You're viewing Docket Item 45 from the case HATIM et al v. BUSH et al. View the full docket and case details.

Download this document:




Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 1 of 29

CLEARED FOR PUBLIC FILING

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA





Civil Action No. 05-01429 (RMU)

















Petitioners,

v.



____________________________________

)
SAEED MOHAMMED SALEH
)
HATIM, et al.,
)



)


)


)



)


GEORGE W. BUSH, et al.,
)
)


)



)

____________________________________)




Respondents.









)














PETITIONERS’ OPPOSITION TO GOVERNMENT’S MOTION

TO EXAMINE PRIVILEGED COMMUNICATIONS SEIZED

WITHOUT NOTICE OR APPROVAL AND MOTION TO SHOW CAUSE

WHY RESPONDENTS SHOULD NOT BE HELD IN CONTEMPT











Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 2 of 29

TABLE OF CONTENTS



INTRODUCTION .......................................................................................................................... 1
ARGUMENT.................................................................................................................................. 3
I. THE GOVERNMENT SHOULD BE SANCTIONED FOR SEIZING THE

PRISONERS’ LEGAL PAPERS WITHOUT NOTICE AND APPROVAL.......................... 3

II. THE PREMISE OF THE GOVERNMENT’S INVESTIGATION IS INVALID, AND

ITS MOTION IS PREMATURE AT BEST. .......................................................................... 6

III. THE GOVERNMENT’S SEIZURE AND EXAMINATION OF PETITIONERS’

LEGAL PAPERS WAS UNLAWFUL. ................................................................................ 10
A. The Government Has Long Sought To Thwart The Attorney-Client

Relationship.................................................................................................................... 11

B. The Prisoners’ Legal Papers May Not Be Seized and Reviewed Without An

Individualized Showing of Probable Cause. .................................................................. 12
C. The Government Has Made No Such Individualized Showing. .................................... 16

IV. ANY FURTHER REVIEW OF THE PRISONERS’ LEGAL PAPERS SHOULD BE

BY THE COURT OR A SPECIAL MASTER...................................................................... 20
CONCLUSION............................................................................................................................. 24




i

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 3 of 29

TABLE OF AUTHORITIES



Adem v. Bush, 425 F. Supp. 2d 7 (D.D.C. 2006) ...........................................................................11

Al Odah v. United States, 346 F. Supp. 2d 1 (D.D.C. 2004) .................................12, 14, 19, 20, 21

Bach v. Illinois, 504 F.2d 1100 (7th Cir. 1974) .............................................................................13

Black v. United States, 172 F.R.D. 511 (S.D. Fla. 1997)...............................................................20

Carter v. Hutto, 781 F.2d 1028 (4th Cir. 1986).............................................................................14

Doe v. United States, No. 03-6145, 2003 WL 22879314 (2d Cir. Dec. 4, 2003)..........................15

Goff v. Nix, 113 F.3d 887 (8th Cir. 1997)......................................................................................13

In re Grand Jury Subpoenas Duces Tecum, 798 F.2d 32 (2d Cir. 1986) ......................................15

In re Grand Jury Subpoenas 04-124-03 and 04-124-05, Nos. 05-2274/2275

(6th Cir. July 13, 2006)......................................................................................................21


Hiney v. Wilson, 520 F.2d 589 (2d Cir. 1975) ...............................................................................14

Johnson-El v. Schoemehl, 878 F.2d 1043 (8th Cir. 1989) .............................................................12

Lanza v. State of New York, 370 U.S. 139 (1962) .........................................................................12

McCreary County v. ACLU of Ky., 125 S. Ct. 2722 (2005) ..........................................................11

Procunier v. Martinez, 416 U.S. 396 (1974) .................................................................................13

Rasul v. Bush, 542 U.S. 466 (2004)...............................................................................................11

In re Richard Roe, Inc., 68 F.3d 38 (2d Cir. 1995)........................................................................15

In re Sealed Case, 107 F.3d 46 (D.C. Cir. 1997)...........................................................................15

In re Search of the Scranton Housing Authority, No. 04-MISC

Nos. 318-322, 2006 WL 1722565 (M.D. Pa. June 22, 2006) ............................................20


In re Search Warrant for Law Offices, 153 F.R.D. 55 (S.D.N.Y. 1994).......................................21

Simmons v. Dickhaut, 804 F.2d 182 (1st Cir. 1986)......................................................................13

Swidler & Berlin v. United States, 524 U.S. 399 (1998) ...............................................................12





ii

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 4 of 29

United States v. Abbell, 914 F. Supp. 519 (S.D. Fla. 1995)...........................................................20

United States v. Grant, CR 207, 2004 WL 1171258 (S.D.N.Y. May 25, 2004) ...........................16

United States v. Neill, 952 F. Supp. 834 (D.D.C. 1997)................................................................21

United States v. Skeddle, 989 F. Supp. 890 (N.D. Ohio 1997)......................................................16

United States v. Stewart, No. CR 396 JGK, 2002 WL 1300059

(S.D.N.Y. June 11, 2002).............................................................................................15, 21


United States v. Zolin, 491 U.S. 554 (1989) ..................................................................................16

Upjohn Co. v. United States, 449 U.S. 383 (1981)........................................................................12

Wright v. Newsome, 795 F.2d 964 (11th Cir. 1986) ......................................................................14







iii

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 5 of 29



INTRODUCTION

The government’s motion should be denied. The materials in question are privileged at-

torney-client communications. As a matter of fundamental principle, and by specific order of

this Court, those communications were supposed to be secure against seizure and review by the

government. The government’s seizure and review of those communications, without prior no-

tice to and approval by the Court, and without notice to counsel, was illegal. The government’s

failure to disclose its actions to the Court and counsel, until nearly a month after the fact, is de-

plorable, to say the least. In the name of investigating three prisoner deaths, the government has

ravaged a fundamental privilege and shattered any confidence the prisoners might still have had

that their communications with their counsel would be safe from the government’s prying eyes.

