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

Case 1:05-cv-01458-UNA-AK Document 29-4 Filed 10/26/2006 Page 1 of 27 



TAB 3 



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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In re Guantanamo Detainee Cases 



Civil Action Nos. 

02-CV-0299 (CKK), 02-CV-0828 (CKK), 
02-CV-1130 (CKK), 04-CV-1135 (ESH), 
04-CV-1136 (JDB), 04-CV-1137 (RMC), 
04-CV-1142 (RJL), 04-CV-1144 (RWR), 
04-CV-1164 (RBW), 04-CV-1166 (RJL), 
04-CV-1194 (HHK), 04-CV-1227 (RBW), 
04-CV-1254 (HHK), 04-CV-1519 (JR) 



RESPONDENTS' RESPONSE TO NOVEMBER 1, 2004 ORDER SETTING DEADLINE 

FOR SUBMISSIONS IN RESPONSE TO PETITIONER'S 

MOTION FOR AN ORDER REQUIRING PARTIES TO ABIDE BY 

PROPOSED PROCEDURES FOR COUNSEL ACCESS 

Pursuant to the Court's November 1, 2004 Order offering all parties in the Guantanamo 

Bay habeas litigation the opportunity "to oppose, supplement, concur with, or otherwise 

comment on the proposed procedures set forth in the Motion for an Order Requiring Parties to 

Abide by Proposed Procedures for Counsel Access, filed on October 22, 2004 in Begg v. Bush , 

04-CV-l 137," respondents state that they are prepared to accept the "closed universe" approach 

proposed by Judge Kollar-Kotelly in her October 20, 2004, Memorandum Opinion and Order in 

Al Odah v. United States of America, et al. . Civil Action No. 02-0828-CKK (dkt. no. 117), with 

respect to all detainees other than the three detainees addressed in that Order. 1 However, 

respondents respectfully submit that the procedures proposed by counsel in Begg are in certain 

respects inconsistent with Judge Kollar-Kotelly' s proposal, and that, in other respects, they 



1 The government continues to review Judge Kollar-Kotelly' s October 20 decision with 
respect to the monitoring of the three detainees addressed in that Order, and has not decided 
whether to seek modification of that ruling or additional review. Nevertheless, as explained 
above, the government has revised its counsel access procedures as they apply to other petitioners 
in these cases consistent with Judge Kollar-Kotelly' s opinion. 



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unduly interfere with military prerogatives. Accordingly, respondents urge adoption of the 
government's "Revised Procedures For Counsel Access To Detainees At The US Naval Base In 
Guantanamo Bay, Cuba," submitted herewith. See Exhibit 1 ("Government's Revised 
Procedures"). 

The government's revised procedures are a modified version of procedures proposed in 
Begg ("Begg procedures"). Under the government's revised framework, habeas counsel and 
detainees may correspond without any intervening review by the privilege team. Petitioners' 
counsel will be required to treat all information learned from a detainee, including any oral and 
written communications with a detainee, as classified information, unless and until the 
information is submitted to the privilege team and determined to be otherwise. As explained 
below, the government's revised procedures are consistent with the approach adopted by the 
court in Al-Odah ; indeed, the procedures modify aspects of the Begg procedures that are 
inconsistent with Al-Odah . The government's revised procedures also modify aspects of the 
Begg procedures that unreasonably alter details of the current counsel access procedures that are 
more appropriately left to the discretion of the government as administrator of Guantanamo Bay 
("GTMO") or that unreasonably create unacceptable GTMO security or national security risks - 
aspects of the procedures that were unaffected by the Al-Odah decision. 2 



2 Begg counsel assert that their proposed procedures merely "memorialize temporary 
counsel access procedures currently in place" with respect to counsel's communications with 
their clients in this case. See Begg Motion at 4, 6, 16, 17-18. No such ongoing temporary 
arrangements with counsel exist in the Begg case. Due to some confusion that arose with respect 
to materials that were generated during Begg counsel's visit to GTMO, the first such visit by 
habeas counsel in these cases, the government agreed not to subject that single package of 
material to privilege team review pending a decision from Judge Kollar-Kotelly. See September 
24, 2004 Letter from Andrew Warden to Gitanjali Gutierrez (attached as Exhibit 2). The 
government, however, rejected counsel's subsequent request to adopt on an ongoing basis 

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For these reasons, as elaborated below, the Court should adopt the government's revised 

procedures and not the Begg procedures. 

ARGUMENT 

I. The Begg Procedures Do Not Comply With The Framework Adopted by Judge 

Kollar-Kotelly in Al-Odah . 

