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Case 1:05-cv-01458-UNA-AK Document 29-2 Filed 10/26/2006 Page 1 of 43 



TAB 1 



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FN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



F AWZI KHALID ABDULLAH FAHAD 
ALODAH, etal. 



Plaintiffs, 



UNITED STATES OF AMERICA, 
etal, 

Defendants. 



Civil Action No. 02-CV-0828 (CKK) 



RESPONSE TO COMPLAINT 
IN ACCORDANCE WITH COURT'S ORDER OF JULY 25, 2004 

INTRODUCTION 

On July 25, 2004, the Court ordered respondents to submit to the Court by noon on July 
30, 2004, a filing setting forth proposed procedures with respect to access to counsel that the 
government will apply to Guantanamo Bay detainees and to petitioners in the case, including any 
proposed monitoring of petitioners' conversations with counsel, and a response to petitioners' 
"underlying petitions for writs of habeas corpus, specifically addressing, among other things, the 
legal merits of the Government's entitlement to monitor any of Petitioners' conversations with 
counsel." Procedures that the government intends to apply with respect to access by habeas 
counsel to detainees at Guantanamo Bay generally are described in Exhibit A, "Procedures For 
Counsel Access To Detainees At The US Naval Base in Guantanamo Bay, Cuba." See Exh. B 
(Declaration of Martin J. Lucenti, Sr.), \ 8. Given the circumstances of this case, involving 
individuals detained by United States authorities as enemy combatants in connection with 



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hostilities involving al Qaeda, the Taliban, and their supporters, at an important and sensitive 
United States naval base outside the territorial sovereignty of the United States, the procedures 
concerning access by counsel include, inter alia , a requirement that counsel obtain a security 
clearance; that information exchanged between counsel and a detainee undergo a classification 
review; and that, where appropriate, communications between counsel and detainee be 
monitored, Le., not just subjected to classification review. The procedures also contain 
restrictions on disclosure of classified information and on the use of other information outside 
the preparation for or conduct of the habeas litigation. At the same time, these necessary 
precautions do not compromise attorney-detainee communications: any review of information or 
monitoring of communications is to be performed by persons unconnected with litigation or other 
proceedings concerning the detainee, and those persons are forbidden to disclose information to 
government personnel involved in litigation or proceedings involving the detainee. 

With respect to the petitioners in this case, as explained in the Declaration of the Acting 
Commander, Joint Task Force Guantanamo Bay, Cuba, Exh. B, a determination has been made 
in accordance with the access procedures that three petitioner-detainees in this case should be 
subject to all aspects of those procedures, including monitoring of communications and 
classification review. The remainder of the petitioner-detainees in this case will not be subject to 
real-time monitoring of communications. 

As explained below, petitioners are not entitled to relief, whether in the form of access to 
counsel under conditions other than those established for Guantanamo Bay detainees, or 
otherwise. Petitioners have no right to relief, including the right of access to counsel, under the 
Constitution because petitioners, as aliens outside the sovereign territory of the United States, 

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lack any cognizable Constitutional rights. Furthermore, no applicable right of access to counsel 

can be found in other sources, including international treaties. In any event, the procedures for 

counsel access to Guantanamo Bay detainees are entirely reasonable steps that provide detainees 

legitimate access to counsel while protecting national security interests, and thus, are fully 

justified. Petitioners are not entitled to relief. 

BACKGROUND AND PROCEDURES 
FOR COUNSEL ACCESS 

On September 11, 2001, the al Qaeda terrorist network launched a vicious, coordinated 

attack on the United States, killing approximately 3,000 persons. In response, the President, as 

Commander-in-Chief and with Congressional authorization for the use of force, took steps to 

protect the Nation and prevent additional threats. Among these steps, the President dispatched 

the armed forces of the United States to Afghanistan to seek out and subdue the al Qaeda terrorist 

network and the Taliban regime and others that had supported and protected that network. In the 

course of that campaign — which remains ongoing — the United States and its allies have 

captured or taken control of a large number of individuals, many of whom are foreign nationals. 

Pending in this Court are approximately 14 cases brought on behalf of close to 60 aliens who are 

held at the United States Naval Base at Guantanamo Bay, Cuba. The cases commonly challenge 

the legality and conditions of the detention of the aliens on whose behalf the cases are brought. 

On June 28, 2004, the Supreme Court issued a decision in three of the cases originally dismissed 

by the Court. See Rasul v. Bush, U.S. , 124 S. Ct. 2686 (2004). The Court held for the 

first time that federal district courts had jurisdiction to consider a petition for a writ of habeas 

corpus under the habeas statute, 28 U.S.C. § 2241, brought by aliens apprehended abroad and 



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held at Guantanamo Bay, even though Guantanamo Bay was not within the ultimate sovereignty 
of the United States. See id. at 2693-98. The Court expressly declined to address "whether and 
what further proceedings" would be appropriate after remand of the case. See id at 2699. 

In order to facilitate the litigation of habeas cases on behalf of Guantanamo Bay 
detainees, the government intends to permit counsel for habeas petitioners access to the detainees 
at issue in these cases. So far at least 14 such habeas cases have been filed in this District before 
eight different judges. Thus, numerous counsel will potentially seek access to Guantanamo Bay 
detainees. Given the significant numbers of detainees and counsel involved, and because such 
petitioners are being detained by United States authorities as enemy combatants in connection 
with hostilities involving al Qaeda, the Taliban, and their supporters, and are being held at an 
important and sensitive United States naval base outside the territorial sovereignty of the United 
States, special procedures have been established for counsel access. The procedures facilitate 
attorney-detainee communications for purposes of the habeas litigation, while protecting against 
disclosure of classified or other information that could result in damage to the national security, 
and permitting appropriate authorities to act upon threats to national security. 

The counsel access procedures for Guantanamo Bay detainees include the following 
elements and conditions. 1 First, counsel must hold or obtain a Secret-level United States security 
clearance. Exh. A, § in. A. The Department of Justice Security & Emergency Planning Staff 
office is overseeing the process of obtaining clearances, as appropriate, for habeas counsel who 



1 Additional administrative procedures are also in place to assure that counsel purporting 
to represent a detainee and desiring access to the detainee is actually authorized to represent the 
detainee, and to assist with the logistics of any visit by counsel to Guantanamo Bay. Exh. A, 

§ni.c.,D. 



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need them. Such requests for a clearance are currently being processed on an expedited basis, 
with an expected processing time of 2-3 weeks. Some counsel for petitioners in this case have 
already received an interim secret clearance and been briefed on security procedures. 

Second, the procedures create a system of classification review of information exchanged 
between counsel and a detainee in order to ensure the proper handling, storage, and transportation 
of classified information. Exh. A, §§ VI, VII. 

Third, the procedures contemplate, for some detainees, monitoring of communications 

between counsel and a detainee (in addition to classification review) under circumstances 

carefully designed to avoid unnecessary compromise of attorney-detainee communications. Such 

monitoring will be undertaken only "following an individualized assessment of the national 

security implications of unmonitored communications between a detainee and his counsel." Exh. 

A, § IV.C. Further, that individualized assessment must result in a conclusion that monitoring is 

reasonably necessary to protect against the disclosure of information that reasonably 
could be expected to result in immediate and substantial harm to the national security, 
including communications regarding: 

1 . The facilitation of terrorist operations or future terrorist acts; 

2. Military plans, weapons systems, or operations; 

3. Foreign government information; 

4. Foreign relations or foreign activities of the United States, including confidential 
sources; 

5. Intelligence activities (including special activities), intelligence sources or methods, 
or cryptology; 

6. Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans 
or protection services relating to national security, which includes defense against 
transnational terrorism; 

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7. Matters that are classified above the clearance level of the counsel. 
Exh. A., § IV.D. Such monitoring permits the identification and, if appropriate, dissemination to 
appropriate law enforcement and intelligence authorities of information reasonably reflecting a 
threat to national security, thus permitting any such threat to be averted. 2 Exh. A, § X. 

Under the applicable procedures, the classification review and any monitoring are to be 
undertaken in such a way as to avoid unnecessary compromise of attorney-detainee 
communications. Monitoring and classification review will be conducted only by a Department 
of Defense "privilege team," i.e. , DoD personnel who are and will continue to be walled off from 
participation in any court or military proceedings concerning the detainee. Exh. A, §§ II.D, IV.F. 
Indeed, the privilege team is forbidden to disclose any information reviewed to government 
personnel involved in court or military proceedings involving the detainee. Id. Monitored 
information may only be disclosed if it reflects a likely threat to national security or of immediate 
violence, and, then, only to the Commander, JTF-Guantanamo, who may convey the information 
to appropriate law enforcement and intelligence officials. Exh. A, § X. 

Fourth, the procedures prevent the disclosure of classified information to the detainee and 
otherwise compel the appropriate treatment of classified information by counsel. Exh. A, § VII. 
Further, given the extraordinary circumstances presented by these Guantanamo Bay detainee 
cases, the procedures limit counsel's dissemination of any communications with the detainee to 
purposes of preparing for or conducting the litigation. Exh. A, § XI. 



2 The procedures also enable the termination of face-to-face communications where it 
appears that monitoring is being intentionally frustrated by the detainee or counsel or where the 
communication is being used to further terrorist or other criminal operations or other threats to 
national security. Exh. A., § V.B. 

