protective Order and Access 
Procedures do not order, require, or compel respondents to permit a counsel visit with a detainee. 
As explained supra , the Access Procedures, which are subsidiary to a Protective Order preventing 
unauthorized disclosure of classified or protected information, are incorporated into the 
Protective Order "to the extent they place limitations on petitioners' counsel in their access to 
and interaction with petitioners or handling of information." Access Procedures ]} 6. While the 
Access Procedures certainly operate with the assumption that counsel visits will occur in that 
they set the terms and procedures applicable to any such visits, they do not themselves compel 
respondents to provide such visits 8 on demand of counsel. 9 Hence, the Court cannot compel 



7 As explained infra § II, the requested relief in this matter is not merely for enforcement 
of an extant court order. The Protective Order regime in this case does not itself require or 
compel a counsel visit; rather, to accept the Magistrate Judge's Report and Recommendation, the 
Court would be asserting jurisdiction and authority independent of the Protective Order to order a 
visit or grant access to a detainee. Such an assertion of jurisdiction would be improper in light of 
the Detainee Treatment Act's investment of exclusive jurisdiction in the Court of Appeals, as 
well as the Military Commission Act's elimination of district court jurisdiction, and respondents' 
argument in this regard is in no way immaterial or premature. 

8 While the Access Procedures provide that "[reasonable efforts will be made to 
accommodate the counsel's request regarding the scheduling of a meeting," that language is 
embedded in a paragraph dealing solely with logistical arrangements as to the date and timing of 
otherwise appropriate counsel meetings with represented petitioners. See Access Procedures 

§ III.D.l. 

9 The relationship between counsel visits and the access procedures in these cases would 

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respondents to permit a visit by counsel with a detainee by relying upon "enforcement" of the 
terms of the Protective Order and Access Procedures. 

Thus, the cases cited by the Magistrate Judge in Adem decision, upon which he relies in 
his Report and Recommendation, to support an order requiring respondents to permit a counsel 
visit, see Adem , 425 F. Supp. 2d at 20, are distinguishable from the present context. Those cases 
involved either a court's authority to enforce ongoing protective orders specifically prohibiting 
public disclosure of confidential discovery information 10 or the court's power to enforce 
prospective injunctions though civil contempt penalties. 11 The cases would also be 
distinguishable in that while they may involve a court's authority to wind-up previously 



be analogous to other cases in which an omnibus protective order is entered at the outset of the 
case governing the use and handling of information that will be exchanged between parties in 
discovery. The omnibus protective order may set the terms of how information obtained in 
discovery is to be treated, shared, or stored, for example, but a party's entitlement to any 
particular requested discovery is settled through court process (ej^, a motion to compel) and not 
through the protective order. Thus, an omnibus protective order operates with the assumption 
that discovery will occur, but typically does not by its own terms obligate the parties to produce 
any particular information. 

10 See Gambale v. Deutsche Bank, AG , 377 F.3d 133, 139 (2d Cir. 2004) (concluding that 
court has power "to dispose of material in its files as it thinks appropriate or to modify or vacate 
its own protective orders with respect to" confidential documents after conclusion of case); 
Poliquin v. Garden Way, Inc ., 989 F.2d 527, 535 (1st Cir. 1993) ("Where the district court does 
protect material during discovery, it is common to provide ... for post-trial protection including 
the return or destruction of protected material."); United Nuclear Corp. v. Cranford Ins. Co. , 905 
F.2d 1424, 1427 (10th Cir. 1990) (concluding that court has power to modify ongoing protective 
order prohibiting public disclosure of all discovery materials following dismissal of underlying 
lawsuit). 

11 Broderick v. Donaldson , 437 F.3d 1226 (D.C. Cir. 2006) (concluding that court has 
power to impose civil contempt sanctions on employer for violation of 1988 order imposing 
continuing obligations on employer based employee's successful sexual harassment suit); 
Armstrong v. Executive Office of the President , 1 F.3d 1247, 1281, 1289 (D.C. Cir. 1993) 
(concluding that court has power to impose civil contempt sanctions based on defendant's failure 
to comply with "multi-part declaratory and injunctive order" regarding preservation of electronic 
federal records). 

