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Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________________________________________

Hicks (Rasul) v. Bush



Al Odah v. United States

Kurnaz v. Bush

O.K. v. Bush

El-Banna v. Bush

Anam v. Bush

Abdah v. Bush

Hamdan v. Bush

Paracha v. Bush

Al-Marri v. Bush

Zemiri v. Bush

Deghayes v. Bush

Abdullah v. Bush

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

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Case No. 02-CV-0299 (CKK)

Case No. 02-CV-0828 (CKK)

Case No. 04-CV-1135 (ESH)

Case No. 04-CV-1136 (JDB)

Case No. 04-CV-1144 (RWR)

Case No. 04-CV-1194 (HHK)

Case No. 04-CV-1254 (HHK)

Case No. 04-CV-1519 (JR)

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-0023 (RWR)

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 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 2 of 30

Batarfi v. Bush

Sliti v. Bush

Kabir v. Bush

Al-Shihry v. Bush

Aziz v. Bush

Al-Oshan v. Bush

Al-Sharekh v. Bush

Errachidi v. Bush

Adem v. Bush

Imran v. Bush

Al Habashi v. Bush

Al Hamamy v. Bush

Khiali-Gul v. Bush

Muhibullah v. Bush

Chaman v. Bush

Gul v. Bush

Basardh v. Bush

Sohail v. Bush

Tohirjanovich v. Bush

Mangut v. Bush

Hamad v. Bush

Al-Hela v. Bush

Mousovi v. Bush

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Case No. 05-CV-0409 (EGS)

Case No. 05-CV-0429 (RJL)

Case No. 05-CV-0431 (RJL)

Case No. 05-CV-0490 (PLF)

Case No. 05-CV-0492 (JR)

Case No. 05-CV-0520 (RMU)

Case No. 05-CV-0583 (RJL)

Case No. 05-CV-0640 (EGS)

Case No. 05-CV-0723 (RWR)

Case No. 05-CV-0764 (CKK)

Case No. 05-CV-0765 (EGS)

Case No. 05-CV-0766 (RJL)

Case No. 05-CV-0877 (JR)

Case No. 05-CV-0884 (RMC)

Case No. 05-CV-0887 (RWR)

Case No. 05-CV-0888 (CKK)

Case No. 05-CV-0889 (ESH)

Case No. 05-CV-0993 (RMU)

Case No. 05-CV-0994 (JDB)

Case No. 05-CV-1008 (JDB)

Case No. 05-CV-1009 (JDB)

Case No. 05-CV-1048 (RMU)

Case No. 05-CV-1124 (RMC)

Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 3 of 30

Zalita v. Bush

Ahmed v. Bush

Aminullah v. Bush

Ghalib v. Bush

Bukhari v. Bush

Al Ginco v. Bush

Saib v. Bush

Hatim v. Bush

Al-Subaiy v. Bush

Sadkhan v. Bush

Faizullah v. Bush

Faraj v. Bush

Al Wirghi v. Bush

Kiyemba v. Bush

Idris v. Bush

Attash v. Bush

Rabbani v. Bush

Al-Badah v. Bush

Almerfedi v. Bush

Zaid v. Bush

Al-Bahooth v. Bush

Ali Ahmed v. Bush

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Case No. 05-CV-1220 (RMU)

Case No. 05-CV-1234 (EGS)

Case No. 05-CV-1237 (ESH)

Case No. 05-CV-1238 (CKK)

Case No. 05-CV-1241 (RMC)

Case No. 05-CV-1310 (RJL)

Case No. 05-CV-1353 (RMC)

Case No. 05-CV-1429 (RMU)

Case No. 05-CV-1453 (RMU)

Case No. 05-CV-1487 (RMC)

Case No. 05-CV-1489 (RMU)

Case No. 05-CV-1490 (PLF)

Case No. 05-CV-1497 (RCL)

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-1607 (RMU)

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-1678 (GK)

Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 4 of 30

Kabir (Sadar Doe) v. Bush

Al-Rubaish v. Bush

Al-Qahtani v. Bush

Alkhemisi v. Bush

Al-Shabany v. Bush

Al-Mudafari v. Bush

Al-Mithali v. Bush

Alhag v. Bush

Al Subaie v. Bush

Ghazy v. Bush

Al-Shimrani v. Bush

Zadran v. Bush

Alsaaei v. Bush

Al Darby v. Bush

Al-Ghizzawi v. Bush

Awad v. Bush

Al-Baidany v. Bush

Said v. Bush

Al Halmandy v. Bush

Al Salami v. Bush

Al Shareef v. Bush

Al-Harbi v. Bush

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Case No. 05-CV-1704 (JR)

Case No. 05-CV-1714 (RWR)

Case No. 05-CV-1971 (RMC)

Case No. 05-CV-1983 (RMU)

Case No. 05-CV-2029 (JDB)

Case No. 05-CV-2185 (JR)

Case No. 05-CV-2186 (ESH)

Case No. 05-CV-2199 (HHK)

Case No. 05-CV-2216 (RCL)

Case No. 05-CV-2223 (RJL)

Case No. 05-CV-2249 (RMC)

Case No. 05-CV-2367 (RWR)

Case No. 05-CV-2369 (RWR)

Case No. 05-CV-2371 (RCL)

Case No. 05-CV-2378 (JDB)

Case No. 05-CV-2379 (JR)

Case No. 05-CV-2380 (CKK)

Case No. 05-CV-2384 (RWR)

Case No. 05-CV-2385 (RMU)

Case No. 05-CV-2452 (PLF)

Case No. 05-CV-2458 (RWR)