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Finally, given the large number of cases, at least 14, involving numerous counsel, brought 
on behalf of Guantanamo Bay detainees before at least eight judges of the Court, the procedures 
applicable to counsel access require an acknowledgment and agreement of counsel that he or she 
will comply with the procedures for access to detainees at Guantanamo Bay. Exh. A., §§ m.B., 
XII. The acknowledgment states explicitly, however, that it is not an acknowledgment that 
counsel considers the access procedures legally permissible and makes clear that a challenge to 
the procedures is not foreclosed through signing the acknowledgment. Exh. A., § m.B. Rather, 
the acknowledgment serves as a necessary record that counsel are aware of and will abide by the 
procedures. 

These procedures are justified by the extraordinary nature of these cases involving 
Guantanamo Bay detainees, including that the detainees may possess sensitive information, for 
example, information regarding the Guantanamo base or concerning agents, units, or methods 
involved in the detainee's capture. Further, detainees may be in possession of classified 
information of the same or some other nature, including information that could jeopardize the 
safely of U.S. and other forces. See Exh. B, ^} 9-13. In addition, those involved in terrorist and 
supporting groups are familiar with and utilize sophisticated techniques for communicating 
information to individuals or groups that can be used in planning or otherwise supporting 
terrorist activities. These methods would include using coded communications transmitted 
through unwitting intermediaries. See id- Iffl 5, 7, 10, 14, 18. 

With respect to the specific petitioners in this case, pursuant to the procedures for access, 
a determination has been made that three of the petitioners will be subject to both monitoring of 
communications and classification review. See Exh. B; Exh. A, §§ V-VH For the reasons 

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reflected in the Declaration of the Acting Commander, such monitoring is necessary to protect 
against the disclosure of information that reasonably could be expected to result in immediate 
and substantial harm to national security interests. Exh. B, ]f 17. These three individuals all have 
established ties to or influential positions in various terrorist networks or groups hostile to U.S. 
interests, including al Qaeda and the Taliban, as well as operational knowledge of terrorists 
operations. The detainees have the demonstrated capacity and commitment to direct or 
encourage harm to U.S. personnel and interests, are trained in sophisticated methods of 
communications with such groups despite detention, and have even attempted to use the mail 
system at Guantanamo Bay for such purposes. See id- Iffl 17-20. Further, their knowledge of 
potential gaps in U.S. intelligence, as well as knowledge of counter-interrogation techniques, 
creates a likelihood that, if their communications are not monitored, information would be 
disclosed creating a risk of immediate and substantial harm to United States national security 
interests. See id. 

ARGUMENT 
The Court has described petitioners' complaint, for all essential purposes, as a petition for 
a writ of habeas corpus complaining of the conditions of petitioners' confinement, including, 
predominantly, lack of access to counsel. This claim for access must be evaluated in the unique 
context of this case. This case does not involve criminal detention, nor are petitioners United 
States citizens, nor are they confined within an area of United States sovereignty. To the 
contrary, petitioners are aliens held at Guantanamo Bay, Cuba. Further, petitioners were taken 
into custody as enemy combatants in connection with hostilities involving al Qaeda, the Taliban, 
and their supporters, and are being detained while hostilities remain ongoing for the purposes of 



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preventing them from re-entering those hostilities, as well as potentially obtaining information 

that may serve to further national security interests. 

Accordingly, as explained below, petitioners cannot appeal to the Constitution or other 

potential sources of a right to access to counsel. To the extent petitioners seek relief based on a 

right to counsel, unqualified or otherwise, petitioners' application must be dismissed. The same 

is true with regard to all other forms of relief sought by petitioners. In any event, however, the 

access to counsel being provided by the government is merely to facilitate the litigation of 

petitioners' habeas claims, and that access is reasonably subject to the conditions imposed, which 

permit essential attorney-detainee communications while protecting national security interests. 

The fact that conditions on access to counsel have been imposed or upheld even in contexts 

involving a constitutional right to counsel or access suggests that the procedures established for 

counsel's access to aliens detained at Guantanamo Bay easily pass muster. 

I. PETITIONERS HAVE NO RIGHT TO COUNSEL UNDER THE 

CONSTITUTION OR OTHER SOURCES OF LAW 

A. Petitioners, As Aliens Outside The Sovereign Territory Of The United States, 
Lack Any Cognizable Constitutional Rights. 

Any assertion by petitioners of a Fifth Amendment due process right or any constitutional 
right to counsel is baseless. As aliens detained by the military outside the sovereign territory of 
the United States and lacking a sufficient connection to this country, petitioners have no 
cognizable constitutional rights. 

"It is well established that certain constitutional protections available to persons inside the 
United States are unavailable to aliens outside our geographic borders." Zadvydas v. Davis, 533 
U.S. 678, 693 (2001). m particular, the Supreme Court has concluded that neither the Fourth nor 

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Fifth Amendments obtain with respect to aliens outside the United States territory. See United 
States v. Verdugo-Urquidez . 494 U.S. 259, 266 (1990) (rejecting proposition that the Fourth 
Amendment "was intended to restrain the actions of the Federal Government against aliens 
outside of the United States territory"); Johnson v. Eisentrager. 339 U.S. 763, 783-85 (1950) 
(rejecting claim that aliens outside the territory of the United States are entitled to Fifth 
Amendment rights). The D.C. Circuit, for its part, has repeatedly noted that a '"foreign entity 
without properly or presence in this country has no constitutional rights, under the due process 
clause or otherwise.'" 32 County Sovereignty Comm. v. Dep't of State . 292 F.3d 797, 799 (D.C. 
Cir. 2002) (quoting People's Mojahedin Org, of Iran v. Dep't of State , 182 F.3d 17, 22 (D.C. Cir. 
1999)) (emphasis added); see also Jifry v. FAA . 370 F.3d 1 174, 1 182 (D.C. Cir. 2004) ("The 
Supreme Court has long held that non-resident aliens who have insufficient contacts with the 
United States are not entitled to Fifth Amendment protections."); Harbury v. Deutch. 1999 WL 
33456919, *6-7 (D.D.C. 1999), rev'd in part on other grounds. 233 F.3d 596, 603 (D.C. Cir. 
2000), rev'd in part on other grounds sub nom„ Christopher v. Harbury . 536 U.S. 403 (2002) 
(rejecting extraterritorial application of Fifth Amendment); Pauling v. McElroy. 278 F.2d 252, 
254 n.3 (D.C. Cir. 1960) ("The non-resident aliens here plainly cannot appeal to the protection of 
the Constitution or laws of the United States"). 

The bar on extraterritorial assertion of constitutional rights by aliens undoubtedly applies 
here. As the Supreme Court's decision in Eisentrager makes clear, in a holding unaffected by the 
Supreme Court's subsequent decision in this case, in determining whether an alien is present in 
the United States for purposes of evaluating the availability of constitutional protection, what 
matters is not whether the alien is located within territory over which the United States exercises 

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control, but whether the alien is within territory over which the United States exercises 
sovereignty. In Eisentrager, the Supreme Court denied a petition for a writ of habeas corpus 
brought by a group of German civilians who had been captured in China by United States forces 
during World War n, convicted by a military commission of violating the laws of war and 
imprisoned in Germany under the control of the United States Army. The Court rejected the 
petitioners' attempt to invoke a "constitutional right" to bring a habeas petition, reasoning that 
the "prisoners at no relevant time were within any territory over which the United States is 
sovereign, and the scenes of their offense, their capture, their trial, and their punishment were all 
beyond the territorial jurisdiction of any court of the United States." 339 U.S. at 778 (emphasis 
added). The Court went on to overturn the determination by the Court of Appeals that the 
prisoners possessed Fifth Amendment liberty interests, highlighting concerns about 
"extraterritorial application of organic law." Id. at 781-785. Thus, while the petitioners in 
Eisentrager were imprisoned under the control of the United States government, the absence of 
United States sovereignly precluded the attachment of constitutional rights. As the Supreme 
Court later explained, the Court in Eisentrager "rejected the claim that aliens are entitled to Fifth 
Amendment rights outside the sovereign territory of the United States." Verdugo-Urqui dez , 494 
U.S. at 269 (emphasis added). These aspects of Eisentrager were in no way undermined by 
Bradenv. 30 th Jud. Conf. ofKy. , 410 U.S. 484 (1973). 

