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Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________________________

Hicks (Rasul) v. Bush



Al Odah v. United States

Habib v. Bush

Kurnaz v. Bush

Khadr v. Bush

Begg v. Bush

Khalid (Benchellali) v. Bush

El-Banna v. Bush

Gherebi v. Bush

Boumediene v. Bush

Anam v. Bush

Almurbati v. Bush

Abdah v. Bush

Hamdan v. Bush

Al-Qosi v. Bush

Paracha v. Bush

Al-Marri v. Bush

Zemiri v. Bush

Deghayes v. Bush

Mustapha v. Bush

Abdullah v. Bush

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Case No. 02-CV-0299 (CKK)

Case No. 02-CV-0828 (CKK)

Case No. 02-CV-1130 (CKK)

Case No. 04-CV-1135 (ESH)

Case No. 04-CV-1136 (JDB)

Case No. 04-CV-1137 (RMC)

Case No. 04-CV-1142 (RJL)

Case No. 04-CV-1144 (RWR)

Case No. 04-CV-1164 (RBW)

Case No. 04-CV-1166 (RJL)

Case No. 04-CV-1194 (HHK)

Case No. 04-CV-1227 (RBW)

Case No. 04-CV-1254 (HHK)

Case No. 04-CV-1519 (JR)

Case No. 04-CV-1937 (PLF)

Case No. 04-CV-2022 (PLF)

Case No. 04-CV-2035 (GK)

Case No. 04-CV-2046 (CKK)

Case No. 04-CV-2215 (RMC)

Case No. 05-CV-0022 (JR)

Case No. 05-CV-0023 (RWR)

Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 2 of 32

Al-Mohammed v. Bush

El-Mashad v. Bush

Al-Adahi v. Bush

Al-Joudi v. Bush

Al-Wazan v. Bush

Al-Anazi v. Bush

Alhami v. Bush

Ameziane v. Bush

Batarfi v. Bush

Sliti v. Bush

Kabir v. Bush

Qayed v. Bush

Al-Shihry v. Bush

Aziz v. Bush

Al-Oshan v. Bush

Tumani v. Bush

Al-Oshan v. Bush

Salahi v. Bush

Mammar v. Bush

Al-Sharekh v. Bush

Magram v. Bush

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Case No. 05-CV-0247 (HHK)

Case No. 05-CV-0270 (JR)
(Consolidated with 05-CV-833)

Case No. 05-CV-0280 (GK)

Case No. 05-CV-0301 (GK)

Case No. 05-CV-0329 (PLF)

Case No. 05-CV-0345 (JDB)

Case No. 05-CV-0359 (GK)

Case No. 05-CV-0392 (ESH)

Case No. 05-CV-0409 (EGS)

Case No. 05-CV-0429 (RJL)

Case No. 05-CV-0431 (RJL)

Case No. 05-CV-0454 (RMU)

Case No. 05-CV-0490 (PLF)

Case No. 05-CV-0492 (JR)

Case No. 05-CV-0520 (RMU)

Case No. 05-CV-0526 (RMU)

Case No. 05-CV-0533 (RJL)

Case No. 05-CV-0569 (JR)
(Consolidated with 05-CV-0881)
(Consolidated with 05-CV-0995)

Case No. 05-CV-0573 (RJL)

Case No. 05-CV-0583 (RJL)

Case No. 05-CV-0584 (CKK)

Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 3 of 32

Al Rashaidan v. Bush

Mokit v. Bush

Al Daini v. Bush

Errachidi v. Bush

Ahmed v. Bush

Battayav v. Bush

Adem v. Bush

Aboassy v. Bush

Hamlily v. Bush

Imran v. Bush

Al Habashi v. Bush

Al Hamamy v. Bush

Hamoodah v. Bush

Khiali-Gul v. Bush

Rahmattullah v. Bush

Mohammad v. Bush

Nasrat v. Bush

Rahman v. Bush

Bostan v. Bush

Muhibullah v. Bush

Mohammad v. Bush

Wahab v. Bush

Chaman v. Bush

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Case No. 05-CV-0586 (RWR)

Case No. 05-CV-0621 (PLF)

Case No. 05-CV-0634 (RWR)

Case No. 05-CV-0640 (EGS)

Case No. 05-CV-0665 (RWR)

Case No. 05-CV-0714 (RBW)

Case No. 05-CV-0723 (RWR)

Case No. 05-CV-0748 (RMC)

Case No. 05-CV-0763 (JDB)

Case No. 05-CV-0764 (CKK)

Case No. 05-CV-0765 (EGS)

Case No. 05-CV-0766 (RJL)

Case No. 05-CV-0795 (RJL)

Case No. 05-CV-0877 (JR)

Case No. 05-CV-0878 (CKK)

Case No. 05-CV-0879 (RBW)

Case No. 05-CV-0880 (ESH)

Case No. 05-CV-0882 (GK)

Case No. 05-CV-0883 (RBW)

Case No. 05-CV-0884 (RMC)

Case No. 05-CV-0885 (GK)

Case No. 05-CV-0886 (EGS)

Case No. 05-CV-0887 (RWR)

Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 4 of 32

Gul v. Bush

Basardh v. Bush

Nasrullah v. Bush

Shaaban v. Bush

Sohail v. Bush

Tohirjanovich v. Bush

Al Karim v. Bush

Al-Khalaqi v. Bush

Sarajuddin v. Bush

Kahn v. Bush

Mohammed v. Bush

Mangut v. Bush

Hamad v. Bush

Khan v. Bush

Zuhoor v. Bush

Ali Shah v. Bush

Salaam v. Bush

Al-Hela v. Bush

Mousovi v. Bush

Khalifh v. Bush

Zalita v. Bush

Ahmed v. Bush

Aminullah v. Bush

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Case No. 05-CV-0888 (CKK)

Case No. 05-CV-0889 (ESH)

Case No. 05-CV-0891 (RBW)

Case No. 05-CV-0892 (CKK)

Case No. 05-CV-0993 (RMU)

Case No. 05-CV-0994 (JDB)

