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In Re: Guantanamo Bay Detainee Continued Access To Counsel

September 6, 2012


The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge



Eleven years after the September 11, 2001, attacks on the Pentagon and World Trade Center and the subsequent invasions of Afghanistan and Iraq, 168 people captured in the Global War on Terrorism remain detained at the United States Naval Base in Guantanamo Bay, Cuba ("Guantanamo"). This matter concerns six of those detainees. At its heart this case is about whether the Executive or the Court is charged with protecting habeas petitioners' right to access their counsel. Petitioners contend that the terms and conditions of this Court's 2008 Protective Order ("Protective Order" or "P.O.") govern their access to counsel regardless of whether they are currently petitioning for habeas relief. The Government argues that once a detainee's habeas petition is terminated, the Court's Protective Order expires and the Executive has the prerogative of assuring counsel-access. Upon consideration of the Motions [1, 2, 3, 4, 5, and 6], the Combined Opposition [12], the Replies [19, 20, 21, and 26], the oral arguments, the entire record herein, the applicable law and for the reasons below, the Court finds that the Protective Order governs access to counsel issues for Guantanamo detainees who have a right to petition for habeas corpus relief, whether or not such a petition has been dismissed or denied.*fn1


A. Procedural Background.

In the process of litigating their individual habeas cases, petitioners Abdu Al-Qader Hussain Al-Mudafari (ISN*fn2 40), Hayal Aziz Ahmed Al-Mithali (ISN 840), Mohammed Rajeb Abu Ghanem (ISN 44), and Zakaria Al-Baidany (ISN 1017) each moved to dismiss their habeas petitions, without prejudice, conditioned on their continued access to counsel under the Protective Order. Resp. Opp. [12] at 1, Aug. 7, 2012.*fn3 In the alternative, petitioners AlMudafari and Al-Mithali seek indefinite stays of their cases in order to ensure they continue to have access to counsel under the Protective Order. Id. Petitioners Uthman Abdul Rahim Mohammed Uthman (ISN 27) and Yasein Khasem Mohammad Esmail (ISN 522) had their petitions for habeas relief denied after full merits hearings.*fn4 Counsel for these two petitioners requested permission under the procedures set out in the Protective Order to meet with his clients in May and August 2012. Esmail & Uthman Reply [21] at 7, Aug. 13, 2012. However, the Government denied counsel's requests and barred counsel from meeting with either detainee unless counsel signed a Memorandum of Understanding (MOU), promulgated by the Government that would henceforth set the terms for counsel-access. Esmail Mot. [1] at 2; Uthman Mot. [2] at 1. Esmail and Uthman now move the Court for an Order affirming that the Protective Order continues to apply to them. Resp. Opp. [12] at 1.*fn5

The Government objects to court-ordered counsel-access under the Protective Order for all six petitioners and argues that the Protective Order ceases to control counsel-access in the absence of a pending or imminent habeas petition. Resp. Opp. [12] at 1--2. The Government believes that the Protective Order, or at least its counsel-access provisions, expires once a detainee's original habeas petition has been adjudicated on the merits or the case is dismissed. Id. at 26--31; Hr'g Tr. 6--7, Aug. 17, 2012. The Government warns that should the court find for the detainees in this case, such a holding would constitute an abuse of discretion as it would result in a permanent injunction without the required showing of actual harm necessary for such an "extraordinary remedy." Id. at 2--3.

The universal nature of the counsel-access question cried out of singular resolution. The Court, upon motion by Respondents, and after telephonic consultations on July 27 with counsels for various petitioners and the Government, and after further discussions with Judges Huvelle and Kollar-Kotelly, decided to consolidate the disparate motions into a single miscellaneous case. See, e.g., Ghanem, et al. v. Bush, et al., 05-cv-1638 (CKK), Opp. & Cross-Mot. [264] at 2, July 26, 2012. The above captioned miscellaneous case was opened and this Court entered a scheduling order for briefing and oral arguments. *fn6 Sched. Order [7] at 1--2, July 27, 2012. Oral arguments were held on August 17, 2012.

B. Legal Background.

It is a sad reality that in the ten years since the first detainees were brought to Guantanamo Bay not a single one has been fully tried or convicted of any crime. Despite this, the Government has fought to deny detainees the ability to challenge their indefinite detentions through habeas proceedings. In a litany of rulings, this Court and the Supreme Court have affirmed that the Federal courts are open to Guantanamo detainees who wish to prove that their indefinite detentions are illegal.