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exercised jurisdiction (such as in the oversight of the disposition of documents obtained through 
court-sanctioned discovery) or to enforce valid, on-going injunctions, here the relief 
recommended by the Magistrate Judge wreaks a radical reversal of long-standing practice under 
the Access Procedures in the Guantanamo cases, with significant impact in the cases, including 
that respondents will be required to provide direct, privileged access to wartime detainees in a 
military detention facility by counsel merely purporting to represent a detainee, without any 
showing by counsel of proof of appropriate authority to represent the detainee directly or through 
a next friend satisfying appropriate standing requirements. Thus, the Report and 
Recommendation improperly asserts jurisdiction to move this case forward in the face of a 
statutory withdrawal of this Court's jurisdiction by an intervening Act of Congress, cf United 
States v. Mine Workers , 330 U.S. 258, 295 (1947) ("The right to remedial relief falls with an 
injunction which events prove was erroneously issued . . . and a fortiori when the injunction or 
restraining order was beyond the jurisdiction of the court."); Peacock v. Thomas , 516 U.S. 349, 
255 (1996) (concluding that the "primary lawsuit must contain an independent basis for federal 
jurisdiction" in order for the court to exercise jurisdiction over ancillary enforcement claims), 
and raises very real separation of powers concerns. 12 



12 See also Cafeteria & Rest. Workers Union, Local 473 v. McElroy , 367 U.S. 886, 890 
(1961) ("The control of access to a military base is clearly within the constitutional powers 
granted to both Congress and the President"); Hamdi v. Rumsfeld , 294 F.3d 598, 602-03 (4th 
Cir. 2002) (court notes in context of challenge to standing of next friend purporting to act on 
behalf of enemy combatant detainee that the standing doctrine "ensure[s] that the plaintiff has a 
sufficient personal stake in the outcome of a dispute to render judicial resolution of it appropriate 
in a society that takes seriously both the idea of separation of powers and, more fundamentally, 
the system of democratic self-government that such separation serves") (citation and internal 
quotations omitted). 

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For similar reasons, the Magistrate Judge's Report and Recommendation cannot 
legitimately be grounded in any authority of the Court under Judge Kollar-Ko telly's decision in 
Al Odah v United States , 346 F. Supp. 2d 1 (D.D.C. 2004), which the Magistrate Judge cited in 
the Adem decision in support of his conclusion that the Court may craft procedures necessary to 
enforce a right to counsel to pursue a petition, see Adem , 425 F. Supp. 2d at 1 1-12, 24. The basis 
of the Al Odah decision rested not on any absolute right to counsel, but on a court's 
discretionary, statutory authority in habeas cases to appoint counsel to represent Guantanamo 
petitioners properly before the Court, if warranted. See Al Odah , 346 F. Supp. at 4-5, 7-8 (citing 
18 U.S.C. § 3006A). That authority under the habeas statute is no longer applicable given the 
explicit elimination of this Court's jurisdiction and investment of exclusive jurisdiction over this 
type of action in the Court of Appeals. Further, Al Odah did not, as here, involve any issue as to 
whether a habeas case was properly pending before the Court, so as to support counsel's direct 
access to a detainee. The case had been filed by family member next friends who had retained 
counsel, and respondents did not object to providing counsel access; merely the monitoring of 
counsel-detainee meetings was at issue. See 346 F. Supp. 2d at 4-5 ("[T]he Court has confined 
its present inquiry to the attorney access issues that uniquely affect the three named Petitioners in 
this case. Accordingly, the Court considers whether the Government can impose real time 
monitoring on the three Petitioners."). 