Case No. 05-CV-2479 (HHK)

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Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 5 of 30

RESPONDENTS’ REPLY MEMORANDUM IN SUPPORT OF JULY 7, 2006 MOTION
FOR PROCEDURES RELATED TO REVIEW OF CERTAIN DETAINEE MATERIALS

AND OPPOSITION TO PETITIONERS’ REQUESTS FOR

RELIEF ASSOCIATED WITH IMPOUNDMENT OF DETAINEE MATERIALS

Respondents hereby submit in the above-captioned cases this reply in support of their

July 7, 2006 Motion for Procedures Related to Review of Certain Detainee Materials and

Request for Expedited Briefing (“July 7 Motion”) and in opposition to petitioners’ requests for

various forms of relief associated with the impoundment of materials at issue in the July 7

Motion, including requests for sanctions, return of the impounded materials, transfer of the

materials to the Court, additional information, and discovery. Because petitioners’ filings in

opposition to the July 7 Motion are substantially similar, respondents submit this consolidated

reply. The substantially similar nature of the filings in this matter also warrant that the Court

decide the July 7 Motion in a coordinated, and expedited, fashion among the cases.1

As explained below, the impoundment of detainee materials by the Naval Criminal

Investigative Service (“NCIS”) was a reasonable and legally appropriate investigatory response

to a serious security situation arising within a wartime detention facility, reflected in apparently

coordinated detainee action with respect to suicides, attacks on personnel, and misuse of

materials reserved for privileged legal communications. Furthermore, the use of a Filter Team,

as requested by respondents, to sort clearly unprivileged documents in the detainee materials

from attorney-client communications, is warranted and appropriate so as to permit the NCIS

1

Several petitioners’ counsel question whether their petitioners have attorney-client

materials that have been impounded since counsel have not communicated with the petitioners.
Respondents are willing to withdraw their July 7, 2006 Motion with respect to petitioners for
whom counsel do not believe potentially privileged attorney-client communications would be
contained in the impounded materials. However, any examination of the impounded documents
is currently awaiting the Court’s consideration of the July 7 Motion. See infra at 4-5.

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Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 6 of 30

investigation to proceed while protecting privileged attorney-client communications from

inappropriate disclosure.2

ARGUMENT

I.

THE SEIZURE OF THE IMPOUNDED DETAINEE MATERIALS WAS LEGAL
AND APPROPRIATE.

Petitioners claim that the impoundment of detainee materials by the NCIS as part of its

investigation into the circumstances of the recent suicides of three Guantanamo detainees, as well

as any broader plot or planning for other such attempts in the past or future, was illegal and

nothing more than part of what petitioners believe to be a multi-year conspiracy by respondents

to thwart detainees’ access to the courts and their relationships with attorneys acting on their

behalf. Petitioners legal assertions, however, improperly conflate the current, temporary

impoundment of the detainee materials (as well as respondents’ request for Court authorization

of procedures for sorting and review of the materials intended to protect the attorney-client

privilege) with actual abrogation of the attorney-client privilege. Furthermore, counsel’s

histrionic tirade challenging the motives they allege are behind the impoundment of the

materials, aside from being offensive and insulting, is based on assertions that are false or

misleading, and it amounts to an irrational and improper attempt to second-guess virtually every

aspect of the wartime detentions at Guantanamo.

2

The July 7 Motion was made without prejudice to respondents’ position that the Court
lacks jurisdiction in light of the Detainee Treatment Act of 2005, see July 7 Motion at 2 n.3, and
respondents do not concede the jurisdictional issue. The effect of the Supreme Court’s recent
decision in Hamdan on the jurisdictional issue will be addressed in the pending Guantanamo
detainee habeas appeals in the Court of Appeals through supplemental briefing to be completed
by August 15, 2006.

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Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 7 of 30

A.

Abrogation of the Attorney-Client Privilege Has Not Occurred.

Much of the rhetoric in the various oppositions filed by petitioners to respondents’ July 7,

2006 Motion appears to be grounded in the assumption that attorney-client communications in

the universe of detainee materials that have been impounded have been permanently taken from

the detainees and have been and will be reviewed in an unauthorized fashion. This is incorrect.

As explained in respondents’ July 7 Motion, on June 10, 2006, three detainees at

Guantanamo committed suicide. Just a few weeks prior to that, at least two other detainees had

also attempted suicide or self-harm using illicitly hoarded medicine. On the same day as those

prior attempts, detainees in Camp 4 communal living bays were able to launch a coordinated

ambush attack on guards there. The three successful suicides occurred in separate cells in the

same cellblock on the same day and in essentially the same manner. Handwritten, apparent

suicide notes were found on the deceased detainees, and a handwritten note was found in one of

the deceased detainee’s cell that, when translated, proved to be related to the suicides and written

by someone other than the detainee who died in the cell in which the note was found. See July 7

Motion, Exhibit B (Kisthardt Decl.) ¶ 3. That note was written on notepaper that was stamped

on the back as privileged attorney-client material. Id. Furthermore, notes were found in a living

detainee’s cell that, once translated, appeared to have been written by at least two of the deceased

detainees on stationery that had been stamped as confidential attorney-client materials, id., even

though the deceased detainees had not been contacted by attorneys.