Here, it is clear that the Guantanamo Bay Naval Base is outside the sovereign territory of 
the United States. As the Supreme Court observed in this very case, under the 1903 Lease 
Agreement executed between the United States and Cuba, '"the United States recognizes the 
continuance of the ultimate sovereignty of the Republic of Cuba over the [leased areas],' while 

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'the Republic of Cuba consents that ... the United States shall exercise complete jurisdiction and 
control over and within said areas.'" Rasul, 124 S. Ct. at 2690-91 (emphasis added). Indeed, the 
Supreme Court posited a distinction between "plenary and exclusive jurisdiction" and '"ultimate 
sovereignty" at Guantanamo Bay even as it framed the specific question for its review. Id at 
2693; cf United States v. Spelar . 338 U.S. 217, 221-22 (1949) (lease between for military air 
base in Newfoundland "effected no transfer of sovereignty with respect to the military bases 
concerned"); Vermilva-Brown Co. v. Connell . 335 U.S. 377, 380-81 (1948) (U.S. naval base in 
Bermuda, controlled by United States under lease with Great Britain, was outside United States 
sovereignty). 3 

Given the absence of U.S. sovereignty over Guantanamo Bay and petitioners' status as 
aliens, it is plain that petitioners lack cognizable constitutional rights with respect to their 
detention. Indeed, in a similar case, the Eleventh Circuit concluded that alien migrants located at 
the Guantanamo Bay Naval Base have "no First Amendment or Fifth Amendment rights which 
they can assert." See Cuban American Bar Ass'm Inc. v. Christopher , 43 F.3d 1412, 1428-29 
(1 1th Cir. 1995). As a predicate to its decision, the court specifically rejected the contention that 
'"control and jurisdiction' is equivalent to sovereignty" for the purpose of assessing the 
applicability of constitutional provisions to aliens. Id. at 1424-25. Like the court in Cuban 
American Bar Ass'n, this Court should dismiss any contention that the Constitution provides 
actionable rights to aliens located at a U.S. military facility within the sovereign territory of 



3 In its Memorandum Opinion dismissing the petition in this case, this Court concluded 
that the military base at Guantanamo Bay is outside the sovereign territory of the United States. 
See Rasul v. Bush, 215 F. Supp. 2d 55, 72 (D.D.C. 2002). This conclusion was not rebutted by 
the D.C. Circuit or the Supreme Court. 

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another nation. See also Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498, 1513 (1 1 th Cir. 
1992) (Haitians interdicted by U.S. Coast Guard on the high seas "have no recognized 
substantive rights under the laws or Constitution of the United States"). 

Even if this Court were to disagree with the Eleventh Circuit and conclude that 
Guantanamo Bay was the equivalent of U.S. sovereign territory for purposes of assessing the 
applicability of constitutional provisions, the Supreme Court's decision in United States v. 
Verdugo-Urquidez would still bar the assertion of constitutional rights by petitioners here. In 
Verdugo-Urquidez , the Court considered whether the Fourth Amendment applied to the search 
and seizure by United States agents of property in Mexico owned by a non-resident alien who 
had been arrested and transported to the United States prior to the search. The Court noted that 
certain previous cases "establish only that aliens receive constitutional protections when they 
have come within the territory of the United States and developed substantial connections with 
this country" Verdugo-Urquidez, 494 U.S. at 271 (1990) (emphasis added); see also Jifry, 370 
F.3d at 1 182; People's Mojahedin Org. , 182 F.3d at 22. The Court thus rejected respondent's 
arguments based on this line of authority, reasoning that presence in the United States that is 
"lawful but involuntary [] is not the sort to indicate any substantial connection with our country." 
494 U.S. at 271. Respondent, "an alien who ha[d] had no previous significant voluntary 
connection with the United States" and was being held in the United States against his will, was 
not entitled to the protection of the Fourth Amendment. Id Even more clearly here, petitioners - 
who do not allege to have any "significant voluntary connection with the United States" and 



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whose detention in Guantanamo Bay by the military is instead "involuntary" - do not have a 
sufficient connection with the United States to give rise to constitutional protection. 4 

It bears noting that nothing in the Supreme Court's opinion in Rasul undermines the 
foregoing analysis or the conclusion that invariably flows from Eisentrager and its progeny- that 
aliens, such as petitioners, who are outside the sovereign territory of the United States and lack a 
sufficient connection to the United States may not assert rights under the Constitution. To begin 
with, the Court in Rasul repeatedly emphasized that its decision that petitioners have a right to 
seek a writ of habeas corpus was based on an interpretation of the habeas statute, 28 U.S.C. 
§ 2241, not on a reading of the Constitution. The question framed by the Court in Rasul was 
"whether the habeas statute confers a right to judicial review" for aliens detained in Guantanamo 
Bay. 124 S. Ct. at 2693 (emphasis added). The Court, in turn, "h[e]ld that § 2241 confers on the 
District Court jurisdiction to hear petitioners' habeas corpus challenges to the legality of their 
detention at the Guantanamo Bay Naval Base." Id. at 2698. The Court repeatedly distinguished 
the decision in Eisentrager , emphasizing that the Court in Eisentrager was concerned with the 
"question of the prisoners' constitutional entitlement to habeas corpus" and "had far less to say 



4 In People's Mojahedin Organization , the D.C. Circuit stated, '"[AJliens receive 
constitutional protections [only] when they have come within the territory of the United States 
and developed substantial connections with this country.'" 182 F.3d at 22 (quoting Verdugo- 
Urquidez , 494 U.S. at 271 (alterations in People's Mojahedin Organization ); see also Jifry, 370 
F.3d at 1 182 (aliens may be accorded some constitutional protections where they "have come 
within the territory of the United States and established 'substantial connections' with this 
country . . . ."). However, in National Council of Resistance of Iran v. Dep't of State , 251 F.3d 
192, 201-02 (2001), a separate panel of the D.C. Circuit queried, but did not decide, whether a 
"substantial" connection to the United States is necessary. Even that court, however, appeared to 
assume that some connection was required. See id. at 202. Regardless, petitioners' lack of any 
"voluntary connection with the United States" makes constitutional protection unavailable. See 
Verdugo-Urquidez , 494 U.S. at 271. 

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on the question of petitioners' statutory entitlement to habeas review." Id at 2693-94 (emphases 

in original); see also id. at 2694 (Eisentrager opinion "devoted . . . little attention to question[s] 

of statutory jurisdiction"); id at 2694 n.8 (the Court in Eisentrager "clearly understood the Court 

of Appeals' decision to rest on constitutional and not statutory grounds"). Rasul thus left intact 

Eisentrager' s constitutional holding that non-resident aliens in U.S. custody overseas do not have 

a constitutional right to the writ of habeas corpus. See Eisentrager, 339 U.S. at 778. 5 

More importantly, the Court in Rasul made no effort at all to revisit Eisentrager ' s specific 

rejection of an extraterritorial application of the Fifth Amendment in that case. See id at 785. 

Indeed, nothing in Rasul detracts from Eisentrager' s powerful admonition against extension of 

the Amendments in the Bill of Rights to aliens detained by the military outside the United States: 

If the Fifth Amendment confers its rights on all the world except Americans 
engaged in defending it, the same must be true of the companion civil-rights 
Amendments, for none of them is limited by its express terms, territorially or as to 
persons. Such a construction would mean that during military occupation 
irreconcilable enemy elements, guerrilla fighters, and 'were-wolves' could require 
the American Judiciary to assure them freedoms of speech, press, and assembly as 
in the First Amendment, right to bear arms as in the Second, security against 
'unreasonable' searches and seizures as in the Fourth, as well as rights to jury trial 
as in the Fifth and Sixth Amendments. 

Such extraterritorial application of organic law would have been so significant an 
innovation in the practice of governments that, if intended or apprehended, it 
could scarcely have failed to excite contemporary comment. Not one word can be 
cited. No decision of this Court supports such a view. None of the learned 
commentators on our Constitution has ever hinted at it. The practice of every 
modern government is opposed to it. 



5 The Court's conclusion that Eisentrager does not "categorically exclude[] aliens 
detained in military custody outside the United States from the 'privilege of litigation' in U.S. 
Courts," see Rasul , 124 S. Ct. at 2698 (emphasis added), of course, only means that Congress 
may provide jurisdiction for these persons by statute, not that they have a constitutional 
entitlement to bring suit in the absence of congressional action. 

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339 U.S. at 784-785 (internal citation omitted). 6 

This Court should heed the Supreme Court's warning, follow clear and still binding 
circuit precedent, and resist any assertion that constitutional rights may be raised by non-resident 
aliens detained by the military outside the sovereign United States. Petitioners' request for relief 
under the Due Process Clause of the Fifth Amendment, and any argument for a constitutional 
right to counsel, 7 should be rejected. 8 



6 The cryptic dicta in a footnote in Rasul that the petitioners' have alleged that they are in 
'"custody in violation of the Constitution or laws or treaties of the United States,' 28 U.S.C. 

§ 2241(c)(3)," 124 S. Ct. at 2698 n.15, cannot reasonably be read to overrule the Supreme 
Court's repeated holdings that aliens outside sovereign United States territory and with 
insufficient connection to the United States lack constitutional rights. E.g. , Verdugo-Urquidez , 
494 U.S. at 266; Zadvydas , 533 U.S. at 693. The Court's holding is clear that it decides only the 
statutory jurisdiction of a court to hear a claim like the petitioners'. At most, the footnote 
establishes that, once aliens have been determined neither to "have engaged ... in combat nor in 
acts of terrorism against the United States," 124 S. Ct. at 2698 n.15, they may have certain rights 
under the treaties of the United States. Because, as we have explained below, those treaties are 
not self-executing and were intended by Congress to be enforced by the political branches rather 
than by the Courts, they would not be the proper basis for a judicial remedy. Any constitutional 
claims brought by an alien abroad necessarily fail, as the D.C. Circuit, has previously recognized. 
See People's Mojahedin Org, of Iran , 182 F.3d at 22; see also Cuban American Bar Ass'n, Inc. , 
43 F.3d at 1428. As the Supreme Court has repeatedly recognized, it is improper for the courts 
of appeals to engage in anticipatory overruling of the Court's precedents. See, e.g. , State Oil Co. 
v. Khan , 522 U.S. 3, 20 (1997). 

