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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CASE NO. 1:04-CV-01137 (RMC)
MOAZZAM BEGG, et al.
GEORGE W. BUSH, et al.
MOTION FOR AN ORDER REQUIRING PARTIES TO ABIDE BY PROPOSED
PROCEDURES FOR COUNSEL ACCESS AND REQUEST FOR EXPEDITION
Petitioners Moazzam Begg ("Petitioner Begg") and Feroz Ali Abbasi ("Petitioner Abbasi")
(collectively "Detained Petitioners"), respectfully move for an order requiring the parties to abide
by the proposed "Procedures for Counsel Access," Exhibit A. The grounds for said motion are
contained in the accompanying memorandum of points and authorities.
Lawrence S. Lustberg
Gitanjali S. Gutierrez
Gibbons, Del Deo, Dolan, Griffin ger
& Vecchione, P.C.
One Riverfront Plaza
Newark, New Jersey 07102
(973) 596-4493 (tel)
(973) 639-6243 (fax)
Counsel for Petitioners
D.C. Bar No. 454248
Center for Constitutional
666 Broadway, 7"" Floor
New York, New York 10012
(212) 614-6464 (tel)
(212) 614-6499 (fax)
Clive Stafford- Smith
Justice In Exile
636 Baronne Street
New Orleans, Louisiana 70113
(504) 558-9867 (tel)
Counsel for Petitioner Moazzam Begg
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CENTER FOR CONSTITUTIONAL
666 Broadway, 7th Floor
New York, New York 10012
(212) 614-6464 (tel)
(212) 614-6499 (fax)
Counsel for Petitioners
Dated: October 22, 2004.
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PROCEDURES FOR COUNSEL ACCESS FOR CLIENTS
HELD AT THE US NAVAL BASE, GUANTANAMO BAY, CUBA
The following procedures shall govern the access to counsel for petitioners in this case
for purposes of habeas corpus or other litigation in federal court during the period of their
detention in the US Naval Base in Guantanamo Bay, Cuba.
These procedures do not apply to counsel who are retained solely to assist in the defense
of either individual in a trial by military commission. Access by such defense counsel is covered
by the Procedures for Monitoring Communications Between Clients Subject to Trial by Military
Commission and their Defense Counsel Pursuant to Military Commission Order No. 3.
A. Communications : All forms of communication between counsel and a chent,
including oral, written, or by any other means.
B. Counsel : Unless otherwise stated, an attorney who is employed or retained by or
on behalf of a client for purposes of representing him in habeas corpus cr other
htigation 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
htigation 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.
C. Privilege Team : A team compromised of one or more Department of Defense
("DoD") attorneys and one or more intelligence or law enforcement personnel
who have not taken part in, and, in the future, will not take part in, any domestic
or foreign court or mihtary proceeding involving the chent as a party, witness, or
in any other capacity.
D. Legal Mail : Legal mail is defined as letters written between counsel and a chent
that are related to the counsel's representation of the client, as well as privileged
documents and publicly- filed legal documents relating to that representation.
ni. Requirements for Written, Telephonic, or Personal Access to and Communications
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
2. Counsel who possess a vahd 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
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clearance. Access will be granted only after DoD verification of the
3. Counsel who does not currently possess a Secret clearance will be
required to submit an application for such clearance to the Department of
Justice Court Security Office.
B. Acknowledgement of and Compliance with Access Procedures
1. Before being granted access to the client, counsel will receive a copy of
these procedures. To have access to the client, 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 acknowledgment by counsel
that the procedures are legally permissible. Even if counsel elects to
further challenge these procedures, counsel may not knowingly disobey an
obligation imposed by the procedures.
3. The DoD expects that counsel, counsel's staff, and anyone acting on the
instruction of the attorney will fully abide by the requirements of this
document. Interpreters, translators, paralegals, investigators and all other
personnel or support staff employed or engaged to assist in the litigation
must sign an affirmation acknowledging his/her agreement to comply with
these procedures prior to meeting or corresponding with the client.
4. Should counsel for the petitioner fail to comply with the procedures set
forth in this order, DoD may deny access to or communication with the
client and seek further relief in this Court.
5. Counsel for the government assigned to this case shall agree to comply
fully with these procedures and must sign an affirmation acknowledging
his/her agreement to comply with them.
6. Should counsel for the government fail to comply with the procedures set
forth in this order, he/she shall notify the Court and counsel for the chent
promptly and seek to remedy the violation.
C. Verification of Representation
1. Prior to being permitted access to the client, counsel must provide DoD
with a Notification of Representation. This Notification must include the
counsel's hcensing information, business and email addresses and phone
number, as weU as the name of the client being represented by the counsel.
Furthermore, 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 client's
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2. After meeting with the client, counsel must provide the DoD with an
Acknowledgement of Representation. This document shall be provided by
DoD and shall be signed and submitted as soon as is practical.