In light of this evidence that the deceased detainees had secreted suicide notes between

themselves and at least one other living detainee, the NCIS – which conducts its investigations

independently and with which commands with matters under investigation are obligated to

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Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 8 of 30

cooperate – expanded the scope of its investigation to the cells of other enemy combatant

detainees at Guantanamo. Approximately 1,100 pounds of materials were collected by NCIS on

or about June 14, 2006, with materials collected from each detainees’ cell being separately

bagged. Id. ¶¶ 4-5. NCIS personnel then began sorting materials from eleven bags and

uncovered therein a note providing instructions concerning the tying of knots, along with a

potentially classified e-mail from a camp officer containing information regarding cell locations

of detainees and other details regarding camp operational matters. Id. ¶ 5. The latter discovery

led to the examination of other materials from the same detainee to determine whether there were

other potentially classified U.S. Government documents in that detainee’s possession, including

in three legal mail envelopes. See id. An NCIS investigator scanned the contents of the three

envelopes, but did not read the documents therein. See id.

The sorting made clear that review and translation of the collected detainee materials

would be burdensome given the volume of materials and the apparent multitude of foreign

languages involved, and it revealed the likelihood that attorney-client communications would be

encountered. See id. In addition, as noted in the declaration of the supervisory NCIS investigator

in charge of the investigation, the only review of the 1,100 pounds of seized materials was this

initial sorting of the contents of the eleven bags. See id. Further, attorney-client communications

were not read; the contents of three legal mail envelopes were scanned in the search for other

possibly classified U.S. documents and certain markings on the documents were observed, but

the documents in the envelopes were not read. Id. After the initial sorting, further review of the

materials was suspended until appropriate procedures and staffing could be developed to account

for the scope of the undertaking and the possibility that the review team would encounter

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Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 9 of 30

potentially privileged attorney-client communications. Id. The bags of materials are currently

kept in in sealed boxes in a locked and alarmed storage facility consistent with NCIS practices

for maintenance of evidence obtained in criminal investigations, i.e., under the control of the

NCIS to the exclusion of others, including Guantanamo authorities. No further review of the

contents of the bags of materials is occurring pending the Court’s consideration of respondents’

July 7 Motion. 3

Furthermore, the June 14, 2006 impoundment of detainee materials did not affect delivery

of legal mail to detainees after the impoundment, and scheduled visits by counsel to Guantanamo

are continuing.

Accordingly, no “abrogation” of attorney-client communications has occurred; attorney-

client materials have not been read. In addition, the impoundment by NCIS of attorney-client

materials within the impounded materials is temporary, pending authorization of procedures that

would permit the effective separation of unprivileged matter from privileged, attorney-client

communications. Furthermore, otherwise appropriate ongoing legal communications between

petitioners and their counsel are not being impeded: legal mail is being delivered pursuant to the

applicable Protective Order and counsel visits with petitioners are being scheduled and are

ongoing. The attorney-client privilege, therefore, has not been “abrogated” by the impoundment

of detainee materials.

3

As explained in recent conferences with Magistrate Judge Kay on this matter, after the

impoundment, NCIS personnel conducted an inventory of the bags, each of which is marked with
the Interment Serial Number (“ISN”) of the detainee from whom the materials were impounded,
to determine detainees for whom bags of materials exist. The inventory, however, was not of the
contents of the bags and did not involve review of materials within the bags.

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Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 10 of 30

B.

Impoundment of the Detainee Materials and the Request for Court
Authorized Procedures for Sorting and Review of the Materials Is Fully
Justified.

Despite petitioners’ rhetoric and attempts to obfuscate the matter, most petitioners’

counsel admit, as they must, that it has long been recognized, even in the context of the detention

of U.S. individuals possessing constitutional rights, that 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

detainee quarters and materials. For example, in Bell v. Wolfish, 441 U.S. 520, 555-57 (1979),

the Supreme Court upheld against a due process challenge a number of security-related practices,

including searches of the cells and persons of those held in pretrial detention facilities. And in

Hudson v. Reno, 468 U.S. 517 (1984), and Block v. Rutherford, 468 U.S. 576 (1984), the Court

upheld against constitutional challenge, including Fourth Amendment challenge, even random

searches of detainee cells outside of the detainees’ presence. 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); Goff v. Nix, 113 F.3d 887, 892 (8 Cir.

th

1997) (applying Turner standard to challenge to withholding of inmate legal papers). As the

Supreme Court noted in Block with respect to the propriety of searches of detainee cells:

We . . . cautioned [in Wolfish]: Prison administrators [are to be] accorded wide-
ranging deference in the adoption and execution of policies and practices that in
their judgment are needed to preserve internal order and discipline and to maintain
institutional security.

468 U.S. at 585 (citing Wolfish, 441 U.S. at 547). See also 468 U.S. at 591 (“[W]e could not

have been clearer in our holding in Wolfish that this is a matter lodged in the sound discretion of

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Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 11 of 30

institutional officials.”). Moreover, the Court stated that “officials are not obligated to adopt the

least restrictive means to meet their legitimate objectives.” Id. at 591 n.11.

4

Such deference would be even more appropriate in the context presented in the

Guantanamo habeas cases here, that is, with respect to actions taken in response to specific

security issues raised at a military detention facility during a time of war, including where, as

here, the security issues bear the hallmarks of coordinated planning by enemy combatant

detainees against their captors. See July 7 Motion at 14. Indeed, as previously explained,

Guantanamo was faced with three concurrent suicides in the same cellblock 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 and had (mis)used materials for

support of the suicides that were on their face reserved for privileged legal communications. The

seizure of detainee materials was, at the very least, a reasonable investigatory response to a

serious security issue. Further, just a sampling of the detainee documents impounded uncovered

a note providing instructions concerning the tying of knots, along with a potentially classified e-

mail from a camp officer that was somehow obtained by a detainee. Accordingly, the