The American Bar Association has called for an investigation of the military’s massive breach of

the privilege and the Justice Department’s negligence, or worse, in allowing it to occur. 1

The stakes are too high for the Court simply to accept the assertions that form the basis of

the government’s motion. The government claims that the privileged communications were

seized and examined in the course of an investigation into the suicide deaths of three prisoners.

Without verification independent of the military, the Court cannot be certain that the deaths were

suicides. The government claims that the communications initially seized and reviewed sup-

ported the seizure and review of all privileged communications. Without examining the commu-

nications, the Court cannot be certain what they contained.


1
tion, to Senators Arlen Specter and Patrick Leahy (Ex. A hereto).

See Letter dated July 11, 2006, from Michael S. Greco, President, American Bar Associa-

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 6 of 29

The government’s proffered justifications may be valid. At present, there is no basis for

alleging, and we do not allege, that the prisoner deaths were not suicides, or that the government

is concealing wrongdoing. On the other hand, the government’s proffered justifications also may

be a pretext for collecting “prisoner intelligence” and wrecking the attorney-client relationship.

Suicide is not the only possible explanation for the death of a prisoner held in U.S. military cus-

tody; the military is not invariably forthcoming. The point is that the Court has only the gov-

ernment’s account of what has happened. In view of the privilege at issue, the Court cannot af-

ford simply to take the government at its word.

The Court should order the government to show cause why it should not be sanctioned

for seizing and reviewing the prisoners’ legal papers without notice to and approval by the Court

and notice to counsel, and failing to report its actions to the Court and counsel until nearly a

month after the fact, and only after habeas counsel began to seek relief.2 The Court should also

investigate how the Department of Justice allowed this massive breach of the attorney-client

privilege to occur, and prescribe procedures to prevent breaches of the privilege in the future.

Finally, the Court should order the government to deliver the prisoners’ legal papers to

counsel immediately and destroy all copies, summaries, descriptions, or analyses of such papers.


2
The order submitted herewith directs Respondents to provide information, under oath by
a person with actual knowledge, and subject to cross-examination by habeas counsel, giving the
particulars of what has been done with the privileged materials (who has read them, what analy-
ses have been made, etc.) so that counsel and the Court can assess the need for further measures.




2

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 7 of 29

No further review of any prisoner’s legal papers should be allowed without particularized justifi-

cation. Any such further review should be conducted in the first instance by the Court or a spe-

cial master without the involvement of the military or the Department of Justice.

ARGUMENT

I.

THE GOVERNMENT SHOULD BE SANCTIONED FOR SEIZING THE
PRISONERS’ LEGAL PAPERS WITHOUT NOTICE AND APPROVAL.

On June 10, 2006, the military reported that three prisoners at Guantánamo Bay had been

found dead in their cells with wads of cloth in their mouths.3 The military reported the prisoners’

deaths as suicides.4

In his news conference, Navy Rear Adm. Harry B. Harris, the Commander of Joint Task

Force–Guantánamo, denounced the deaths as acts of war: “I believe this was not an act of des-

peration, but an act of asymmetric warfare aimed at us here at Guantánamo,” he said. “We have

men here who are committed jihadists. They are dangerous men and they will do anything they


3
Colonel Mike Bumgarner, the commander of the prison, stated in an interview that each
of the prisoners was found with “a large wad of cloth in his mouth”; Colonel Bumgarner stated
that he “did not know if the material was for choking or to muffle their voices while they took
their lives.” Michael Gordon, Officer Expects More Suicide Tries, Charlotte Observer, June 12,
2006, available at http://www.charlotte.com/mld/charlotte/news/14797522.htm.
4
U.S. Southern Command News Release, Three Detainee Deaths at Guantanamo Bay,
June 10, 2006, available at http://www.southcom.mil/pa/Media/Releases/USSOUTHCOM%20
PRESREL%20Detainee%20Death%20FINAL%20%20(1415%2010%20Jun%2006).doc; Gen.
John Craddock’s Opening Statement, Press Conference, June 10, 2006, available at http://www.
southcom.mil/pa/News/June%202006/News060610-001.htm; Sara Wood, Three Guantanamo
Bay Detainees Die of Apparent Suicide, June 10, 2006, available at http://www.defenselink.mil/
news/Jun2006/20060610_5379.html.




3

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 8 of 29

can to advance their cause.”5 Colleen Graffy, Deputy Assistant Secretary of State for Public Di-

plomacy, called the deaths a “good PR move.”6

According to the declarations of Admiral Harris and Special Agent Carol Kisthardt in

support of the government’s motion, the Naval Criminal Investigative Service (NCIS) initiated

an investigation to determine “the manner and cause of death” of the three prisoners.7 Autopsies

were to be performed, but, to counsel’s knowledge, results have not been made public.

Now, nearly a month later, the government has disclosed that, between June 10 and June

14, as part of the purported “investigation,” NCIS seized and examined over a half-ton of written

communications between Guantánamo prisoners and their lawyers.8 The government’s seizure

and examination of these materials violated not only this Court’s orders directing the government

to respect the attorney-client privilege but also the Protective Order entered by this Court to en-

sure the protection of that privilege.