The Magistrate Judge's Report and Recommendation also erroneously purports to find 
authority to recommend the requested relief in the fact that the DTA provides detainees the 
opportunity to seek review in the D.C. Circuit of the validity of a Combatant Status Review 
Tribunal determination that the detainee is an enemy combatant and thus properly detainable. 
See Report and Recommendation at 6. According to the Court, counsel would "presumably" 

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represent petitioners in any proceeding in the Court of Appeals under the exclusive review 
provisions of the Detainee Treatment Act, so "the need to resolve questions regarding the 
logistics of counsel access will remain an issue." Id at 6, n.6. That an exclusive review 
proceeding before the D.C. Circuit is possible, however, does not authorize the Court to act; to 
the contrary, it precludes the Court from acting on this matter. As explained above, the DTA 
vests "exclusive" jurisdiction in the D.C. Circuit "to determine the validity of any final decision 
of a Combatant Status Review Tribunal that an alien is properly detained as an enemy 
combatant." See DTA § 1005(e)(1). The DTA also expressly provides that exclusive review in 
the D.C. Circuit is applicable to pending cases. Id § 1005(h). As the Court of Appeals 
explained in Telecommunications Research and Action Center v. FCC , 750 F.2d 70, 75, 78-79 
(D.C. Cir. 1984), a request for relief in district court that might affect the future, exclusive 
jurisdiction of the Court of Appeals is subject to the exclusive review of the Court of Appeals. 
Consequently, issues of counsel access, and the prerequisites for such access, if any, are 
exclusive matters for the D.C. Circuit. No authority can be found for the Magistrate Judge's 
Report and Recommendation in the fact that an exclusive review mechanism is available for 
detainees in the D.C. Circuit. The Magistrate Judge's Order is contrary to the statutory 
withdrawal of this Court's jurisdiction pursuant to the Detainee Treatment Act, as well as the 
recently enacted Military Commissions Act. 



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II. The Magistrate Judge's Report and Recommendation Should Be Rejected Because 
It Is Contrary To The Language of the Access Procedures And The Applicable 
History And Context of The Guantanamo Cases And Because It Results In a Regime 
Inconsistent With Jurisdictional Principles. 

A. The Magistrate Judge's Interpretation of the Access Procedures Is Contrary 
to the Language of The Access Procedures and the History and Context of 
the Litigation. 

Aside from lacking jurisdiction to issue the relief recommended in his Report and 

Recommendation, the Magistrate Judge acted in an erroneous fashion in rejecting respondents' 

position that the Access Procedures require that "[p]rior to being permitted access to the 

detainee," counsel must "provide evidence of his or her authority to represent the detainee," and 

then, subsequent to direct access to the detainee being permitted, provide an additional, direct 

authorization of representation from the detainee on whose behalf the habeas petition was filed, 

"no later than then (10) days after the conclusion of a second visit with the detainee." See 

Access Procedures § III.C. The Access Procedures govern "for purposes of litigating the cases in 

which this Order [the Protective Order] is issued." Id. § I. Consistent with that purpose, § III.C 

of the Access Procedures provides, in pertinent part: 

1 . 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. 

2. 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. The Court 
recognizes that counsel may not be in a position to present such evidence 
after the initial meeting with a detainee. Counsel for detainees and 
counsel for respondents shall cooperate to the fullest extent possible to 
reach a reasonable agreement on the number of counsel visits allowed. 
Should counsel for a detainee believe that the government is unreasonably 



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limiting the number of visits with a detainee, counsel may petition the 
Court at the appropriate time for relief. 

The Access Procedures thus impose, in a paragraph applicable to certain requirements that must 

be met "[p]rior to being permitted access to the detainee," § ffl.C.l, a requirement of some 

evidence of authority to represent the detainee. This evidence has typically taken the form of 

letters from detainees directly authorizing a challenge to their detention, or affidavits and 

authorizations of "next friends" who have filed petitions on behalf of detainees. Then, a separate 

paragraph of the Access Procedures, § III.C.2, requires counsel to submit final evidence of his or 

her authority to represent the detainee after having the opportunity to meet with the detainee. 13 

Hence, the Access Procedures contemplate a two-layer requirement regarding counsel's authority 

to bring and then maintain the lawsuit. 