4

Accordingly, even if petitioners – aliens detained outside of U.S. territory – were

permitted to avail themselves of the Fourth Amendment in this context, which they are not, see
United States v. Verdugo-Urquidez, 494 U.S. 259, 266 (1990) (Fourth Amendment does not
“restrain the actions of the Federal Government against aliens outside of the United States
territory”), petitioners’ invocation of the Fourth Amendment, see, e.g., Zemiri (No. 05-CV-2046-
CKK) Opp. at 5-6, or its standards, see, e.g., Abdah (No. 04-1254-HHK) Opp. at 15 & infra at
14, in an attempt to impugn the impoundment of detainee materials is misplaced. See Hudson,
468 U.S. at 526 (Fourth Amendment “does not apply within the confines of the prison cell). The
case, Lonegan .v Hasty, 2006 WL 1707258 (E.D.N.Y. Jun. 22, 2006), which did not involve
security-related searches of detainee cells but surreptitious recording of attorney-client
conversations contrary to regulation and unrelated to security concerns, id. at *4, *15, is not to
the contrary.

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Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 12 of 30

impoundment of the detainee materials, and the request for ultimate review of the materials, for

the purpose of comprehending the scope of and mechanisms for detainee planning of suicide

attempts at Guantanamo, both in the past and possibly in the future, with the goal of disrupting

those mechanisms, is appropriate under any realistic standard. It is most definitely appropriate

under the deferential standard established by the Supreme Court in the U.S. prison context and

would be especially so under what should be an even more deferential standard given the unique

context here involving the detention of individuals held by the military as enemy combatants.5

Despite the facts, petitioners assert that impoundment of the materials and respondents’

request to the Court regarding review of the materials is merely a pretext for interference with

attorney-client relations. Petitioners’ efforts to undercut the bases for the impoundment and the

judgment of NCIS in the matter are neither factually nor legally legitimate and should be

rejected.

5

One set of counsel goes so far as to claim that even the impoundment of nonlegal

materials is illegal, based on their view that general conditions of confinement at Guantanamo as
reported on the Internet (which respondents do not concede as accurately reported), including the
impoundment, violate the Third Geneva Convention. See Chaman (No. 05-CV-887-RWR) Opp.
at 23-36. Counsel claim, inter alia, that the Supreme Court in Hamdan held that the Geneva
Conventions were judicially enforceable. Hamdan, however, held no such thing; rather, it
concluded that the petitioner in that case could invoke Common Article 3 of the Geneva
Conventions, not because the Conventions provided petitioner with enforceable rights, but
because Article 3 was incorporated into a provision of the Uniform Code of Military Justice
governing the military commission at issue in the case. See Hamdan, 126 S. Ct. 2749, 2794
(2006) (assuming that Conventions scheme “would, absent some other provision of law, preclude
. . . [petitioner’s] invocation of the Convention’s provisions as an independent source of law
binding the Government’s actions and furnishing petitioner with any enforceable right”). See
also Hamdan, 415 F.3d 33, 40 (D.C. Cir. 2005) (“[T]he 1949 Geneva Convention does not
confer upon [a detainee] a right to enforce its provisions in court.”). Counsel’s Geneva
Conventions-based attack on the seizure of nonlegal materials, therefore, must be rejected.

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Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 13 of 30

Petitioners, for example, improperly twist respondents’ role in the hard-fought litigation

in these cases, over unique and often unprecedented issues arising in a wartime detention setting,

into nothing more than a campaign to deny detainees access to counsel. See, e.g., Abdah Opp. at

11-12. Petitioners also claim, based upon newspaper articles recounting petitioners’ own

allegations, that respondents have intentionally attempted to interfere with and disrupt detainee

relationships with attorneys through alleged statements of interrogators and retribution visited

upon detainees meeting with lawyers. Of course, counsel misleadingly fail even to mention that

respondents have submitted sworn declarations in this litigation refuting those very allegations. 6

While petitioners’ filings reflect a penchant for ignoring or dismissing as lies any fact or

matter inconsistent with a preconceived “torture narrative” concerning Guantanamo, contrary to

the picture petitioners’ counsel attempt to paint, respondents have gone to great lengths to

accommodate attorney-detainee communications since August 2004, shortly after the Supreme

Court’s decision in Rasul. Respondents have supported visits by over 150 habeas lawyers and

their translators to Guantanamo for meetings with detainees, and many of these have made

multiple visits to the base. Visiting counsel groups frequently consist of multiple lawyers and

translators who stay at Guantanamo for several days to conduct interviews with multiple

detainees. To date, over 250 detainees have personally met with habeas counsel at Guantanamo,

6

See, e.g., Al Odah (No. 02-CV-0828-CKK), Respondents’ May 9, 2005 Opp. to Mot. for

Writ of Injunction, Exhibits 1 & 2 (dkt. no. 236) (declarations of then-Chief of Staff and then-
Director of Joint Intelligence Group of JTF-Guantanamo, explaining that interrogators and other
personnel are not permitted to interfere with the relationship between any detainee and his lawyer
and that such personnel are prohibited from impersonating a lawyer, making disparaging
comments about the lawyer, or retaliating against a detainee for having met with a lawyer or
being involved in habeas corpus litigation; explaining also that detainees are not granted or
denied privileges, disciplined, or otherwise discriminated against on account of their involvement
with habeas litigation or counsel).