Case No. 05-CV-0998 (RMU)

Case No. 05-CV-0999 (RBW)

Case No. 05-CV-1000 (PLF)

Case No. 05-CV-1001 (ESH)

Case No. 05-CV-1002 (EGS)

Case No. 05-CV-1008 (JDB)

Case No. 05-CV-1009 (JDB)

Case No. 05-CV-1010 (RJL)

Case No. 05-CV-1011 (JR)

Case No. 05-CV-1012 (ESH)

Case No. 05-CV-1013 (JDB)

Case No. 05-CV-1048 (RMU)

Case No. 05-CV-1124 (RMC)

Case No. 05-CV-1189 (JR)

Case No. 05-CV-1220 (RMU)

Case No. 05-CV-1234 (EGS)

Case No. 05-CV-1237 (ESH)

Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 5 of 32

Ghalib v. Bush

Al Khaiy v. Bush

Bukhari v. Bush

Pirzai v. Bush

Peerzai v. Bush

Alsawam v. Bush

Mohammadi v. Bush

Al Ginco v. Bush

Ullah v. Bush

Al Bihani v. Bush

Mohammed v. Bush

Saib v. Bush

Hatim v. Bush

Al-Subaiy v. Bush

Dhiab v. Bush

Ahmed Doe v. Bush

Sadkhan v. Bush

Faizullah v. Bush

Faraj v. Bush

Khan v. Bush

Ahmad v. Bush

Amon v. Bush

Al Wirghi v. Bush

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Case No. 05-CV-1238 (CKK)

Case No. 05-CV-1239 (RJL)

Case No. 05-CV-1241 (RMC)

Case No. 05-CV-1242 (RCL)

Case No. 05-CV-1243 (RCL)

Case No. 05-CV-1244 (CKK)

Case No. 05-CV-1246 (RWR)

Case No. 05-CV-1310 (RJL)

Case No. 05-CV-1311 (RCL)

Case No. 05-CV-1312 (RJL)

Case No. 05-CV-1347 (GK)

Case No. 05-CV-1353 (RMC)

Case No. 05-CV-1429 (RMU)

Case No. 05-CV-1453 (RMU)

Case No. 05-CV-1457 (GK)

Case No. 05-CV-1458 (ESH)

Case No. 05-CV-1487 (RMC)

Case No. 05-CV-1489 (RMU)

Case No. 05-CV-1490 (PLF)

Case No. 05-CV-1491 (JR)

Case No. 05-CV-1492 (RCL)

Case No. 05-CV-1493 (RBW)

Case No. 05-CV-1497 (RCL)

Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 6 of 32

Nabil v. Bush

Al Hawary v. Bush

Shafiiq v. Bush

Kiyemba v. Bush

Idris v. Bush

Attash v. Bush

Al Razak v. Bush

Mamet v. Bush

Rabbani v. Bush

Zahir v. Bush

Akhtiar v. Bush

Ghanem v. Bush

Albkri v. Bush

Al-Badah v. Bush

Almerfedi v. Bush

Zaid v. Bush

Al-Bahooth v. Bush

Al-Siba'i v. Bush

Al-Uwaidah v. Bush

Al-Jutaili v. Bush

Ali Ahmed v. Bush

Khandan v. Bush

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Case No. 05-CV-1504 (RMC)

Case No. 05-CV-1505 (RMC)

Case No. 05-CV-1506 (RMC)

Case No. 05-CV-1509 (RMU)

Case No. 05-CV-1555 (JR)
(Consolidated with 05-CV-1725)

Case No. 05-CV-1592 (RCL)

Case No. 05-CV-1601 (GK)

Case No. 05-CV-1602 (ESH)

Case No. 05-CV-1607 (RMU)

Case No. 05-CV-1623 (RWR)
(Consolidated with 05-CV-01236)

Case No. 05-CV-1635 (PLF)

Case No. 05-CV-1638 (CKK)

Case No. 05-CV-1639 (RBW)

Case No. 05-CV-1641 (CKK)

Case No. 05-CV-1645 (PLF)

Case No. 05-CV-1646 (JDB)

Case No. 05-CV-1666 (ESH)

Case No. 05-CV-1667 (RBW)

Case No. 05-CV-1668 (GK)

Case No. 05-CV-1669 (TFH)

Case No. 05-CV-1678 (GK)

Case No. 05-CV-1697 (RBW)

Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 7 of 32

Kabir (Sadar Doe) v. Bush

Al-Rubaish v. Bush

Qasim v. Bush

Sameur v. Bush

Al-Harbi v. Bush

Aziz v. Bush

Hamoud v. Bush

Al-Qahtani v. Bush

Alkhemisi v. Bush

Gamil v. Bush

Al-Shabany v. Bush

Othman v. Bush

Ali Al Jayfi v. Bush

Jamolivich v. Bush

Al-Mudafari v. Bush

Al-Mithali v. Bush

Al-Asadi v. Bush

Alhag v. Bush

Nakheelan v. Bush

Al Subaie v. Bush

Ghazy v. Bush

Al-Shimrani v. Bush

Amin v. Bush

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Case No. 05-CV-1704 (JR)

Case No. 05-CV-1714 (RWR)

Case No. 05-CV-1779 (JDB)

Case No. 05-CV-1806 (CKK)

Case No. 05-CV-1857 (CKK)

Case No. 05-CV-1864 (HHK)

Case No. 05-CV-1894 (RWR)

Case No. 05-CV-1971 (RMC)

Case No. 05-CV-1983 (RMU)

Case No. 05-CV-2010 (JR)

Case No. 05-CV-2029 (JDB)

Case No. 05-CV-2088 (RWR)

Case No. 05-CV-2104 (RBW)

Case No. 05-CV-2112 (RBW)

Case No. 05-CV-2185 (JR)

Case No. 05-CV-2186 (ESH)

Case No. 05-CV-2197 (HHK)

Case No. 05-CV-2199 (HHK)

Case No. 05-CV-2201 (ESH)

Case No. 05-CV-2216 (RCL)

Case No. 05-CV-2223 (RJL)