The Magistrate Judge interpreted § III.C.2, however, merely to refer to the timing of the 

requirement imposed by the last sentence of § III.C. 1 . See Adem, 425 F. Supp. 2d at 20-23. The 

Magistrate Judge's reading, however, fails to account for the fact that a proof of authorization 

requirement is contained in a paragraph that begins, "Prior to being permitted access to the 

detainee . . . ." Instead of giving credence to two separate paragraphs in § III.C containing 

authority of representation requirements, the Magistrate Judge's reading of § III.C effectively, 

and improperly, moves the last sentence of § III.C. 1 to combine it into § III.C.2. This is 

inconsistent with the structure of the two paragraphs, as well as with the fact that each of the 

paragraphs in § III.C refers to separate submission requirements. 



13 Additional paragraphs in § III.C of the Access Procedures concern notification of 
withdrawal or termination of representation by counsel, Access Procedures § III.C. 3, and 
certification of the source of funding for counsel in the representation, id § III.C. 4. 

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Furthermore, respondents' reading of the Access Procedures is consistent with the history 

and context of the Guantanamo habeas cases and the application of the Access Procedures in 

those cases, while the Magistrate Judge's reading is inconsistent with that history, context, and 

application. The Guantanamo detainee habeas cases pending when the Protective Order and 

Access Procedures were negotiated and entered in the cases were uniformly next friend cases 

brought by family member next friends. See In re Guantanamo Detainee Cases , 344 F. Supp. 2d 

174 (D.D.C. 2004) (entering Protective Order on Nov. 8, 2004). The counsel access procedures 

that served as the basis for the current Access Procedures were initially proposed by respondents 

in July 2004. The procedures explicitly required, in what would become the current § III.C.l, 

that "[p]rior to being permitted access to the detainee," in addition to a Notification of 

Representation, 

the counsel must provide sufficient details regarding the circumstances of his/her 
retention to demonstrate the counsel's authority or standing to bring a habeas or 
other federal court action on the detainee's behalf. 

See Response to Complaint in Accordance with Court's Order of July 25, 2004, Exhibit A, in Al 

Odah v. United States , No. 02-CV-0828 (CKK) (dkt. no. 46) (copy attached for the Court's 

convenience at Tab 1). In addition, in a paragraph § III.C.2, the procedures provided, 

After meeting with the detainee, counsel must provide DoD with an 
Acknowledgement of Representation. This document must be signed by the 
detainee and must specifically state that the detainee is being represented in 
habeas or other federal litigation by counsel named in the Acknowledgement. 

Id. (emphasis and misspelling of "Acknowledgment" in original). Furthermore, it was expressly 

contemplated and conveyed to the Court that once counsel demonstrated his or her authority "to 

bring a habeas . . . action on the detainee's behalf," Le^, at the time through demonstration that 

the case was an appropriate next friend case, the opportunity for access to the detainee would 



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allow, where appropriate, conversion of the next friend petition into a petition directly authorized 
by the detainee. See, ejj., Tab 1 (Response to Complaint in Accordance with Court's Order of 
July 25, 2004 in Al Odah) at p. 30 n.14 ("the access [to detainees] provided by the military will 
allow counsel to meet with the detainees, and counsel may then wish to convert their next-friend 
petition into a direct petition or otherwise amend their petition"). 

Subsequently, other aspects of the Protective Order and Access Procedures were the 
subject of negotiations and litigation of certain issues before Senior Judge Green, who served as 
Coordinating Judge in the cases at the time. This process culminated in a version of the access 
procedures being proposed by one petitioner's counsel, 14 to which respondents objected in part. 15 
Both versions proposed by the parties contained the versions of § III.C.l and C.2 originally 
proposed by respondents, with the additional requirement that the "Acknowledgment of 
Representation" be provided "as soon as is practical," and the provisions were considered non- 
controversial, though there had been discussion between counsel for the parties regarding the 
number of visits with a detainee that counsel would be allowed once access was permitted to 
obtain any such direct authorization of representation from the detainee. Thus, when Judge 
Green issued the Protective Order and Access Procedures in their current form, no change in 
contemplated operation of Access Procedures, Le., access being conditioned on initial proof of 



14 See Petr's Mot. for Order Requiring Parties to Abide By Proposed Procedures for 
Counsel Access & Ex. A (Proposed Procedures for Counsel Access) (dkt. no. 33) (filed Oct. 22, 
2004 in Begg v. Bush, No. 04-CV-l 137 (RMC)) (copy attached for the Court's convenience at 
Tab 2). 

