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Case 1:04-cv-01254-RCL Document 1011 Filed 09/06/12 Page 1 of 32

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

IN RE: GUANTANAMO BAY
DETAINEE CONTINUED ACCESS
TO COUNSEL

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Miscellaneous No. 12-398 (RCL)
Civil Action Nos.
04-1254 (RCL), 05-1638 (CKK),
05-2185 (RCL), 05-2186 (ESH),
05-2380 (CKK)


I.

INTRODUCTION

MEMORANDUM OPINION1



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


1 The Court’s original opinion contained a non-material factual error. The Court now issues this Amended Opinion,
which corrects the factual error.



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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.2

II.

BACKGROUND



A.

Procedural Background.

In the process of litigating their individual habeas cases, petitioners Abdu Al-Qader

Hussain Al-Mudafari (ISN3 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, 2012.4 In the alternative, petitioners Al-

Mudafari 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.5 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


2 The Court’s ruling today is limited to counsel-access under the Protective Order for the purpose of litigating before
Federal courts.
3 “ISN” is the acronym for “Internment Serial Number,” and each detainee currently housed at Guantanamo Bay has
been assigned an ISN. Bostan v. Obama, 821 F. Supp. 2d 80, 82 n.1 (D.D.C. 2011) (citing Al-Harbi v. Obama, Civil
Action No. 05–2479(HHK), 2010 WL 2398883, at *3 n. 2 (D.D.C. May 13, 2010).
4 Petitioners have filed six motions in this case: Esmail Mot. [1]; Uthman Mot. [2]; Al-Mudafari Mot. [3]; Al-
Mithali Mot. [4]; Ghanem Mot. [5]; and Al-Baidany [6]. Each motion was filed in the above captioned
miscellaneous case on July 27, 2012. Respondents filed a single Combined Opposition. Resp. Opp. [12], Aug. 8,
2012. Replies were also filed by petitioners Al-Baidany Reply [19], Al-Mudafari & Al-Mithali Reply [20], and
Esmail & Uthman Reply [21] on August 13, 2012. Petitioner Ghanem filed a brief Reply, in which he joined the
Reply of petitioners Esmail and Uthman. Ghanem Reply [26] at 1, Aug. 16, 2012.
5 Uthman’s petition for habeas relief was originally granted by the District Court. Abdah v. Obama, 708 F. Supp. 2d
9, 11 (D.D.C. 2010). However, the D.C. Circuit reversed with instructions to deny the petition. Uthman v. Obama,
637 F.3d 400, 402 (D.C. Cir. 2011). The District Court then denied Uthman’s Petition, Abdah v. Obama, 2011 WL
1642462 (D.D.C. April 29, 2011), and Uthman’s present case came to an end after the Supreme Court denied
certiorari, Uthman v. Obama, No. 11-413, ---S. Ct.---, 80 U.S.L.W. 3678 (U.S. June 11, 2012). Petitioner Esmail’s
(ISN 522) petition for habeas relief was denied in April 2010. Abdah v. Obama, 709 F.Supp.2d 25 (D.D.C. 2010).
After the D.C. Circuit affirmed, Esmail took no further appeal to the Supreme Court. Esmail v. Obama, 639 F.3d
1075 (D.C. Cir. 2011).



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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 1.6

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


6 All petitioners save Al-Baidany also contend that the Protective Order should govern counsel-access during
Periodic Review Board (PRB) proceedings, which were created by Executive Order 13,567 to provide a process for
reviewing the justifications for continued detention. Initially, petitioners Esmail and Uthman note that the MOU’s
terms, specifically paragraph 4, would prevent counsel from using information obtained pursuant to counsels’
representation of detainees in habeas proceedings in PRB hearings. Mot. [1, 2] at 3–4. Petitioners Al-Mudafari and
Al-Mithali simply note that they have retained counsel for PRB proceedings. Mot. [3, 4] at 3. And petitioner
Ghanem simply notes that he has a right to counsel in PRB proceedings. Mot. [5] at 3. In their Replies, petitioners
argue that the MOU, as opposed to the Protective Order, would bar counsel from using information obtained
pursuant to the MOU in PRB proceedings. Al-Mudafari & Al-Mithali Reply [20] at 11–13; Esmail, Ghanem &
Uthman Reply [21] at 9–10. The Government objects and argues that there is no justification for interfering in a
strictly Executive matter that does not implicate habeas rights. Resp. Opp. [12] at 31. The Court does not believe
that this issue is ripe for review. None of the petitioners addressed whether the Court has jurisdiction over counsel-
access during PRB proceedings. Nor have the petitioners alleged that their access to counsel has yet been impaired.
Moreover, the Court has now invalidated the MOU.



