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Case 1:05-cv-01429-UNA Document 55 Filed 08/11/2006 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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Hicks (Rasul) v. Bush

Al Odah v. United States

Kurnaz v. Bush

Khadr v. Bush

El-Banna v. Bush

Gherebi v. Bush

Boumediene v. Bush

Anam v. Bush

Abdah v. Bush

Hamdan v. Bush

Al-Qosi v. Bush

Paracha v. Bush

Al-Marri v. Bush

Zemiri v. Bush

Deghayes v. Bush

Abdullah v. Bush

Al-Mohammed v. Bush

El-Mashad v. Bush

Al-Adahi v. Bush

Al-Joudi 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-1164 (RBW)

Case No. 04-CV-1166 (RJL)

Case No. 04-CV-1194 (HHK)

Case No. 04-CV-1254 (HHK)

Case No. 04-CV-1519 (JR)

Case No. 04-CV-1937 (PLF)

Case No. 04-CV-2022 (PLF)

Case No. 04-CV-2035 (GK)

Case No. 04-CV-2046 (CKK)

Case No. 04-CV-2215 (RMC)

Case No. 05-CV-0023 (RWR)

Case No. 05-CV-0247 (HHK)

Case No. 05-CV-0270 (JR)

Case No. 05-CV-0280 (GK)

Case No. 05-CV-0301 (GK)

Case 1:05-cv-01429-UNA Document 55 Filed 08/11/2006 Page 2 of 12

Al-Wazan v. Bush

Al-Anazi v. Bush

Alhami v. Bush

Ameziane v. Bush

Batarfi v. Bush

Sliti v. Bush

Kabir v. Bush

Qayed v. Bush

Al-Shihry v. Bush

Aziz v. Bush

Al-Oshan v. Bush

Tumani v. Bush

Al-Oshan v. Bush

Mammar v. Bush

Al-Sharekh v. Bush

Magram v. Bush

Al Daini v. Bush

Errachidi v. Bush

Adem v. Bush

Aboassy v. Bush

Imran v. Bush

Al Habashi v. Bush

Al Hamamy v. Bush

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Case No. 05-CV-0329 (PLF)

Case No. 05-CV-0345 (JDB)

Case No. 05-CV-0359 (GK)

Case No. 05-CV-0392 (ESH)

Case No. 05-CV-0409 (EGS)

Case No. 05-CV-0429 (RJL)

Case No. 05-CV-0431 (RJL)

Case No. 05-CV-0454 (RMU)

Case No. 05-CV-0490 (PLF)

Case No. 05-CV-0492 (JR)

Case No. 05-CV-0520 (RMU)

Case No. 05-CV-0526 (RMU)

Case No. 05-CV-0533 (RJL)

Case No. 05-CV-0573 (RJL)

Case No. 05-CV-0583 (RJL)

Case No. 05-CV-0584 (CKK)

Case No. 05-CV-0634 (RWR)

Case No. 05-CV-0640 (EGS)

Case No. 05-CV-0723 (RWR)

Case No. 05-CV-0748 (RMC)

Case No. 05-CV-0764 (CKK)

Case No. 05-CV-0765 (EGS)

Case No. 05-CV-0766 (RJL)

Case 1:05-cv-01429-UNA Document 55 Filed 08/11/2006 Page 3 of 12

Hamoodah v. Bush

Khiali-Gul v. Bush

Nasrat v. Bush

Muhibullah v. Bush

Mohammad v. Bush

Wahab v. Bush

Chaman v. Bush

Gul v. Bush

Basardh v. Bush

Sohail v. Bush

Tohirjanovich v. Bush

Sarajuddin v. Bush

Mohammed v. Bush

Mangut v. Bush

Hamad v. Bush

Khan v. Bush

Al-Hela v. Bush

Mousovi v. Bush

Khalifh v. Bush

Zalita v. Bush

Ahmed v. Bush

Aminullah v. Bush

Ghalib v. Bush

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Case No. 05-CV-0795 (RJL)

Case No. 05-CV-0877 (JR)

Case No. 05-CV-0880 (ESH)

Case No. 05-CV-0884 (RMC)

Case No. 05-CV-0885 (GK)

Case No. 05-CV-0886 (EGS)

Case No. 05-CV-0887 (RWR)

Case 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-1000 (PLF)

Case No. 05-CV-1002 (EGS)

Case No. 05-CV-1008 (JDB)

Case No. 05-CV-1009 (JDB)

Case No. 05-CV-1010 (RJL)

Case No. 05-CV-1048 (RMU)

Case No. 05-CV-1124 (RMC)

Case No. 05-CV-1189 (JR)

Case No. 05-CV-1220 (RMU)

Case No. 05-CV-1234 (EGS)

Case No. 05-CV-1237 (ESH)

Case No. 05-CV-1238 (CKK)

Case 1:05-cv-01429-UNA Document 55 Filed 08/11/2006 Page 4 of 12

Bukhari v. Bush

Pirzai v. Bush

Peerzai v. Bush

Mohammadi v. Bush

Al Ginco v. Bush

Ullah v. Bush

Mohammed v. Bush

Saib v. Bush

Hatim v. Bush

Al-Subaiy v. Bush

Dhiab v. Bush

Sadkhan v. Bush

Faizullah v. Bush

Faraj v. Bush

Khan v. Bush

Ahmad v. Bush

Al Wirghi v. Bush

Kiyemba v. Bush

Idris v. Bush

Attash v. Bush

Mamet v. Bush

Rabbani v. Bush

Zahir v. Bush

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Case No. 05-CV-1241 (RMC)

Case No. 05-CV-1242 (RCL)

Case No. 05-CV-1243 (RCL)

Case No. 05-CV-1246 (RWR)

Case No. 05-CV-1310 (RJL)

Case No. 05-CV-1311 (RCL)

Case No. 05-CV-1347 (GK)

Case No. 05-CV-1353 (RMC)

Case No. 05-CV-1429 (RMU)

Case No. 05-CV-1453 (RMU)

Case No. 05-CV-1457 (GK)

Case No. 05-CV-1487 (RMC)

Case No. 05-CV-1489 (RMU)

Case No. 05-CV-1490 (PLF)

Case No. 05-CV-1491 (JR)

Case No. 05-CV-1492 (RCL)

Case No. 05-CV-1497 (RCL)

Case No. 05-CV-1509 (RMU)

Case No. 05-CV-1555 (JR)

Case No. 05-CV-1592 (RCL)

Case No. 05-CV-1602 (ESH)

Case No. 05-CV-1607 (RMU)

Case No. 05-CV-1623 (RWR)

Case 1:05-cv-01429-UNA Document 55 Filed 08/11/2006 Page 5 of 12

Ghanem v. Bush

Al-Badah v. Bush

Almerfedi v. Bush

Zaid v. Bush

Al-Bahooth v. Bush

Ali Ahmed v. Bush

Kabir (Sadar Doe) v. Bush

Al-Rubaish v. Bush

Sameur v. Bush

Al-Qahtani v. Bush

Alkhemisi v. Bush

Gamil v. Bush

Al-Shabany v. Bush

Othman v. Bush

Al-Mudafari v. Bush

Al-Mithali v. Bush

Alhag v. Bush

Nakheelan v. Bush

Al Subaie v. Bush

Ghazy v. Bush

Al-Shimrani v. Bush

Al Sharbi v. Bush

Zadran v. Bush

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Case No. 05-CV-1638 (CKK)

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 No. 05-CV-1704 (JR)

Case No. 05-CV-1714 (RWR)

Case No. 05-CV-1806 (CKK)

Case No. 05-CV-1971 (RMC)

Case No. 05-CV-1983 (RMU)

Case No. 05-CV-2010 (JR)

Case No. 05-CV-2029 (JDB)

Case No. 05-CV-2088 (RWR)

Case No. 05-CV-2185 (JR)

Case No. 05-CV-2186 (ESH)

Case No. 05-CV-2199 (HHK)

Case No. 05-CV-2201 (ESH)

Case No. 05-CV-2216 (RCL)

Case No. 05-CV-2223 (RJL)

Case No. 05-CV-2249 (RMC)

Case No. 05-CV-2348 (EGS)

Case No. 05-CV-2367 (RWR)

Case 1:05-cv-01429-UNA Document 55 Filed 08/11/2006 Page 6 of 12

Alsaaei v. Bush

Razakah v. Bush

Al Darbi v. Bush

Al-Ghizzawi v. Bush

Awad v. Bush

Al-Baidany v. Bush

Al Rammi v. Bush

Said v. Bush

Al Halmandy v. Bush

Thabid v. Bush

Al Yafie v. Bush

Rimi v. Bush

Al Salami v. Bush

Al Shareef v. Bush

Khan v. Bush

Hussein v. Bush

Al-Delebany v. Bush

Al-Harbi v. Bush

Feghoul v. Bush

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Case No. 05-CV-2369 (RWR)

Case No. 05-CV-2370 (EGS)

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-2381 (JDB)

Case No. 05-CV-2384 (RWR)

Case No. 05-CV-2385 (RMU)

Case No. 05-CV-2398 (ESH)

Case No. 05-CV-2399 (RJL)

Case No. 05-CV-2427 (RJL)

Case No. 05-CV-2452 (PLF)

Case No. 05-CV-2458 (RWR)

Case No. 05-CV-2466 (RCL)

Case No. 05-CV-2467 (PLF)

Case No. 05-CV-2477 (RMU)

Case No. 05-CV-2479 (HHK)

Case No. 06-CV-0618 (RWR)

Rumi v. Bush
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Case No. 06-CV-0619 (RJL)

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Case 1:05-cv-01429-UNA Document 55 Filed 08/11/2006 Page 7 of 12

RESPONDENTS’ SUPPLEMENTAL MEMORANDUM CORRECTING

JULY 7, 2006 MOTION FOR PROCEDURES RELATED TO REVIEW OF CERTAIN

DETAINEE MATERIALS AND RESPONDING TO

SUPPLEMENTAL MEMORANDA OF CERTAIN PETITIONERS

Respondents hereby submit in the above-captioned cases this supplemental memorandum

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”). The purpose of this

supplemental memorandum is to correct certain erroneous information provided in the July 7

Motion, as well as the July 28, 2006 reply filed in support of the July 7 Motion (“July 28

Reply”), regarding the scope of materials involved in the initial sorting of the impounded

materials that are the subject of the motion. Additionally, this supplemental memorandum

responds to supplemental memoranda filed by various petitioners in these cases concerning the

recent order of the D.C. Circuit in United States v. Rayburn House Office Building, Room 2113,

No. 06-3105 (D.C. Cir. Jul. 28, 2006).