The government claims that it seized the prisoners’ legal papers because notes found in

the cells of the dead prisoners suggested that the prisoners might have used the cloak of the at-


5
Wood, supra note 3. Admiral Harris has stated: “Asymmetrical warfare is the idea that
in a war between two entities, the lesser entity will use completely unorthodox and perhaps ille-
gal means to try to gain an upper hand or the upper hand.” Transcript, Inside Guantanamo, Fox
News Network, June 12, 2006, at 3, available on Lexis-Nexis.
6
Catherine Philip, US Dismisses Suicides as “PR Stunt,” London Times, June 12, 2006,
available at http://www.timesonline.co.uk/article/0,,11069-2221381,00.html; see also Reuters,
Three Guantanamo Detainees Die, US Army, June 11, 2006, available at http://www.cagepris-
oners.com/articles.php?id=14371.
7
8

Harris Decl. ¶ 2; Kisthardt Decl. ¶ 2.
Kisthardt Decl. ¶¶ 2-5.




4

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 9 of 29

torney-client privilege in furtherance of a suicide “plot” by the prisoners, perhaps “encouraged,

ordered, or assisted by third parties.”9 There is no way to know whether the notes suggested

such use of privileged communications or, if so, whether that was the actual reason for the gov-

ernment’s subsequent actions.

Having belatedly disclosed its illegal seizure and examination, the government now asks

the Court to condone its actions and permit it to retain the seized materials and examine them

even more closely. The government sought judicial sanction for its actions only after habeas

counsel, informed of the government’s actions by their clients, began to seek relief from the

Court.10 True to the adage that the best defense is a good offense, the government now seeks to

preempt further requests for relief by obtaining blanket post hoc court approval of its actions.

The fact that Petitioners’ legal papers were seized over an five-day period proves that no

exigency required the government to act without seeking the approval of the Court and notifying

counsel. At the very least, a conference call with counsel and the Emergency Judge on June 10,

the day of the prisoner deaths, could have been arranged. See LCvR 40.1(c), 65.1, 57.8. The

Justice Department either approved the military’s seizure of the privileged materials without no-

tice to or approval by the Court, or failed to prevent it. The Department’s failure to disclose the

seizure until the Abdullah motion forced its hand suggests that the Department was a full partner

the massive breach of the attorney-client privilege. The Court should find Respondents in con-

9
Harris Decl. ¶ 4.
10
Mot. To Modify Stay To Direct Resp’ts To Return Impounded Privileged Legal Material
and for Other Relief, Abdullah v. Bush, No. 05-00023 (RWR) (filed July 5, 2006). The govern-
ment states that its instant motion is an opposition to the Abdullah motion. U.S. Mot. at 1 n.1.




5

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 10 of 29

tempt, sanction the government for its illegal, unilateral, and devious conduct, and refer the mat-

ter to the Justice Department’s Office of Professional Responsibility, as urged by the ABA.

II.

THE PREMISE OF THE GOVERNMENT’S INVESTIGATION IS INVALID,
AND ITS MOTION IS PREMATURE AT BEST.

The Court should not allow the government to examine the seized materials on the prem-

ise that the three prisoners’ deaths, if suicides, were acts of “warfare” or “a good PR move,” or

that other prisoners may be “plotting” to take their own lives. The hideous situation the prison-

ers have endured would be enough to account for any suicidal acts: These men have been im-

prisoned for more than four years, on an island thousands of miles from home, separated from

family and friends and everything they know; interrogated endlessly and tormented by jailers

who do not speak their language, view their culture and religion with disdain, and view them as

dangerous and depraved; imprisoned without charges and denied the evidence that purportedly

explains their imprisonment; subjected to medical neglect; and having no end in sight.

The government’s attempt to portray prisoner deaths as acts of “warfare” is an attempt to

obscure that fact and avoid the government’s overarching responsibility for the prisoners’ condi-

tions. The government’s dark claims of suicide “plots” among the prisoners, possibly implicat-

ing “third parties,” are merely a pretext for seizing and examining privileged communications.

As discussed below, the government before now had consistently sought to minimize hunger

strikes and suicide attempts.11 Its history of indifference contrasts with its current contention that

the search for further “plots” justifies ransacking the prisoners’ legal papers.

11
2006), at 17-18 (Ex. B hereto).

See Mark Denbeaux, Report: The Guantánamo Detainees During Detention (July 10,




6

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 11 of 29

In addition to the misery and hopelessness of their situation, at least some prisoners may

attempt to take their own lives at Guantánamo because of the toll on their mental heath exacted

by the government’s efforts to “break” them. Breaking the prisoners’ spirits and psyches for the

purpose of collecting intelligence is Guantánamo’s raison d’être: As Physicians for Human

Rights has stated, “psychological torture [is] central to the interrogation process and reinforced

through conditions of confinement.”12

Prisoners have been subjected to a wide variety of cruel, inhuman, and degrading treat-

ment, including prolonged exposure to extreme heat and cold, religious humiliations (including

abuse of the Quran and interference with prayers), threats of execution, threats against family,

and prolonged solitary confinement. The classified 50-day interrogation logs of one “high

value” prisoner, published last year by Time, disclose torments from which no human could be

expected to emerge mentally intact.13 In many instances, government doctors “assisted in the de-


