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Case 1:05-cv-01458-UNA-AK Documents Filed 09/1 2/2005 Page 1 of 9 


Ahmed "Doe", et al, 


President of the United States, 
et al, 


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


This Memorandum is submitted in response to Petitioners' Motion for Order to Show Cause 

why this matter should not be dismissed for lack of proper "Next Friend" standing or, in the 

alternative, to stay the proceedings pending related appeals and for continued coordination. 

Petitioners respectfiilly request that the Court deny the Respondents' request for a denial of the 

within matter for the reasons set forth below. 


I. The Respondent's Motion for Order to Show Cause should be denied, as the problems 

associated with the identification of the Guantanamo prisoners have been caused by the 

Responding to the declaration of the Supreme Court in Rasul v. Bush, 124 S.Ct. 2686, 2698 

(2004), that the detainees at Guantanamo Bay have the right to access the U.S. courts to challenge 

Case 1:05-cv-01458-UNA-AK Documents Filed 09/1 2/2005 Page 2 of 9 

their detention under 28 U.S.C. § 2241 , the Center for Constitutional Rights and associate co-counsel 
began a campaign to get each detainee his day in court. However, the respondents have repeatedly 
failed to provide even basic information concerning the identity of the prisoners being held at 
Guantanamo Bay Naval Station. The respondents first and foremost have steadfastly refused to 
simply publish the names and 'Internment Serial Numbers' ("ISN") of all prisoners.' See Smith 
Declaration, f 10 (attached hereto as Exhibit A). As such, even the task of trying to identify the 
prisoners who wanted legal assistance was a monumental task. See Smith Declaration, supra . % % 

The respondents argue that if there was a more rigorous relationship between the prisoner 
and the next friend, there would be less "identification issues that have plagued the parties in the 
Guantanamo detainee litigation thus far". See Respondents Motion at 14. However the rules 
imposed by the Respondents have made identification extremely difficult. If respondents would just 
identify the names which they believe to be the correct names of the prisoners, identification issues 
would be relieved. See Smith Declaration, supra , f f 24 - 30. The fault of any identification 
problems does not rest with the Petitioners' counsel, but with the Respondents. |A Respondents 
deemed the ISNs of the prisoners to be For Official Use Only until July 7, 2005. lA Making the 
ISNs classified made no sense, and Respondents must accept the fact that if there are problems with 
the identifications of prisoners, it is a problem that has been created by the Respondents themselves. 

' Even some family members do not know who is truly in Guantanamo Bay, however the 
Respondents have steadfastly refiised to even take the simple measure of pubhshing the names 
and 'Internment Serial Numbers' of all prisoners. See Smith Declaration, % 10 (attached hereto 
as Exhibit A). 

Case 1:05-cv-01458-UNA-AK Documents Filed 09/1 2/2005 Page 3 of 9 

Despite the numerous efforts of the Center for Constitutional Rights ("CCR") to receive next 
of friend authorizations for the prisoners, CCR and its partners have been unable to identify next 
friends for the vast majority of Guantanamo detainees. See Olshansky Declaration, f f 5 - 8 (attached 
hereto as Exhibit B), Upon information and belief, over 300 prisoners remain unrepresented forthe 
simple reason that the Respondents have held them virtually incommunicado and in physical 
isolation. See Olshansky Declaration, supra. % 8. Despite many good faith efforts to communicate 
with the Respondents, CCR has been denied the opportunity to communicate with the detainees and 
advise them of their rights. See Olshansky Declaration, supra , f f 11 - 18. Through many attempts, 
the Petitioners' counsel have attempted to obtain the names and identifying information of the 
detainees, however the Respondents have denied all of these requests. Id. The very information that 
the Respondents claim is deficient in the authorization of Omar Deghayes' was repeatedly requested 
by CCR. H. As stated above, it is ingenuous for the Respondents to point to supposed 
insufficiencies in the next friend authorizations when the Respondents have refiised to comply with 
the numerous requests for even basic information. 

Additionally, confounding the problem, the Respondents' have not given accurate 
information to the alhes of the United States. This inaccuracy of the Respondents' own data is a 
cause of misinformation. See Smith Declaration, supra , f f31-38. Even if, and in spite of the 
numerous roadblocks imposed by the Respondents, the prisoners were identified, it is even more 
difficult if not impossible to identify the names of the prisoners' family members. See Smith 
Declaration, supra , f H 39 - 42. The Respondents' however accuse the volimteer counsel for the 
prisoners of "improperly abusing the next in end in order to merely solicit the Guantanamo detainee 
populationfor clients..." See Respondents Motion at 14n.ll. Such an allegation -presumably with 


Case 1:05-cv-01458-UNA-AK Documents Filed 09/1 2/2005 Page 4 of 9 

overtones of ethical impropriety - is difficult to accept in light of the fact that Petitioners' counsel 
have gone to great length to secure counsel for the prisoners. See Smith Declaration, supra , f 1| 43 - 
46. Such processes have been extremely expensive and time consuming, and the undersigned have 
not received any remuneration. Id. The only reason Respondents' counsel has sought out next of 
iriends is because the Respondents have held them effectively incommunicado in Guantanamo Bay. 