Case No. 05-CV-2249 (RMC)

Case No. 05-CV-2336 (PLF)

Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 8 of 32

Al Sharbi v. Bush

Ben Bacha v. Bush

Zadran v. Bush

Alsaaei v. Bush

Razakah v. Bush

Al Darbi v. Bush

Haleem v. Bush

Al-Ghizzawi v. Bush

Awad v. Bush

Al-Baidany v. Bush

Al Rammi v. Bush

Said v. Bush

Al Halmandy v. Bush

Mohammon v. Bush

Al-Quhtani v. Bush

Thabid v. Bush

Al Yafie v. Bush

Rimi v. Bush

Almjrd v. Bush

Al Salami v. Bush

Al Shareef v. Bush

Khan v. Bush

Hussein v. Bush

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Case No. 05-CV-2348 (EGS)

Case No. 05-CV-2349 (RMC)

Case No. 05-CV-2367 (RWR)

Case No. 05-CV-2369 (RWR)

Case No. 05-CV-2370 (EGS)

Case No. 05-CV-2371 (RCL)

Case No. 05-CV-2376 (RBW)

Case No. 05-CV-2378 (JDB)

Case No. 05-CV-2379 (JR)

Case No. 05-CV-2380 (CKK)

Case No. 05-CV-2381 (JDB)

Case No. 05-CV-2384 (RWR)

Case No. 05-CV-2385 (RMU)

Case No. 05-CV-2386 (RBW)

Case No. 05-CV-2387 (RMC)

Case No. 05-CV-2398 (ESH)

Case No. 05-CV-2399 (RJL)

Case No. 05-CV-2427 (RJL)

Case No. 05-CV-2444 (RMC)

Case No. 05-CV-2452 (PLF)

Case No. 05-CV-2458 (RWR)

Case No. 05-CV-2466 (RCL)

Case No. 05-CV-2467 (PLF)

Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 9 of 32

Al-Delebany v. Bush

Al-Harbi v. Bush

Feghoul v. Bush

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Case No. 05-CV-2477 (RMU)

Case No. 05-CV-2479 (HHK)

Case No. 06-CV-0618 (RWR)

Rumi v. Bush
________________________________________________________________

Case No. 06-CV-0619 (RJL)

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RESPONDENTS’ MOTION FOR PROCEDURES

RELATED TO REVIEW OF CERTAIN DETAINEE MATERIALS

AND REQUEST FOR EXPEDITED BRIEFING1

Respondents hereby respectfully submit this motion and memorandum to inform the

Court and counsel regarding the disposition of certain materials associated with Guantanamo

detainees, including petitioners, that have been impounded for purposes of an ongoing

investigation by the Naval Criminal Investigative Service (“NCIS”) into the circumstances of the

recent suicides of three detainees, as well as any broader plot or planning for other such attempts

in the past or future. Respondents also request that the Court establish procedures authorizing

the review of impounded materials that may have been created by detainees to provide to their

counsel, or that may have been provided to detainees by their counsel, and therefore may

potentially be subject to privilege. Respondents also seek an expedited briefing schedule

regarding this matter.

As explained below, respondents seek authorization for a “Filter Team” that would

review the impounded materials. That Filter Team will be composed of Department of Defense

attorneys and other personnel and translators who have not and will not take part in litigation or

1

This filing also serves as respondents’ opposition to petitioner’s Motion to Modify Stay

to Direct Respondents to Return Impounded Privileged Legal Material, filed July 5, 2006, in
Abdullah v. Bush, No. 05-CV-0023 (RWR).

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Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 10 of 32

other proceedings involving detainees, and who will operate under appropriate nondisclosure

obligations. Once authorized, the Filter Team will identify documents relevant to the ongoing

investigation such that any relevant but potentially privileged materials will remain privileged

pending the Court’s consideration of privilege issues with respect to those materials.

For the reasons explained below, the Court should authorize the inclusion of attorney-

client communications in the review of detainee materials by the Filter Team. Furthermore,

2

given that the ongoing investigation pertains to the safety and security of detainees and personnel

at Guantanamo Bay and should be permitted to proceed expeditiously, the Court is requested to

require that petitioners file any response to this motion within ten (10) calendar days, i.e., July

17, 2006, with respondents’ reply due July 21, 2006.3

2

The ongoing NCIS investigation will involve review of materials of all Guantanamo

Bay detainees, except those who have been classified as no longer enemy combatants
(“NLECs”). Accordingly, respondents are filing this motion in all of the pending Guantanamo
detainee habeas cases, including those currently on appeal, with the exception of the four cases
that exclusively involve NLECs. See Qassim v. Bush, 05-CV-497 (JR); Mamet v. Bush, 05-CV-
1886 (EGS); Zakirjan v. Bush, 05-CV-2053 (HHK); Muhammed v. Bush, 05-CV-2087 (RMC).
A fifth case – El-Mashad v. Bush, 05-CV-270 (JR) – involves both enemy combatant and NLEC
detainees, thus the motion in that case is directed only with respect to the enemy combatant
detainees (Adel Fattouh Aly Alhmed Algazzar and Sherif El-Mashad).

3

This motion is without prejudice to respondents’ position that the Court lacks

jurisdiction in these cases, aside from Hamdan v. Rumsfeld, No. 04-CV-1519 (JR), in light of the
Detainee Treatment Act of 2005, Pub. L. No. 109-148, tit. X, 119 Stat. 2680 (“the Act”). The
Act, among other things, amends 28 U.S.C. § 2241 to eliminate court jurisdiction to consider
habeas petitions and other claims by aliens held as enemy combatants at Guantanamo Bay, id.
§1005(e)(1), and to create an exclusive review mechanism in the D.C. Circuit to address the
validity of the detention of such aliens and final decisions of any military commissions, id.
§ 1005(e)(1), (e)(2), (e)(3). Section 1005(e)(2) of the Act states that the D.C. Circuit “shall have
exclusive jurisdiction to determine the validity of any final decision of a Combatant Status
Review Tribunal that an alien is properly detained as an enemy combatant,” and it further
specifies the scope and intensiveness of that review. While the Supreme Court in Hamdan, held
that § 1005(e)(1) did not apply to habeas petitions pending prior to the enactment of the Act, it
recognized that the exclusive review provisions of the Act did expressly apply to cases pending