12
Physicians for Human Rights, Break Them Down: Systematic Use of Psychological Tor-
ture by US Forces 1 (2005). Approved interrogation techniques have included “Removal from
social support at Camp Delta”; “Segregation in Navy Brig”; “Isolation in Camp X-Ray”; “Depri-
vation of light”; “Inducing stress [through] use of female interrogator”; “Up to 20-hour interro-
gations”; “Removal of all comfort items, including religious items.” Dep’t of Defense, GTMO
Interrogation Techniques (June 22, 2004). Evidence indicates that the government has also used
even more brutal techniques, labeled “Fear Up Harsh,” “Sleep Adjustment,” and “Futility.”
Dep’t of Defense, Working Group Report on Detainee Interrogations in the Global War on Ter-
rorism: Assessment of Legal, Historical, Policy, and Operation Considerations at A1-A3 (2003),
available at http://www.ccr-ny.org/v2/reports/docs/PentagonReportMarch.pdf.
13
According to the interrogation logs, authorities held this prisoner in solitary confinement
until he became delusional; subjected him to weeks of interrogations lasting 18-20 hours a day;
made him bark, growl, and perform dog tricks; forced him to wear a woman’s bra and placed a
thong on his head; menaced him with dogs; hydrated intravenously and then denied access to a
toilet; and, even after his heartbeat had slowed to 35 beats per minute and he was placed in a
doctor’s care, played screaming loud music in his cell to “prevent detainee from sleeping.” See

(continued…)







7





















Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 12 of 29

sign of interrogation strategies, including sleep deprivation and other coercive methods tailored

to prisoners’ medical conditions. Medical personnel also coached interrogators on questioning

technique.”14

Predictably, these tactics have caused the mental health of many Guantánamo prisoners

to deteriorate. According to government data, prisoners committed 350 acts of “self-harm” in

2003, of which 120 were attempted hangings.15 In August 2003 alone, 23 men attempted to hang

themselves.16 The government chose to describe all but two of these hangings as incidents of



Interrogation Log, Detainee 063, available at http://www.time.com/time/2006/log/log.pdf. The
Deputy Assistant Director of the FBI complained to the Pentagon about this treatment after find-
ing this prisoner in his cell “evidencing behavior consistent with extreme psychological trauma
(talking to non-existent people, reporting hearing voices, crouching in a corner of the cell cov-
ered with a sheet for hours on end).” Letter from T.J. Harrington, Dep’y Assist. Dir., FBI Coun-
terterrorism Div., to Maj. Gen. Donald J. Ryder, U.S. Army (July 14, 2004).
14
M. Gregg Bloche & Jonathan H. Marks, When Doctors Go to War, New Eng. J. Med.,
Jan. 6, 2005, at 3. According to the British medical journal The Lancet, “medical records [have
been] routinely shared with interrogators in clear breach of confidentiality and with the knowl-
edge that such information can be misused[,] despite objections by the medical team of the Inter-
national Committee of the Red Cross.” Editorial, How Complicit are Doctors in Abuses of De-
tainees?, The Lancet, Aug. 21, 2004, at 637; see also Jane Mayer, The Experiment, New Yorker,
July 11 & 18, 2005, available at http://www.cageprisoners.com/downloads/Mayer.pdf. The
American Medical Association (“AMA”) and American Psychiatric Association (“APA”) have
now adopted ethical guidelines that limit participation in interrogation. See AMA, New AMA
Ethical Policy Opposes Direct Physician Participation in Interrogation, June 12, 2006, available
at http://www.ama-assn.org/ama/pub/category/16446.html; APA, APA Statement on Psychiatric
Practices at Guantanamo Bay, June 27, 2005, available at http://www.psych.org/news_room/
press_releases/05-40psychpracticeguantanamo.pdf.
15
16

Denbeaux, supra note 11, at 6.
Id.




8

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 13 of 29

“manipulative self-injurious behavior,” rather than as suicide attempts.17 In 2004, also according

to government data, prisoners committed another 110 acts of such “manipulative self-injurious

behavior,” though it did not report how many of these 110 incidents were attempted hangings.18

Even with its penchant for sanitizing suicides as “manipulative self-injurious behavior,” the gov-

ernment has acknowledged that 29 prisoners have attempted suicide a total of 41 times.

Once habeas counsel started meeting with their clients and began to recognize the depres-

sive symptoms they had developed, counsel repeatedly ask to be allowed to send outside doctors

to the prison to perform independent medical examinations of their clients. All such requests,

including requests for the release of their clients’ medical records, were refused.

The results were foreseeable. Last fall, counsel for Jumah al Dossari found his client

hanging from the wire meshing of an interview cell, his wrist slashed and a pool of blood gather-

ing underneath. Previously, Mr. Dossari’s counsel had sought an injunction requiring, among

other things, access to his client’s medical records. The government opposed this motion, claim-

ing that the “the Guantánamo medical staff provide appropriate medical and mental health ser-

vices to all prisoners through a thorough, coordinated team approach, based on individualized

treatment plans that account for each patient’s conditions and circumstances.”19

On May 18, 2006, four more prisoners reportedly attempted suicide by overdosing on

medicines they had hoarded; but in a statement released the following day, Admiral Harris stated

17
18
19
(RBW) (filed Nov. 16, 2005) at 10.

Id. at 14.
See id. at 6.
Gov. Opp’n to Mot. for TRO & Prelim. Injunction, Almurbati v. Bush, No. 04-1227




9

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 14 of 29

that only two of these efforts were counted as “suicide attempts,” apparently because only two

prisoners lost consciousness due to their attempts.20 Two other prisoners complained of dizzi-

ness and nausea, one claiming that he had attempted suicide but did not have enough pills.