The Respondents argue that using 'friends' of the prisoners at Guantanamo is uimecessary 
because there are other ways to achieve the same ends. See Respondents' Motion, at 13. This 
argument apparently suggests that authorizations from family members is a more simple alternative. 
However, such a process is extremely difficuh if not impossible due to the need for international 
travel and/or foreign government interference. See Smith Declaration, supra . 1[ 1[ 47 - 77. Then, in 
November of 2004, a new avenue to the prisoners' access to counsel became available. Omar 
Deghayes informed his counsel, Chve A. Stafford Smith, that Ahmed Doe desperately wanted 
counsel. See Smith Declaration, supra , f i| 78 - 80. The Center for Constitutional Rights sought to 
persuade the Military to agree to circulate a meaningfiil notice that the prisoners were entitled to 
counsel, however the Military instead issued a Enemy Combatant Notice (ECN) representing that 
the prisoners could ask a friend or a family member or a lawyer to file a petition for writ of habeas 
corpus. See Smith Declaration, supra , f f 81-89. Omar Deghayes understood the Military's ECN 
to mean that he could file a request for legal assistance for his 'friends' in Guantanamo Bay. Id. 
Based upon the Military's ECN, Omar Deghayes did in fact execute a "Next of Friend" authorization 
and is acting as the Next of Friend for Ahmed "Doe" in this matter. 

Case 1:05-cv-01458-UNA-AK Documents Filed 09/1 2/2005 Page 5 of 9 

It is unreasonable and unrealistic for the Respondents to pretend that the prisoners can easily 
secure the legal assistance that they desire. In fact, there are certain areas that have special problems 
as the prisoners are isolated and held incommunicado. See Smith Declaration, supra , f f 90 - 96. 
The Military has interfered with the right to counsel, and in fact manipulated the prisoners into 
thinking that their lawyers are a part of or related to the Guantanamo Bay operation. See Smith 
Declaration, supra , f ^ 97 - 107. Interrogators consistently tell prisoners that the lawyer's advice 
is wrong and have even engaged in deceptive practices such as impersonating counsel. Id. 

II. Respondents' Motion for Order to Show Cause precludes Ahmed Doe from meeting 
with counsel as requested by him through Omar Deghayes. 

Respondents' Motion for Order to Show Cause effectively seeks to preclude the undersigned 

counsel from following the procedures as outlined by the Respondents themselves. The 

Respondents' Motion should be denied in light of the fact that Ahmed Doe acted consistently with 

Respondents' own procedures. Respondents' Enemy Combatant Notification states that a detainee 


ask a civilian judge to look at the lawfulness of [his] detention through a process 
called a petition for writ of habeas corpus. [He] may ask a friend or a family member 
or a lawyer to file such a petition with the court. If [he does] not have a lawyer or a 
family member or friend who could file this petition for [him], [he] may file [his] 
own petition. 

(Enemy Combatant Notification, Exhibit A to the Declaration of Frank Sweigart, 
dated August 3 1 , 2005 filed with the Motion for Order to Show Cause (emphasis 

The Notification refers to a "friend" but does it does not say that this "friend" must satisfy 

the standing requirements under federal law for Next Friend status. Ahmed Doe did exactly what 

Case 1:05-cv-01458-UNA-AK Documents Filed 09/1 2/2005 Page 6 of 9 

Respondents advised him to do; he asked Mr. Omar Deghayes for help. As Next Friend, Mr. 
Deghayes fulfilled his promise to Ahmed Doe and filed a habeas corpus petition (through counsel) 
on Ahmed Doe's behalf Mr. Deghayes was thus acting to secure access to counsel and help Ahmed 
Doe challenge the legality of his detention. 

in. Respondents' Motion contradicts the position that they have taken on other habeas 
corpus proceedings in this Court. 

Respondents have explicitly have acknowledged the propriety of the Next Friend standing 

of fellow detainees such as Mr. Deghayes in John Does 1-570 v. Bush, 05-CV-03 1 3(CKK) (D.D.C.). 