7 To the extent that petitioners' lawyers may be invoking their own rights in demanding 
access to petitioners, such a claim fails. For example, petitioners' counsel cannot invoke a First 
Amendment right to associate for the purpose of engaging in litigation as a form of political 
expression because the detainees lack an underlying substantive legal claim to advance in 
litigation. See Haitian Refugee Center , 953 F.2d at 1513 (counsel had no First Amendment right 
to associate for purpose of litigation where clients had no recognized substantive rights); see also 
First Defense Legal Aid v. City of Chicago , 319 F.3d 967, 970-71 (7th Cir. 2003) (holding that 
an attorney does not have a derivative First Amendment right to access a client-witness in police 
custody because "[witnesses have no right to counsel under either the fifth or the sixth 
amendment^] " as the "constitutional right to counsel attaches only with formal charges"). The 
"right to judicial review" that the Supreme Court identified in reviewing 28 U.S.C. § 2241, see 
Rasul, 124 S. Ct. 2693, 2698, is, of course, a procedural right, not a substantive one. Moreover, 
even if counsel for petitioners had a limited right to associate with the detainees, it remains the 

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B. Even If Petitioners Could Legitimately Appeal To The Constitution, 
Petitioners Have No Right To Counsel Under The Fifth And Sixth 
Amendments. 

Even assuming that the Constitution did apply to petitioners, which it does not, the two 
constitutional bases for the right to counsel — the Fifth and Sixth Amendments — do not provide a 
right to counsel in the context of this case. The plain text of the Sixth Amendment provides that 
the "accused" in a "criminal proceeding" shall "have the assistance of counsel for his defense." 
U.S. Const, amend VI. Therefore, the Sixth Amendment is not triggered until the government 
commences a criminal proceeding against the accused. See Texas v. Cobb , 532 U.S. 162, 167-68 
(2001) (stating that the Sixth Amendment "does not attach until a prosecution is commenced, 
that is, at or after the initiation of adversary judicial criminal proceedings—whether by way of 
formal charge, preliminary hearing, indictment, information, or arraignment") (quoting McNeil v. 
Wisconsin, 501 U.S. 171, 175 (1991)) (internal quotations and citations omitted). 

Here, the Sixth Amendment does not apply to petitionerss because the government has 
not instituted criminal proceedings against them. Petitioners are being detained solely because of 
their status as enemy combatants, not for any other criminal or punitive purpose. This detention, 
like the detention of all enemy combatants during wartime, serves two important purposes 
directly related to the conduct of war. First, it prevents "captured individuals from returning to 
the field of battle and taking up arms once again." Hamdi v. Rumsfeld , 124 S. Ct. 2633, 2640 



case that "[t]he Constitution does not require the Government to assist the holder of a 
constitutional right in exercise of that right." Haitian Refugee Center , 953 F.2d at 1513. See 
also infra Part II. 

8 For the same reasons, petitioners cannot assert any constitutional claim to be informed 
any charges against them, have access to a court or other impartial tribunal, or meet (in person or 
via teleconference) with their families or medical personnel. See also infra Part II. 

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(2004) (plurality). Second, detention enables the military to gather vital intelligence from enemy 
combatants in advancement of the prosecution of the war. Because the right to counsel 
embodied by the Sixth Amendment is inapplicable to the detention of enemy combatants, the 
procedures imposed upon counsel's access to petitioners cannot violate the Sixth Amendment. 
Petitioners also lack a right to counsel under the Self-incrimination Clause of the Fifth 
Amendment. In Miranda v. Arizona , 384 U.S. 436 (1966), the Supreme Court recognized that, in 
order to protect a suspect's Fifth Amendment right not to incriminate himself, a suspect must be 
warned prior to custodial interrogation that he has the right to remain silent and the right to have 
an attorney present. The Court has since explained, however, that the Fifth Amendment's Self- 
incrimination Clause is "a fundamental trial right of criminal defendants." Verdugo-Urqui dez, 
494 U.S. at 264. Accordingly, "a constitutional violation occurs only at trial." Id.; see Chavez v. 
Martinez, 538 U.S. 760, 767 (2003) ("Statements compelled by police interrogations of course 
may not be used against a defendant at trial, but it is not until their use in a criminal case that a 
violation of the Self-incrimination Clause occurs.") (internal citation omitted). Because 
petitioners are not being subjected to a criminal trial, the right to counsel associated with the 
Fifth Amendment's Self-incrimination Clause does not apply to this case. 

Moreover, in the enemy combatant setting, the Due Process Clause of the Fifth 
Amendment does not provide petitioners with a right to counsel, much less a right to 
unmonitored access to counsel. Indeed, a generalized due process right for enemy combatants to 
have unlimited and unqualified access to counsel cannot be squared with settled historical 



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practice, under which no comparable right has yet been found. 9 Furthermore, at a minimum, any 
interest by petitioners in an unqualified right of access to counsel would have to be balanced 
against the government's own interests, including the President's plenary authority as 
Commander-in-Chief and the important national security interests implicated by allowing enemy 
combatants unsupervised access to counsel. As the Supreme Court recently explained in Hamdi 
v. Rumsfeld , 124 S. Ct. 2633, 2646 (2004), the "ordinary mechanism that we use for balancing 
such serious competing interests, and for determining the procedures that are necessary to ensure 
that a citizen is not 'deprived of life, liberty, or property, without due process of law,' U.S. 
Const., Amend. 5, is the test that we articulated in Matthews v. Eldridge, 424 U.S. 3 19, 96 S.Ct 
893, 47L.Ed.2dl8(1976)." 

Thus, even in the case of citizens held within the sovereign territory of the United States, 
Mathews provides that the process due in any given instance is determined by balancing "the 
private interest that will be affected by the official action" against the "Government's interest, 
including the function involved" and the burdens the Government would face in providing 
greater process. Matthews , 424 U.S. at 335. To the extent any constitutional protection applies 



9 As the Supreme Court explained in Ex Parte Quirin, 317 U.S. 1, 27-28 (1942), "[f]rom 
the very beginning of its history this Court has recognized and applied the law of war as 
including that part of the law of nations which prescribes, for the conduct of war, the status, 
rights and duties of enemy nations as well as of enemy individuals." That is consistent with the 
analysis that the Court applies in determining the scope of the Due Process Clause in other 
contexts. Cf Herrera v. Collins , 506 U.S. 390, 407-408 (1993) (examining "[historical practice" 
in assessing the scope of the "Fourteenth Amendments's guarantee of due process"); Medina v. 
California , 505 U.S. 437, 445-46 (1992) (relying on "[historical practice" and "historical 
treatment" when analyzing scope of due process rights). Because the unqualified right of access 
that petitioners seek has no foundation in any tradition or practice, the Fifth Amendment does not 
confer such a right. 

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to alien-detainees at Guantanamo Bay, it would surely be less than that afforded a citizen- 
detainee in the United States Cf Verdugo-Urquidez , 494 U.S. at 275-78 (Kennedy, J., 
concurring) (explaining that the constitutional standards that normally apply to United States 
citizens do not necessarily with the same force to "noncitizens who are beyond our territory"). 
"The Mathews calculus then contemplates a judicious balancing of these concerns, through an 
analysis of 'the risk of an erroneous deprivation' of the private interest if the process were 
reduced and the 'probable value, if any, of additional or substitute safeguards.'" Hamdi . 124 S. 
Ct. at 2646 (quoting Matthews . 424 U.S. at 335). 

With respect to the private interest affected by the government's official action, even if 
the Constitution applied to petitioners, which it manifestly does not, they would have a liberty 
interest in being free from unlawful physical detention. See Foucha v. Louisiana, 504 U.S. 71, 
80 (1993) ("Freedom from bodily restraint has always been at the core of the liberty interest 
protected by the Due Process Clause from arbitrary government action."). In considering the 
degree of process due a "citizen-detainee seeking to challenge his classification as an enemy 
combatant[,]" the Court explained in Hamdi that a citizen-detainee "must receive notice of the 
factual basis for his classification, and a fair opportunity to rebut the Government's assertions 
before a neutral decisionmaker." Hamdi, 124 S. Ct. at 2648. The Court, however, explained that 
"exigencies of the circumstances may demand that, aside from these core elements, enemy 
combatant proceedings may be tailored to alleviate their uncommon potential to burden the 
Executive at a time of ongoing military conflict." Id at 2649; see also id. at 2650 (stating that 
"the full protections that accompany challenges to detentions in other settings may prove 
unworkable and inappropriate in the enemy-combatant setting"). Here, as more fully explained 

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infra section II, the national security burdens that the government would face by providing 

greater process to petitioners in the form of unlimited and unmonitored access to counsel would 

be substantial. Accordingly, the due process clause of the Fifth Amendment, even if applicable, 

would not endow petitioners with an unqualified right to counsel. 

C. Petitioners Have No Right To Counsel Under International 
Treaties Or The Law of War. 

Not only does petitioners' claim for a right of access to counsel fail to find refuge in the 

Constitution, petitioners cannot rely on international treaties or the law of war as a basis for such 

a right. Although treaties are the "supreme Law of the Land," U.S. Const, art. VI, cl. 2, they 

provide no basis for private lawsuits unless they are implemented by appropriate legislation or 

are intended to be self-executing. See Whitney v. Robinson , 124 U.S. 190, 194 (1888) ("When 

the stipulations [of a treaty] are not self-executing, they can only be enforced pursuant to 

legislation to carry them into effect"). In this case, petitioners cannot identify any self-executing 

or congressionally-implemented treaty that provides them with a right to counsel to challenge 

their detention. 