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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. 7 Sched. Order [7] at 1–2, July 27, 2012. Oral

arguments were held on August 17, 2012.

B.

Legal Background.



In the ten years since the first detainees were brought to Guantanamo Bay, only a handful

have been tried or convicted. 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


7 The motions under review here were originally filed in the following five cases: Abdah, et al. v. Obama, et al., 04-
cv-1254 (RCL) (petitioners Esmail and Uthman); Ghanem v. Obama, et al., 05-cv-1638 (CKK) (petitioner
Ghanem); Al-Mudafari v. Obama, et al., 05-cv- 2185 (RCL) (petitioner Al-Mudafari); Al-Mithali v. Obama, et al.,
05-cv-2186 (ESH) (petitioner Al-Mithali); Al-Baidany v. Obama, et al., 05-2380 (CKK) (petitioner Al-Baidany).
Judges Huvelle and Kollar-Kotelly each referred their cases to the undersigned judge for resolution. Al-Mithali, 05-
cv-2186 (ESH), Order, Jul. 17, 2012; Al-Baidany, 05-2380 (CKK), Minute Order, Jul. 30, 2012.




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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.



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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. 8 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.

III.



THE GOVERNMENT’S PROPOSED MEMORANDUM OF UNDERSTANDING
(MOU)

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).9 The MOU is


8 The Order specifically excluded cases over which Judge Richard Leon presided as well as Hamdan v. Bush, 04-cv-
1519. In re Guantanamo Bay Detainee Litig., Misc. No. 08-442 (TFH), Order [1] at 2 n. 1.
9 The Government has requested amendments to the Protective Order. In re Guantanamo Bay Detainee Litig., 08-
0442 (TFH), 2009 WL 2143732, at *1 (D.D.C. July 10, 2009); see also Bostan, 821 F. Supp. 2d at 85 n.7 (noting
that the Court has previously amended the Protective Order).



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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



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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 JTF-

GTMO 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.



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Because the MOU does not come into effect until countersigned by the Commander at JTF-

GTMO, 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.

IV.

STANDARD OF REVIEW

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 U.S. at 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



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power” that is endemic in the “pendular swings to and away from individual liberty.”

Boumediene, 553 U.S. at 742-43. “It is from [the separation-of-powers] principles that the

judicial authority to consider petitions for habeas corpus relief derives.” Id. at 797.

The long history of the Great Writ also firmly establishes that it is the high duty of the

Court, not the Executive, to “call the jailer to account” in habeas proceedings, Boumediene, 553

U.S. 745–46 (internal citations omitted), and to ensure that access to the courts is “adequate,

effective, and meaningful,” Bounds v. Smith, 430 U.S. 817, 822 (1977). See also Harris, 394

U.S. at 292. Practically, this means “that the privilege of habeas corpus entitles the prisoner to a

meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous

application or interpretation’ of relevant law.” Boumediene, 553 U.S. at 779 (quoting INS v. St.

Cyr, 533 U.S. 289, 302 (2001)) (emphasis added).

In the context of Guantanamo Bay habeas litigation, “access to the Court means nothing

without access to counsel.” Al-Joudi v. Bush, 406 F. Supp. 2d 13, 22 (D.D.C. 2005). They are

inseparable concepts and must run together. 10

To say that Petitioners’ ability to investigate the circumstances surrounding their
capture and detention is “seriously impaired” is an understatement. The
circumstances of their confinement render their ability to investigate nonexistent.
Furthermore, it is simply impossible to expect Petitioners to grapple with the
complexities of a foreign legal system and present their claims to this Court
without legal representation. Petitioners face an obvious language barrier, have
no access to a law library, and almost certainly lack a working knowledge of the
American legal system. Finally, this Court’s ability to give Petitioners’ claims the
“careful consideration and plenary processing” which is their due would be
stymied were Petitioners to proceed unrepresented by counsel.