In 2004, the Supreme Court rejected the Government's argument that the Federal courts had no jurisdiction to hear detainee habeas petitions. Rasul v. Bush, 542 U.S. 466, 484 (2004). Congress then twice amended the Federal habeas statute, 28 U.S.C. § 2241, in an effort to overturn the Supreme Court's ruling. Congress first passed the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-148, 119 Stat. 2680 (2005), but the Supreme Court held that the provision of the DTA depriving courts of jurisdiction over detainee habeas petitions did not apply to cases pending when the DTA was enacted. Hamdan v. Rumsfeld, 548 U.S. 557, 575--78 (2006). Next, Congress passed the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120 Stat. 2600 (2006) (codified in part at 28 U.S.C. § 2241 & note), but the Supreme Court invalidated the jurisdiction-stripping provisions of the MCA and declared that detainees have a constitutional right to petition for habeas relief. Boumediene v. Bush, 553 U.S. 723, 732 (2008). This Court and the Supreme Court also held that Guantanamo detainees have a concomitant right to the assistance of counsel. Hamdi v. Rumsfeld, 542 U.S. 507, 539 (2004); Al Odah v. United States, 346 F. Supp. 2d 1, 5 (D.D.C. 2004).

These rulings raised significant questions about counsels' access to detainees and classified information. The Court first began to address this problem in Al Odah, where Judge Kollar-Kotelly found that the Court had power "to fashion procedures by analogy to existing procedures, in aid of the Court's jurisdiction and in order to develop a factual record as necessary for the Court to make a decision on the merits of" detainee habeas claims. 346 F. Supp. 2d at 6; see also Harris v. Nelson, 394 U.S. 286, 299 (1969). Using this power, she proposed a framework for detainee counsel-access. Al Odah, 346 F. Supp. 2d at 13--15. The Government subsequently moved for a Protective Order "to prevent the unauthorized disclosure or dissemination of classified national security information." In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174, 175 (D.D.C. 2004). Judge Joyce Hens Green was designated to coordinate and manage all Guantanamo proceedings and rule on common procedural and substantive issues. All then-pending Guantanamo cases, except those being heard by Judge Richard J. Leon, were transferred to Judge Green. In November 2004 she issued an "Amended Protective Order and Procedures for Counsel Access to Detainees," which set guidelines and procedures for counsel-access to both detainees and classified information. Judge Green's Protective Order was ultimately a boon for the Court, for the Government and for detainees, as it settled many issues that would have otherwise, no doubt, required a great deal of litigation over every minute issue of counsel-access.

Judge Green's Protective Order stood without objection for four years. In light of the Boumendiene decision in 2008, the members of this Court again determined that a single judge should rule on common procedural issues in order to facilitate the expeditious resolution of Guantanamo habeas cases. In re Guantanamo Bay Detainee Litig., Miscellaneous No. 08-442 (TFH), Order [1] at 1--2, July 2, 2012. Judge Thomas F. Hogan was designated, like Judge Green, "to coordinate and manage proceedings in all cases involving petitioners presently detained at Guantanamo Bay, Cuba." Id. All then-pending Guantanamo habeas cases, and all such cases thereafter filed, were to be transferred to Judge Hogan for case management and coordination. *fn7 Id. Judge Hogan also determined that the Court should issue a new protective order. After considering the parties' positions espoused both in written submissions and at a status conference, Judge Hogan issued a carefully crafted and thorough Protective Order that contained procedures for counsel access to detainees and to classified information. In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 143 (D.D.C. 2008) ("Protective Order" or "P.O."). Judge Hogan's Protective Order was substantially similar to the Protective Order issued by Judge Green.


Despite the fact that the Government never opposed the Protective Order or brought any violations of the Protective Order to the Court's attention, at some point during the Summer of 2012 the Government felt it necessary to promulgate their own procedures for counsel-access at Guantanamo, which it styled as a "Memorandum of Understanding" (MOU).*fn8

The MOU is meant to replace the Protective Order for those detainees whose cases have been dismissed or whose petitions have been denied on the merits. The Government repeatedly avers that its proposed MOU provides "essentially the same" counsel-access provisions as the Protective Order. Resp. Opp. [12] at 1, 15, 38, 40. "The lady doth protest too much, methinks." William Shakespeare, Hamlet, Act III, Scene II. Far from providing "essentially the same" provisions, the MOU, in truth, significantly modifies the Protective Order.