For example, under the Third Geneva Convention (GPW), even lawful enemy combatants 
who are entitled to prisoner of war privileges — which does not include the detainees in the 
current conflict — are not entitled to counsel to challenge their detention. Instead, Article 105 of 
the GPW provides that a prisoner of war should be provided with counsel to defend against 
formal charges brought against him in a prosecution. This provision underscores that prisoners 
of war who have not been charged with specific war crimes are not entitled to counsel to 
challenge the fact of their wartime detention. See Geneva Convention Relative to the Treatment 

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of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3317, 75 U.N.T.S. 135 (GPW), Article 105. 
Similarly, the Fourth Geneva Convention, which addresses the treatment of non-combatant 
civilians during times of war, provides a right of counsel only when accused persons "are 
prosecuted by the Occupying Power." See Geneva Convention Relative to the Protection of 
Civilian Persons in Time of War, art. 71-72, Feb. 2, 1956, 6 U.S.T. 3516, 75 U.N.T.S. 287. In 
any event, the Third and Fourth Geneva Conventions are not self-executing and Congress has not 
implemented their terms pursuant to authorizing legislation. See Tel-Oren v. Libyan Arab 
Republic . 726 F.2d 774, 808-09 (D.C. Cir. 1984) (Bork, J., concurring); see also Eisentrager . 339 
U.S. at789n.l4. 

Furthermore, the International Covenant on Civil and Political Rights (ICCPR), which the 
United States ratified in 1992, does not provide petitioners with a right to counsel. Like the 
Third and Fourth Geneva Conventions, the ICCPR provides a right of counsel only in "the 
determination of any criminal charge." Art. 14, 999 U.N.T.S. 171, 6 I.L.M. 368 (1992). More 
importantly, however, Congress ratified the ICCPR with numerous reservations and with the 
express declaration that the ICCPR is not self-executing. See International Covenant on Civil 
and Political Rights, 102d Cong., 138 Cong. Rec. S4781, S4784 (April 2, 1992). Accordingly, 
the ICCPR does not create a right to counsel enforceable in United States courts. See Alva*** . 
124 S. Ct. 2739, 2767 (2004) (ICCPR does not "create obligations enforceable in the federal 
courts"); Flores v. Southern Peru Copper Corp. . 343 F.3d 140, 163-64 & n.35 (2d Cir. 2003); 
Machariav. United States . 238 F. Supp. 2d 13, 29 (D.D.C. 2003), affd 334 F.3d 61 (D.C. Cir. 
2004). 



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Finally, to the extent petitioners seek to find a right to counsel in either the American 
Convention on Human Rights (ACHR), 1 144 U.N.T.S. 123, 9 I.L.M. 673 (1969), or the 
American Declaration on the Rights and Duties of Man (ADRDM), O.A.S. Off. Rec. OEA/Ser. 
LV/I.4 Rev. (1965), these provisions are simply multinational resolutions that have not been 
ratified by Congress; thus they do not have the force or effect of law. See Flores, 343 F.3d at 
162-64 (stating that "the United States has declined to ratify the American Convention [on 
Human Rights] for more than three decades"); Garza v. Lappin . 253 F.3d 918, 925 (7th Cir. 
2001) (stating that the American Declaration on the Rights and Duties of Man "is an aspirational 
document" that "did not create any enforceable obligations on the part of any" member nations). 

In sum, to the extent petitioners claim a right of unqualified access to counsel or seek 
relief based on such a right, the petition must be rejected as no such right can be found in the 
Constitution or any treaties. 

II. THE GOVERNMENT IS PROVIDING PETITIONERS ACCESS TO COUNSEL 
AND THE PROCEDURES GOVERNING SUCH ACCESS ARE REASONABLE 
AND APPROPRIATE 

Notwithstanding the absence of any right to counsel on the part of the aliens held at 
Guantanamo Bay, the government is permitting access, subject to conditions, to facilitate the 
litigation of habeas cases brought on behalf of Guantanamo Bay detainees. 10 Given that no right 



10 Any suggestion that petitioners have an unqualified right to counsel based upon the 
habeas corpus statute, 28 U.S.C. § 2241, or the All Writs Act, 28 U.S.C. § 1651, is also 
misplaced. The district court's reasoning in Padilla ex. rel. Newman v. Bush , 233 F. Supp. 2d 
564 (S.D.N. Y. 2002), affd in part, rev' d in part sub nom., Padilla v. Rumsfeld , 352 F.3d 695 (2d 
Cir. 2003), rev'd 124 S. Ct. 271 1 (2004), is not to the contrary. Padilla addressed, inter alia , 
whether an American citizen apprehended in the United States and designated an enemy 
combatant has the right to meet with counsel to challenge the factual basis for his designation as 
an enemy combatant. After dismissing a constitutional basis for the right to counsel, 233 F. 

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to counsel exists, the conditions governing counsel's access should be considered reasonable per 
se. In any event, the procedures governing counsel access are more than reasonable and permit 
petitioners to obtain assistance of counsel in this habeas proceeding, while still maintaining 
essential national security protections. 

Though a case involving enemy combatants held at Guantanamo Bay is unique, the 
notion of placing conditions on counsel's access to potential clients in national security contexts 
is not. In fact, even in the context of criminal trials involving accused terrorists with a Sixth 
Amendment right to counsel, courts have established or upheld various special measures 



Supp. 2d. at 600-01, the district court concluded that the "provisions and characteristics of the 
habeas corpus statute . . . and the court's power under the All Writs Act, 28 U.S.C. § 1651(a) 
(2000), to issue writs in aid of its jurisdiction, provide a statutory basis for [permitting Padilla to 
consult with counsel.]" The court located that entitlement principally in 28 U.S.C. § 2243, which 
provides for the petitioner to allege and deny facts, and 28 U.S.C. § 2246, which allows for the 
taking of evidence. Reading these provisions to grant a statutory right to present facts, the 
district court reasoned that vindication of these rights required affording Padilla some access to 
counsel. Id. at 604. 

Importantly, however, the district court recognized the government's significant national 
security interests and rejected any assertion that access to counsel must be unlimited or 
unqualified. Indeed, the district court even suggested that "there is no reason that military 
personnel cannot monitor Padilla' s contacts with counsel, so long as those who participate in the 
monitoring are insulated from any activity in connection with this petition, or in connection with 
a future criminal prosecution of Padilla, if there should ever be one." Id. 

Moreover, even assuming that a statutory basis for the right to counsel could be fashioned 
from the All Writs Act, the text of this statute plainly limits the court's discretionary authority 
only to writs that are "necessary or appropriate." See 28 U.S.C. § 1651(a) ("The Supreme Court 
and all courts established by Act of Congress may issue all writs necessary or appropriate in aid 
of their respective jurisdictions and agreeable to the usages and principles of law"). Given the 
national security interests that could be compromised by providing enemy combatants with 
unrestricted access to counsel and the aspects of the access to counsel being provided in this case 
that permit petitioners to obtain assistance of counsel, it would be neither "necessary or 
appropriate" to fashion a remedy that has the potential to compromise these interests. 

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constraining defendants and/or their counsel. See United States v. Bin Laden , 58 F. Supp. 2d 
113, 121 (S.D.N.Y. 1999) (upholding requirements that counsel for defendants undergo DOJ- 
initiated security clearance procedure to obtain access to classified information, noting 
inadequacy of remedying unauthorized disclosure or security breach when "reasonable measures 
could have prevented the disclosure altogether"); Padilla , 233 F. Supp. 2d at 604 (approving 
monitoring of communications between attorneys and U.S. citizen enemy combatant); see also 28 
C.F.R. § 501.3(d) (providing for monitoring of communications between prison inmates and their 
counsel). Also, in United States v. El-Hage . 213 F. 3d 74, 81 (2d Cir. 2000) (per curiam), the 
court upheld restrictions on communications by a criminal defendant accused of terrorism-related 
crimes where the restrictions were "reasonably related" to the government's interest in 
preventing defendant from facilitating activities of co-conspirators. The court upheld the 
restrictions over defendant's argument that restrictions interfered with his due process right to 
prepare his defense. Id. 

Courts considering the issue of restrictions on access to detained individuals in the 
criminal justice system have essentially used a reasonableness standard, consistent with the 
standard applied by the Supreme Court in reviewing claims of prisoners that restrictions placed 
on their confinement violate the inmates' constitutional rights. In Turnery. Safley , 482 U.S. 78 
(1987), the Court held, "[W]hen a prison regulation impinges on inmates' constitutional rights, 
the regulation is valid if it is reasonably related to legitimate penological interests." 11 Id at 89. 