Al Odah, 346 F. Supp. 2d at 9. This reasoning holds true whether petitioners are seeking to file a

habeas petition or are actively litigating one.



10 Indeed, the Government agrees that “the right to counsel attaches to the prisoner’s right of access to the courts.”
Hr’g Tr. at 52.



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V.

ANALYSIS

The Government maintains that in absence of an “active or impending” habeas case, or

where it is “speculative” that a detainee will bring a renewed petition, “the primary responsibility

for . . . respecting rights of counsel access the detainee may have[] should fall in the first instance

to the [E]xecutive branch.” Resp. Opp. [12] at 2–3; Hr’g Trans. at 6–7, 15. The Government

further argues that this Court has no power to address the counsel-access question unless and

until petitioners’ demonstrate that the counsel-access voluntarily provided by the Government’s

MOU “has impeded their ability to present new habeas petitions to the Court.” Resp. Opp. [12]

at 15.11 The Government’s reasoning is substantially flawed and confuses the roles of the jailer

and the judiciary in our constitutional separation-of-powers scheme. The Court is simply not

obliged to give the Executive the opportunity to create its own counsel-access provisions before

stepping in and fashioning such procedures. To do so would be to allow the Government to

transgress on the Court’s duty to safeguard individual liberty by “calling the jailer to account.”

Boumediene, 553 U.S. at 745–46.

As an initial matter, the Court is somewhat nonplussed as to why the counsel-access issue

is being re-litigated at all. This Court faced a very similar issue in Al Odah. The Government

there allowed Guantanamo detainees to meet with counsel under Government issued “Procedures

for Counsel Access to Detainees at Guantanamo Bay, Cuba.” 346 F. Supp. 2d at 5. Judge

Kollar-Kotelly, in a well-reasoned opinion, flatly rejected the Government’s proposed

procedures. Id. at 9–14. She held that “the Government . . . [was] not entitled to unilaterally


11 The Government later avers that petitioners have no freestanding right to counsel, and that in the domestic
context, the Sixth Amendment right to counsel does not attach until the commencement of adversarial proceedings.
Resp. Opp. [12] at 24 n.9, 37. But this case is not about detainees’ right to counsel. The Government has conceded
that petitioners here have a right to counsel. Hr’g Tr. at 7. This case concerns the rules under which detainees, who
are already represented by counsel, can continue to meet with their counsel absent a habeas petition currently before
the Court.



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impose procedures that abrogate the attorney-client relationship” and that petitioners’ “access to

attorneys [was] not a matter of Government discretion.” Id. at 5, 10.

The Protective Order has been in place for nearly four years and there is no record that its

provisions have threatened classified information or caused any harm to the military’s operation

of the Guantanamo Bay Naval Base. The Government itself argues that the MOU and the

Protective Order provide essentially the same protections. In the first instance, this raises the

question of why the Government felt it necessary to promulgate the MOU at all. The old maxim

“if it ain’t broke, don’t fix it” would seem to caution against altering a counsel-access regime

that has proven safe, efficient, and eminently workable. Indeed, the Government had no answer

when the Court posed this question in oral arguments. The best that they could muster was to

argue that the Protective Order simply left a vacuum of procedural rules in the absence of an

“active or impending” habeas petition. Of course, when it comes to power, the Government, as

much as nature, abhors a vacuum.

A.

The Judiciary, and not the Executive, is Charged with Ensuring Access to the
Courts.


Regardless, the Government’s position here, while not unreasonable, is untenable. The

Government’s argument is presumes that petitioners who are not actively litigating habeas

petitions do not have the same need to access their counsel as detainees who are currently

litigating. The Government presented no case law to substantiate this two tiered regime or to

support this assumption, and the Court finds none. Instead, the Government argues that the

courts have been leery of involving themselves in the operation of jails, and that it would

inappropriate for the Court to involve itself, at this point, with the Executive’s determination of

what procedures appropriately provide counsel-access to detainees. Resp. Opp. [12] at 23–25.