15 See Resps' Response to Nov. 1, 2004 Order Setting Deadline for Submission in 
Response to Petr's Mot. for Order Requiring Parties to Abide By Proposed Procedures for 
Counsel Access & Ex. 1 (Revised Procedures for Counsel Access) (filed Nov. 4, 2004 in In re 
Guantanamo Detainee Cases, Nos. 02-CV-0299, et al.) (copy attached for the Court's 
convenience at Tab 3). 

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authority to represent a detainee with the requirement that direct authorization be submitted "as 
soon as practical" thereafter (though in no event more than 10 days after a second visit, under the 
final version of the Access Procedures), was comprehended. 

Indeed, the consistent practice of respondents throughout the litigation has been to require 
counsel to provide proof of some authority to represent a detainee, either through a next friend or 
directly, prior to counsel being permitted access to the detainee. It was not even suspected that 
the language of § IHC. 1 and C.2 might raise an issue until late last year when respondents began 
to confront various petitioners' counsel seeking access to detainees regarding counsel's authority 
to represent detainees they purported to represent, either directly or through improper (in 
respondents' view) next friends. It was at that time a reading of § III.C.l and C.2 consistent with 
the Magistrate Judge's reading in this case began to be cited by counsel resistant to providing 
evidence of proof of their representation authority. 

The Magistrate Judge has attempted to dismiss respondents' position as unsupportable 
because in his view, the next friend device was merely a "legal fiction" that became "largely 
irrelevant" because of the possibility that, in light of the notifications provided by DoD to 
detainees of their ability to contact the Court and submit a petition directly and the opportunity 
for visits between counsel and detainees in properly brought next friend cases, detainees might 
directly submit or authorize a habeas petition, such that the next friend issue becomes moot. See 
Adem, 425 F. Supp. 2d at 12-14. The fact of the matter is, however, that the next friend device 
has not been "irrelevant" or mere fiction in the Guantanamo habeas cases. Indeed, habeas 
counsel have sought and the Court has granted relief, such as requiring advance notice of any 
transfer of the detainee from Guantanamo, in cases brought by putative next friends prior to 
counsel visiting detainees, presumably based on the putative standing of the next friends. 

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Moreover, the possibility that a next friend authorization might become moot does not mean that 
the Access Procedures never contemplated a showing of representation authority prior to access 
to a detainee being granted. Indeed, because in a "next friend" case, the detainee on whose 
behalf the case is brought "remains the real party in interest," see Whitmore , 495 U.S. at 163, it is 
that detainee's legitimate desires and wishes that control in the litigation. See also id. at 164 
(cautioning against "intruders or uninvited meddlers" filing lawsuits on behalf of unwitting 
strangers). It is unremarkable that a next friend authorization might become moot once direct 
access to the detainee on whose behalf a case is brought is obtained; the likelihood that the 
detainee may express his desires with respect to a lawsuit brought on his behalf certainly does not 
render the next friend device "irrelevant." 

In sum, the Magistrate Judge's apparent view that respondents' reading of the Access 
Procedures is contrary to the factual and procedural underpinnings of the Guantanamo cases is 
wrong. Indeed, for these reasons explained above, the Magistrate Judge's reading of the Access 
Procedures is inconsistent with the language of the Access Procedures, as well as with the history 
and context of the Guantanamo habeas cases and the application of the Access Procedures in the 
cases, and should be rejected. 16 



16 Previously, in Adem, Judge Roberts rejected the history and context of the Access 
Procedures as developed in the Guantanamo habeas case as being of any value in interpreting the 
Access Procedures. See Adem , 2006 WL 1 193853 at *6 (dkt. no. 42). However, the Access 
Procedures were developed in habeas cases that were being coordinated pursuant to the order and 
direction of the Court as a whole, including through a September 15, 2004 Resolution of the 
Executive Session - coordination in which this Court participated at the time by transferring 
then-pending Guantanamo cases to Judge Green for handling consistent with the Court's orders. 
Furthermore, the Court in this case imported for use in this case the Access Procedures 
developed under Judge Green. See Order (Oct. 11,2005). It would be unreasonable in such 
circumstances for the Court to interpret the Access Procedures inconsistent with that 
development and long-standing practice, especially in light of the Detainee Treatment Act (and 
now the Military Commissions Act) and the previously expressed sense of the Court to defer 

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B. The Magistrate Judge's Interpretation of the Access Procedures Results In 
The Extra-Legal Assertion of Court Jurisdiction And Is Contrary To Law. 