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Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 11 of 32

BACKGROUND

On June 10, 2006, three detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, were

found in their cells, each apparently having committed suicide using torn bedsheets as ligatures

to hang themselves. See, e.g., Sara Wood, Three Guantanamo Bay Detainees Die of Apparent

Suicide, at http://www.defenselink.mil/news/Jun2006/20060610_5379.html. These suicides

prior to enactment. See Hamdan v. Rumsfeld, 548 U.S. ---, slip op. at 7-20 (U.S. June 29, 2006).
While the petitioner in Hamdan escaped the Act by virtue of the fact that his challenge did not
involve a final decision of a military commission within the exclusive jurisdiction of the Court of
Appeals under § 1005(e)(3), the Court reserved the question of the effect of the exclusive review
provisions of the Act on other cases, stating that “[t]here may be habeas cases that were pending
in the lower courts at the time the DTA was enacted that do qualify as challenges to ‘final
decision[s]’ within the meaning of subsection (e)(2) or (e)(3). We express no view about
whether the DTA would require transfer of such an action to the District of Columbia Circuit.”
Hamdan, slip op. at 18 n.14. The cases at bar, aside from Hamdan, are just such cases, i.e.,
challenges to petitioners’ designation as enemy combatants through Combatant Status Review
Tribunals, and given the Act’s investment of exclusive review in the Court of Appeals, the
District Court lacks jurisdiction over the cases for it is well-settled that an exclusive-review
scheme, where applicable, precludes the exercise of jurisdiction under more general grants of
jurisdiction, including habeas corpus. Cf., e.g., 5 U.S.C. § 703 (“form of proceeding for judicial
review is the special statutory review proceeding relevant to the subject matter in a court
specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action,
including actions for . . . writs of . . . habeas corpus”); Thunder Basin Coal Co. v. Reich, 510
U.S. 200, 207-09 (1994) (“exclusive” jurisdiction under federal Mine Act precludes assertion of
district court jurisdiction); FCC v. ITT World Communications, Inc., 466 U.S. 463, 468 (1984)
(Hobbs Act) (“The appropriate procedure for obtaining judicial review of the agency’s
disposition of these issues was appeal to the Court of Appeals as provided by statute.”); Laing v.
Ashcroft, 370 F.3d 994, 999-1000 (9th Cir. 2004) (Ҥ 2241 is ordinarily reserved for instances in
which no other judicial remedy is available”); Lopez v. Heinauer, 332 F.3d 507, 511 (8th Cir.
2003) (“Because judicial review was available . . . the district court was not authorized to hear
this § 2241 habeas petition.”). See also Telecommunications Research and Action Center v.
FCC, 750 F.2d 70, 77 (D.C. Cir. 1984) (“even where Congress has not expressly stated that
statutory jurisdiction is ‘exclusive’ . . . , a statute which vests jurisdiction in a particular court
cuts off original jurisdiction in other courts in all cases covered by that statute”) (footnote
omitted); id. at 75, 78-79 (request for relief in district court that might affect Court of Appeals’
future, exclusive jurisdiction is subject to the exclusive review of the Court of Appeals).

The effect of the Hamdan decision on this Court’s jurisdiction is pending before the

Court of Appeals, and respondents have requested supplemental briefing on the subject.

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Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 12 of 32

followed an incident less than a month before (on May 18, 2006) in which two detainees

overdosed on medications that they had illicitly hoarded during medical treatment and responses

to sick calls regularly provided by Guantanamo staff. See, e.g., Kathleen T. Rhem, Skirmish With

Guards, Two Suicide Attempts Test Guantanamo Procedures, at

http://www.defenselink.mil/news/May2006/20060519_5177.html. On the same day as the May

18 overdose incident, a number of detainees in Camp 4, a communal housing facility at

Guantanamo, ambushed and attacked guards using weapons fashioned from fans and other

materials in the housing bay. Id. In addition, recent searches of detainees’ cells at Guantanamo

have uncovered other hoarding of medicines, including in detainees’ waistbands and even in a

detainee’s prosthetic limb. See Carol J. Williams, Commander: Suicide Plots Continuing, Miami

Herald, June 28, 2006, at 7A, at

http://www.miami.com/mld/miamiherald/news/nation/14920247.htm.

The NCIS Investigation. Because the U.S. Navy has primary jurisdiction over

Guantanamo Bay, the NCIS began an investigation to determine the circumstances and cause of

death with respect to the recent suicides. See Declaration of Rear Admiral Harry B. Harris ¶ 2

(“Harris Decl.”) (attached hereto as Exhibit A) ; Declaration of Special Agent in Charge Carol

4

Kisthardt ¶ 2 (“Kisthardt Decl.”) (attached hereto as Exhibit B). The NCIS is the primary

criminal investigative service of the Navy, and it investigates all deaths associated in any way

with the Navy. See SECNAV Instruction 5430.107, Mission and Functions of the Naval

Criminal Investigation Service ¶ 6, at neds.daps.dla.mil/directives/5430_107.pdf. The NCIS

4

Admiral Harris serves as Commander, Joint Task Force-Guantanamo, the entity

responsible for detention operations at Guantanamo in support of the Global War on Terrorism.
Harris Decl. ¶ 1.

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Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 13 of 32

conducts its investigations and mission independently. Id. Commands with matters under

investigation must assist the investigation and provide support as needed; moreover, commands

may not impede or interfere with such investigations. Id.