These prisoners received a medical and psychiatric evaluation, but Admiral Harris called these

prisoners “attention-seeking sympathizers who were not trying to actually commit suicide.”21

Less than a month later, on June 10, 2006, the three deaths that led to the instant motion

occurred. In light of the history, purpose, and nature of Guantánamo, the government’s assertion

that the deaths – if suicides – were not acts of belligerence but acts of hopelessness, desperation,

and despair.

III. THE GOVERNMENT’S SEIZURE AND EXAMINATION OF PETITIONERS’

LEGAL PAPERS WAS UNLAWFUL.

This Court has ruled that prisoners held at Guantánamo have a right to representation by

and access to counsel. The Court has recognized that the attorney-client privilege attaches to

communications between the prisoners and their lawyers, and it has gone to great lengths to pro-

tect that privilege by creating access procedures protecting the confidentiality of attorney-client

communications. The Court should not ratify the government’s violations of the Court’s orders

by permitting it to review further the privileged communications that it has seized.


20
Kathleen T. Rehm, Skirmish With Guards, Two Suicide Attempts Test Guantanamo Pro-
cedures, May 19, 2006, available at http://www.defenselink.mil/news/May2006/20060519_
5177.html.
21
Dep’t of Defense, Statement on Suicide Attempts at Guantanamo, May 19, 2006, avail-
able at http://www.southcom.mil/PA/Media/Releases/Media%20Advisory%20-%205-19-2006%
20-%201%20-%20Press%20briefing.pdf.




10

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 15 of 29

A.

The Government Has Long Sought To Thwart The Attorney-Client Rela-
tionship.

As the Supreme Court has noted in a different context, “the world is not made brand new

every morning.”22 When it comes to undermining the attorney-client relationship at Guantánamo,

the government is a hardened offender. The Court should consider the government’s recent ac-

tions, and its instant motion, in light of its five-year campaign to thwart that relationship.

Most of the prisoners at Guantánamo have been held there for more than four years.

When the first habeas petitions were filed in early 2002, the government took the position that

the prisoners had no right to seek relief in federal court and no rights for a federal court to en-

force. While these issues were being litigated, the prisoners were denied access to counsel.

In 2004, the Supreme Court rejected “the proposition of Guantánamo Bay as a legal black

hole.”23 Unfazed, the government insisted that “detainees’ access to counsel existed purely at the

pleasure of the government, with restrictions to be imposed as it saw fit.”24 This Court “flatly re-

jected” the government’s position and its effort to impose “significant restrictions on attorney-

client communications, including real-time monitoring of counsel meetings with detainees.”25

Once counsel began to meet with their clients, the government immediately began un-

dermining the attorney-client relationship. Interrogators fueled mistrust of the lawyers among

McCreary County v. ACLU of Ky., 125 S. Ct. 2722, 2736 (2005).
Adem v. Bush, 425 F. Supp. 2d 7, 11 (D.D.C. 2006) (citing Rasul v. Bush, 542 U.S. 466


22
23
(2004)).
24
25

Id. at 12.
Id. at 11–12.




11

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 16 of 29

the prisoners and punished prisoners for meeting with lawyers. For instance, interrogators told

several Petitioners and other prisoners that their lawyers were spies. Interrogators asked other

prisoners, “did you know your lawyers are Jews?”26 and warned prisoners that they would never

be released if they retained counsel. Immediately after they met with their lawyers for the first or

second time, several Petitioners were forced to wear immodest clothing, subjected to extreme

temperatures, or prohibited from praying. Several prisoners have had their legal papers searched.

B.

The Prisoners’ Legal Papers May Not Be Seized and Reviewed Without An
Individualized Showing of Probable Cause.

The attorney-client privilege is “the oldest of the privileges for confidential communica-

tions known to the common law.”27 Its purpose is to “encourage full and frank communication

between attorneys and their clients and thereby promote broader public interests in the obser-

vance of law and administration of justice.”28 As this Court has recognized in the context of the

Guantánamo litigation, “[t]he privilege that attaches to communications between counsel and cli-

ent has long held an exceptional place in the legal system of the United States.”29

Nowhere is the effectuation of the privilege more important than in the context of pre-


26
Frank Davies, U.S. Interrogators Accused of Trying to Divide Detainees, Attorneys
(Knight Ridder), May 13, 2005, available at http://www.commondreams.org/headlines05/0513-
04.htm.
27
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
28
Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998); see also Lanza v. State of
New York, 370 U.S. 139, 143-44 (1962) (“[I]t may be assumed that even in a jail, or perhaps es-
pecially there, the relationships which the law has endowed with particularized confidentiality
must continue to receive unceasing protection.”).
29

Al Odah v. United States, 346 F. Supp. 2d 1, 10 (D.D.C. 2004).




12

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 17 of 29

trial detention. “An inmate’s need for confidentiality in his communications with attorneys

through whom he is attempting to redress his grievances is particularly important.”30 For such

prisoners, “contact with an attorney and the opportunity to communicate privately is a vital in-

gredient to the effective assistance of counsel and access to the courts.”31 Even for prisoners

convicted of crimes, the Supreme Court has held, “[r]egulations and practices that unjustifiably

obstruct the availability of professional representation or other aspects of the right to access to

the courts are invalid.”32

Seizure of legal papers is particularly egregious because it strikes at the heart of the attor-

ney-client relationship and interferes with the inmate’s access to the courts. “The taking of legal

papers will often (though perhaps not always) interfere with an inmate’s right of access to the

courts. . . . [T]he destruction or withholding of inmates’ legal papers burdens a constitutional

right, and can only be justified if it is reasonably related to a legitimate penological interest.”33