3. If the counsel withdraws from representation of the client or if the
representation is otherwise terminated, counsel is required to inform DoD
immediately of that change of 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 Department of Justice ("DOJ") any request to
meet with a client. This request shall specify the date(s) of availability for
the meeting, the desired duration of the meeting and the language that will
be utihzed during the meeting with the client. Reasonable efforts will be
made to accommodate the counsel's request regarding the scheduling of a
meeting. Once the request has been approved, DOJ will contact counsel
with the date and duratbn of the meeting.
2. Legal visits shall take place in a room designated by Joint Task Force -
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 DOJ.
IV. Procedures for Correspondence Between Counsel and Client
A. Mail Sent by Counsel to a Client ("Incoming Mail")
1. Counsel shall send incoming legal mail directly to the appropriate JTF-
Guantanamo staff section for delivery to the client. The outside of the
envelop or mailer for the correspondence shall be labeled clearly with the
following annotation: "Attorney- Client Materials - for mail delivery to
client, [name]." No staples, paper clips, or any non-paper items shall be
included with the documents.
2. Upon receiving the Attorney- Client Materials, personnel at the US Naval
Base in Guantanamo will not open the envelop/mailer. Within two (2)
business days of receipt of the communication, personnel at the US Naval
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Base will deliver the envelop/mailer to the client. If counsel desires
confirmation that the communication was delivered to a client, counsel is
responsible for providing a stamped, self-addressed envelop for that
3. Counsel may send regular, non-legal incoming mail to the client through
the United States Postal Service (maihng address: Client's Name, 160
Camp X-Ray, Washington, D.C. 20355). These nonprivileged
communications will be reviewed by mihtary personnel at Guantanamo
under the standard operating procedures for detainee non- legal mail.
4. Counsel is required to treat all written and verbal statements of a client as
classified information, unless and until the information is submitted to the
privilege team and determined to be otherwise. Accordingly, if a
counsel's correspondence contains any summary or recitation of or
reference to a communication with a client that has not been previously
determined to be unclassified, it shall be prepared, marked, transported,
and handled as classified material as required by Executive Order 12958,
DOD Regulation 5200. 1-R and AI 26, OSD Information and Security
Supplement to DOD Regulation 5200. IR.
5. Written (and verbal) communications with the clients shall not include
information relating to any ongoing or completed military, intelligence,
security, or law enforcement operations, investigations, or arrests, or the
results of such activities, by any nation or a^ncy or current pohtical
events in any country that are not reasonably related to the counsel's
representation of that chent ; or security procedures at GTMO (including
names of U.S. government personnel and the layout of camp facilities) not
reasonably related to counsel's representation. Counsel shall not discuss
with the chent information about the status of other detainees that is not
reasonably related to the counsel's representation of the chent.
B. Mail Sent by Client to Counsel ("Outgoing Mail")
1. Clients will be provided with paper to prepare oammunications to their
counsel. In the presence of mihtary personnel, the client will seal the
written communication into an envelop and it will be annotated as
"Attorney- Client Materials - for mail delivery to counsel." Each envelop
shall also be labeled with the name of the chent and the counsel.
2. Mihtary personnel will coUect the outgoing legal mail within one (1)
business days of being notified by the client that the communication is
prepared for seahng and mailing.
3. After the outgoing legal mail is coUected from the client, military
personnel will seal the envelop into a large envelop/mailer marked as
"Attorney- Client Materials" and will be annotated with the name of the
client and the counsel. The envelop wiU be sealed and mailed or couriered
in the manner required for classified materials. Within two (2) business
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days of receipt from the client, the communication will be mailed to
counsel for the client in c/o the DOJ Court Security Office for delivery to
the habeas counsel secure work site.
4. Clients are also permitted to send written communications to counsel
through the United States Postal Service. These communications shall not
be marked or treated as "Attorney- Client Materials' and will be reviewed
by military personnel at Guantanamo under the standard operating
procedures for client non- legal mail. Any mail sent through this process
that is marked "Attorney- Client Materials" will be returned unopened to
5. Communications from clients are treated as classified, unless and until
determined to be otherwise by the privilege team.
V. Materials Brought Into a Client Meeting by Counsel
A. Counsel shall only bring legal mail, as defined in II.D., into any meeting with a
client unless he/she has received prior approval from the Commander, JTF-
B. As stated above, written and verbal communications with the clients shall not
include information relating to any ongoing or completed military, inteUigence,
security, or law enforcement operations, investigations, or arrests, or the results of
such activities, by any nation or agency or current political events in any country
that are not reasonably related to the counsel's representation of that chent; or
security procedures at GTMO (including names of U.S. government personnel
and the layout of camp facilities) not reasonably related to counsel's
representation. Counsel shall not discuss with the client information about the
status of other detainees that is not reasonably related to the counsel's
representation of the chent.