The NCIS investigation began with searches of the cells of the deceased detainees. See

Kisthardt Decl. ¶ 3. Handwritten notes were found on the detainees that appeared to be suicide

notes. Id. NCIS also discovered a handwritten note hidden in the mesh wall of one of the

deceased detainee’s cell; when translated, that note proved to be related to the suicides, but it

appeared to be written by someone other than the detainee who died in the cell in which the note

was found. Id. That particular note was written on notepaper that was stamped on the back as

privileged attorney-client material. Id. In that vein, JTF-Guantanamo authorities, until recently,

have permitted habeas counsel to provide represented detainees with paper on which detainees

could draft letters to counsel. Presumably, the stamped paper used for the suicide note was

something provided by one of the habeas counsel, although the two deceased detainees who had

been identified as putative habeas petitioners, see Notice, Al-Harbi v. Bush, 05-CV-1857 (CKK)

(dkt. no. 21); Notice, Al-Salami v. Bush, 05-CV-2452 (PLF) (dkt. no. 16), had never been visited

by habeas counsel. It seems likely, therefore, that the stamped paper had been supplied to the

deceased detainees by other detainees.

Upon the discovery of these notes, which indicated the passing of materials and messages

between detainees and that some level of planning or coordination of the suicides had taken

place, NCIS investigators expanded their search to the other occupied cells in the same cell block

of the deceased detainees for additional evidence regarding the circumstances of the deaths of the

three detainees, including handwritten notes reflecting suicide notes or possible suicide pacts.

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Kisthardt Decl. ¶ 3. That search uncovered notes found in a living detainee’s cell that, once

translated, appeared to have been written by at least two of the deceased detainees and, thus, were

relevant to the NCIS investigation. These notes were hand-written, in Arabic, on stationery that

had been stamped as confidential attorney-client materials. Id.

The discovery of these materials led the NCIS to expand its investigatory efforts to

include all materials in all enemy combatant detainees’ cells, in order to investigate fully the

circumstances surrounding the deaths of the three detainees and to determine whether other

suicides were planned or likely to be planned. Id. ¶ 3. On or about June 14, 2006, the NCIS

5

impounded detainees’ written materials, most of which were contained in the plastic bins in

which detainees are permitted to store their personal items and papers, including any legal

material and other correspondence. See id. (Detainees’ Korans and the like were not

6

impounded.) Approximately 1,100 pounds of materials were collected, much of which was

5

Documents of the three remaining detainees who have been classified as no longer

enemy combatants have not been impounded and are not currently the subject of investigation.
See supra note 2.

6

Typically, detainees who are housed in cells are limited in the amount of material they
may have in their cells at any particular time; thus, the plastic bins are kept outside a detainee’s
cell, and the detainee may request items from the bin, and return items to the bin, through the
guards on duty in the cell block. In Camp 4, however, detainees are housed in open bays, not
cells, and have unrestricted access to their personal bins.

With respect to a number of the bins belonging to detainees who were in Camp 4 at the

time of the May 18, 2006 disturbance in the camp, it should be noted that during the melee
between the detainees and guard personnel, a number of detainee bins were disrupted and their
contents scattered. During clean-up after the incident by Guantanamo personnel, materials,
including some legal materials, were found to have been contaminated with biologically
hazardous matter, such as feces and bodily fluids, that were used by detainees in the attack on the
guards. These contaminated materials were destroyed for health and safety reasons. Also, a
number of the scattered legal materials were not readily identifiable as pertaining to a particular
detainee such that they could be returned to a detainee’s bin.

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written in languages other than English. Id. ¶¶ 4-5. The materials collected from each detainees’

cell and effects were separately bagged for eventual sorting and review. Id. ¶ 4. Once the

materials were gathered, on June 18, 2006, NCIS personnel began sorting materials from bags

pertaining to eleven detainees. Id. ¶ 5. This process involved separating privileged information

from non-privileged and conducting a preliminary scan of non-privileged materials for relevancy

to the investigation. Id. ¶ 5. Almost immediately, the sorting process revealed documents of

interest. A document containing instructions on tying knots was discovered. Further, the review

recovered a JTF-Guantanamo- generated e-mail containing information regarding cell locations

of detainees and other details regarding camp operational matters – information that typically

would be classified or otherwise sensitive. Id. The latter discovery led investigators to examine

other materials from the same detainee to determine whether there were other potentially

classified U.S. Government documents in the detainee’s possession, including in three envelopes

that were marked as attorney-client privileged information. Id. An NCIS investigator scanned

the contents of the three envelopes to see that one of them contained a document with a “Secret”

classification marking that was lined out and marked “Unclassified.” Id. A second envelope

contained a typed document stamped “FOUO,” i.e., For Official Use Only, a designation for

materials typically subject to special handling. Id. The documents in the third envelope did not

bear any classification or special handling markings. Id. The NCIS investigators, however, did

not read the contents of any of the documents in the three envelopes. Id.

The initial sorting process of the bags pertaining to the eleven detainees made clear that

review and translation of the collected detainee materials would be a burdensome undertaking

given the volume of materials and the apparent multitude of foreign languages. Id. Further, the

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sorting process revealed the likelihood that actual attorney-client communications would be

encountered. See id. Accordingly, further review of the materials was suspended until

appropriate procedures and staffing could be developed appropriate for the scope of the

undertaking and accounting for the possibility of the review team encountering potentially

privileged attorney-client communications. Id.

The materials uncovered in these initial searches comprising a very small amount of

detainee materials demonstrated, however, that detainees had developed practices for misusing

the existence of a privileged attorney-client communication system, presumably to shield the

communications from the suspicion or scrutiny of JTF-Guantanamo guards, who have not been

permitted to inspect or review attorney-client communications. Detainees had further developed

ways of obtaining documents like the JTF-Guantanamo e-mail discovered.

After learning of the developments in the NCIS investigation, and in order to help prevent

any additional loss of life and ensure the safety of detainees and military personnel at

Guantanamo, Admiral Harris, the Commander, JTF-Guantanamo, determined that there was a

need for a complete investigation addressing fully the circumstances of the suicides, including

whether a coordinated plan existed for the suicides involving the encouragement, assistance, or

direction of other detainees or individuals, as well as the existence of any other plots or plans for

additional detainee suicides. See Harris Decl. ¶ 4. The Commander requested that NCIS include

these matters within its investigation, and NCIS is proceeding consistent with the request. Id.