In disputing Petitioners' argument that detainees had been denied access to the courts in that case, 

Respondents argued that the vast majority of these detainees have filed petitions through other 

individuals acting as legitimate next friends - family members, an attorney who already represented 

the detainee in pending military commission proceedings, and fellow detainees. However, in this 

case the Respondents have taken the contradictory position and now seek to challenge that which 

they previously argued was a proper method for a prisoners' access to the court. 

IV. Respondents' have not shown that the prisoners have received adequate notification 
of their rights to submit habeas corpus petitions, and the Respondents' generalization that all 
detainees have received notification of their rights leaves unanswered factual questions. 

The Respondents have argued that they have "notified each detainee at Guantanamo Bay of 

his right to file a petition for habeas corpus..." See. Respondents' Motion, at 7. However, the 

Respondents have provided an inadequate description of the prisoners legal rights. See Smith 

Declaration, supra, f f 108 - 1 16. Between July 12 and 14, 2004, each prisoner was apparently 

Case 1:05-cv-01458-UNA-AK Documents Filed 09/1 2/2005 Page 7 of 9 

given a notice tliat they would be notified in the future what procedures are available to challenge 
their detention. See Olshansky Declaration, supra . 1[ f 19 - 22. However, the Respondents did not 
seek to even attempt to explain these procedures until mid-December 2004. id These explanations, 
however, did not provide practical information which in any way enabled the prisoners to secure 
counsel in order to file a petition in court. See Olshansky Declaration, supra . % | 20-21. Some 
prisoners have not been allowed to obtain copies of the ECN notices, and/or were only allowed to 
review the form briefly. See Smith Declaration, supra, f f 108 - 1 16. Additionally, there are great 
problems, both cultural and lingual, leading to the fact that the notification is almost 
incomprehensible to the prisoners. See Smith Declaration, supra , f 1(117-119. Lastly, many of 
the detainees are in poor physical and mental condition, and in combination to the fact that they are 
held incommunicado, it is almost impossible for the prisoners to contact the outside world. See 
Olshansky Declaration, supra , f 22. 

The Respondents insist that more information be supplied by the next friends, however this 
would cause a tremendous delay in securing legal assistance for the prisoners. See Smith 
Declaration, supra , f f 120 - 125. Lastly, there should be no concern that a prisoner would be 
provided with counsel in a case where he does not want it, as there is a system in place whereby 
counsel must secure an "Acknowledgment of Representation" form signed by the prisoner. See 
Smith Declaration, supra , f 126. 

Among the factual questions left unanswered are ( 1 ) whether Ahmed Doe personally received 
notice of his right to file a habeas petition, (2) whether (assuming he received the notice) he 
understood its contents, (3) whether he know and understood the requirements for preparing and 

Case 1:05-cv-01458-UNA-AK Documents Filed 09/1 2/2005 Page 8 of 9 

filing a habeas petition, and (4) wliether he was permitted to send and receive mail. Denial of 
Respondents' Motion will obviate the necessity of addressing and answering these questions (and 
others) that must be answered before determining whether Ahmed Doe has had reahstic "access" to 
this Court to file a habeas corpus petition. 

V. Respondents' Motion for a Stay should be denied as it is unreasonable 

Respondents argue that, in the alternative, this Court should stay Ahmed Doe's case until the 
"resolution of all appeals" in three cases pending in the Federal District Court for the District of 
Columbia ( See . Respondents Motion at 5, 1 5). This would include any proceedings in the United 
States Supreme Court following the Court of Appeals ' decision of the appeals argued on September 
8, 2005. Over a year has passed since the Supreme Court held 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." Rasul v. Bush, 124 S. Ct. 2686, 2698 (2004). Upon information 
and belief, the prisoners, including Mr. Ahmed Doe, have now been detained for more than three 
years. The stay requested by the Respondents is, under the circumstances, unreasonably long and 
should be denied. 

Case 1:05-cv-01458-UNA-AK Documents Filed 09/1 2/2005 Page 9 of 9 


Respondents' Motion for Order to Show Cause challenging Mr. Deghayes' Next Friend 
standing should be denied. Undersigned counsel should be granted the opportunity to meet with Mr. 
Ahmed Doe as soon as possible to obtain his authorization of representation, which would render 
Respondents' Motion moot. Respondents' alternative request for a stay should be denied, as this 
request is unreasonable. 

Respectfully submitted, 

/s/ Kevin G. Boris 
Kevin G. Boris 
Louis A. Ruprecht 

306 Main Street 
Millbum, NJ 07041 
Tel.: 973-379-2400 
Fax: 973-379-2446 

Counsel for Petitioners Ahmed Doe and Omar 

Of Counsel 

Barbara Olshansky 


666 Broadway, 7th Floor 

New York, NY 10012 

Tel.: 212-614-6439 

Fax: 212-614-6499 

Dated: September 12, 2005