11 The Court described four factors "relevant in determining the reasonableness of the 
regulation at issue": (1) whether there is "a valid rational connection between the prison 
regulation and the legitimate governmental interest put forward to justify it"; (2) whether the 
prisoners have alternative means of exercising the right at issue; (3) "the impact accommodation 

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Furthermore, this reasonable relationship standard has been applied notwithstanding that a 
restriction constrains others besides the prisoner who may themselves assert a right of access to 
the inmate. In Thornburgh v. Abbott. 490 U.S. 401 (1989), the Supreme Court applied the 
Turner reasonableness standard in upholding a prison regulation that limited incoming 
publications, notwithstanding the fact that the regulation also affected the "legitimate First 
Amendment interest," id. at 408, of the publishers who joined the suit as plaintiffs. Id. at 409, 
413, 419. The Court rejected "any attempt to forge separate standards for cases implicating the 
rights of outsiders." 12 Id at 410 n.9. The military in this unique context is entitled to 
substantially more deference than prison officials who are dealing with prisoners who enjoy 
Constitutional rights. 

Given that a variety of restrictions have been upheld in these contexts where 
constitutional rights, including the right to counsel, were affected, the procedures established for 
access by counsel to Guantanamo Bay detainees, who cannot prevail based upon the 
Constitution, easily pass muster. 



of the asserted constitutional right will have on guards and other inmates, and on the allocation of 
prison resources generally; and (4) "the absence of ready alternatives," Le., alternatives that 
"fully accommodate[] the prisoner's rights at de minimis cost to valid penological interests." Id. 
at 89-91 (internal quotation marks omitted). 

12 Thus, the reasonableness standard has been applied to reject an attorney's claim that 
restrictions on a prisoners' unmonitored telephone calls violated the attorney's Fifth Amendment 
due process right to communicate with a client for purposes of practicing law and accessing the 
courts. See Massev v. Wheeler , 221 F.3d 1030, 1036 (7th Cir. 2000). And it has also been 
applied to uphold restrictions on family visits, despite disruption of family relationships. See 
Overton v. Bazzetta , 539 U.S. 126, 133-36 (2003), reversing Bazzetta v. McGinnis , 286 F.3d 
311, 319 (6th Cir. 2002) (noting showing of disruption of family relationships). 

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As explained in more detail in the Declaration of the Acting Commander, Joint Task 
Force, Guantanamo Bay, Cuba, permitting counsel to have unmonitored and unconstrained 
access to a detained enemy combatant would threaten the government's compelling national 
security interests in several ways. Such access would enable detained enemy combatants to pass 
sensitive information about military detention facilities, the security at such facilities, or other 
military operations, including specific circumstances of capture to other terrorists through 
unwitting intermediary attorneys — something that members (and presumably supporters) of 
terrorist organizations are trained to do. See Al Qaeda Training Manual, available at 
www.usdoj.gov/ag/trainingmanual.htm. Indeed, many of the detainees at Guantanamo Bay are in 
possession of vital and highly classified information, the disclosure of which could result in 
immediate and substantial harm to national security. See Exh. B, ]f 9. Even if an attorney is not 
used as an intermediary, unmonitored access could result in the attorney having information that 
the government considered uniquely classified and dangerous, such as, for example, the identity 
of a military captor, that could be improperly disclosed merely because the government did not 
have an opportunity to inform the attorney that the information is classified. See Snepp v. United 
States , 444 U.S. 507, 509 n.3 ("The Government has a compelling interest in protecting both the 
secrecy of information important to our national security and the appearance of confidentiality so 
essential to the effective operation of our foreign intelligence service") 

Unmonitored access also creates a risk that attorneys may disclose — perhaps even 
unknowingly — sensitive and classified information to detainees, who could then pass the 
information on to other detainees as well as to terrorists outside of United States custody. See 



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Exh. B, Tj 10 ("Many of these detainees have received extensive training in how to pass coded 
messages in furtherance of their terrorist operations through unwitting counsel and others."). 

To prevent the unregulated flow of sensitive information, the access procedures impose 
reasonable monitoring requirements on several categories of attorney-detainee communications 
that protect the government's national security interest without significantly compromising the 
attorney-detainee relationship. See Exh. B, ]fl| 8, 12. As a threshold matter, any authorization for 
individualized monitoring is based on a list of factors. Exh. A, § IV.D. The procedures, 
therefore, avoid arbitrary application of the monitoring provisions and ensure that monitoring 
will only occur in those attorney-detainee communications where there is a potential for 
disclosure of sensitive information. 13 See Exh. B, ]} 12. If monitoring is ordered, the access 
procedures restrict monitoring only to a "privilege team," a team of DoD attorneys, intelligence 
and law enforcement personnel, and translators "who have not taken part in, and, in the future, 
will not take part in, any court proceedings concerning the detainee." Exh. A, § II.D. This 
screening requirement ensures that no person who is privy to communications between detainees 
and their counsel will use that information in any judicial proceeding that could adversely affect 
the detainees' legal status. Cf Weatherford v. Bursev. 429 U.S. 545, 554-59 (1977) (holding that 
the constitutional right to counsel in a criminal case is violated only if intercepted 



13 Furthermore, these procedures are consistent with existing federal regulations regarding 
the monitoring of communications between prison inmates and their counsel. See 28 C.F.R. § 
501.3(d) ("In any case where the Attorney General specifically so orders, based on information 
from the head of a federal law enforcement or intelligence agency that reasonable suspicion 
exists to believe that a particular inmate may use communications with attorneys or their agents 
to further or facilitate acts of terrorism, the Director, Bureau of Prisons, shall . . . provide 
appropriate procedures for the monitoring or review of communications between that inmate and 
attorneys . . . ."). 

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communications are somehow used against the defendant). For this reason, any argument by 
petitioners that they will be harmed by the monitoring or chilled in their ability to consult with 
their attorneys is unreasonable. Furthermore, any alternative to such monitoring would 
essentially result in the government abdicating its serious responsibilities to safeguard classified 
information, as well as to act on incoming information concerning likely threats to national 
security, to a private attorney. See Exh. B, ]fl| 8, 12. 

Finally, the requirement that counsel sign an acknowledgment that he or she will comply 
with the procedures for access to detainees at Guantanamo Bay is also reasonable. Exh. A., §§ 
in.B., XII. The acknowledgment serves as a record of counsel subject to the procedures and 
deflects any confusion as to the responsibilities of counsel or attempts by counsel to profess 
ignorance concerning a requirement, including with respect to responsibilities for handling of 
classified information. At the same time, however, the acknowledgment does not force counsel 
to agree that the access procedures are legally permissible and makes clear that a challenge to the 
procedures is not foreclosed through signing the acknowledgment. Given the large number of 
cases, at least 14, brought on behalf of almost 60 Guantanamo Bay detainees, pending before 
eight judges of the Court, the acknowledgment serves to provide some uniformity as to the 
conduct of counsel, instead of having various counsel treated differently based on different 
rulings from judges. 

The access procedures are reasonable. 



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CONCLUSION 

For the foregoing reasons, petitioners have no constitutional or other right of access to 
counsel, and, in any event, counsel may have access to petitioners in accordance with reasonable 
procedures that accommodate attorney-detainee communications while protecting government 
interests. The petition for a writ of habeas corpus based on any right of access or the lack of 
access, or any other basis, 14 must be rejected. 



14 Because the Court directed briefing primarily on the issue of access to counsel, 
respondents have not undertaken full briefing of all issues potentially raised in this case, and we 
reserve the right to submit such briefing, as appropriate, including on the issues of the proper 
respondent to a habeas action brought on behalf of a Guantanamo detainee and whether this 
Court is the proper forum to entertain a habeas action against that respondent. Indeed, the access 
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. 
Respondent would respond to any such amended petition at an appropriate juncture. We address 
briefly here, however, petitioners' Alien Tort Statute (ATS), 28 U.S.C. § 1350, and 
Administrative Procedure Act (APA), 5 U.S.C. § 702, claims. As the Court held in its previous 
opinion in this case, Rasul v. Bush, 215 F. Supp. 2d 55, 62-64 & n.l 1 (D.D.C. 2002), a habeas 
action couched as a claim under the ATS cannot succeed. The ATS does not provide a waiver of 
sovereign immunity. See Koohi v. United States . 976 F.2d 1328, 1332 n. 4 (9th Cir. 1992); 
Industria Panificadora. S.A.. et al.. v. United States . 957 F.2d 886, 887 (D.C. Cir. 1992); Goldstar 
S.A. v. United States. 967 F.2d 965 (4th Cir. 1992); Biergu v. Ashcroft . 259 F .Supp. 2d 342, 354 
(D. N.J. 2003) (stating that "all courts that have addressed the issue agree that the [ATS] does not 
itself waive the sovereign immunity of the United States") (citations omitted). Therefore, the 
Court is without jurisdiction to hear ATS claims against the federal government or agents of the 
federal government. 

Even assuming, however, that the Court has jurisdiction to hear an ATS claim against the 
federal government under the sovereign immunity waiver provision of the APA, see 
Sanchez-Espinoza v. Reagan . 770 F.2d 202, 707 (D.C. Cir. 1985) (stating in dicta that the APA's 
waiver of sovereign immunity, 5 U.S.C. § 702, "is arguably available" for ATS claims against 
federal officials for "nonmonetary relief), the APA's sovereign immunity waiver is limited to 
claims against an "agency or an officer or employee thereof." The APA specifically excludes 
from its definition of an agency "military authority exercised in the field in the time of war or in 
occupied territory." 5 U.S.C. § 701(b)(l)(6). Because petitioners admit that they were captured 
in areas where the United States was engaged in armed hostilities, see Amended Complaint ]} 16, 
they cannot invoke the APA's waiver of sovereign immunity as basis for their ATS claims. 