One significant reason the Begg procedures should not be adopted as proposed is that the 
procedures, though described by petitioners' counsel as consistent with those in Judge Kollar- 
Kotelly' s October 20 Opinion and Order, see Begg Motion at 5-6, 22, in fact fail to include 
important aspects of the approach chartered by Judge Kollar-Kotelly. The government's revised 
procedures, by contrast, are consistent with Judge Kollar-Kotelly' s approach. For example, one 
of the conditions Judge Kollar-Kotelly placed on counsel access was to prohibit counsel from 
sharing with the detainee any classified information learned from sources other than the 
detainee. 3 See Al-Odah Memorandum Opinion at 23. The government's procedures include this 
requirement, see Government's Revised Procedures at ]} TX.D.; the Begg procedures intentionally 
do not, see Begg Motion at 20-21 . In Al Odah , Judge Kollar-Kotelly also imposed an explicit 
requirement that petitioners' counsel disclose to the government any information learned from a 
detainee involving future events that may threaten national security or imminent violence. See 
Al-Odah Memorandum Opinion at 22. The government's proposed procedures similarly impose 



procedures that diverted from the counsel access procedures applicable to all the habeas cases. 
See id.; see also Transcript of October 13, 2004 Status Conference at 49, 1.1 1-50, 1.13 (excerpt 
attached as Exhibit 3). 

3 This aspect of Judge Kollar-Kotelly' s opinion is consistent with the proposal of the 
government and certain petitioners with respect to the proposed protective order in this case. 
See Proposed Protective Order ( Begg dkt. no. 29) ]fl| 17, 29-30; Joint Report on Protective Order 
Issues ( Begg dkt. no. 30). 

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such an obligation, see Government's Revised Procedures at ]} IX.C; the Begg procedures do 

not. 4 In Al Odah , the Court precluded counsel from sharing classified information learned from 

the detainee with anyone except, perhaps, co-counsel with security clearances in the detainee's 

case. 5 See Al-Odah Memorandum Opinion at 21, 23-24. 6 The Begg procedures do not contain 

this prohibition; indeed, Begg counsel appear to reserve the issue of whether they, without the 

consent of the government, may share information being treated as classified with counsel in 

other pending habeas cases. See Begg Motion at 20-21 . 

The inconsistency of the Begg counsel procedures with conditions imposed on counsel 

under Judge Kollar-Kotelly' s decision warrants rejection of the Begg procedures in favor of the 

government's revised procedures, which are consistent with Judge Kollar-Kotelly' s approach. 

II. The Begg Procedures Would Create Unacceptable Risks To Security at GTMO And 
National Security. 

Respondents also oppose implementation of the Begg procedures because they 

improperly or inadequately modify existing counsel access rules that are necessary to ensure 

security at GTMO and to protect against threats to national security. First, the Begg procedures 



4 While both the Begg procedures and the government's revised procedures permit the 
government to act upon any such information learned in the course of any permitted 
classification review by the government, see Begg Procedures at ]} VII.F.; Government's Revised 
Procedures at fflf VJJ.D. & E., the Begg procedures impose no affirmative obligation of disclosure 
of such information by counsel. 

5 Al-Odah petitioners have filed a motion for clarification that the October 20 
Memorandum Opinion and Order permits counsel to share information learned from a detainee 
with other cleared counsel on the case. See Al-Odah et al. v. United States of America et al., 



Civil Action No. 02-828-CKK (dkt. no. 134) (filed Nov. 3, 2004). 

6 The proposal of the government with respect to the proposed protective order in this 
case is consistent with this aspect of Judge Kollar-Kotelly' s opinion. See Proposed Protective 
Order ( Begg dkt. no. 29) ]f 29; Joint Report on Protective Order Issues ( Begg dkt. no. 30) at 5-7. 



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provide that personnel at GTMO cannot open incoming mail to detainees. See Begg Procedures 
at Tj IV.2. Such a restriction is unacceptable in light of concerns regarding the infusion of 
prohibited contraband into the secure environment at GTMO. The government's procedures, in 
contrast, permit GTMO personnel to open incoming legal mail to search the contents for 
prohibited physical contraband. However, GTMO personnel may not read or copy incoming 
legal mail as long as counsel adequately identifies the envelope or mailer as containing legal 
mail. See Government's Revised Procedures at ]} IV.A.3. These procedures adequately protect 
both the government's interest in maintaining a secure facility at GTMO and petitioners' interest 
in safeguarding the confidentiality of attorney-client communications. Consequently, the 
government's procedures, which are analogous to procedures adopted by the Bureau of Prisons, 
are reasonable and should be adopted without modification. See 28 C.F.R. § 540.18; Henthorn v. 
Swinson . 955 F.2d 351, 353-54 (5th Cir. 1992) (upholding Bureau of Prisons mail regulations 
and procedures against constitutional challenge). 