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Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 14 of 30

many having met with counsel multiple times. Typically, multiple attorney-detainee meetings

occur weekly, often presenting difficult and resource-intensive logistical demands on

Guantanamo authorities. Guantanamo authorities have accommodated numerous, sometimes

disruptive scheduling change requests by counsel with respect to such meetings. Authorities also

have spent many hours urging uncooperative detainees to meet with awaiting counsel and

7

attempting to accommodate reasonable requests of counsel relating to various aspects of their

meetings. Furthermore, Guantanamo has delivered countless pieces of legal mail between

counsel and detainees permitted under the Protective Order. While instances of disagreements

with counsel have arisen, for example, regarding materials that may be brought into a counsel

meeting with a detainee, or over materials provided by counsel to detainees and subsequently

8

discovered by guards (though not through a search of legal mail), petitioners’ claim of a

9

concerted conspiracy to improperly interfere with access to counsel is unfounded, and it does not

7

See, e.g., Al Adahi (No. 05-CV-280-GK), Respondents’ Opp. to Mot. to Compel Access

to Petitioner (dkt. no. 80), Ex. A (Decl. of Dale T. Vitale) (describing Guantanamo authorities’
efforts to convince detainee to meet with awaiting counsel, including delivering notes from
counsel and enlisting assistance of Islamic Cultural Advisor).

8

See Revised Procedures for Counsel Access to Detainees at the U.S. Naval Base in
Guantanamo Bay, Cuba (annexed to 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)), § V (“Access
Procedures”).

9

See, e.g., Al-Joudi (No. 05-CV-0301-GK), Respondents’ Mar. 2, 2006 Response to Mot.

for Order to Show Cause Requiring Rescheduling of Attorney-client Meetings (dkt. no. 59).

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Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 15 of 30

undercut the basis for the NCIS impoundment of detainee materials and request for review

procedures here.10

Petitioners’ counsel’s harangue also fails to account for the important fact that the

impoundment at issue was undertaken by NCIS. Petitioners’ counsel attempts to expand the

scope of their conspiracy theory to include a criminal investigative service that acts

independently in the execution of its investigatory judgments, see July 7 Motion at 4-5, makes

their attacks particularly unsound and illegitimate.11

10

Petitioners also attempt to impugn the basis for the impoundment of materials based on
the timing of respondents’ July 7 Motion. Counsel assert that the government “devious[ly]” had
no intention of disclosing the seizure or seeking Court relief in the matter until a motion for
return of impounded materials, filed in Abdullah (No. 05-CV-0023-RWR) on July 5, 2006,
“forced it hand.” See, e.g., Abdah Opp. at 5-6. As counsel are aware, however, and as some
acknowledge, see, e.g., Al-Marri (No. 04-CV-2035-GK) Opp., Ex. B; Sliti (No. 05-CV-0429-
RJL), Ex. A, respondents’ counsel informed habeas counsel of the impoundment, and
respondents’ intention to file a motion regarding the matter, on June 30, 2006, before the filing of
the motion in Abdullah. Moreover, counsel visits to Guantanamo were ongoing immediately
following the impoundment of the detainee materials, so no attempt to “hide” the seizure would
have even been possible. Rather, respondents filed their motion once the circumstances of the
impoundment and the appropriate relief to be sought from the Court were ascertained. Further,
with respect to issues of timing, respondents in their motion and otherwise, have attempted at
every turn to obtain an expedited resolution of this matter to permit this aspect of the NCIS
investigation to move forward and enable the return of privilege attorney-client communications
in the detainee materials to detainees. Petitioners’ counsel, however, have resisted expedited and
coordinated handling of the matter.

11

In a particularly galling and unjustified stunt, some counsel go so far as to claim that

the seizure and impoundment of detainee materials actually occurred weeks before the date
indicated in the sworn declaration from the NCIS submitted with respondents’ July 7 Motion and
that “[t]he government is overlaying its investigation into the deaths onto their earlier seizure of
legal mail in an attempt to justify retroactively its unlawful behavior.” See Al-Anazi (No. 05-
CV-0345-JDB) Opp. at 6; see also Abdah Supplemental Opp. at 1. This outrageous claim is
based on the most anemic and incompetent evidence, i.e., an allegation made by an unidentified
client of counsel. See Al-Anazi Opp., Ex. A (Raut Decl.); Abdah Supplemental Opp., Exhibit
(Raut Decl.). Counsel provide only snippets of information from a letter from the detainee,
completely devoid of context, such that it is impossible to tell what the detainee is talking about,
whether some incident involving the return of materials to the detainee’s storage bin (as

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Petitioners’ counsel also attack the basis for the impoundment of the detainee materials

based on improper attempts to second-guess the security factors that led to the impoundment.

The scope of petitioners’ counsel’s willingness to second-guess the bases for the NCIS

impoundment of detainee materials is stunning. Counsel are willing not only to offer their

opinion that the detainee suicides were not related, coordinated acts,

12

even in the face of obvious

circumstantial evidence to the contrary, see supra at 3-4, but, based on their own conspiracy

viewpoint, they question whether the deaths were suicides at all.
13

Petitioners’ counsel also

disagree that the use by the suicide victims of attorney-client stationery may reflect an attempt to

shield or disguise materials from detection, see, e.g., Abdah Opp. at 18, despite the fact that the

deceased detainees had not had contact with attorneys and the materials were positioned so as not

to be discovered until after the suicide and upon the search of the detainees’ effects.

See Kisthardt Decl. ¶¶ 3-4. Petitioners’ counsel further question the need for investigation of

detainees are only permitted to retain in their cells a certain number of documents at one time
depending on the detainee’s disciplinary level, with remaining materials kept in the detainee’s
bin, see July 7 Motion at 6 n.6), or some misunderstanding with guards over access to materials
in the detainee’s bin. While it is at least theoretically possible the detainee’s allegations refer to
Guantanamo’s inability to return certain materials to detainees in the aftermath of the May 18,
2006 melee in Camp 4, see July 7 Motion at 6 n.6, it is impossible to tell from the tidbits of the
detainee’s allegations provided by counsel. In addition, the allegations are not internally
consistent: one of the snippets provided by counsel states that the detainee is being denied pen
and paper by Guantanamo, Raut Decl. ¶ 5, yet obviously the detainee was able to write counsel a
letter. Such “evidence” is certainly insufficient to support counsel’s offensive claims of
deception and lying by respondents, which are refuted by the declaration submitted with
respondents’ July 7 Motion.