The Court cannot disagree that in the prison context access to counsel is merely a “means



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for ensuring a reasonably adequate opportunity to presented claimed violations of fundamental

constitutional rights to the court.” Lewis v. Casey, 518 U.S. 343, 351 (1996) (internal quotation

marks omitted). The Court likewise agrees that in the prison context, the political branches of

government are responsible for running their own facilities and “manag[ing] prisons in such

fashion that official interference with the presentation of claims will not occur.” Id. at 349. But

it does not follow that the judiciary has secondary responsibility for ensuring prisoners have

adequate access to the courts.

At the outset, the Government’s reason simply falls flat because, as the Government itself

notes, “the detention facility [at Guantanamo Bay] . . . is not a corrections facility.” Resp. Lt’r

[28] at 2, Aug. 21, 2012. If it were, under Navy Regulations, detainees would have

unconditional access to their attorneys. Dep’t of Navy Corrections Manual, Art. 1640-80, Sec. 3

¶ 2.c (Mar. 29, 2011), available at http://www.public.navy.mil/bupers-

npc/reference/instructions/BUPERSInstructions/Documents/1640.22.pdf (“Under no condition

shall any prisoner be prevented from consulting or corresponding with counsel or the authorized

representative of counsel . . . .”).

But even in the prison context, the Supreme Court has zealously guarded against policies

that threaten prisoners’ ability to effectively challenge their detention. It has held, in no

uncertain words, that the “state and its officers may not abridge or impair a prisoner’s right to

apply to a federal court for a writ of habeas corpus.” Ex parte Hull, 312 U.S. 546, 549 (1941).

Such abridgment need not be conspicuous or direct. For example, the Supreme Court has

mandated that prisoners must be provided with access to law libraries or “alternative sources of

legal knowledge,” and “with paper and pen to draft legal documents[,] with notarial services to

authenticate them, and with stamps to mail them.” Bounds, 430 U.S. at 817, 823–25 (1977).



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The Supreme Court has likewise invalidated backdoor attempts to prevent inmates from filing

habeas petitions, such as policies that ban jailhouse lawyers from assisting other inmates prepare

court filings, Johnson v. Avery, 393 U.S. 483, 489 (1969), and those requiring indigent prisons to

pay filing fees, Burns v. Ohio, 360 U.S. 252, 257 (1959). In Casey, the Supreme Court affirmed

that prisons must ensure that illiterate and non-English-speaking prisoners have meaningful

access to the Courts. See 518 U.S. 343, 355–56 (1996).

While the Executive may have the responsibility for regulating its facilities, the Court is

charged with ensuring that prisoners are “provided with the tools . . . to challenge the conditions

of their confinement.” Casey, 518 U.S. at 355. This is especially true in the context of

Guantanamo: “The gravity of the separation-of-powers issues raised by these cases and the fact

that these detainees have been denied meaningful access to a judicial forum for a period of years

render these cases exceptional.” Boumediene, 553 U.S. at 772. As petitioners Uthman and

Esmail point out, the “legal framework for uncharged Guantanamo detainees is dynamic and

fluid, subject to change for any number of reasons,” including changed domestic and

international circumstances, and amended legal and regulatory schemes. Reply [21] at 7. Even

the Government agrees that “assistance of counsel can be instrumental to proper decision-making

about whether and when to file a new habeas petition.” Resp. Opp. [12] at 21–22. The Court

does not see how these petitioners, who speak no English, have no legal training, and who cannot

be expected to remain up to date with new legal and political developments can have the

requisite tools to bring habeas petitions without access to counsel.





B.



The Government’s MOU Transgresses on the Judiciary’s Duty to Ensure
Detainees Have Access to the Courts by Giving the Military Unreviewable

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Discretion over Counsel-Access Questions.


The MOU not only threatens separation-of-powers principles by usurping the judiciary’s

duty to ensure access to the courts, it also takes from the courts the power to adjudicate

controversies relating to the MOU. The MOU gives the military commander of Guantanamo

“final and unreviewable discretion” over “disputes regarding the applicability, interpretation,

enforcement, compliance with or violations of” the MOU. MOU [12-1] at ¶ 8.f. Such

controversies will necessarily implicate detainees’ access to the courts. If applied, the MOU

would also allow the Commander, JTF-GTMO to deny petitioners access to counsel whenever he

deems the “operational needs or logistical constraints” justify it. MOU [12-1] at 8(c). The