Second, in the event the privilege team, in performing a classification review requested 
by petitioners' counsel, discovers information that reasonably could be expected to result in 
immediate and substantial harm to the national security, the Begg procedures improperly require 
the privilege team to make reasonable efforts to contact habeas counsel prior to disseminating 
this information to law enforcement, military, or intelligence personnel. See Begg Procedures at 
\ VII.F. No such obligation should be imposed, however, both because the government's ability 
to protect national security should not be impaired and any communication that reasonably could 
result in future harm to the national security would not be protected by the attorney-client 
privilege. See In re Sealed Case, 754 F.2d 395, 399 (D.C. Cir. 1985) ("Communications 

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otherwise protected by the attorney-client privilege are not protected if the communications are 
made in furtherance of a crime, fraud, or other misconduct."); Al-Odah Memorandum Opinion at 
22-23. The government's revised procedures, which do not contain a counsel notification 
requirement, should be upheld. See Government's Revised Procedures at fflf VILE. & F. 
Third, both the government's revised counsel access procedures, as well as those 
proposed by Begg counsel, properly include a prohibition on the sharing with detainees of 
information relating to current events and security matters not related to counsel's representation, 
including current political events; security arrangements; status of other detainees; and 
information relating to ongoing or completed military, intelligence, security, or law enforcement 
operations, investigations, or arrests, or the results of such activities. See Begg Procedures at ]} 
IV.A.5.; Government's Revised Procedures at fflf IV.A.7.; V.B. The purpose of such a constraint 
is to preserve security and stability among the detainee population, the Guantanamo Bay facility, 
and those associated with the facility, without intruding upon information sharing that may be 
needed for purposes of appropriate representation of detainees in these cases. 7 



7 As explained in the Declaration of Brigadier General Jay Hood, Commander, Joint Task 
Force Guantanamo Bay, Cuba, attached as Exhibit 4, permitting such restricted information into 
the detainee population could create risks to U.S. personnel and detainees, and could irreparably 
harm intelligence-gathering efforts. See Ex. 4 ]fl| 3-7. For example, sharing the identities of 
security personnel or information concerning security procedures could create force protection 
issues and affect good order in the facility. See id. fflf 3-6. Information concerning current 
political events or military activities could incite or cause unrest among detainees. Id fflf 3-6. 
Such information, if spread, might also be used by detainees to target other detainees for 
persecution or harm based on their nation's action. Id. Tj 6. (An obvious example would be if 
detainees were informed that forces of a certain nation were conducting activities in the area 
surrounding a shrine or other place of interest to a detainee). Restricted information, if passed to 
detainees, could also permit detainees to thwart interrogations or cause cooperating detainees to 
decline further cooperation, thereby harming the investigations or interrogations. See id. ]} 7. 
Accordingly, the communication of these types of information, to the extent not strictly necessary 
to the habeas representation, must be foreclosed. See id. ]} 8. 

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In contrast to the Begg procedures, however, the government's revised procedures should 
be adopted by the Court because they provide counsel with specific information about the scope 
of the prohibition. Because, under the government's revised procedures, the government will not 
be able to check incoming communications to detainees for such security-related information, a 
situation that obviously increases the risk of the introduction of such information to the detainee 
population, the government's revised procedures add specific examples of the types of 
information falling with the prohibition, so that counsel have a clearer understanding of what 



Information liable to lead to such harms, as explained by General Hood, would include: 

a. The status of current political or military events. This includes: the progress 
and conduct of the war in Afghanistan, Iraq and other operations conducted during 
the Global War on Terrorism, election predictions and results, international 
disputes and the opinions of foreign governments or nongovernmental 
organizations; 

b. Historical perspective on jihadist activities. This includes: discussions of the 
Afghanistan jihad, jihadist movements in other countries, the demise or progress 
of extremist and terrorist groups, the presence and activities of foreign fighters in 
Iraq; 

c. Any information or mention of the fate, whereabouts or activities of any 
leaders of al Qaida, the Egyptian Islamic Jihad and other terrorist organizations 
comprising the al Qaida Associated Movement or their associations or affiliates; 

d. Information about allegations of abuse or mistreatment made by other 
detainees (including former detainees) at Guantanamo or other facilities; 

e. Information pertaining to assignment or reassignment of present and former 
detention personnel; and 

f Information regarding any plans for release or continued detention of detainees; 
changes, upgrades or additions to detention facilities; the operation of the 
detention facility or changes or enhancements to security procedures at 
Guantanamo. 



IdH5. 



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types of information-sharing would not be appropriate. See Government's Revised Procedures at 

1flf IV.A.7.; V.B. The examples track the examples provided by General Hood. See supra note 7. 

Similarly, the government's procedures, consistent with the concerns raised by such information 

and the judgment of General Hood that its disclosure to detainees be avoided in the absence of 

"strict[] and specific[] necessity]," see Ex. 4 ]} 8, revise the caveat permitting the sharing of such 

types of information only when the information is "directly" related to the representation. The 

potential threat to safety, security, and intelligence interests from the introduction of such 

information into the detainee population warrant these revisions to and clarifications of the 

prohibition, and should not interfere with communications necessary for litigation of these 

habeas cases. 