VI. Materials Brought Out of a Client Meeting by Counsel
A. Upon the completion of each meeting with a client or during any break in a
meeting session, counsel will give the notes or documents used or produced
during the meting to a designated courier at Guantanamo. These materials will be
sealed in the presence of counsel and handled as classified materials as required
by Executive Order 12958, DOD Regulation 5200. 1-R and AI 26, OSD
Information Security Supplement to DOD Regulations 5200. IR.
B. Upon the completion of counsel's visit to Guantanamo, the notes or documents
used or produced during the visit will be sealed in the presence of counsel and
will be mailed or couriered for the counsel by government personnel for storage at
counsel's secure work- site under the procedures for handhng classified material.
C. Correspondence or messages from a client to individuals other than his counsel
shall not be handled through this process. If a chent provides these
communications to his counsel during a visit, the counsel shall give those
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communications to military personnel at Guantanamo for processing under the
standard operating procedures for detainee non- legal mail.
Vn. Classification Determination of Client Communications
A. Counsel for the government shall make an ex parte submission under seal
informing this Court of its instructions to the privilege team concerning the
procedures for receiving, conducting, and communicating classification
determinations of privileged attorney- client communications or information
derived from these communications. Such instructions are subject to judicial
modification to ensure that the attorney- chent privilege is adequately protected.
B. No information derived from these submissions will be disclosed outside the
privilege team pursuant to these procedures until after the privilege team has
reviewed it for security and intelligence purposes. These communications will
not be disclosed to any Government personnel involved in any domestic or
foreign court or mihtary proceeding involving the client as a party, witness, or in
any other capacity.
C. Counsel may submit information learned from the client to the privilege team for
a determination of its appropriate security classification, c/o the Department of
Justice, Litigation Security Division, 20 Massachusetts Avenue, NW, Suite 5300,
Washington, D.C. 20529-0001. The outside of the envelop or mailer shall be
clearly labeled "Attorney-Client Materials - for classification review." Each
envelop/mailer shall also be labeled with the name of the client and the counsel
and shall indicate the number of pages contained within the document. Each page
of the document shall be marked "Attorney- Client Materials" and "Classified."
D. The submission shall be prepared, marked, transported, and handled as classified
material as required by Executive Order 12958, DOD Regulation 5200. 1-R and
AI 26, OSD Information Security Supplement to DOD Regulation 5200. IR.
E. The privilege team will forward its classification determination directly to counsel
after a review and analysis period not to exceed:
1. Ten (10) business days for information that is written in the English
2. Twenty (20) business days for any information that includes writing in any
language other than English, to allow for translations by the privilege
3. Thirty (30) business days for any information where the privilege team has
reason to beheve that a code was used, to allow for further analysis.
F. While conducting the classification review, tie privilege team will promptly
report to the Commander, JTF- Guantanamo information that reasonably could be
expected to result in immediate and substantial harm to the national security. In
his/her discretion, the Commander, JTF -Guantanamo may disseminate the
relevant portions of the communications to law enforcement, military, and
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intelligence officials as appropriate. Reasonable efforts will be made to notify
counsel of all disclosures outside of the privilege team prior to disseminating the
privileged communication. If, at any time, the Commander, JTF-Guantanamo
determines that the communications relate to imminent acts of violence, the
contents of the communications may be disclosed immediately to law
enforcement, military, and inteUigence officials and subsequent notice provided to
G. The privileged Attorney- Ghent Materials may retained by the privilege team only
as provided for herein.
Vin. Telephonic Access to Client
A. Requests for telephonic access to the client 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-
B. Any telephonic access by counsel will be subject to appropriate security
procedures, but shall not include contemporaneous monitoring or recording.
C. Any telephonic access by family members or others will be subject to appropriate
security procedures, including contemporaneous monitoring and recording by the
privilege team to protect national security interests.
D. The privilege team may terminate a non-counsel phone call immediately, if at any
time, the team determines that the chent or other person are:
1. Attempting to defeat or frustrate the monitoring of communications
through the use of low-volume conversations, code, 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 or
substantial harm to the national security, as determined by the
Commander, JTF-Guantanamo under these procedures.
IX. Counsel's Handling and Dissemination of Information from the Client
A. Subject to the terms of any protective order issued in this case, counsel may
disseminate the unclassified contents of the chent 's communications for purposes
reasonably related to their representation of that client.
B. All classified material must be handled, transported, and stored in a secure
manner in accordance with Executive Order 12958, DOD Regulation 5200. 1-R
and AI 26, OSD Information Security Supplement to DOD Regulation 5200. IR.
Any information not subject to classification review by the privilege team, must
be treated as classified information unless and until otherwise determined by the
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X. JTF-Guantanamo Security Procedures
A Counsel 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 and
provided to counsel in a timely manner.
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, chemical, 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 client 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, pages, 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 bag and briefcases, and, if determined
necessary, a physical inspection of his/her person.
E. Following the meeting, counsel will again be inspected, using a metal detector
and, if deemed necessary, by physical inspection of their person.