12

See, e.g., Abdah Opp. at 6-10 (suicides merely acts of despair).

13

See, e.g., Abdah Opp. at 2 (while conceding that “there is no basis for alleging . . . that
the prisoner deaths were not suicides,” questioning whether they were); id. at 10 (“the deaths – if
suicides – were not acts of belligerence”).

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detainee materials based on counsel’s view of the overall compliant and docile nature of the

enemy combatant detainees, see, e.g., Alhami (No. 05-CV-0359-GK) Opp. at 9,

14

even in the face

the recent coordinated ambush of guards by detainees in Camp 4, a communal living facility

reserved for the most compliant Guantanamo detainees. Counsel even have the temerity to assert

that the investigation of how detainees came into possession of the potentially classified JTF-

Guantanamo e-mail should be hamstrung to prevent NCIS from potentially discovering other

such materials in the possession of detainees or information in the detainee materials that might

shed light on how the e-mail was obtained. See, e.g., Abdah Opp. at 19; Al-Anazi Opp. at 10.

According to counsel, the NCIS should be limited merely to asking the detainee or investigating

JTF-Guantanamo officials, without the benefit of a review of detainee materials. See id. at 10.

Petitioners’ counsel further speculate that detainees would not participate in suicide plots,

see, e.g., Kurnaz (No. 04-CV 1135-ESH) Opp. at 7; Al Odah Opp. at 6-7; or, in an interesting

twist upon that theory, that since counsel would not promote or participate in any such plots,

there is no need to investigate or review the detainees’ materials, see, e.g., Al Odah Opp. at 4;

Almerfedi (No. 05-CV-1645-PLF) Opp. at 11 n.3. Also, based upon the assumption that

“prisoners at Guantanamo, like prisoners everywhere, are able to share information among

themselves by word of mouth accurately and efficiently,” counsel go so far as to assert that “the

prisoners would be most unlikely to leave a written record of their communications.” See, e.g.,

Abdah Opp. at 19; Chaman Opp. at 19-20. This despite the discovery of multiple writings and

other documents described supra.

14

The so-called “study” relied upon by counsel for their conclusions regarding the docile

nature of the detainees was recently authored by two of the petitioners’ counsel in Alhami.

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Of course, the law, even in the context of detentions of U.S. individuals possessing

constitutional rights as opposed to the alien enemy combatants here, does not permit petitioners’

counter-factual opinions and conjectures to carry the day. Rather, a response to a security issue

within a detention facility is entrusted to the reasonable judgments and discretion of responsible

officials. See supra at 6-8. The impoundment of the detainee materials here was a reasonable

and appropriate investigatory response to a security situation arising within a wartime detention

facility. It was undertaken for purposes of comprehending the existence of and mechanisms for

detainee planning of suicide attempts at Guantanamo, both in the past and possibly in the future,

with the goal of disrupting those mechanisms and potentially saving lives and otherwise

maintaining ongoing security and order within the facility. See Kisthardt Decl.; July 7 Motion,

Exhibit A, (Harris Decl.) ¶ 4. The impoundment, therefore, was appropriate.

C.

No Individualized, Detainee-Specific Showings of Probable Cause Are
Needed to Justify Impoundment and Review of the Detainee Materials.

Petitioners argue that the relief respondents request, i.e., the authorization of a Filter

Team for sorting and review of the impounded detainee materials in a fashion that protects

privileged attorney-client communications from disclosure, requires a showing of probable cause

by the government with respect to each detainee for whom material is to be reviewed. See, e.g.,

Abdah at 15. Petitioners reason that just as an individualized showing is necessary to warrant

application of the crime-fraud exception so as to deny the protection of the attorney-client

privilege to an otherwise protected attorney-client communication, “[s]imilarly, when the

government seizes materials from a location that likely contains privileged papers, the seizure

must be supported by probable cause and a warrant, and it still must employ appropriate means

of screening out privileged materials.” Id. This argument, however, conflates the impoundment

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of the detainee materials and respondents’ request for Court authorization of a Filter Team for

sorting and review of the materials in a fashion intended to protect the attorney-client privilege,

with actual abrogation of the privilege. As discussed supra, the Fourth Amendment’s probable

cause standard and warrant requirement applicable to searches of the property and persons of

U.S. citizens has no application to searches and seizures in a prison context, either generally or

with respect to specific detainees.
15

Rather, legitimate security interests and concerns fully

justify the NCIS impoundment in this wartime detention facility context. As to an “appropriate

means of screening out privileged materials,” that is exactly the relief respondents are seeking.

Thus, at this point, the issue before the Court is much more simple and straightforward

than whether an otherwise protected attorney-client communication may be disclosed as falling

within an exception to the privilege. Rather, an impounded set of detainee materials exist that

presumably includes detainee communications with persons other than counsel, other detainee

papers, as well as, possibly, attorney-client communications, typically within legal mail

envelopes.