III. The Begg Procedures Unreasonably Alter Details Of Existing Government 

Procedures Regarding Counsel Access to Detainees Held At GTMO, Details More 
Appropriately Reserved To The Judgment Of The Government Than To That Of 
Petitioners' Counsel. 

In addition to the matters described above, the Begg procedures unreasonably alter - 
frequently without any supporting explanation - many details of the government's counsel access 
procedures, details more appropriately reserved to the judgment of the government than to that of 
petitioners' counsel: 

1 . The Begg procedures modify without explanation the paragraph addressing the 
applicability of the government's counsel access procedures. Compare Begg Procedures at ]} I, 
with Government's Revised Procedures at ]} I. The government previously determined that the 
counsel access procedures should 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 



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commission. This restriction is reasonable in light of the significant differences between habeas 
litigation in federal court and military commission proceedings. Because petitioners offer no 
explanation for the changes to this paragraph, the government's revised procedures should be 
adopted in full. 

2. The Begg procedures also inexplicably remove the definition of the term 
"Detainee" from the government's existing provisions. See Begg Procedures at ]} II. In place of 
the word "detainee," the Begg procedures consistently refer to the term "client," which is not 
appropriate give that most of these cases remain next-friend petitions and many counsel have yet 
to meet their detainee and obtain consent to the representation. In contrast to the Begg 
procedures, the government's revised procedures contain a clear and concise definition of the 
terms "counsel" and "detainee" in order to provide all parties with notice of to their 
responsibilities and privileges under the procedures. See Government's Revised Procedures at ]} 
II. Additionally, the Begg Procedures modify without explanation other definitions in paragraph 
II of the government's revised counsel access procedures, including the terms "communications," 
"counsel," and "privilege team." The government's definitions are both reasonable and precise, 
thus they should be adopted by the Court without modification. 

3. The Begg procedures unreasonably limit the requirement relating to when counsel's 
staff sign an affirmation acknowledging their agreement to comply with the counsel access 
procedures. See Begg Procedures at ]} IHB.3 . In order to ensure that all staff members working 
on the GTMO cases comply with the counsel access procedures, the government's revised 
procedures provide that all staff must sign an affirmation upon utilization of those individuals by 
counsel in a fashion that implicates the counsel access procedures ( e.g. , the first time an 

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interpreter translates or transcribes information provided by a detainee). See Government's 
Revised Procedures at ]} m.B.3. This requirement ensures that counsel and support staff who 
participate in the GTMO litigation will be aware of and abide by the governing counsel access 
procedures. 

4. The government objects to the inclusion in the Begg Procedures of the requirement 
that counsel for the government must sign an affirmation acknowledging their agreement to 
comply with habeas counsel access procedures. See Begg Procedures at ffl| m.B.5-6. The 
government's "Revised Procedures For Counsel Access To Detainees At The US Naval Base In 
Guantanamo Bay, Cuba" are simply that: procedures that permit non-government counsel to 
access detainees held at GTMO for the purpose of conducting habeas litigation. With the 
exception of arranging the logistics of counsel visits, see Government's Revised Procedures at ]} 
III.D, the government's revised procedures do not implicate government counsel. Moreover, 
government counsel will not have any contact with individual detainees, nor will government 
counsel be privy to privileged communications between habeas counsel and detainees. For these 
reasons, any requirement that government counsel sign an affirmation agreeing to comply with 
the GTMO counsel access procedures is unwarranted. 8 



8 Under the government's revised procedures, only the privilege team has access to 
communications between counsel and detainees. Further, privilege team involvement is limited 
only to situations in which counsel submits information to the privilege team for a classification 
determination. See Government's Revised Procedures at ]} VII. To protect against any potential 
violations of the attorney-client privilege, the privilege team cannot be comprised of any 
personnel who have taken part in, and, in the future, will not take par in, any government 
personnel involved in court, military commission or enemy combatant status proceedings 
involving the detainee. Additionally, the privilege team is prohibited from disclosing any 
information except as permitted by the access procedures ( i.e. , in cases of discovered threats to 
national security or imminent violence, see id. at Tj VII). See id at fflf HD. & VII. 

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5. Without any explanation, the Begg Procedures improperly remove the presumption 
that no more than one attorney and one interpreter should visit with a detainee at one time, 
without advance approval by the Commander, JTF-Guantanamo. Compare Begg Procedures at ]} 
m.D.2., with Government's Revised Procedures at ]} IHD.2. As a threshold matter, the 
Commander, JTF-Guantanamo to date has approved every request from habeas counsel for 
multiple attorneys to attend a meeting with a single detainee. Nevertheless, given the limitations 
on facilities and meeting spaces at GTMO, the one attorney-one detainee presumption is 
reasonable and should be preserved. It is important that all counsel visiting GTMO are 
accommodated in a safe manner and that personnel at GTMO have discretion with respect to 
meeting facilities used for habeas counsel visits. For these reasons, the court should adopt the 
government's revised procedures with respect to the number of counsel presumptively permitted 
to meet with a single detainee. 