As explained above, the Magistrate Judge's reading of the Access Procedures is that 

counsel who purport to represent a detainee through a putative next friend or otherwise need not 

provide any evidence of any authority to represent the detainee prior to being entitled to 

privileged access to the detainee. Even if such a reading were possible divorced from 

consideration of the history and context of the Guantanamo habeas cases, the reading creates a 

scheme that is contrary to law, and it can and should be rejected for that reason alone. The 

Magistrate Judge's interpretation of the Access Procedures essentially results in the creation of 

court jurisdiction in habeas actions that is contrary to the plain language of the habeas statute and 

requirements for standing under that statute. Section 2242 of the habeas statute requires that a 

habeas petition must be "signed and verified by the person for whose relief it is intended or by 

someone acting in his behalf." 28 U.S.C. § 2242. Thus, the law provides only two avenues by 

which a habeas petition may be properly brought: (1) the individual who is seeking habeas relief 

must sign and verify the petition, Le^, the petition must be directly authorized; or (2) the petition 

must be signed and verified by another person acting on that individual's behalf- a "next friend" 

- whom the Supreme Court has determined must satisfy certain requirements in order to properly 

serve in this capacity. See Whitmore , 495 U.S. at 163-64. The Whitmore requirements have not 

been determined to have been satisfied in these cases; thus, the Magistrate Judge's Report and 

Recommendation in effect invents a new, third option for standing that is not found in the habeas 

statute or case law. Under the theory reflected in the Report and Recommendation, a court may 



action in the Guantanamo habeas cases pending guidance from the Court of Appeals on the 
jurisdictional issue. 

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exercise jurisdiction over a case simply upon some person acting as a conduit and passing along 
to an attorney a purported desire for assistance of counsel by some other individual, without any 
demonstration of an attorney-client relationship between counsel and the person on whose behalf 
relief is sought or satisfaction of the "next friend" requirements established by the Supreme 
Court. See Adem, 425 F. Supp. 2d at 13 ("[T]he detainees who initiate 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."). 17 There is simply no basis in the law for such 
an approach. 18 

The Magistrate Judge's Order attempts to justify the creation of this unprecedented 
"conduit" theory of establishing standing in habeas cases by citing certain concerns about the 
circumstances of detention at Guantanamo Bay which, in the Magistrate Judge's view, apparently 
warrant an extra-legal scheme for establishing jurisdiction in these habeas cases. Not only is the 
assessment reflected in the Report and Recommendation and the Adem opinion of the factual 



17 Although the Magistrate Judge believed the "next friend" standing doctrine to be 
merely a "legal fiction" in the Guantanamo detainee habeas cases and largely irrelevant in these 
cases, see Adem , 425 F. Supp. 2d at 13, other Judges of the Court who have addressed the issue 
of a detainee's ability to seek habeas relief on another detainee's behalf have recognized that the 
Supreme Court's Whitmore requirements for next friend standing must be satisfied before the 
Court may exercise jurisdiction over the case. See , e.g. , Ahmed v. Bush , No. 05-CV-0665 
(RWR) (Order dated May 24, 2005) (dkt. no. 12); Hamlily v. Bush , No. 05-CV-0763 (JDB) 
(Order dated October 3, 2005) (dkt. no. 16); Ahmed Doe v. Bush , No. 05-CV-1458 (ESH), eial 
(Order dated November 4, 2005) (dkt. no. 10) (Oberdorfer, J.). 