Procedures for Review of Detainee Documents. A major component of the current

investigation is the review of the currently impounded detainee materials. Those materials, at

least in cases in which the Protective Order applicable in other Guantanamo detainee habeas

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cases has been entered, will likely include some number of attorney-client communications

7

potentially subject to attorney-client privilege.

Because the Protective Order contemplates that communications between habeas counsel

and their clients “for purposes of litigating the cases” generally take place in a privileged

context, the Government intends that the review of all of the impounded materials be performed

8

7

See Amended Protective Order and Procedures for Counsel Access to Detainees at the
United States Naval Base in Guantanamo Bay, Cuba, In re Guantanamo Detainee Cases, 344 F.
Supp. 2d 174 (D.D.C. Nov. 8, 2004); Order Supplementing and Amending Filing Procedures
Contained in November 8, 2004 Amended Protective Order in In re Guantanamo Detainee
Cases, No. 02-CV-0299, et al. (D.D.C. Dec. 13, 2004); Order Addressing Designation
Procedures for “Protected Information” in In re Guantanamo Detainee Cases, No. 02-CV-0299,
et al. (D.D.C. Nov. 10, 2004).

8

See Revised Procedures for Counsel Access to Detainees at the U.S. Naval Base in

Guantanamo Bay, Cuba, § I (annexed to the Protective Order as Exhibit A) (“Access
Procedures”). The Access Procedures permit privileged counsel visits and privileged “legal
mail” between counsel and a represented petitioner for purposes of litigating these cases, where
“legal mail” is defined as

Letters written between counsel and a detainee that are related to the counsel’s
representation of the detainee, as well as privileged documents and publicly filed
legal documents relating to that representation.

Id. § II.E. In several of the Guantanamo cases, however, the parties have agreed to revisions to
the Access Procedures that contemplate substantive review by a DoD privilege team, and
potentially other JTF-Guantanamo personnel, of articles and publications intended to be provided
by counsel to detainees. See Stipulation and Order filed May 3, 2006 in Al Joudi v. Bush, No.
05-CV-301 (GK); Al Oshan v. Bush, No. 05-520 (RMU); Al Subaiy v. Bush, No. 05-CV-1453
(RMU); Al Shareef v. Bush, No. 05-2458 (RWR).

Counsel, however, are not permitted to share classified information or information

designated by the Government as “protected information” with detainees. See Protective Order
¶¶ 30, 39. Further, neither counsel nor detainees are permitted to use the privileged mail system
for non-legal mail or communications, including communications to/from detainees from/to
others besides their counsel; the Access Procedures contemplate and require that non-legal
communications be routed through the normal mail process at Guantanamo Bay, which includes
content screening maintained for national security, intelligence, and physical and personnel
security purposes. See Access Procedures § IV.B.4.-5. (counsel may not use legal mail channels

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Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 18 of 32

by a “Filter Team.” The Filter Team will be composed of individuals meeting the qualifications

of the DoD “Privilege Team” created by the Protective Order, that is, they will be DoD

9

“attorney[s], intelligence, or law enforcement personnel [or translators] who have not taken part

in, and, in the future, will not take part in, any domestic or foreign court, military commission or

combatant status tribunal proceedings involving the detainee.” See Access Procedures § II.D. At

present, it is anticipated that the Filter Team will be composed of Navy JAG attorneys assisted by

DoD translators as necessary, but, again, only those who have not taken part in and will not take

part in litigation and other proceedings pertaining to the detainees. It is anticipated that the Filter

Team will disclose to NCIS investigators any documents it discovers that would be relevant to

the NCIS investigation, while documents determined not to be relevant to the investigation will

as conduit for non-legal mail; non-legal mail subject to review by military); see also id. § VI.C.
(messages to others besides counsel to be processed as non-legal mail); § IV.A.5. (non-legal mail
communications to detainees to be sent to detainee through normal, non-privileged mail
channels). Furthermore, counsel are required to disclose to the Government any information
learned from a detainee involving future events that threaten national security or involve
imminent violence. Id. § IX.C.

9

In recognition of the unique, wartime setting of these cases and detentions, including
that information possessed by detainees could have national security or physical and personnel
security implications warranting potential treatment of the information as classified information,
the Access Procedures require that communications from detainees and information learned from
them be treated as presumptively classified. See Access Procedures §§ III.A., IV.A.6., VI.
Counsel, however, may submit such materials to the DoD Privilege Team for review to
determine its classification. See Access Procedures §§ IV.A.6., VII. The Privilege Team is “[a]
team comprised of one or more DoD attorneys and one or more intelligence or law enforcement
personnel who have not taken part in, and, in the future, will not take part in, any domestic or
foreign court, military commission or combatant status tribunal proceedings involving the
detainee.” Id. § II.D. Absent Court authorization or the consent of counsel submitting the
information to the Privilege Team, the Privilege Team cannot disclose to anyone information
learned from their review activities, except that the Privilege Team may disclose information
indicating an “immediate and substantial harm to national security” or “imminent acts of
violence” to officials with a role in responding to such potential harms or violence. See id.
§ VII. A., D.-F.

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be returned, either to the detainee if privileged attorney-client communication or, otherwise, to

JTF-Guantanamo for appropriate action.