6. With respect to the logistics of arranging counsel visits to GTMO, the Court should 
adopt the government's revised procedures without modification based on government counsel's 
previous experience arranging visits for habeas counsel. See Government's Revised Procedures 
at Tj IU.D. The government's revised procedures provide the most efficient mechanism for 
distributing information to counsel and arranging logistical details of a visit. 

7. In contrast to the Begg procedures, the government's revised procedures contain 
more detailed labeling and document handling procedures to ensure that counsel, detainees, and 
GTMO personnel properly distinguish between legal mail and non-legal mail. See Government's 
Revised Procedures at fflf IV- VI. These procedures generally provide that GTMO personnel will 
handle all incoming and outgoing legal mail as privileged, provided the exterior of the envelope 

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or mailer is clearly annotated and sent to the appropriate address. See id Such labeling and 
mailing requirements are similar to and expand on those previously adopted in the government's 
supplemental mail procedures, and they can help prevent confusion and any inadvertent 
misrouting or mishandling of information. 

8. The Begg procedures do not provide correct addresses where privileged mail and 
documents may be sent. See Begg Procedures at fflf IV. A. 1., IV.B.3., VLB., VHC. Due to the 
government's concerns about public dissemination of this information, which is intended solely 
for legal communications between counsel and detainees, the government will provide all 
counsel in the GTMO litigation with the proper addresses at a later date. Non-legal 
communications between detainees and persons other than counsel are addressed in paragraphs 
IV.A.5. & IV.B.3. of the government's revised procedures. 

9. The Court should adopt the government's revised procedures regarding the 
mechanics of obtaining from the privilege team classification determinations regarding 
communications with a detainee. Compare Government's Revised Procedures at ]} VII, with 
Begg Procedures at ]} VII. Although the Begg Procedures address many of the same topics, the 
government's revised procedures are more complete and provide all parties with additional 
details regarding their duties and responsibilities. 9 For these reasons, the Court should adopt 
paragraph VII of the government's revised procedures without modification. 

10. The Begg procedures also improperly modify the government's procedures 



9 For example, the time guidelines for privilege team review suggested in the Begg 
procedures are adopted in the government's revised procedures, except that the guidelines are 
reasonably keyed to the privilege team's receipt of material to be reviewed to account for any 
uncertainties in mail delivery. 

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regarding telephonic access to detainees. More specifically, the Begg procedures attempt to 
regulate and limit any monitoring of telephone calls between detainees and persons other than 
counsel. See Begg Procedures at fflf VIII.C., D. This requirement is unreasonable and improper 
because no privileged relationship exists between detainees and non-counsel. The government's 
revised procedures properly note that monitoring of telephone calls between detainees and non- 
counsel may be conducted, as appropriate. See Government's Revised Procedures at ]} VIII.C. 

1 1 . Finally, the Court should adopt paragraph X of the government' s revised 
procedures as written because these provisions address base security procedures at GTMO, 
matters that fall more appropriately within the judgment of the government as opposed to 
petitioners' counsel. Compare Government's Revised Procedures at ]} X, with Begg Procedures 
at U X. For instance, the government's revised procedures explain the types of physical 
contraband prohibited at GTMO and the search policies of the base. Any attempt by petitioners 
to modify GTMO's basic security procedures is wholly improper. 

CONCLUSION 

For the foregoing reasons, the Court should adopt the government's revised procedures as 
uniform counsel access procedures in these cases. But see supra note 2. 

Dated: November 4, 2004 Respectfully submitted, 

PETER D. KEISLER 

Assistant Attorney General 

KENNETH L. WAFNSTEIN 

United States Attorney 

BRIAN D. BOYLE 

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Principal Deputy Associate Attorney General 

DAVID B. SALMONS 

Assistant to the Solicitor General 

DOUGLAS N. LETTER 
Terrorism Litigation Counsel 

ROBERT D. OKUN 

Assistant United States Attorney 
Chief, Special Proceedings Section 

/S/ Andrew I. Warden 



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

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

TERRY M. HENRY 

LISA A. OLSON 

JAMES J. SCHWARTZ 

PREEYA M. NORONHA 

ALAN S. MODLINGER 

ROBERT J. KATERBERG 

ANDREW I. WARDEN (FN Bar No. 23840-49) 

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 



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EXHIBIT 1 



Case1:05-cv-01458-UNA-AK Document 29-4 Filed 10/26/2006 Page 17 of 27 



REVISED 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 (GTMO) by 
counsel for purposes of habeas corpus 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 acknowledgment 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. 

E. Legal Mail : Letters written by counsel that are related to the counsel's representation of the 
detainee, as well as privileged documents and publicly-filed legal documents relating to that 
representation. 