30
Bach v. Illinois, 504 F.2d 1100, 1102 (7th Cir. 1974); see also Johnson-El v. Schoemehl,
878 F.2d 1043, 1051 (8th Cir. 1989) (“Pretrial detainees have a substantial due process interest in
effective communication with their counsel and in access to legal materials. When this interest is
inadequately respected during pre-trial confinement, the ultimate fairness of their eventual trial
can be compromised.”).
31
Bach, 504 F.2d at 1102.
32
Procunier v. Martinez, 416 U.S. 396, 419 (1974).
33
Goff v. Nix, 113 F.3d 887, 892 (8th Cir. 1997) (internal citations omitted); see also Sim-
mons v. Dickhaut, 804 F.2d 182, 183–84 (1st Cir. 1986) (“Many courts have found a cause of ac-
tion for violation of the right of access stated where it was alleged that prison officials confis-
cated and/or destroyed legal materials or papers.”); Wright v. Newsome, 795 F.2d 964, 968 (11th
Cir. 1986) (“The allegation that prison officials seized [the plaintiff’s] pleadings and law book
and destroyed other legal papers clearly states a claim of denial of access to the courts.”); Carter
v. Hutto, 781 F.2d 1028, 1031–32 (4th Cir. 1986) (plaintiff alleged a valid claim of denial of ac-
cess to courts when he alleged that his legal materials were confiscated or destroyed); Hiney v.

(continued…)







13





















Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 18 of 29

The government’s vague assertions about notes found in the cell of a dead prisoner but

written by another prisoner cannot qualify as a “legitimate penological interest” in seizing all le-

gal documents from all prisoners. Seizing legal papers not only interferes with a prisoner’s ac-

cess to courts but chills the giving, receiving, and continued possession of communications from

attorney to client, particularly when seized without notice to the prisoners’ attorneys or the court.

This Court has recognized that the prisoners – who have not been charged or tried, and

who seek the opportunity through their counsel to challenge the basis of their detention – have a

right to counsel and are entitled to a confidential relationship with their counsel.34 Thus, “the

Court determine[d] that the government is not entitled to unilaterally impose procedures that ab-

rogate the attorney-client relationship and its concomitant attorney-client privilege covering

communications between them.”35 To give meaning to the attorney-client privilege in this con-

text, the Court implemented Access Procedures that guaranteed confidential communication be-

tween prisoners and their attorneys through rules for in-person meetings and written communica-

tions. The Court rejected the government’s request to monitor these communications.

The government’s actions here violated the Protective Order and accompanying Access

Procedures. The government does not attempt to justify its actions under the Protective Order,

but rather admits that the seized materials “will likely include some number of attorney-client



Wilson, 520 F.2d 589, 591 (2d Cir. 1975) (alleged confiscation of legal papers would have de-
nied plaintiff access to the courts).
34
35

Al Odah, 346 F. Supp. 2d at 5.
Id.




14

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 19 of 29

communications potentially subject to attorney-client privilege.”36 The government’s unilateral

decision to abrogate the privilege would have been unlawful even if it had not directly violated a

Court order. Abrogation of the attorney-client privilege in any context requires the government

to make a specific, individualized showing that there is sufficiently compelling justification for

invading the privilege. For example, where the government invokes the crime-fraud exception to

the attorney-client privilege, it bears the burden of making an adequate showing that the excep-

tion applies – i.e., that that client “made or received the otherwise privileged communication

with the intent to further an unlawful or fraudulent act,” and actually carried out that act.37 Simi-

larly, when the government seizes materials from a location that likely contains privileged pa-

pers, that seizure must be supported by probable cause and a warrant, and it still must employ

appropriate means of screening out privileged materials.38

The government has not cited any cases suggesting that the privilege may be invaded

without an individualized, rigorous showing that materials of a particular client or particular at-


36
Resps.’ Mot. at 9.
37
In re Sealed Case, 107 F.3d 46, 49 (D.C. Cir. 1997); see also Doe v. United States, No.
03-6145, 2003 WL 22879314 (2d Cir. Dec. 4, 2003) (reversing contempt order where govern-
ment failed to meet burden of showing that crime-fraud exception applied); In re Richard Roe,
Inc., 68 F.3d 38, 40 (2d Cir. 1995) (requiring a showing of probable cause to believe that a crime
or fraud has been attempted or committed and that attorney-client communications were used to
further that crime or fraud); In re Grand Jury Subpoenas Duces Tecum, 798 F.2d 32, 34 (2d Cir.
1986) (reversing civil contempt order because the government did not satisfy its burden of show-
ing that the crime-fraud exception applied to the documents the corporation failed to produce).
38
11, 2002).

See, e.g., United States v. Stewart, No. CR 396 JGK, 2002 WL 1300059 (S.D.N.Y. June




15

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 20 of 29

torney are likely to have been abused in furtherance of a crime.39 Even when such documents

will be reviewed in camera by the court – and not by the government – “the judge should require

a showing of a factual basis adequate to support a good faith belief by a reasonable person that

. . . in camera review of the materials may reveal evidence to establish the claim that the crime-

fraud exception applies.”40

C.

The Government Has Made No Such Individualized Showing.

The government has presented no individualized evidence that any of Petitioners has mis-

used their legal papers. Four or five documents seized from a few selected prisoners cannot jus-

tify seizing over half-a-ton of privileged materials from hundreds of prisoners. What the gov-

ernment seeks here is permission for a fishing expedition.

The documents described by the government as evidence of “wrongdoing,” moreover, of-

fer no support for the government’s position that attorney-client materials are being misused – let

alone specific evidence that any Petitioner has misused such materials. The documents were

found either in the possession of one of the dead prisoners or were written by one of the de-

ceased. And the additional documents, as described by the government, are telling in what they

reveal – not a single inappropriate document was found in an attorney-client envelope.