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Dated: July 30, 2004 Respectfully submitted, 

PETER D. KEISLER 

Assistant Attorney General 

KENNETH L. WAFNSTEiN 

Interim United States Attorney 

THOMAS R. LEE 

Deputy Assistant Attorney General 

DAVID B. SALMONS 

Assistant to the Solicitor General 

DOUGLAS N. LETTER 
Terrorism Litigation Counsel 

ROBERT D. OKUN 

D.C.Bar No. 457-078 

Chief, Special Proceedings Section 

555 Fourth Street, N.W. 

Room 10-435 

Washington, D.C. 20530 

(202)514-7280 



(Petitioners' APA claim (Third Claim) fails for this same reason.) 

In addition, the Supreme Court's recent decision in Sosa v. Alavarez-Machain severely 
restricts the types of claims that can be brought under the ATS. 124 S. Ct. 2739, 2754 (2004) 
(holding that the jurisdictional grant of the ATS enables federal courts to hear "claims in a very 
limited category defined by the law of nations and recognized at common law"). Of particular 
relevance to this case, the Court held that the ICCPR as well as other aspirational declarations 
like the ADRDM and the ACHR, which do "not of their own force impose obligations as a 
matter of international law," cannot form the basis for ATS suits. Id at 2767 (holding that these 
agreements have "little utility under the standard set out in this opinion"). Consequently, 
petitioners cannot rely on these provisions to state a claim for violations of customary 
international law under the ATS. 

-31- 



Case 1 :05-cv-01458-UNA-AK Document 29-2 Filed 10/26/2006 Page 33 of 43 



/s/ Terry M. Henry 



JOSEPH H. HUNT (DC. Bar No. 431134) 

VINCENT M. GARVEY (DC. Bar No. 127191) 

TERRY M. HENRY 

ALAN S. MODLINGER 

ANDREW I. WARDEN 

Attorneys 

United States Department of Justice 

Civil Division, Federal Programs Branch 

20 Massachusetts Ave., N.W. Room 7144 

Washington, DC 20530 

Tel: (202)514-4107 

Fax: (202)616-8470 



Attorneys for Respondents 



-32- 



Case 1 :05-cv-01458-UNA-AK Document 29-2 Filed 10/26/2006 Page 34 of 43 



EXHIBIT A 



Case1:05-cv-01458-UNA-AK Document 29-2 Filed 10/26/2006 Page 35 of 43 



PROCEDURES FOR COUNSEL ACCESS TO DETAINEES 
AT THE US NAVAL BASE IN GUANTANAMO BAY, CUBA 



I. Applicability 

The following procedures shall govern access to all detainees in the control of the 
Department of Defense (DoD) at the US Naval Base in Guantanamo Bay, Cuba by counsel for 
purposes of habeas corpus or other litigation in federal court. 

These procedures do not apply to counsel who are retained solely to assist in the defense 
of a detainee whom the President has determined to be subject to trial by military commission. 
Access by that counsel is covered by the Procedures for Monitoring Communications Between 
Detainees Subject to Trial by Military Commission and their Defense Counsel Pursuant to 
Military Commission Order No. 3. 



II. Definitions 

A. Communications : All forms of communication between counsel and a detainee, including 
oral, written, electronic, or by any other means. 

B. Counsel : An attorney who is employed or retained by or on behalf of a detainee for purposes 
of representing the detainee in habeas corpus or other litigation in federal court in the United 
States and who is admitted, either generally or pro hac vice, in the jurisdiction where the habeas 
petition or other litigation is pending. Unless otherwise stated, "counsel" also includes co- 
counsel, interpreters, translators, paralegals, investigators and all other personnel or support staff 
employed or engaged to assist in the litigation. Neither the references herein to "counsel," nor 
any other part of these procedures reflect any determination about, or an acknowledgement of, an 
attorney-detainee relationship between counsel and the detainee. 

C. Detainee : An individual detained by DoD as an enemy combatant at U.S. Naval Base, 
Guantanamo Bay, Cuba. 

D. Privilege Team : A team comprised of one or more DoD attorneys and one or more 
intelligence or law enforcement personnel who have not taken part in, and, in the future, will not 
take part in, any court, military commission or combatant status tribunal proceedings concerning 
the detainee. If required, the privilege team may include interpreters/translators, provided that 
such personnel meet these same criteria. 



Case1:05-cv-01458-UNA-AK Document 29-2 Filed 10/26/2006 Page 36 of 43 

III. Requirements for Access to and Communication with Detainees 

A. Security Clearance : 

1 . Counsel must hold a valid current United States security clearance at the Secret level 
or higher, or its equivalent (as determined by appropriate DoD intelligence 
personnel). 

2. Counsel who possess a valid security clearance shall provide, in writing, the date of 
their background investigation, the date such clearance was granted, the level of the 
clearance, and the agency who granted the clearance. Access will be granted only 
after DoD verification of the security clearance. 

3. Counsel who does not currently possess a Secret clearance will be required to submit 
to a background investigation and to pay any actual costs associated with the 
processing of the same. 

B. Acknowledgement of and Compliance with Access Procedures 

1 . Before being granted access to the detainee, counsel will receive a copy of these 
procedures. To have access to the detainee, counsel must agree to comply fully with 
these procedures and must sign an affirmation acknowledging his/her agreement to 
comply with them. 

2. This affirmation will not be considered an acknowledgement by counsel that the 
procedures are legally permissible. Even if counsel elects to challenge these 
procedures, counsel may not knowingly disobey an obligation imposed by these 
procedures. 

3. The DoD expects that counsel, counsel's staff, and anyone acting on the behalf of the 
attorney will fully abide by the requirements of this document. The attorney is 
required to provide the DoD with signed affirmations from interpreters, translators, 
paralegals, investigators and all other personnel or support staff employed or engaged 
to assist in the litigation, prior to those individuals being utilized by the attorney. 

4. Should counsel fail to comply with the procedures set forth in this document, access 
to or communication with the detainee will not be permitted. 

C. Verification of Representation 

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. Furthermore, the counsel must provide 
sufficient details regarding the circumstances of his/her retention to demonstrate the 



Case1:05-cv-01458-UNA-AK Document 29-2 Filed 10/26/2006 Page 37 of 43 



counsel's authority or standing to bring a habeas or other federal court action on the 
detainee's behalf. 

2. 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. 

3. If the counsel withdraws from representation of the detainee or if the representation is 
otherwise terminated, counsel is required to inform DoD immediately of that change 
in circumstances. 

4. Counsel must provide DoD with a signed representation stating that (a) to the best of 
counsel's knowledge after reasonable inquiry, the source of funds to pay counsel any 
fees or reimbursement of expenses are not funded directly or indirectly by persons or 
entities the counsel believes are connected to terrorism or the product of terrorist 
activities, including "Specially Designated Global Terrorists," identified pursuant to 
Exec. Order No. 13,224, 66 Fed. Reg. 49,079 (Sept. 23, 2001) or Exec. Order No. 
12,947, 60 Fed. Reg. 5079 (Jan. 23, 1995), and (b) counsel has complied with ABA 
Model Rule 1.8(f). 

D. Logistics of Counsel Visits 

1 . Counsel shall submit to the Commander or Acting Commander, JTF-Guantanamo 
(hereinafter Commander), any request to meet with a detainee. This request shall 
specify date(s) of availability for the meeting, the desired duration of the meeting and 
the language that will be utilized during the meeting with the detainee. Reasonable 
efforts will be made to accommodate the counsel's request regarding the scheduling 
of a meeting. Once the request has been approved, DoD will contact counsel with 
the date and duration of the meeting. 

2. Legal visits shall take place in a room designated by JTF-Guantanamo. No more than 
one attorney and one interpreter/translator shall visit with a detainee at one time, 
unless approved in advance by the Commander, JTF-Guantanamo. 

3. Due to the mission and location of the US Naval Base at Guantanamo Bay, Cuba, 
certain logistical details will need to be coordinated by counsel prior to arrival. This 
includes arrangements for travel and lodging. Specific information regarding these 
issues will be provided by JTF-Guantanamo. 

IV. Decision to Monitor Counsel Visits And Communications 

A. When appropriate, DoD will monitor communications between the detainee and counsel to 
protect U.S. national security interests without compromising attorney-detainee privileged 
communications. Communications solely between counsel and/or translators/interpreters 
will not be monitored. 



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B. Only the Commander, JTF-GTMO may approve monitoring communications pursuant to 
these procedures. 

C. Monitoring shall only be approved following an individualized assessment of the national 
security implications of unmonitored communications between a detainee and his counsel or 
agents. 

D. Prior to ordering monitoring of the attorney-detainee communications, the approval authority 
must conclude that it is reasonably necessary to protect against the disclosure of information 
that reasonably could be expected to result in immediate and substantial harm to the national 
security, including communications regarding: 

1 . The facilitation of terrorist operations or future terrorist acts; 

2. Military plans, weapons systems, or operations; 

3. Foreign government information; 

4. Foreign relations or foreign activities of the United States, including confidential 
sources; 

5. Intelligence activities (including special activities), intelligence sources or methods, 
or cryptology; 

6. Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans 
or protection services relating to national security, which includes defense against 
transnational terrorism; 

7. Matters that are classified above the clearance level of the counsel. 

E. The Commander's written determination will remain valid, unless otherwise noted in the 
determination, for all subsequent communications between a given detainee and his counsel, 
unless and until it is rescinded by the Commander, JTF-Guantanamo or higher authority. 