With respect to attorney-client communications potentially subject to privilege, the Court

should authorize review of such materials by the Filter Team. To the extent that documents are

determined upon such review to be relevant to the NCIS investigation, the Filter Team would

seek Court permission for disclosure of the documents to the NCIS investigators; in such

proceedings, the applicability of the attorney-client privilege, and any applicable exception, could

be considered and addressed by the Court. Documents determined not to be relevant to the NCIS

investigation would be returned to the detainee concerned.
10

This protocol, however, should be

without prejudice to the Filter Team disclosing the material without such notice in appropriate

circumstances, e.g., when the information pertains to future events that threaten national security

or involve imminent violence, situations in which the current Access Procedures already

contemplate and require disclosure of the relevant information to JTF-Guantanamo. See Access

Procedures § VII. A., D.-F (DoD Privilege Team permitted to disclose such information

10

It is further contemplated that because the applicable Protective Order and Access

Procedures prohibit habeas counsel from sharing of certain types of materials with detainees –
see supra note 8 (counsel may neither share classified or protected materials with detainees nor
deliver communications between detainees and others through legal mail channels); see also
Access Procedures §§ IV.A.7, V.B. (counsel prohibited from providing detainees information
relating to “ongoing or completed military, intelligence, security, or law enforcement operations,
investigations, or arrests, or the results of such activities, by any nation or agency or current
political events in any country that are not directly related to counsel’s representation of that
detainee; or security procedures at GTMO (including names of U.S. Government personnel and
the layout of camp facilities) or the status of other detainees, not directly related to counsel’s
representation”) – if such prohibited materials are discovered in the course of review, the Filter
Team would not be constrained from bringing the matter to the Court’s attention for appropriate
action. See Protective Order ¶ 49 (violations of Protective Order to be brought to Court’s
attention); cf. id. ¶ 28 (Court Security Officers to report violations of Protective Order
discovered in administration of secure facility for habeas counsel).

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Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 20 of 32

discovered in documents during classification review); id. § IX.C (petitioners’ counsel required

to disclose such information learned from a detainee).

Because the review by the Filter Team may require the Filter Team to raise disclosure of

specific attorney-client communications with the Court, it is necessary that the Court also

authorize a Filter Litigation Team to represent the Filter Team in such matters. The Filter Team,

comprising DoD employees, cannot appear in court on its own to represent itself, see 28 U.S.C.

§ 516,
11

and it obviously could not share potentially privileged information learned during its

review with current litigation counsel for respondents – even for the purpose of permitting

current litigation counsel to defend or represent the Filter Team. The Filter Team should be

permitted to disclose potentially privileged or protected information to the Filter Litigation Team,

which would operate under the same type of constraints on disclosure of the information as the

Filter Team. Similarly, because of the Filter Litigation Team’s access to potentially privileged

information, the Filter Litigation Team would be composed of Department of Justice attorneys

who would be prohibited from participating in litigation on the merits of the habeas petitions of

Guantanamo Bay detainees or other cases brought by or against the petitioners.

A proposed order regarding the matters and procedures set out above for which Court

authorization or approval is appropriate is submitted herewith. Review of the impounded

documents awaits the Court’s consideration of this motion.

11

28 U.S.C. § 516 provides:

Except as otherwise authorized by law, the conduct of litigation in which

the United States, an agency, or officer thereof is a party, or is interested, and
securing evidence therefor, is reserved to officers of the Department of Justice,
under the direction of the Attorney General.

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ARGUMENT

The legitimacy of and need for the temporary impoundment and review of detainee

papers in the course of the NCIS investigation cannot be gainsaid in the current context. Three

detainees have committed suicide, with two others having attempted to do so in the preceding

weeks. Detainees in Camp 4 were able to launch a coordinated ambush attack on guards there.

The three successful suicides occurred on the same day, in essentially the same manner, and

evidence exists that the deceased detainees had secreted suicide notes between themselves and at

least one other living detainee. In addition, a note providing instructions concerning the tying of

knots has been uncovered among detainee documents, along with a potentially classified e-mail

from a camp officer somehow provided a detainee. Importantly, several of the suicide notes and

other documents were written or contained on paper bearing an attorney-client confidentiality

stamp, indicating, at the very least, that detainees are (mis)using materials on their face reserved

for privileged legal communications for purposes other than such communications. No doubt

this practice was developed in an attempt to shield those improper communications or writings

and others like them from the suspicion of guard force personnel or from scrutiny by those

personnel because guards have not been permitted to review or interfere with attorney-client

communications between detainees and counsel. Further, detainees apparently have developed

some means of obtaining documents like the JTF-Guantanamo e-mail found in the sample

sorting of detainee documents.

The Supreme Court has long recognized, even in the context of the detention of U.S.

individuals possessing constitutional rights, that prison officials must be permitted to take all

reasonable steps to mitigate and address potential threats to the security of detention facilities and

the safety of personnel and detainees in those facilities, including with respect to searches of

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detainee quarters and materials. See, e.g., Bell v. Wolfish, 441 U.S. 520, 555-57 (1979)

(upholding, inter alia, security-related searches of cells and persons of prisoners); Hudson v.

Reno, 468 U.S. 517 (1984) (upholding random shake-down searches of prisoner cells outside of

prisoner’s presence); Block v. Rutherford, 468 U.S. 576 (1984) (same with respect to pretrial

detainees); see also Turner v. Safley, 482 U.S. 78 (1987) (prison practice impinging on prisoner’s

constitutional right is nonetheless valid if reasonably related to legitimate penological interests).

Such deference should apply with even greater force with respect to actions taken in response to

specific security issues raised at a military detention facility such as Guantanamo during a time of

war, including where, as here, the security issues bear the hallmarks of coordinated planning by

detainees against their captors. See Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2640 (2004) (plurality

opinion) (“The capture and detention of lawful combatants and the capture, detention, and trial of

unlawful combatants is to prevent captured individuals from returning to the field of battle and

taking up arms once again.”). See also Hamdi, 124 S. Ct. at 2647 (plurality opinion) (stating that

“[w]ithout doubt, our Constitution recognizes that core strategic matters of warmaking belong in

the hands of those who are best positioned and most politically accountable for making them”);

Almurbati v. Bush, 366 F. Supp. 2d 72, 81 (D.D.C. 2005) (Walton, J.) (indicating that “it is a

fundamental principle under our Constitution that deference to the Executive Branch must be

afforded in matters concerning the military and national security matters.”); Khalid v. Bush, 355

F. Supp. 2d 311, 328 (D.D.C. 2005) (Leon, J.) (explaining that management of wartime

detainees’ confinement conditions is the province of the Executive and Legislative branches, thus

precluding judicial scrutiny of such conditions), appeal pending.