39
See, e.g., United States v. Skeddle, 989 F. Supp. 890, 894 (N.D. Ohio 1997) (permitting
review of attorney-client materials “[i]n light of the finding of probable cause that had preceded
the issuance and execution of the warrant”); United States v. Grant, No. 04 CR 207, 2004 WL
1171258, at *2 (S.D.N.Y. May 25, 2004) (documents “seized pursuant to a valid warrant, which
was based upon a [judicial] finding of probable cause”).
40

United States v. Zolin, 491 U.S. 554, 572 (1989) (quotations and citation omitted).




16

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 21 of 29

First, the document labeled “FOUO” is a red herring. “FOUO” or “For Official Use

Only” stamps are not classification designations and are not recognized by the Protective Order.

“FOUO” is simply an internal Department of Defense designation whose purpose is to determine

whether a particular document may be released to the public under the Freedom of Information

Act. “The abbreviation ‘FOUO’ is used to designate unclassified portions that contain informa-

tion that may be exempt from mandatory release to the public under [FOIA] . . . .”41 The desig-

nation is specifically “not authorized as an anemic form of classification to protect national secu-

rity interests”42 and in fact “is, by definition, unclassified.”43 The Protective Order does not pre-

vent prisoners from being in possession of FOUO documents; such documents by definition rep-

resent no security risks, and there is therefore no reason why a prisoner may not legitimately be

in possession of such documents.

Second, the document that is marked with a crossed-out “SECRET” stamp is surely not a

classified document and therefore should be of no concern to NCIS investigators. (The govern-

ment, of course, has failed to provide counsel with copies of the documents it relies upon for the

instant motion, so counsel can only make an educated guess about the nature of the formerly

“SECRET” document.) Based on counsel’s experience with handling the documents in these

cases, it seems quite likely that the document was once classified and that – whether by request

of counsel or the media, or sua sponte by the government – the document was declassified and


41
42
43

DoD Regulation 5200.1: C5.2.7.1.1.3 (emphasis added).
Id. 5400.7-R: C4.1.1.
Id. AP3.2.2.3.2.




17

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 22 of 29

marked accordingly. It is typical for such documents to have the original “SECRET” stamp

crossed out and “Unclassified” written beside it. The Protective Order does not prevent prison-

ers at Guantánamo from possessing unclassified documents, and there is therefore no reason why

a prisoner should not legitimately be in possession of such documents. The government’s inti-

mation that the document may really be a classified document that habeas counsel smuggled out

of the secure facility, doctored, and then sent to one of their clients is outrageous.

Third, the so-called “knot-tying” document found by the government is not purported to

have been labeled “attorney-client material” and is not alleged to have been discovered in a pris-

oner’s privileged legal folder. (Again, counsel have not seen the document and have no way

even to know whether the government’s characterization of this document is fair.) The docu-

ment therefore appears to have no relevance to the instant motion, which seeks further review

only of privileged items that have been confiscated by government agents.

Fourth, a supposed suicide note handwritten on the back of a piece of paper marked “at-

torney-client privileged” was quite obviously not being “hidden” by any of the prisoners. The

piece of paper was assertedly discovered in the mesh of the cell of one of the dead prisoners, not

secreted in the privilege folder of any of the prisoners. If the deceased were seeking to keep this

document from the prying eyes of the prison guards by disguising it as a privileged document,

why did he place it where it would inevitably be discovered? The answer, most probably, is that

the prisoner in fact wanted the note to be discovered and that he drafted it on the only piece of

paper readily available to him. In all likelihood, the only “abuse” of the privilege system was

one prisoner’s agreement to provide the deceased with a piece of paper from his privilege folder

in order to allow him to express his last wishes to his family.

Finally, the government does alert counsel and the Court to a single document that – from




18

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 23 of 29

the government’s description of it, anyway – likely should not have been in the possession of a

prisoner. Remarkably, however, the document is an email from JTF-Guantánamo itself – a

document that obviously was not provided to a prisoner by counsel, since counsel do not have

access to such documents. How did this document come into possession of a prisoner? Did an

interrogator or guard provide it? The NCIS should be investigating Joint Task Force personnel,

not ransacking the legal papers of every prisoner at Guantánamo.

The very idea that prisoners would communicate with one another in writing is at odds

with counsel’s perception that (1) the prisoners at Guantanamo, like prisoners everywhere, are

able to share information among themselves by word of mouth accurately and efficiently, (2) the

prisoners would be most unlikely to leave a written record of their communications; and (3) the

prisoners have experienced the seizure of their legal papers often enough that they would not

have thought such papers a means of communicating with one another undetected.

The government’s generalized security concerns are of a type already rejected by the

Court. The government, when it sought to justify the real-time monitoring and recording of at-

torney-client meetings, claimed that the prisoners would use meetings with counsel “to further

terrorist operations or otherwise disclose information that will cause immediate and substantial

harm to national security.”44 The Court rejected the government’s claims, finding them “thinly

supported.” As for the government’s speculation that Petitioners’ counsel are improperly sharing

classified information with their clients, this Court long ago reminded the government that “the

government’s decision to grant an individual attorney a security clearance amounts to a determi-

44

Al Odah, 346 F. Supp. 2d at 4 n.4.