18 Thus, even if respondents' reading of § III.C of the Access Procedures was not 
consistent with the plain language of § III.C, as the Magistrate Judge believed, respondents' 
application of the Access Procedures to require some demonstration of appropriate representation 
authority prior to providing access to the detainee "for purposes of litigating the case[] in which 
the . . . [Access Procedures were] issued," Access Procedures § I, is compelled by jurisdictional 
considerations. 

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circumstances involved often inaccurate, but the circumstances of detention at Guantanamo Bay 
in any event do not justify disregarding the plain language of the habeas statute and governing 
case law. 

The Magistrate Judge incorrectly concluded that an analysis of whether proper habeas 
standing exists in this case may be avoided in favor of an extra-legal scheme for establishing 
jurisdiction because the notifications provided by the Department of Defense to detainees at 
Guantanamo Bay regarding their right to file a petition for habeas corpus allegedly caused some 
level of confusion among unnamed detainees. Specifically, the Magistrate Judge criticized the 
notifications as "fail[ing] to provide any explanation of what a petition for habeas corpus is or 
how a detainee would go about getting one," Adem, 425 F. Supp. 2d at 12, n.9, and informing the 
detainees that they can "ask a friend" to file a petition on their behalf without also advising them 
of the jurisdictional requirements of "next friend" standing as articulated by the Supreme Court, 
see id. at 14-18. The Magistrate Judge cites no legal basis for these critiques. Moreover, the 
government cannot simply waive jurisdictional requirements mandated by the habeas statute and 
governing Supreme Court precedent by advising detainees that they may "ask a friend" to file a 
habeas petition on their behalf, nor was it the government's intent to do so. See Floyd v. District 
of Columbia , 129 F.3d 152, 155 (D.C. Cir. 1997) (noting that "jurisdiction cannot be waived" 
and the Court has "an independent obligation to assure" itself of jurisdiction). 

In any event, the record in this case establishes that the Department of Defense's 
notifications adequately informed detainees how they may challenge the legality of their 
detention and, as a result, scores of petitions have been filed on behalf of detainees at 
Guantanamo Bay. The notifications provided beginning in December 2004 notified each 
detainee at Guantanamo Bay that "you may challenge your detention in a United States court" 

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and "[y]ou may ask a civilian judge to look at the lawfulness of your detention through a process 
called & petition for writ of habeas corpus.'" See Second Sweigart Declaration, Exs. A-C. The 
notifications further explained that detainees may "ask a friend or family member or a lawyer" to 
file a petition on their behalf, or they may do so themselves by writing to the United States 
District Court for the District of Columbia at an address provided on the notifications. See id. 
Thus, although the notifications may not have provided the detainees with a precise legal 
definition and explanation of a "petition for writ of habeas corpus" they clearly explained to the 
detainees that they may ask a United States judge to review whether they should be detained at 
Guantanamo Bay and provided them with options on how to do so. As a result of these 
notifications, 58 petitions for writ of habeas corpus, Le^, letters construed as petitions, have 
already been filed by detainees writing directly to the Court. 19 Further, other detainees have 
directly authorized petitions by writing to lawyers already representing other detainees, and 
scores of additional detainees have filed petitions through family members and friends who 
arguably satisfy the Supreme Court's requirements for next friend standing. 20 Given that 



19 As explained in the record, detainees are afforded the opportunity regularly to send and 
receive mail through the mail system administered by the Department of Defense and through the 
International Committee for the Red Cross. See Second Sweigart Declaration, Ex. D. These 
systems were developed and operational prior to and independent of the Protective Order in this 
litigation. See id; see also , e.g. , Coalition of Clergy, Lawyers, and Professors v. Bush , 310 F.3d 

1 153, 1 160 (9th Cir. 2002) (noting, pre- Rasul , that Guantanamo detainees were able to send and 
receive mail and were permitted to communicate outside Guantanamo through the International 
Committee of the Red Cross). Given that Guantanamo Bay is an overseas military base 
operating during a time of war, respondents acknowledge that mail may take some time to be 
transmitted to and from Guantanamo Bay through the United States Postal Service (which is 
beyond the control of the Department of Defense), however, the processing by the Department of 
Defense of incoming and outgoing detainee mail at Guantanamo Bay has consistently taken two 
weeks, on average. See Second Sweigart Declaration, Ex. D. 