16

As to the former category – documents that are not attorney-client communications

– such documents and writings, without question, are subject to review by NCIS, as well as

Guantanamo authorities, without Court authorization. Beyond the indisputably unprivileged

materials, however, the universe of impounded documents would also contain legitimate

15

Petitioners’ citation of United States v. Stewart, 2002 WL 1300059 (S.D.N.Y. 2002),
see, e.g., Abdah Opp. at 15 n.38, is not to the contrary. That case involved a warrant issued for
the search of a private law office.

16

Knowledge of the contents of the bags of impounded materials is based on common
sense, as well as the initial investigatory steps taken by NCIS, including its sampling of eleven
bags of the impounded material. See Kisthardt Decl. ¶¶ 3-5. The remainder of the materials,
including the materials in the legal mail envelopes in the sampled material, have not been
reviewed. See supra at 4-5.

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attorney-client communications, typically in legal mail envelopes. Furthermore, given the

demonstrated existence of nonprivileged documents masquerading as privileged, i.e., on

stationery stamped as attorney-client privileged, it is entirely possible that similar unprivileged

writings bearing some trapping of an attorney-client communication exist. Other related

possibilities include nonprivileged materials intermingled, i.e., stored, among legitimate attorney-

client communications within legal mail envelopes, or nonprivileged notes or messages hand-

written on otherwise legitimate attorney-client materials.
17

As with the status of the notes

uncovered so far, the status of such materials and information as unprivileged would not

necessarily be readily discernable absent translation,
18

which would necessarily involve some

review of the material.

Thus, in order to sort unprivileged materials from legitimately privileged attorney-client

communications, an inspection and possible translation of the materials to an extent necessary to

ascertain their nature, including of material in legal mail envelopes, is necessary. And given the

possibility of encountering attorney-client communications that would be privileged, respondents

have proposed that the materials be reviewed and sorted by a Filter Team so that privileged

materials are not disclosed to NCIS investigators or Guantanamo authorities. Thus, contrary to

petitioners’ inflammatory accusations, respondents have been respectful in the extreme of the

17

While petitioners argue that no legal mail envelope scanned in the NCIS sampling of
detainee materials was found to contain, in counsel’s view, improper material, only three such
envelopes out of the universe of 1,100 pounds of material were scanned. Given that the
detainees were misusing attorney-client stationery for unprivileged communications, however,
some review of the contents of legal mail envelopes is warranted.

18

As noted in the NCIS declaration, the impounded documents will include materials in a

number of different foreign languages. See Kisthardt Decl. ¶ 5.

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attorney-client privilege; the privilege has not been abrogated, nor will it be through respondents’

proposed Filter Team review. See also infra § II.

Such an arrangement, i.e., the sorting of unprivileged information from legitimate

attorney-client communications, as with the impoundment of detainee materials, is not dependent

upon a showing of probable cause. Rather, such sorting is a necessary aspect of any review of

detainee materials. The issue is how to accomplish the review and sorting in a fashion that

respects the privilege, and respondents’ proposal does just that. At least some of petitioners’

counsel seem to recognize implicitly that a sorting review is necessary when they request the

return of only attorney-client materials to the detainees. See, e.g., Abdah Opp., Prop. Order

(calling for delivery of “legal papers” to counsel); Al Odah Opp. (objecting to seizure of

“attorney-client materials”); see also Alhami Opp. at 8 (unprivileged documents may be

examined by NCIS “without fear of legal backlash”). If such materials are to be returned at all,

those materials, in all events, must be identified in and segregated from the universe of

impounded materials.

Indeed, one of the cases primarily relied upon by petitioners’ counsel makes clear that

such sorting is necessary and does not require a showing of probable cause. In Goff v. Nix, 113

F.3d 887 (8 Cir. 1997), the court considered challenges to certain practices of a penitentiary

th

limiting communications between inmates, practices that were alleged to deny inmates the right

of access to the courts. The court applied the standard of Turner v. Safely, see supra at 6, to the

penitentiary’s practice of refusing to return an inmate’s legal documents to him when his

jailhouse lawyer was transferred to another facility.

19

While the court upheld an injunction

19

The documents either had to remain with the jailhouse lawyer, who could not return

them once he was transferred, or they were destroyed. 113 F.3d at 888-89.

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against the complete deprivation of the inmate’s legal papers represented by the practice, it

recognized the state’s legitimate concern that contraband – which was considered in the case to

include not only physical contraband, but certain unauthorized communications between or about

inmates, see 113 F.3d at 891 & n.2 – not be disseminated through the return of putative legal

papers that had been in an inmate’s possession for some period of time. Id. at 892. Accordingly,

the court upheld a requirement that prison officials be permitted to scan the documents to be

returned so that any contraband could be confiscated.
20

See id. Thus, despite the presence of

privileged material, the Goff court authorized a sorting review by prison officials themselves.

Here, of course, respondents have proposed sorting of the impounded materials not by

NCIS investigators or Guantanamo authorities, but by a Filter Team operating under Court-

ordered nondisclosure constraints as a safeguard for privileged communications among the

impounded materials. An individualized showing of probable cause is simply not required for

such Filter Team review. Only where the Filter Team were to encounter an attorney-client

communication that was excepted from the privilege, e.g., under the crime-fraud exception,

would an individualized showing be required, i.e., to demonstrate the applicability of the

exception. Respondents’ Filter Team proposal contemplates this, however; the Filter Team is not

permitted to disclose attorney-client communications except upon obtaining the permission of

counsel or the Court. See July 7 Motion, Proposed Order. An individualized showing of

20

Thus, the cases cited by some petitioners’ counsel, see, e.g., Al Anazi Opp. at 3, for the

proposition that privileged, incoming legal mail can be inspected by prison officials for
contraband, but not read, do not undermine respondents’ request for Filter Team review in this
context. Here, the issue is with respect to materials that have rested in the hands of detainees
with the potential for detainees to use, abuse, or add to such materials or legal mail envelopes for
purposes of creating unprivileged materials or facilitating unprivileged communications.
Further, here, the review of the materials will be performed not by prison officials themselves,
but by a Filter Team operating under Court-ordered nondisclosure constraints.

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probable cause, however, is not required for the Court to permit the Filter Team review and

sorting of the impounded materials to occur.21

II.

THE FILTER TEAM PROCEDURE PROPOSED BY RESPONDENTS IS
APPROPRIATE AND SHOULD BE ORDERED BY THE COURT.

As discussed above, both the impoundment of detainee materials and the anticipated

review of such materials is fully justified and appropriate. The Court also should authorize the

procedures for the review proposed by respondents, i.e., the use of a Filter Team composed of

individuals essentially walled-off from the habeas litigation. As discussed in the July 7 Motion,

the Filter Team will be composed of individuals meeting the qualifications of the Department of

Defense “Privilege Team” created by the Protective Order, that is, DoD “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. The Filter Team would review the detainee

materials, segregating attorney-client communications from other unprivileged detainee

21

Thus, petitioners’ assertions that Court authorization was required prior to

impoundment of the detainee materials is erroneous. For these same reasons, the NCIS
impoundment of materials and the proposed Filter Team review do not violate the Protective
Order in this case, nor are they contrary to Al Odah v. United States, 346 F. Supp. 2d 1 (D.D.C.
2004). The attorney-client privilege has not been abrogated here; attorney-client materials have
not been read. Further, neither the Protective Order nor the Al Odah decision addresses the
security-related situation such as that presented here, i.e., where evidence exists of detainee
misuse of attorney-client stationery for unprivileged communications, justifying the sorting of
privileged communications from unprivileged ones so that a key aspect of the investigation into
the security situation can proceed expeditiously.

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materials. Unprivileged materials will be disclosed to NCIS investigators, and documents among

those determined not to be relevant to the investigation will be returned to JTF-Guantanamo for

return to the detainees or other appropriate action. With respect to attorney-client

communications encountered in the Filter Team review, the Filter Team would be prohibited by

Court order from disclosure of those documents, absent the consent of counsel or the Court. See

July 7 Motion, Proposed Order. Given that the object of the Filter Team review is to sort

legitimate attorney-client communications from unprivileged documents that may ultimately be

relevant to the NCIS investigation, any legitimate attorney-client communications not bearing on

the investigation, especially those in English, can be identified quickly and set aside without

detailed further review and returned to detainees.

22

Should the Filter Team encounter an

attorney-client communication that is excepted from privilege, however, the Filter Team could

not disclose the document to NCIS investigators or Guantanamo authorities, but rather would be

constrained to seek the consent of the detainee’s counsel or authorization from the Court for

23

such disclosure.
24

Thus, the proposed review of the detainee materials should be straightforward

22

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

letterhead, however, will require some amount of review for translation so as to ascertain that
they are attorney-client communications.

23

As explained in the July 7 Motion, however, the proposed Filter Team procedure

permit the Filter Team to disclose information discovered in attorney-client communications that
pertains to future events that threaten national security or involve imminent violence, that is, in
situations in which the current Access Procedures already contemplate and require disclosure of
otherwise confidential information to JTF-Guantanamo. See Access Procedures § VII. A., D.-F
(DoD Privilege Team permitted to disclose such information discovered during classification
review of legal communications); id. § IX.C (petitioners’ counsel required to disclose such
information learned from a detainee).

24

Because of the prospect that the Filter Team may need 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, as discussed in the July 7

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and efficient, with the Filter Team subject to appropriate safeguards imposed by the Court

regarding qualifications and nondisclosure of attorney-client communications.

Petitioners’ counsel argue that the proposed Filter Team review should be rejected in

favor of review by the Court itself or a special master or even counsel. See, e.g., Abdah Opp. at

20. Counsel’s objections to the use of a Filter Team run to the possible perception of unfairness

in the use of such a team and to the asserted possibility that the Filter Team would draw “false

negative conclusions” about the applicability of privilege to particular documents. See id. at 21-

22. These concerns do not warrant rejection of the use of the Filter Team in this matter,

however. Here, the Filter Team would be operating under Court-ordered constraints regarding

team members’ qualifications and duties of nondisclosure, all but eliminating concerns of

fairness. Indeed, similar constraints have been in place and operated successfully with respect to

the DoD Privilege Team, created under the Court’s Protective Order for classification review of

otherwise privileged material, for almost two years without compromise of privileged material.

25

Further, petitioners’ counsel’s concern that disagreements over the applicability of privilege will

not become apparent until documents are disclosed to NCIS investigators fails to account for the

fact that under respondents’ requested procedures, the Filter Team is not permitted to disclose

any attorney-client communication without consent or Court authorization. Thus, counsel’s

argument that the Filter Team will be disclosing such communications based on its own privilege

determinations is misplaced.

Motion. See July 7 Motion at 12, 22-23.

25

One counsel’s speculative concern that the Filter Team would be forced by respondents

to run amok contrary to any Court order, see Al Anazi Opp. at 14-15, is baseless if for no other
reason than it is respondents, through counsel, who have proposed the order that would govern
the Filter Team.

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Case 1:05-cv-01429-UNA Document 50 Filed 07/28/2006 Page 26 of 30

Furthermore, of the cases cited by petitioners’ counsel that criticized the use of “taint

teams,” none voiced a per se rejection of such mechanisms. Rather, some of the cases have

involv