The Court, accordingly, should authorize review of the collected detainee materials by the

Filter Team to the extent such materials include attorney-client communications, and should

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establish a procedure under which, to the extent that documents are determined upon such review

to be relevant to the NCIS investigation, the Filter Team seeks Court permission for disclosure of

the documents to the NCIS investigators. As explained below, such review, for the purposes of

identifying documents that may be relevant to investigation of the complete circumstances of the

recent suicides, including whether a coordinated plan existed for the suicides involving the

encouragement, assistance, or direction of other detainees or individuals, as well as the existence

of any other plots or plans for additional detainee suicides, is reasonable in light of the evidence

uncovered to date of abuse of the attorney-client correspondence system by detainees.

A.

Authorization of Filter Team Review of Attorney-Client Materials is
Warranted.

The extraordinary circumstances of the situation with respect to the Guantanamo

detainees warrants Court authorization of the Filter Team review of any attorney-client

communications between counsel and petitioners contained in the detainee documents to be

reviewed. The attorney-client privilege, while venerable, is not without limits. It, of course,

applies only to communications between lawyer and client for purposes of legal representation.

See United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). The privilege further “‘is based

in policy, rather than in the Constitution, and therefore cannot stand in the face of countervailing

law or strong public policy and should be strictly confined within the narrowest possible limits

underlying its purpose.’” See United States v. Grant, 2004 WL 1171258 at *2 (S.D.N.Y. May 25,

2004) (quoting United States v. Stewart, 2002 WL 1300059 at * 5 (S.D.N.Y. Jan. 11, 2002) and

United States v. Golberger & Dubin, P.C., 935 F.2d 501, 504 (2d Cir. 1991)); cf. United States v.

Skeddle, 989 F. Supp. 890, 900 (N.D. Ohio 1997) (discussing state law privilege); Leonen v.

Johns-Manville, 135 F.R.D. 94, 100 (D.N.J 1990) (same). Thus, for example, the privilege,

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Case 1:05-cv-01429-UNA Document 41 Filed 07/07/2006 Page 24 of 32

though otherwise applicable, does not apply to communications made in furtherance of

committing a crime or tort. See United States v. Zolin, 491 U.S. 554, 562-63 (1989); United

States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). In addition, the Access Procedures further

limit the privilege in cases where they are applicable by restricting privileged communications

only to those “for purposes of litigating these cases,” Access Procedures § I, with requirement

that any information learned from detainees involving future events that threaten national

security or imminent violence be disclosed, i.e., regardless of whether communications are in

furtherance of such threats, id. § VII. A., D.-F (DoD Privilege Team permitted to disclose such

information discovered in documents during classification review); id. § IX.C (counsel required

to disclose such information).

Here, the purpose of the review of the detainee materials, including any relevant

documents among them containing attorney-client communications, would be to fully uncover

the complete circumstances of the suicides, including the extent to which coordination among

and assistance from other detainees or others existed, as well as any other plans for additional

detainee suicides or other violence. The strong public policy interests in potentially saving lives

and in maintaining security and order within a wartime detention facility outweighs any limited

incursion into attorney-client materials under safeguards ordered by the Court that would be

involved in the Filter Team review.

The review would be seeking documents pertaining to any planned detainee suicides, past

or future, as well as clues to how detainees are able to coordinate such matters among themselves

and obtain documents such as the e-mail that was discovered in the initial phase of the

investigation. Of course, such documents may be among documents in no way appearing or

marked as attorney-client material, but relevant materials also could possibly include writings

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such as the suicide notes found so far, that is, notes drafted on stationery marked with attorney-

client confidentiality markings or stamps, but in no way actual attorney-client communications,

much less privileged communications. Consistent with the detainees’ demonstrated creative

abilities to use the attorney-client communication system contemplated by the Protective Order to

attempt to shield writings that are not attorney-client communications from suspicion or scrutiny

of Guantanamo personnel, other such possibilities include notes purportedly drafted to counsel

but never mailed, intentionally or otherwise, or messages otherwise disguised as legal

communications. Attorney-client privilege would not apply to such materials, which are not

attorney-client communications, though the status of the material as such would not necessarily

be readily discernable absent translation, which would necessarily involve some review of the

material. Furthermore, such materials could very well be intermingled among legitimate

attorney-client communications within a detainee’s collected materials, including in envelopes in

which attorney communications to detainees may be kept. There could also be hand-written

notes written on otherwise legitimate attorney-client materials. Any applicable privilege would

not apply to any such materials except to the extent that legitimate attorney-client materials in the

hands of detainees serve as carrier medium for the unprivileged information. Again, however,

absent translation of the information, which necessarily involves some review of the materials,

such notes are not likely to be discernable.

Thus, the primary object of the review is not aimed at legitimate attorney-client

communications permitted under the Protective Order regime, but at documents relevant to the

NCIS investigation. Under the circumstances, and in light of relevant evidence so far uncovered,

as well as the fact that translation will be required for many of the documents in order to

ascertain the nature of the materials, the review must necessarily include review of attorney-

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client materials. The Government anticipates that legitimate attorney-client communications

under the Access Procedures not bearing on the investigation, especially those in English, can be

identified quickly and set aside without detailed further review and returned to detainees.

Materials in foreign languages, especially those that are not typewritten or on law firm letterhead,

however, will require more detailed review to ascertain their relevancy to the NCIS investigation.

In any event, Filter Team review of materials that, when translated, ultimately appear to

be attorney-client communications would not undermine or unduly impair the attorney-client

privilege. The Filter Team will operate under the same type of constraints as members of the

Access Procedures Privilege Team, responsible for classification review of materials intended to

be kept privileged. Thus, the Filter Team members would not be involved in past or future

litigation proceedings involving detainees and would operate under nondisclosure constraints

ordered by the Court. No substantial question regarding fundamental litigation fairness,

therefore, would arise. While the Filter Team will be familiar with the NCIS investigation, such

that it can quickly and effectively determine whether any materials reviewed are relevant to the

suicide-related issues being investigated and potentially not subject to privilege, it would make

no disclosure of reviewed attorney-client communications without the Court’s consideration and

resolution of the propriety of any privilege claim