20 In addition, as explained supra , detainees who indicate to Guantanamo personnel that 
they desire a lawyer, are provided a form in their own language (or are read the form in their 

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hundreds of detainees have legitimately sought to challenge the legality of their detention by 
seeking habeas relief in federal court, the Magistrate Judge's conclusion that the notifications 
were inherently misleading and insufficient is incorrect, and in any event, does not justify 
excusing petitioners from satisfying the necessary jurisdictional requirements in habeas cases. 21 
See Whitmore , 495 U.S. at 155-56 ("A federal court is powerless to create its own jurisdiction by 
embellishing otherwise deficient allegations of standing."). 22 

Furthermore, the prejudicial impact of the Magistrate Judge's interpretation of the Access 
Procedures is significant. Under the Magistrate Judge's interpretation, respondents would be 
required to provide direct, privileged access to wartime detainees in a military detention facility 
by counsel merely purporting to represent a detainee, without any showing by counsel of proof of 
appropriate authority to represent the detainee directly or through a next friend meeting 
appropriate standing requirements. Indeed, this interpretation of the Access Procedures could 
permit virtually any attorney to file suit asserting that they represent a detainee and thereby 
require the government to provide them privileged access to the detainee. Even if counsel's 



language if they are illiterate) to request a lawyer from the ABA. See Second Sweigart 
Declaration, ]} 7 & Ex. E. 

21 Of course, because the Magistrate Judge's Order purports to rest on the interpretation of 
operative language of the Access Procedures and does not resolve respondents' motion for an 
order to show cause as to why the case should not be dismissed for lack of proper "next friend" 
standing, further proceedings on issues such as the adequacy of the notifications to detainees for 
purposes of considering respondents' challenge to next friend standing conceivably would be 
appropriate should the jurisdictional issues under the Detainee Treatment Act and Military 
Commissions Act be resolved in favor of retention of district court jurisdiction over detainees' 
habeas challenges. 

22 As explained supra , Judge Kollar-Kotelly's opinion in Al Odah cannot be viewed 
somehow authorizing the Court to ignore jurisdictional standing requirements, if such a thing 
were even possible. The Al Odah case did not involve a situation in which a counsel's authority 
to act in the case was in question. 

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ability to claim authority to represent a detainee were cabined by having to receive word of a 
detainee's desire for counsel through a purported "conduit" detainee, that arrangement could lead 
to detainees effectively initiating habeas petitions on behalf of, with concomitant required 
counsel access to, any detainee they recall once having a conversation with that gave the 
"conduit" detainee the inkling that the other detainee might want a lawyer or might want to 
challenge his detention. The separation of powers concerns implicated in such an arrangement of 
compelled access to wartime detainees in a military detention facility are substantial. Such an 
arrangement flies in the face of fundamental standing and jurisdictional concepts in the law of 
habeas corpus. 

Accordingly, the Magistrate Judge's interpretation of the Access Procedures results in an 
extra-legal assertion of court jurisdiction and, thus, is improper and should be rejected. 

CONCLUSION 

For the foregoing reasons, the Magistrate Judge's Report and Recommendation is 
contrary to law and otherwise improper. The October 6 Report and Recommendation, 
accordingly, should be rejected. 
Dated: October 26, 2006 Respectfully submitted, 

PETER D. KEISLER 

Assistant Attorney General 

DOUGLAS N. LETTER 
Terrorism Litigation Counsel 

/s/ Preeya M. Noronha 



JOSEPH H. HUNT (D.C. Bar No. 43 1 134) 
VINCENT M. GARVEY (D.C. Bar No. 127191) 
TERRY M. HENRY 
JAMES J. SCHWARTZ 
PREEYA M. NORONHA 
ROBERT J. KATERBERG 



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Case 1 :05-cv-01 458-UNA-AK Document 29 Filed 1 0/26/2006 Page 36 of 36 



NICHOLAS J. PATTERSON 
ANDREW I. WARDEN 
EDWARD H. WHITE 

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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