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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 an application for clearance to the Department of Justice, Litigation 
Security Division. 

B. Acknowledgment 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 acknowledgment 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. Counsel 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, upon utilization of those 
individuals by counsel in a fashion that implicates these procedures. 

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. 



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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 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 
Acknowledgment 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 Acknowledgment. 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 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 Department of Justice (DoJ) 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. However, the space and 
security measures at GTMO limit the number of counsel who may visit and the 
number of detainees who can be seen during the visit. Once the request has been 
approved, DoJ will contact counsel with the date and duration of the meeting. 



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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 DoJ. 

4. In order to travel to GTMO, all counsel must have a country and theater clearance 
for that specific visit. In order to begin processing country and theater clearances, 
counsel must have confirmed flight information for travel to GTMO and a valid 
current United States security clearance at the Secret level or higher, or its 
equivalent (as determined by appropriate DoD intelligence personnel). Country 
and theater clearances require twenty (20) days to process. Accordingly, counsel 
shall provide DoD, through DoJ, with the required information no later than 20 
days prior to the GTMO visit date, or as soon as a visit is scheduled. Requests for 
visits made inside of 20 days will not normally be granted. 

IV. Procedures for Correspondence Between Counsel and Detainee 

A. Mail Sent by Counsel to Detainee ("Incoming Mail") 

1 . Counsel shall send incoming legal mail to the following address for delivery to the 
detainee: «address to be provided by government counsel». This address is 
reserved exclusively for incoming legal mail sent by counsel to the detainee. In 
the event mail is sent to this address by persons other than counsel or non-legal 
mail is sent to this address, it shall be processed in accordance with the standard 
operating procedures for detainee non-legal mail. 

2. The outside of the envelope or mailer for incoming legal mail shall be labeled 
clearly with the following annotation: "Attorney-Detainee Materials-For Mail 
Delivery to Detainee." Each envelope or mailer shall be labeled with the name of 
the detainee and shall include a return address for counsel sending the materials. 
Each page of legal mail shall be labeled "Attorney-Detainee Materials." No 
staples, paper clips or any non-paper items shall be included with the documents. 

3. Upon receiving legal mail from counsel for delivery to the detainee, personnel at 
GTMO may open the envelope or mailer to search the contents for prohibited 
physical contraband. Legal mail shall not be read or copied if counsel routes and 
adequately identifies the contents of the envelope or mailer as provided by 
paragraphs IV. A. 1 ., 2. Incoming mail that does not comply with the terms of 
paragraphs IV. A. 1 ., 2 may be reviewed by military personnel at GTMO under the 
standard operating procedures for detainee non-legal mail. 



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Within two (2) business days of receipt of legal mail, personnel at GTMO shall 
deliver the envelope or mailer to the detainee. If counsel desires confirmation that 
the documents were delivered to the detainee, counsel is responsible for providing 
a stamped, self-addressed envelope for that purpose. The detainee shall be 
responsible for mailing any confirmation of delivery to counsel as outgoing legal 
mail. This method shall be the sole and exclusive means by which confirmation 
of delivery is provided to counsel. 

Written correspondence to a detainee not falling within the definition of legal mail 
shall be sent through the United States Postal Service to the following address: 
«address to be provided by government counsel». Non-legal mail includes, 
but is not limited to, letters from persons other than counsel, including family and 
friends of the detainee. These non-privileged communications will be reviewed 
by military personnel at GTMO under the standard operating procedures for 
detainee non-legal mail. 

Counsel is required to treat all information learned from a detainee, including any 
oral and written communications with a detainee, 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 detainee that has not been 
previously determined to be unclassified, the correspondence 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. 1R. 

Written and oral communications with a detainee, including all incoming legal 
mail, 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 agency or current political events in 
any country that are not directly related to counsel's representation of that 
detainee; or security procedures at GTMO (including names of U.S. Government 
personnel and the layout of camp facilities) or the status of other detainees, not 
directly related to counsel's representation. Information falling within this 
prohibition includes, without limitation, the following, to the extent not directly 
related to counsel's representation of the detainee: (a) discussion of current 
political or military events, including the progress and conduct of the war in 
Afghanistan, Iraq and other operations conducted during the Global War on 
Terrorism, election predictions and results, international disputes and the opinions 
of foreign governments or nongovernmental organizations; (b) discussion of 
historical perspective on jihadist activities, including discussions of the 
Afghanistan jihad, jihadist movements in other countries, the demise or progress 
of extremist and terrorist groups, the presence and activities of foreign fighters in 
Iraq; (c) discussion or mention of the fate, whereabouts or activities of any leaders 
of al Qaida, the Egyptian Islamic Jihad and other terrorist organizations 



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comprising the al Qaida Associated Movement or their associations or affiliates; 
(d) discussion about allegations of abuse or mistreatment made by other detainees 
(including former detainees) at GTMO or other facilities; (e) discussion pertaining 
to assignment or reassignment of present and former detention personnel; and (f) 
discussion regarding any plans for release or continued detention of detainees; 
changes, upgrades or additions to detention facilities; the operation of the 
detention facility or changes or enhancements to security procedures at GTMO. 