F. To ensure that any attorney-detainee privileged communications are not compromised, 
monitoring will be conducted by a DoD privilege team. Except as provided herein, the 
privilege team shall not disseminate information derived from monitored communications. 



V. Monitoring of Counsel Visits And Communications 

A. When authorized under these procedures, the privilege team will monitor oral 

communications in real time between counsel and the detainee during any meetings. 



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1 . These communications will be recorded in their entirety by audio and/or video 
recording devices. 

2. Video recordings may be retained by JTF-Guantanamo — notwithstanding the 
prohibition against non-privilege team members having access to records of 
monitored conversations — provided that the recordings do not include audio. 

3. Audio recordings may be retained by JTF-Guantanamo only as provided for herein. 

B. The privilege team may terminate the meeting immediately if, at any time, the team 
determines that the detainee or counsel are: 

1 . Attempting to defeat or frustrate the monitoring of communications through the use 
of low-volume conversation, codes or discussions in a language other than previously 
agreed upon; or 

2. Conveying information in furtherance of terrorist or other criminal operations or that 
reasonably could be expected to result in immediate and substantial harm to the 
national security, as determined by the Commander, JTF-Guantanamo under these 
procedures. 

C. To the extent the detainee divulges information to counsel that the privilege team identifies as 
classified, the privilege team may immediately terminate the meeting if: 

1 . Any discussion of such classified information is outside counsel' s pre-cleared 
classification level, or is not related to counsel's representation of the detainee. 

2. Counsel discloses any classified information to the detainee (other than information 
that the counsel obtained from the detainee), or if counsel discloses to the detainee 
that the Government has classified any information at any particular classification 
level. 

D. The privilege team may monitor all written materials brought into or out of the meeting by 
counsel or counsel's staff, including notes, drawings or other writings created by counsel and/or 
the detainee during or prior to meetings to determine whether any such communications convey 
information that reasonably could be expected to result in immediate and substantial harm to the 
national security, as determined by the Commander, JTF-Guantanamo under these procedures. 

E. The privilege team may also monitor mail between the counsel and the detainee to determine 
whether any monitored communications convey information that reasonably could be expected 
to result in immediate and substantial harm to the national security, as determined by the 
Commander, JTF-Guantanamo under these procedures. 



Case 1 :05-cv-01458-UNA-AK Document 29-2 Filed 10/26/2006 Page 40 of 43 



VI. Classification Review of Legal Mail 

A. In order to ensure the proper handling of classified information, the privilege team may 
review mail between counsel and the detainee to determine its appropriate security 
classification. 

B. The cover sheet or envelope of any such mail shall include the annotation "Attorney- 
Detainee materials." 

C. After analysis and approval, if appropriate, the detainee's incoming legal mail will be sealed 
and forwarded to the appropriate JTF-Guantanamo staff section for delivery to the detainee, 
and the detainee's outgoing legal mail will be sealed and forwarded to the detainee's counsel. 

D. The privilege team will forward the detainee's legal mail after a review and analysis period 
not to exceed: 

a. Five (5) business days for legal mail that is written in the English language; 

b. Ten (10) business days for any legal mail that includes writing in any language other 
than English, to allow for translation; 

c. Thirty (30) business days for any legal mail where the privilege team has reason to 
believe that a code was used, to allow for further analysis. 

E. Legal mail may be retained by JTF-Guantanamo only as provided for herein. 



VII. Classification Review of Materials Brought Into or Out of the Meeting by Counsel 

A. In order to ensure the proper handling of classified information, the privilege team may 
review all written materials brought into or out of the meeting by counsel or counsel's staff, 
including notes, drawings or other writings created by counsel and/or the detainee during or 
prior to meetings to determine their appropriate security classification. 

B. After review by the privilege team, counsel may provide the detainee with court papers or 
other legal or related documents pertaining to his case, provided they do not contain any 
classified information. 

C. Security personnel will directly receive and distribute all materials passed between counsel 
and the detainee during their meeting. 

D. Copies of any documents counsel desires to leave with the detainee following the meeting 
must be provided to the Commander, JTF-Guantanamo at least three business days in 
advance. Counsel shall annotate on the cover sheet or forwarding envelope the words 
"Attorney-Detainee Documents." 



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E. These materials may be retained by JTF-Guantanamo only as provided for herein. 



VIII. Telephonic Access to Detainee 

A. Requests for telephonic access to the detainee by counsel or other persons will not normally 
be approved. Such requests may be considered on a case-by-case basis due to special 
circumstances and must be submitted to Commander, JTF-Guantanamo. 

B. Any telephonic access will be subject to appropriate security procedures, including 
contemporaneous monitoring and recording by the privilege team, under the same conditions 
as in-person counsel visits. 



IX. Retention of Monitored Communication Materials 

A. The privilege team will retain custody of any monitored communications that conveys 

information that reasonably could be expected to result in immediate and substantial harm to 
the national security, as determined by the Commander, JTF-Guantanamo under these 
procedures. 



B 



. No copies of any other portions of monitored communications will be retained. 



X. Disclosure of Monitored Communications 

A. No information derived from monitored communications will be disclosed outside the 
privilege team until after the privilege team has reviewed it for security and intelligence 
purposes. 

B. If the privilege team determines that monitored communications convey information that 
reasonably could be expected to result in immediate and substantial harm to the national 
security, as determined by the Commander, JTF-Guantanamo under these procedures, it will 
promptly report that information to the Commander, JTF-Guantanamo. If Commander, JTF- 
Guantanamo concurs in that assessment, he may disseminate the relevant portions of the 
monitored communications to law enforcement, military and intelligence officials as 
appropriate. 

C. If, at any time, the Commander, JTF-Guantanamo determines that monitored 
communications relate to imminent acts of violence, the contents of those communications 
may be disclosed immediately to law enforcement, military and intelligence officials. 

D. Monitored communications will not be disclosed to any Government personnel involved in 
court, military commission or enemy combatant status proceedings involving the detainee. 



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XI. Counsel's Handling and Dissemination of Information from the Detainee 

a. Counsel may disseminate the unclassified contents of the detainee's communications 
for the purpose of preparing for or conducting litigation involving the detainee. 

b. Counsel may not divulge classified information provided by the detainee or related to 
his case to anyone except United States government personnel with the requisite 
security clearance and need to know, using a secure means of communication. As 
soon as possible after reviewing monitored communications or conducting 
classification review of materials, the DoD privilege team will advise counsel of the 
classification levels of any classified information disclosed during the 
communication. All classified material must be handled, transported and stored in a 
secure manner in accordance with US government requirements for handling, 
transporting and storing such information. Any information not subject to 
classification review by the privilege team, including oral communications with the 
detainee, must be treated as classified information unless otherwise determined by the 
privilege team. 



XII. JTF-Guantanamo Security Procedures 

a. Counsel and translators/interpreters shall comply with the following security 
procedures and force protection safeguards applicable to the US Naval Base in 
Guantanamo Bay, Cuba, JTF-Guantanamo and the personnel assigned to or visiting 
these locations, as well as any supplemental procedures implemented by JTF- 
Guantanamo personnel. 

b. Contraband is not permitted in JTF-Guantanamo and all visitors are subject to search 
upon arrival and departure. Examples of contraband include, but are not limited to, 
weapons, chemicals, drugs, and materials that may be used in an escape attempt. 
Contraband also includes money, stamps, cigarettes, writing instruments, etc. No 
items of any kind may be provided to the detainee without the advance approval of 
the Commander, JTF-Guantanamo. 

c. Photography or recording of any type is prohibited without the prior approval of the 
Commander, JTF-Guantanamo. No electronic communication devices are permitted. 
All recording devices, cameras, pagers, cellular phones, PDAs, laptops and related 
equipment are prohibited in or near JTF-Guantanamo. Should any of these devices be 
inadvertently taken into a prohibited area, the device must be surrendered to JTF- 
Guantanamo staff and purged of all information. 

d. Upon arrival at JTF-Guantanamo, security personnel will perform a contraband 
inspection of counsel and translators/interpreters using metal detectors as well as a 
physical inspection of counsel's bags and briefcases and, if determined necessary, a 
physical inspection of his/her person. 



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Following the meeting, counsel and translators/interpreters will again be inspected 
using a metal detector and, if deemed necessary, by physical inspection of their 
persons. Counsel will then meet with the privilege team to discuss the classification 
levels of information disclosed during the meeting and to turn over any written 
materials created during the meeting for screening. 



Agreement to Comply with Access Procedures 

The undersigned hereby acknowledges receipt of these procedures and agrees, by his/her 
signature, to comply fully with all such procedures. This agreement will not be considered an 
acknowledgement by the counsel that the procedures are legally permissible. This signed 
acknowledgement will be provided at least five business days prior to the first scheduled meeting 
or communication with the detainee. The Commander, JTF-Guantanamo will maintain the 
original of the signed acknowledgement and agreement. 

Acknowledged and Agreed: 



Signature Date 



Print Name Position 



Business Address: 



Business Phone: 
Business Fax: 
E-mail Address: 

Detainee: