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AL ODAH v. U.S.

October 20, 2004.

FAWZI KHALID ABDULLAH FAHAD AL ODAH, et al., Petitioners,
v.
UNITED STATES OF AMERICA, et al., Respondents.



The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge

MEMORANDUM OPINION

Presently before the Court is Petitioners' challenge to the United States Government's procedures regulating access of attorneys to individuals detained at the Guantanamo Bay Naval Base. This Memorandum Opinion and Order addresses the procedures as they apply to Mohammed Ahmed al Kandari, Fawzi Khalid Abdullah Fahad al Odah, and Khalid Abdullah Mishal al Mutairi.*fn1 Petitioners are three Kuwaiti nationals who have been detained since shortly after the September 11, 2001, terrorist attacks, and counsel working on their behalf have filed what are, in essence, petitions for writs of habeas corpus and ancillary claims. At this point, the focus of the litigation is on the habeas petitions. The Supreme Court held in Rasul v. Bush, 542 U.S. ___, 124 S. Ct. 2686 (2004), that this Court has jurisdiction to consider Petitioners' claims. Petitioners and the Government now dispute whether the three Petitioners may have access to counsel while pursuing their claims, and what limitations the Government can place on communications between the detainees and their counsel. The Government has agreed to permit meetings between the attorneys and the detainees, but subject to procedures which Petitioners argue are improper, including the audio and video real time monitoring of attorney-detainee meetings and a post hoc "classification review" of any notes taken during those meetings and legal mail between counsel and detainees. The Court now considers two narrow but crucial questions: first, whether the detainees are entitled to counsel as they pursue their claims, and second, whether the proposed monitoring and review procedures are allowable as they apply to these three detainees.

I. FACTUAL AND PROCEDURAL BACKGROUND

  In the wake of the September 11, 2001, terrorist attacks, the United States Congress authorized the President to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks . . . or harbored such organizations or persons." Authorization for Use of Military Force, Pub.L. 107-40, §§ 1-2, 115 Stat. 224. The President subsequently deployed U.S. Armed Forces into Afghanistan to wage a military campaign against Al Qaeda and the Taliban regime. In the course of this campaign, several hundred individuals were captured and transported to the United States Naval Base at Guantanamo Bay, Cuba. Included amongst these individuals were twelve Kuwaitis, who in 2002 filed the instant suit seeking to be informed of the charges against them, to be allowed to meet with counsel and with their families, and to have access to the courts or another impartial tribunal. Ultimately, in Rasul, the Supreme Court's ruling clarified that the detainees were entitled to pursue their claims in federal court. See generally Rasul, 124 S. Ct. 2696.

  The inquiry has now turned to whether the detainees are entitled to the assistance of attorneys in this process. On July 23, 2004, this Court set out a briefing schedule requiring the Government to file with the Court "all proposed procedures with respect to access to counsel that the Government intends to apply to the Guantanamo Bay detainees and to Petitioners in this case" and "which proposed procedures will apply to each Petitioner, including proposed monitoring of any of Petitioners' conversations with counsel." Al Odah v. United States, No. 02-828 at 1 (D.D.C. July 23, 2004) (scheduling order). Specifically, the Court ordered the Government to address "the legal merits of the Government's entitlement to monitor any of Petitioners' conversations with counsel." Id.

  In its response to the Court's Order of July 23, 2004, the Government took the position that, while the detainees would be permitted to meet with counsel, they had no right to representation, constitutional or otherwise, as they pursued their claims in federal court. Resp'ts Resp. to Compl. ("Gov't Resp.") at 2, 9-23. On July 30, 2004, the Government provided a set of "Procedures for Counsel Access to Detainees at the U.S. Naval Base in Guantanamo Bay, Cuba," which include, inter alia, "[w]hen authorized under these procedures, the privilege team*fn2 will monitor [and record] oral communications in real time between counsel and the detainee during any meetings," and a system of "classification review," whereby the privilege team will "review all written materials brought into or out of the meeting by counsel . . . including notes . . . created by counsel and/or detainee during or prior to meetings to determine their appropriate security classification." Id. Ex. A (Procedures for Counsel Access to Detainees, filed July 30, 2004) at 3-7. The real time monitoring of attorney-detainee meetings would only apply to certain designated detainees, while the other access procedures would apply to all detainees.*fn3 The Government subsequently provided guidelines for implementing the proposed procedures. See Gov't Notice of Supp. Counsel Access Procedures ("Gov't Supp. Procedures") (filed September 29, 2004).

  The Government indicated that three of the detainees in this case, Mohammed Ahmed al Kandari, Fawzi Khalid Abdullah Fahad al Odah, and Khalid Abdullah Mishal al Mutairi, would be subject to the real time monitoring of their meetings with counsel. Gov't Resp. Ex. B (Lucenti Decl.). This determination was made by Brigadier General Martin Lucenti, Sr., who is the Acting Commander of the Joint Task Force Guantanamo Bay, Cuba. Brigadier General Lucenti has stated that "[i]n approving the access procedures and in applying them to the specific detainees . . ., [he] weighed the national security implications of allowing unmonitored access of these detainees to their counsel, in light of the specific intelligence information known from and about these detainees. . . ." Id. Ex. B at 4. The Court has been informed that these three individuals are currently the only detainees who will be subject to the real time monitoring of their conversations with counsel, and the Government has supplied Brigadier General Lucenti's explanation of why these three individuals should be treated differently than the other detainees. See id. Ex. B at 6-10.*fn4

  On August 16, 2004, this Court held a hearing to address the limited issue of monitoring attorney-Petitioner meetings, and the Government's intention to undertake a classification review of notes taken during those meetings and of legal mail sent between the attorneys and the detainees.

  II. DISCUSSION

  Although there are a number of proposed Procedures for Counsel Access to Detainees that will bear on the detainees held at Guantanamo Bay, the Court has confined its present inquiry to the attorney access issues that uniquely affect the three named Petitioners in this case.*fn5 Accordingly, the Court considers whether the Government can impose real time monitoring on the three Petitioners. In order to make this determination, the Court first considers what entitlement the detainees have to representation by counsel while pursuing their claims in federal court. The Court then considers whether, in light of this first determination, the Government can encroach on the detainees' relationship with counsel by subjecting them to real time monitoring of their meetings, and post hoc classification review of meeting notes.

  The Court finds that Petitioners are entitled to be represented by counsel pursuant to the federal habeas statute, 28 U.S.C. § 2241, the Criminal Justice Act, 18 U.S.C. § 3006A, and the All Writs Act, 28 U.S.C. § 1651. In light of this finding, the Court determines that the Government is not entitled to unilaterally impose procedures that abrogate the attorney-client relationship and its concomitant attorney-client privilege covering communications between them.

  A. Petitioners are Entitled to be Represented by Counsel

  The Government argues that Petitioners have no right to counsel, under either the Constitution or any treaties or statutes. The core of the Government's position is that, in the absence of a right to counsel, any relationship they have with their attorneys is at the Government's pleasure and discretion, which in turn entitles the Government to place what limits it sees fit on that relationship. See generally Gov't Resp. After examining the parties' arguments, the Court determines that Petitioners are in fact entitled to be represented by counsel under the federal habeas statute, 28 U.S.C. § 2241, the Criminal Justice Act, 18 U.S.C. § 3006A, and the All Writs Act, 28 U.S.C. § 1651.

  Although the Government devotes a wide swath of briefing to the question of whether Petitioners have a constitutional right to counsel, see Gov't Resp. at 9-21, the Court resolves the question of Petitioners' access to counsel by considering several statutes.*fn6 Of course, the Court is mindful of the "fundamental rule of judicial restraint," that requires it to refrain from ruling on questions of constitutional law "in advance of the necessity of deciding them." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng'g, P.C., 467 U.S. 138, 157 (1984); see also Harris ...


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