B. Mail Sent by Detainee to Counsel ("Outgoing Mail") 

1. Detainees will be provided with paper to prepare communications to counsel. In 
the presence of military personnel, the detainee will seal the written 
communication into an envelope and it will be annotated as "Attorney-Detainee 
Materials-For Mail Delivery To Counsel." Each envelope shall be labeled with 
the name of the detainee and the counsel. Envelopes annotated with the name of 
persons other the detainee's counsel (including family/friends or other attorneys) 
shall be processed according to the standard operating procedures for detainee 
non-legal mail. 

2. After the outgoing legal mail is collected from the detainee, the envelope will be 
sealed into a larger envelope by military personnel at Guantanamo which will be 
marked as "Attorney-Detainee Materials-For Mail Delivery To Counsel" and will 
be annotated with the name of the detainee and the counsel. The envelope will be 
sealed and mailed in the manner required for classified materials. Within two (2) 
business days of receipt from the detainee, the communication will be mailed to 
the following address: «address to be provided by government counsel». 

3. Detainees also are permitted to send non-legal mail, including written 
communications to persons other than counsel, through the United States Postal 
Service. These communications shall be reviewed by military personnel at 
Guantanamo under the standard operating procedures for detainee non-legal mail. 

4. In the event any non-legal correspondence or messages from a detainee to 
individuals other than his counsel (including family/friends or other attorneys) are 
sent to counsel as, or included with, legal mail, counsel shall return the documents 
to military personnel at GTMO for processing according to the standard operating 
procedures for detainee non-legal mail. 

V. Materials Brought Into A Meeting With Detainee And Counsel 

A. Counsel shall bring only legal mail, writing utensils and paper into any meeting 
with a detainee unless counsel has received prior approval from the Commander, 
JTF-GTMO. 



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B. Written and oral communications with a detainee, including all documents 

brought into a meeting with a detainee, 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 agency or current political events in any country that are not directly related to 
counsel's representation of that detainee; or security procedures at GTMO 
(including names of U.S. Government personnel and the layout of camp facilities) 
or the status of other detainees, not directly related to counsel's representation. 
Information falling within this prohibition includes, without limitation, the 
following, to the extent not directly related to counsel's representation of the 
detainee: (a) discussion of current political or military events, including the 
progress and conduct of the war in Afghanistan, Iraq and other operations 
conducted during the Global War on Terrorism, election predictions and results, 
international disputes and the opinions of foreign governments or 
nongovernmental organizations; (b) discussion of historical perspective on 
jihadist activities, including discussions of the Afghanistan jihad, jihadist 
movements in other countries, the demise or progress of extremist and terrorist 
groups, the presence and activities of foreign fighters in Iraq; (c) discussion or 
mention of the fate, whereabouts or activities of any leaders of al Qaida, the 
Egyptian Islamic Jihad and other terrorist organizations comprising the al Qaida 
Associated Movement or their associations or affiliates; (d) discussion about 
allegations of abuse or mistreatment made by other detainees (including former 
detainees) at GTMO or other facilities; (e) discussion pertaining to assignment or 
reassignment of present and former detention personnel; and (f) discussion 
regarding any plans for release or continued detention of detainees; changes, 
upgrades or additions to detention facilities; the operation of the detention facility 
or changes or enhancements to security procedures at GTMO. 

VI. Materials Brought Out Of A Meeting With Detainee and Counsel 

A. Upon the completion of each meeting with a detainee or during any break in a 
meeting session, counsel will give the notes or documents used or produced 
during the meeting to a designated individual at Guantanamo. These materials 
will be sealed in the presence of counsel and will be handled as classified material 
as required by Executive Order 12958, DOD Regulation 5200. 1-R and Al 26, 
OSD Information Security Supplement to DOD Regulation 5200. 1R. 

B. Upon the completion of the counsel's visit to Guantanamo, the notes or 
documents used or produced during the visit will be sealed in the presence of 
counsel and placed in an envelope labeled as "Attorney-Detainee Meeting 
Documents-For Delivery to Counsel." The envelope will be sealed into a larger 
envelope by military personnel at Guantanamo which will be marked as 
"Attorney-Detainee Meeting Documents-For Mail Delivery To Counsel" and will 
be annotated with the name of the detainee and the counsel. The envelope will be 
sealed and mailed in the manner required for classified materials. Within two (2) 



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business days following the completion of the counsel's visit to Guantanamo, the 
package will be mailed to the following address: «address to be provided by 
government counsel». 