For example, the Protective Order assumes that counsel for detainees have a "need to know," which allows them to view classified information in their own and related Guantanamo cases. P.O. at ¶ I.D.28. Counsel for detainees are also specifically allowed to discuss with each other relevant information, including classified information, "to the extent necessary for the effective representation of their clients." Id. And, the Protective Order assures that counsel have continuing access to certain classified information, including their own work-product. Id. at ¶¶ I.D.23, 25.

The MOU, on the other hand, strip counsel of their "need to know" designations, and explicitly denies counsel access to all classified documents or information which counsel had "previously obtained or created" in pursuit of a detainee's habeas petition. Resp. Opp. [12] at 11, MOU [12-1] at ¶ 8(b). Counsel can obtain access to their own classified work product only if they can justify their need for such information to the Government. MOU [12-1] at ¶ 8(b). "Need to know" determinations for this and other classified information would be made by the Department of Defense Office of General Counsel (DoD OGC), in consultation with the pertinent classification authorities within DoD and other agencies. Id. However, there is no assurance that such determinations will be made in a timely manner. As this Court is keenly aware from experience, the inter-agency process of classification review can stretch on for months. It is very likely that this provision would result in result in lengthy, needless and possibly oppressive delays. It would also require counsel to divulge some analysis and strategy to their adversary merely to obtain their past work-product. Further, the MOU countermands the Protective Order and specifically denies counsel for detainees the privilege of sharing information amongst themselves in the pursuit of representing their clients unless specifically authorized to do so by "the appropriate government personnel." Compare Protective Order at ¶ I.D.28 with MOU [12-1] at ¶ 8(a)(10). The MOU does not define who such personnel would be. While this Court is empowered to enforce the Protective Order, all "disputes regarding the applicability, interpretation, enforcement, compliance with or violations of" the MOU are given to the "final and unreviewable discretion of the Commander, Commander, Joint Task Force-Guantanamo Bay" (JTF-GTMO). MOU [12-1] at ¶ 8(f). The MOU further gives the JTFGTMO Commander complete "authority and discretion" over counsels' access to classified information and to detainees, including in-person visits and written communications. Id. at ¶ 6. Apparently, the MOU also gives the Government authority to unilaterally modify its terms.

Resp. Opp. [12] at 11, n.3 ("Although not stated in the MOU itself, the Government has advised petitioners' counsel that . . . it anticipates limiting the number of attorneys who may have continued access to a detainee under the MOU to two. Similarly, the Government also anticipates limiting the number of translators for each detainee to one."). Importantly, the MOU is only applicable to attorneys who have represented detainees under the Protective Order; there are no provisions allowing for attorney substitutions or for new counsel. See MOU [12-1] at ¶ 3.

Unlike the Protective Order, which repeatedly states that the Government may not unreasonably withhold approval of matters within its discretion, the MOU places no such reasonableness requirement on the Commander of JTF-GTMO. See, e.g., P.O. at ¶ II.11.b.Because the MOU does not come into effect until countersigned by the Commander at JTFGTMO, the Commander could presumably refuse to sign the MOU, leaving a detainee in the lurch without access to counsel. Id. at ¶ 11. The MOU also states that both the "operational needs and logistical constraints" at Guantanamo as well as the "requirements for ongoing military commissions, periodic review boards, and habeas litigation" will be prioritized over counsel-access. Id. at 8(c). This provision is particularly troubling as it places a detainee's access to counsel, and thus their constitutional right to access the courts, in a subordinate position to whatever the military commander of Guantanamo sees as a logistical constraint.


The foundation of the Supreme Court's habeas jurisprudence is that the Great Writ lies at the core of this Nation's constitutional system, and it is the duty of the courts to remedy lawless Executive detention.

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land.

The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.

Rasul, 542 U.S. at 474 (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 218-- 219 (1953) (dissenting opinion)). The Boumediene decision rested in great part on the importance of the Great Writ to our system of government. Boumediene, 553 738--46, 797. As the Supreme Court noted, the Constitutional right to petition for habeas relief is a "fundamental precept of liberty." Id. at 739; see also Harris, 394 U.S. at 290--91 (The Great Writ serves as the "fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."). The Framers considered the Great Writ an "essential mechanism in the separation-of-powers scheme" because it serves as check against "undivided, uncontrolled power" that is endemic in the "pendular swings to and away ...

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