Government has already exercised this broad, unimpeded discretionary power; it informed

petitioners’ counsel that “it anticipates limiting the number of attorneys who may have continued

access to a detainee under the MOU to two” and one translator. Resp. Opp. [12] at 11, n.3. A

document so one-sided that it gives one party the power to unilaterally modify its provisions

renders any rights provided by such a document meaningless and illusory. Far from merely

putting in place rules governing how it will run its own facilities and protect classified

information, Hr’g Tr. at 14–15, the Government wants to place itself as the sole arbiter of when a

habeas petitioner is “seeking” to challenge their own detention and when a habeas case is

“impending,” and thus when they can have access to counsel. But “access to the Court means

nothing without access to counsel.” Al-Joudi, 406 F. Supp. 2d at 22. Thus, the MOU actually

gives the Government final, unreviewable power to delay, hinder, or prevent access to the courts.

Moreover, the Government actions thus far demonstrate that it cannot be trusted with

such power. The Government does not contest that petitioners’ right to habeas relief includes a

continuing right to file a habeas petition even after denial on the merits or dismissal without



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prejudice. Resp. Opp. [12] at 21. And, the Government concedes that detainees “seeking to

challenge the lawfulness of their detention, whether for the first time, or thereafter, are entitled to

the assistance of counsel.” Id. at 2. Nor does the Government question that “assistance of

counsel can be instrumental to proper decision-making about whether and when to file a new

habeas petition.” Id. at 21–22. Yet, the Government believes that the petitioners bringing the

present action have only demonstrated a “conjectural” desire to bring future habeas claims, and

regardless of how helpful counsel might be to that decision-making process, these petitioners do

not qualify for counsel-access under the Protective Order. Id. at 24.

The Court is satisfied that these petitioners have made plain their desire to continue

challenging the legality of their detention. Petitioners Al-Mudafari and Al-Mithali seek

indefinite stays of their habeas proceedings, and Petitioner Ghanem seeks leave to dismiss

without prejudice to re-file. This evidences that each intends to continue fighting their

detention, just at a later date. Petitioner Al-Baidany specifically avers that he intends to re-file

for habeas relief. Reply [19] at 2. And counsel for Uthman and Ismail submit that they “have

asked counsel to pursue every legal avenue to achieve their release,” and counsel has assured the

Court that he “will file for habeas petitions or [commence] other legal proceedings on their

behalf.” Reply [21] at 6. These petitioners have demonstrated more than merely a conjectural

desire to bring habeas petitions. Indeed, they have either active or impending petitions. Thus, by

its own rubric, the Government should allow these petitioners access to counsel under the

Protective Order.

C.

The Government Lacked Authority to Issue the MOU.

It is clear that the Government had no legal authority to unilaterally impose a new

counsel-access regime, let alone one that would render detainees’ access to counsel illusory.



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Because it is emphatically the duty of the Courts to assure access to habeas relief, Harris, 394

U.S. at 292, and because “petitioners’ access to attorneys is not a matter of Government

discretion,” Al Odah, 346 F. Supp. 2d at 10, the Government’s MOU is null ab initio. If the

Court here were to allow the Executive to substitute its MOU for the Protective Order, regardless

of whether it provides “essentially the same” counsel-access provisions or not, Resp. Opp. [12]

at 1, 15, 38, 40, the Court would be abdicating its great responsibility to guarantee that its doors

remain open to these detainees. C.f. United States v. Stevens, 130 S. Ct. 1577, 1591 (2010) (“We

would not uphold an unconstitutional statute merely because the Government promised to use it

responsibly.”). If the separation-of-powers means anything, it is that this country is not one ruled

by Executive fiat. Such blanket, unreviewable power over counsel-access by the Executive does

not comport with our constitutional system of government. Therefore, it is the opinion of this

Court that the Protective Order continues to govern detainee-counsel access for the purpose of

bringing habeas petitions so long as detainees can bring habeas petitions before the Court.

The Court’s Holding is Consistent with its Equitable Powers.


D.

The Government argues that the Court’s holding here turns the Protective Order into a



permanent injunction without the showing of harm needed for such an injunction. The Court

disagrees. As an initial matter, the Court’s holding does not convert the Protective Order into a

permanent injunction. The Protective Order remains in place only as long as detainees are held

at Guantanamo Bay and can petition for habeas relief or bring other claims before the Federal

courts, and no longer. Had, for example, the Obama Administration closed the Guantanamo Bay

detention facility as it promised, the Court’s Protective Order would no longer have any effect,

except as to those provisions regulating disclosure of classified and protected information. See

Executive Order 13492, 74 Fed. Reg. 4897 (Jan. 22, 2009). The Protective Order itself and the



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Court’s holding today are little more than an appropriate exercise of the Court’s equitable powers

in pursuit of its charge to ensure detainees have adequate access to the courts.

“Habeas corpus is at its core, an equitable remedy,” Schlup v. Delo, 513 U.S. 298, 319

(1995), and judges have “broad discretion” to fashion appropriate remedies, Hilton v. Braunskill,

481 U.S. 770, 775 (1987). It may extend beyond simply ordering the release of a petitioner,

Carafas v. LaVallee, 391 U.S. 234 (1968), and is to “be administered with the initiative and

flexibility essential to insure that miscarriages of justices within its reach are surfaced and

corrected.” Harris, 394 U.S. at 291 (1969). Habeas corpus “never has been a static, narrow,

formalistic remedy; its scope has been to achieve its grand purpose-the protection of individuals

against erosion of their right to be free from wrongful restraints upon their liberty.” Jones v.

Cunningham, 371 U.S. 236, 243 (1963). In “reviewing the legality of Executive detention . . . its

protections . . . [are] strongest.” Rasul, 542 U.S. at 474 (citations omitted).

The Supreme Court has noted that its “scope and flexibility—its capacity to reach all

manner of illegal detention—its ability to cut through barriers of form and procedural mazes—

have always been emphasized and jealously guarded by courts . . . .” Harris, 394 U.S. at 291.

Courts are inherently empowered to “requir[e] additional measure to assure meaningful access

[to the courts],” Bounds, 430 U.S. at 824, and to “authorize such proceedings with respect to

development . . . of the facts . . . as may be necessary or appropriate in aid of [its habeas

jurisdiction],” Harris, 394 U.S. at 300 (citation and internal quotation marks omitted). In Al

Odah, this Court confirmed that, where it “is clear . . . that Petitioners are entitled to present the

facts surrounding their confinement to the Court[], [i]t is equally clear that the Court is

authorized to craft the procedures necessary to make this possible, in order that the Court might

fully consider Petitioners’ challenge to their detention.” 346 F. Supp. 2d at 7 (citing Harris, 394



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U.S. at 300). And in Boumediene, the Supreme Court specifically left access-to-counsel issues to

the discretion of the District Court. 553 U.S. at 796.

Invoking the Court’s equitable power in Guantanamo cases is particularly appropriate

because this class of cases is sui generis. See Boumediene, 553 U.S. at 772. Petitioners are not

being held in a state or federal detention facility where they can freely send mail, meet with

family or phone a friend. Petitioners here, and their fellow detainees, have been held virtually

incommunicado, and some, including petitioner Ghanem, have been detained for more than a

decade. Mot. [5] at 4. Most petitioners do not speak English and other detainees are completely

illiterate. Al-Mudafari & Al-Mithali Reply [20] at 9 n.3. Petitioners hail from foreign lands with

wildly different legal systems. Any understanding they may possess of the American legal

system is likely fraught with confusion and misconceptions.

The Protective Order was put in place to provide counsel with sufficient access to

detainees and to classified information so that detainees could appropriately prosecute habeas

petitions. Therefore, the Court’s holding here, that the Protective Order remains in effect even

after a habeas petition has been dismissed or denied, does nothing more than ensure that

detainees have access to the courts, through their counsel, and that detainee’s counsel-access is

“adequate, effective, and meaningful.” Bounds, 430 U.S. at 822.

E.

The History and Terms of the Protective Order Makes it Clear that the
Protective Order Remains in Effect After the Dismissal or Denial of a Habeas
Petition.


The Government argues that under the terms of the Protective Order, all provisions, save

those regulating disclosure of classified information, necessarily expire at the termination of an

individual petitioner’s habeas case. Resp. Opp. [12] at 28–31, Hr’g Tr. at 6–7. As to the

provisions regulating disclosure of classified information, the Court agrees with the Government.



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See P.O. at ¶¶ I.D.31, I.E.41, I.G.52. However, the Court cannot agree that these provisions, by

implication, prove that the rest of the Protective Order was intended to expire after a petitioner’s

case is dismissed or denied. To the contrary, the terms of the Protective Order and the history

behind its creation sufficiently evidence that it applies to Guantanamo cases as a class, and that it

remains in effect so long as petitioners have the right bring habeas or other cases before the

Court, not merely when a habeas petition is being actively heard.

The Protective Order was not created in a vacuum. It was issued in response to the

Government’s initial position, that detainees’ access to counsel was purely within the

Executive’s “pleasure and discretion.” Al Odah, 346 F. Supp. 2d at 5. It was the result of a

deliberative process that included oral and written input from the Government and petitioners. It

took into consideration that the District Court, as the Court of first resort, is always concerned

with the just and expeditious determination of cases and seeks judicial economy whenever

possible. See In re Guantanamo Bay Detainee Litig., Misc. No. 08-442 (TFH), Order [1] at 1–2.

The preamble to the Protective Order affirms that it was meant to apply to “all aspects of

these coordinated matters.” P.O., 577 F. Supp. 2d at 145. The coordinated matters were “all

case involving petitioners presently detained at Guantanamo Bay, Cuba” that “have been filed or

may be filed in the future. . . .” In re Guantanamo Bay Detainee Litig., Misc. No. 08-442 (TFH),

Order [1] at 1–2 (emphasis added). The Court understands the terms “all aspects” and “cases

that have been filed or may be filed” to include all possible legal scenarios, including voluntary

dismissal or other periods of inaction, such as between the filing of successive habeas petitions.

Section I paragraph 20 specifically notes that “petitioners’ counsel in these and other

proceedings” will have access to classified materials, including attorney work-product. P.O. at

¶¶ I.13, I.20 (emphasis added). And, “petitioners’ counsel” was defined as “attorneys employed



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or retained by or on behalf of a petitioner for purposes of representing the petitioner in habeas

corpus or other litigation in federal court.” Id. at ¶ I.11 (emphasis added). Clearly, the order

was meant to apply to petitioners who were contemplating bringing cases, but who had not yet

filed pleadings with the Court. Finally, the Order mandates that all “documents containing

classified information prepared, possessed or maintained by, or otherwise provided to,

petitioners’ counsel” would not be destroyed until the “final resolution of these cases, including

all appeals.” Id. at ¶ I.33. These provisions read together make it abundantly clear that the

Protective Order’s applicability lasts beyond the denial or dismissal of a petitioner’s habeas case

and stretches to the class of present and future cases which have been, or may be, filed by

detainees at Guantanamo Bay.

Beyond this fact, the Government’s reading of the Protective Order would lead to

unreasonable conclusions and create multiple regimes of counsel-access for habeas cases. For

example, a petitioner whose habeas claim was denied by the District Court would lose access to

counsel at the moment the Court’s order was published because any appeal would be

“speculative” at that time. Petitioner’s attorneys would then have to go through the process of

signing the MOU before they would be able to again meet with or speak to their client to

determine whether the detainee wished for them to file an appeal. But the MOU mandates that it

will not come into effect until countersigned by the Commander of JTF-Guantanamo, at his

discretion. MOU [12-1] at ¶ 11. Under these rules, the Government could simply withhold

access to counsel for any amount of time it wished. Moreover, if the Government signed the

MOU, the MOU would lose force at the moment petitioner made plain his desire to appeal the

District Court’s ruling, because the petitioner’s case would then be “impending.” At that

moment, the petitioner’s attorneys would again be covered by the Protective Order. The



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Protective Order cannot be understood to create such a confusing counsel-access scheme.

VI.

SUFFICENT EVIDENCE EXISTS FOR THE COURT TO ISSUE A
PERMANENT INJUNCTION IF IT SO DESIRED

The Government argues that under the Supreme Court’s ruling in Casey, detainees must

show “actual harm” before the Court has authority to step in and provide procedures for counsel-

access. Resp. Mot. [12] at 24; Hr’g Tr. at 8. The Government maintains that petitioners here

cannot show any such harm because counsel-access is provided under its MOU and because

petitioners can access the Court via regular mail. Resp. Mot. [12] at 38.