19

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 24 of 29

nation that the attorney can be trusted with information at that level of clearance.”45

The government introduced interrogation techniques designed to wear down the prison-

ers’ mental health. It has resisted inquiries into prisoners’ health – even as it recorded hundreds

upon hundreds of suicide attempts. The government’s concern for the mental health of its cap-

tives cannot be taken seriously.

IV. ANY FURTHER REVIEW OF THE PRISONERS’ LEGAL PAPERS SHOULD BE

BY THE COURT OR A SPECIAL MASTER.

If the further review of the prisoners’ legal papers is allowed, the use of a Department of

Defense Filter Team is inappropriate. As the government hints in its filing, see Resps.’ Mot. 21

n.12, courts are reluctant to entrust attorney-client privileged materials to such governmental

teams. Indeed, “the use of government taint teams has often been questioned or outright rejected

by the courts.”46 Just last week, the Sixth Circuit overruled a district court’s decision to permit

review of potentially privileged documents by an independent government “taint team” because

the review posed unacceptable risks to the attorney-client privilege.47 Even when such teams

have been authorized, “at least three [of the] courts that have allowed for review by a govern-

45
Al Odah, 346 F. Supp. 2d at 14.
46
In re Search of the Scranton Hous. Auth., No. 04-MISC Nos. 318-322, 2006 WL
1722565, at *5 (M.D. Pa. June 22, 2006); see, e.g., Black v. United States, 172 F.R.D. 511, 516
(S.D. Fla. 1997) (even though government needed documents to pursue escaped fugitive, court
rejected proposed “taint team” and ordered that “a United States district judge or his designee”
would review documents for privilege); United States v. Abbell, 914 F. Supp. 519, 520–21 (S.D.
Fla. 1995) (appointing special master rather than filter team to review potentially privileged
documents obtained by search warrant).
47
See In re Grand Jury Subpoenas 04-124-03 and 04-124-05, Nos. 05-2274/2275, slip op.
at 6 (6th Cir. July 13, 2006), available at http://www.ca6.uscourts.gov/opinions.pdf/06a0245p-
06.pdf.




20

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 25 of 29

ment privilege team have opined, in retrospect, that the use of other methods of review would

have been better.”48

Especially given the government’s history of interfering with the attorney-client relation-

ships at Guantanamo, as well as its professed desire to “exploit the ‘intelligence value’” of moni-

tored attorney-client communications,49 “it is important that the procedure adopted on this case

not only be fair but also appear to be fair.”50 Yet “[i]t is a great leap of faith to expect that mem-

bers of the general public would believe that any such Chinese wall would be impenetrable; this

notwithstanding the honor of [those involved].”51 Here, “there is no doubt that, at the very least,

the ‘taint team’ procedures create an appearance of unfairness.”52

Concerns about the appearance of propriety are especially important here, given the diffi-

culties that counsel has experienced in gaining and keeping the prisoners’ trust. Before meeting

with counsel in the aftermath of Rasul, the prisoners had “been detained virtually incommuni-

cado for nearly three years without being charged with any crime.”53 Moreover, “Petitioners

face an obvious language barrier, have no access to a law library, and almost certainly lack a

United States v. Stewart, No. 02 CR 396, 2002 WL 1300059, at *6 (S.D.N.Y. June 11,


48
2002).
49
50
51
52
53

Al Odah, 346 F. Supp. 2d at 10 n.11.
Stewart, 2002 WL 1300059, at *6.
In re Search Warrant for Law Offices, 153 F.R.D. 55, 59 (S.D.N.Y. 1994).
United States v. Neill, 952 F. Supp. 834, 841 n.14 (D.D.C. 1997).
Al Odah, 346 F. Supp. 2d at 12.




21

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 26 of 29

working knowledge of the American legal system.”54 Worse, as a result of statements from in-

terrogators and other government personnel, many Petitioners suspect that their civilian attorneys

are simply guards or interrogators in disguise.55 These suspicions will only intensify when Peti-

tioners learn that their attorney-client materials are being reviewed by lawyers for the military

that detains and interrogates them.

Another unacceptable aspect of the government’s proposal is its suggestion that the Filter

Team should be allowed to conduct its own review of the confiscated documents to determine

whether they were properly “privileged” in nature, whether or not the documents are relevant to

the NCIS suicide-plot investigation.56 If the filter team determines that the documents are not

privileged, the government proposes, then they will be “returned . . . to JTF-Guantánamo for ap-

propriate action.”57 It is not for a Filter Team to evaluate privilege claims. Such a review for

privilege leaves “the government’s fox . . . in charge of the [clients’] henhouse,” with no check

against the possibility that the Filter Team would draw “false negative conclusions” overriding

legitimate claims of privilege.58

The government’s motion is also an apparent attempt to chill attorney-client communica-

tions. In its motion, the government suggests that “possibly others” – i.e., non-prisoners – may

Id.
See, e.g., Charlie Savage, Guantánamo Detainees Find Fault with Lawyers, Boston


54
55
Globe, Aug. 10, 2005, at A1.
56
See Resps.’ Mot. at 11.
57
Id.
58
In re Grand Jury Subpoenas, slip op. at 10.




22

Case 1:05-cv-01429-UNA Document 45 Filed 07/19/2006 Page 27 of 29

have participated in a “manifest abuse of the legal mail system.”59 This unfounded assertion is a

veiled threat to habeas counsel, intended to deter them from communicating freely with their cli-

ents using their best professional judgment. Indeed, buried in a footnote is the government’s

conclusion that because counsel is prohibited “from sharing . . . certain types of materials with

detainees . . . [if] 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 ac-

tion.”60

Habeas counsel with access to classified information are aware that they work under the

shadow of possible contempt and criminal actions, those with access to the