C. Correspondence or messages from a detainee to individuals other than his counsel 
(including family/friends or other attorneys) shall not be handled through this 
process. If a detainee provides these communications to his counsel during a 
visit, counsel shall give those communications to military personnel at 
Guantanamo so they can be processed under the standard operating procedures for 
detainee non-legal mail. 

VII. Classification Determination of Detainee Communications 

A. Counsel may submit information learned from a detainee to the privilege team for 
a determination of its appropriate security classification. Counsel shall 
memorialize the information submitted for classification review into a written 
memorandum outlining as specifically as possible the information for which 
counsel requests a classification determination. All documents submitted for 
classification review shall be prepared, handled and treated in the manner required 
for classified materials, as provided by as required by Executive Order 12958, 
DOD Regulation 5200. 1-R and AI 26, OSD Information Security Supplement to 
DOD Regulation 5200. 1R. 

B. Counsel shall send all materials submitted for classification review to the 
following address: «address to be provided by government counsel». The 

outside of the envelope or mailer shall be clearly labeled "Attorney-Detainee 
Meeting Documents-For Classification Review By Privilege Team." Each 
envelope or mailer will be annotated with the name of the detainee and the 
counsel. Each page of the document submitted for classification review shall be 
marked "Attorney-Detainee Materials" and "Classified." The envelope or mailer 
will be sealed and mailed in the manner required for classified materials. 

C. As soon as possible after conducting the classification review, the privilege team 
will advise counsel of the classification levels of the information contained in the 
materials submitted for review. The privilege team will forward its classification 
determination directly to counsel after a review and analysis period not to exceed, 
from the time of receipt by the privilege team: 

1 . Ten (10) business days for information that is written in the English language; 

2. Twenty (20) business days for any information that includes writing in any 
language other than English, to allow for translations by the privilege team; 

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



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D. While conducting classification review, the privilege team will promptly report 
any information that reasonably could be expected to result in immediate and 
substantial harm to the national security to the Commander, JTF-Guantanamo. In 
his discretion, the Commander, JTF-Guantanamo may disseminate the relevant 
portions of the information to law enforcement, military and intelligence officials 
as appropriate. 

E. If, at any time, the privilege team determines that information in the documents 
submitted for classification review relate to imminent acts of violence, the 
privilege team shall report the contents of those documents to Commander, JTF- 
Guantanamo. In his discretion, the Commander, JTF-Guantanamo may 
disseminate the relevant portions of the information to law enforcement, military 
and intelligence officials. 

F. The privilege team shall not disclose any information submitted by counsel for 
classification review outside the privilege team, except as provided by these 
procedures or as permitted by counsel submitting the information. 

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 by counsel will be subject to appropriate security 
procedures, but shall not include contemporaneous monitoring or recording. 

C. Any telephonic access by persons other than counsel will be subject to appropriate 
security procedures, including contemporaneous monitoring and recording. 

IX. Counsel's Handling And Dissemination Of Information From Detainee 

A. Subject to the terms of any applicable protective order, counsel may disseminate 
the unclassified contents of the detainee's communications for the purpose of 
preparing for or conducting litigation involving that detainee. 

B. Counsel is required to treat all information learned from a detainee, including any 
oral and written communications with a detainee, as classified information, unless 
and until the information is submitted to the privilege team and determined to be 
otherwise. All classified material must be handled, transported and stored in a 
secure manner, as provided by Executive Order 12958, DOD Regulation 5200. 1-R 
and AI 26, OSD Information Security Supplement to DOD Regulation 5200. 1R. 



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C. Counsel shall disclose to DoJ or Commander, JTF-Guantanamo any information 
learned from a detainee involving future events that threaten national security or 
involve imminent violence. 

D. Counsel may not divulge classified information not learned from the detainee to 
the detainee. Counsel may not otherwise divulge classified information related to 
a detainee's case to anyone except those with the requisite security clearance and 
need to know, as determined by the government, using a secure means of 
communication. 

X. 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, portable electronic devices 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. Security personnel may provide counsel 
with a briefing concerning the security measures at GTMO. There will be 
restrictions on counsel's movement and activities during the visit. 

E. Counsel shall not be permitted to interview or question members of the Joint Task 
Force about their duties or interactions with detainees without first obtaining 
permission from the Commander, Joint Task Force Guantanamo. 



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F. Counsel will meet with a detainee in conference facilities provided by GTMO. 
These facilities are subject to visual monitoring by closed circuit TV for safety 
and security reasons. (The only other method of visual observation available is 
for the door to remain open with military police sitting outside the door.). No oral 
communications between counsel and detainee will be heard. 

G. Counsel will only be permitted to meet with a detainee counsel represents in 
habeas corpus litigation in federal court in the United States. 

H. At the conclusion of a meeting with a detainee, counsel and 

translators/interpreters will again be inspected using a metal detector and, if 
deemed necessary, by physical inspection of their persons.