The Government’s reliance on Casey is misplaced. As an initial matter, the Government

provided no evidence that the “actual harm” standard applicable in Casey, a case involving

access to the courts in the domestic prison context, is appropriate for determining counsel-access

questions involving detainees at Guantanamo Bay, especially when the Supreme Court has

specifically left such questions to the discretion of the District Court. Boumediene, 553 U.S. at

796. The facts in Casey are also distinguishable.

Casey dealt with inmates held by the Arizona’s Department of Corrections (ADOC) who

complained that inadequate prison law libraries and legal assistance programs inhibited their

access to the courts. 518 U.S. at 346–48. After finding harm, the district court directed a special

master to investigate and issue a report containing remedial measures, which the Court adopted

as a permanent injunction. Id. The Supreme Court reversed and held that these prisoners could

not establish harm simply by arguing that the “prison’s law library or legal assistance program is

subpar in some theoretical sense.” Id. at 351. The Court also took issue with the permanent

injunction. It faulted the district court because the remedial plan was developed by a law

professor in New York, rather than by ADOC officials, and it was created “through a process

that failed to give adequate consideration to the views of state prison officials.” Id. at 362–63.



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While the prisoners in Casey may have been in a prickly situation, they certainly were

afforded more protections and access to courts than detainees at Guantanamo. The difference

between the two is as stark as the difference between the tropical climate of Cuba and the desert

climate of Arizona. Prisoners in Arizona had been tried and convicted. They could send mail

through the U.S. Postal Service. They could phone friends and family who could assist them

with securing representation. And there was no evidence that prisoners, who were represented

by counsel, would be restricted from meeting with counsel. In contrast, detainees at

Guantanamo have been held without charge or trial, are generally not permitted visitors other

than members of the International Committee for the Red Cross, and their mail is subject to

review, redaction and seizure by the military. Al-Mithali Mot. [4] at 3.

What’s more, Casey affirmed the District Court’s finding that at least two illiterate and

non-English-speaking prisoners suffered actual harm because the ADOC Procedures did not

provide them with adequate access to the courts. 518 U.S. at 355–56. If illiterate prisoners who

could nevertheless communicate with family, friends and counsel were deemed to lack sufficient

access to the courts, there can be little doubt that the Guantanamo detainees, whose are in a far

more vulnerable position, and who have been denied access to their own counsel, have likewise

suffered an injury which the Court may rightfully redress using its equitable powers.

Unlike the circumstances in Casey, the Protective Order was requested by, and developed

in consultation with, the Government. Judge Hogan, a wise and experienced jurist who had

previously served as the Chief Judge of this Court, and not some mere law professor, carefully

considered the pleadings and oral arguments of the parties, and the history of Guantanamo

habeas litigation before issuing the Protective Order. Far from providing remedial measures, the

Protective Order simply reaffirmed counsel-access procedures that had been in place for four



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years.

A.

There is Sufficient Evidence to Find that Petitioners Would Suffer Actual
Harm Absent Court-Ordered Counsel Access.


But even under Casey, the Court need only find “past or imminent official interference

with individual inmates’ presentation of claims to the courts,” before issuing an injunction to

prevent such harm. 518 U.S. at 349. As the Court has repeatedly said, in the context of

Guantanamo Bay, “access to the Court means nothing without access to counsel.” Al-Joudi, 406

F. Supp. 2d at 22. It follows that any regulations that imminently threaten detainees’ access to

counsel likewise threaten their access to the courts. There is no question that the Government

here has already interfered and continues to interfere with detainees’ presentation of claims to the

Court. Petitioners Esmail and Uthman have been denied access to counsel since May 2012.

Esmail & Uthman Reply [21] at 7. All other petitioners in this case are threatened with losing

access to counsel under the Protective Order. While the Government maintains that counsel-

access is nevertheless provided by the MOU, as described in sections III and V.B., supra, the

MOU gives the Commander of JTF-GTMO immense discretionary authority to unreasonably

deny detainees access to counsel.

All petitioners here are represented by private counsel, acting pro bono.12 The costs

associated with such representation are immense. Partners and associates, who would otherwise


12 The Court would like to note that pro bono counsel in these cases have worked dil