A.

As explained in respondents’ July 7 Motion, in light of the recent suicides and

other events at Guantanamo and evidence gathered in connection with the Naval Criminal

Investigative Service (“NCIS”) investigation of the suicides, the NCIS impounded materials from

the cells of most enemy combatant detainees at Guantanamo. See July 7 Motion at 3-8 & Exhibit

B (Kisthardt Decl.) ¶¶ 3-4. Approximately 1,100 pounds of materials were collected by NCIS on

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

bagged. Kisthardt Decl. ¶ 4. NCIS personnel then began sorting a portion of these materials. Id.

¶ 5.

Respondents’ July 7 Motion erroneously asserted that this sorting involved “materials

from bags pertaining to eleven detainees.” See July 7 Motion at 7. This representation was not

Case 1:05-cv-01429-UNA Document 55 Filed 08/11/2006 Page 8 of 12

correct, being based on an inadvertent oversight in the declaration supporting the motion, as

explained in the attached supplemental declaration of the supervisory NCIS investigator involved

in the sorting. See Supplemental Declaration of Carol Kisthardt ¶ 4 (attached as Exhibit C)

(“Kisthardt Supp. Decl.”). In fact, the sorting involved eleven bags that each contained a number

of the detainee-specific bags of material, comprising materials collected from approximately 155

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detainees, but amounting to only 10%, by weight, of the total 1,100 pounds of impounded

material. Id. ¶¶ 4-5. As noted in the July 7 Motion, the sorting involved separating any

potentially attorney-client information from non-privileged material and conducting a

preliminary scan of the non-privileged material for relevancy to the NCIS investigation, Kisthardt

Decl. ¶ 5; Kisthardt Supp. Decl. ¶ 5, though not all of the material, even among the

nonprivileged, could be comprehended because it was written in languages for which translators

were not present during the sorting, id. ¶ 5.

As explained in the July 7 Motion, during this sorting a note was discovered that

contained instructions concerning the tying of knots. Kisthardt Decl. ¶ 5. In addition, the sorting

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

cell locations of detainees and other details regarding camp operational matters. Id. 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,

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As explained in the supplemental declaration, materials collected by NCIS from each

detainee’s cell were separately bagged, and those bags were then marked with detainee
identifying information. Kisthardt Supp. Decl. ¶ 3. Those detainee-specific bags were then
collected and placed into larger, grocery-style paper bags. Id. It is the contents of eleven of these
grocery-style bags that were the subject of the sorting process described in the July 7 Motion and
above.

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Case 1:05-cv-01429-UNA Document 55 Filed 08/11/2006 Page 9 of 12

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.; Kisthardt Supp. Decl. ¶ 5.

After the initial sorting of the subset of materials, further review of the impounded

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

for the scope of the undertaking, the translation needs, and the possibility that the review team

would encounter potentially privileged attorney-client communications. See Kisthardt Decl. ¶ 5;

Kisthardt Supp. Decl. ¶ 3. The bags of materials are currently kept 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. See Kisthardt Supp. Decl. ¶ 3. No further review of the contents of the

bags of materials is occurring pending the Court’s consideration of respondents’ July 7 Motion.

Id.

Respondents regret the inaccurate description of the amount of material involved in the

initial sorting of materials by NCIS. The error, however, was inadvertent, and while the amount

of material involved in the initial NCIS sorting was greater, with respect to the number of

detainees involved, than reported in the July 7 Motion, the mechanics and nature of the sorting

was as described in the July 7 Motion. Thus, the sorting did not involve the reading of attorney-

client materials, but rather involved the separation of any potential attorney-client material from

other, nonprivileged material. Accordingly, as explained in the July 7 Motion, no “abrogation”

of attorney-client communications has occurred; furthermore, the impoundment of the detainee

materials and the request for Court authorized procedures for sorting and review of the materials

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Case 1:05-cv-01429-UNA Document 55 Filed 08/11/2006 Page 10 of 12

continues to be fully justified, for the reasons explained in the July 7 Motion and the July 28

Reply in support of that motion.

B.

A number of petitioners in these cases have submitted supplemental memoranda

or notifications of supplemental authority arguing that the recent order of the D.C. Circuit on a

motion to stay pending appeal in United States v. Rayburn House Office Building, Room 2113,

No. 06-3105 (D.C. Cir. Jul. 28, 2006), undermines the request for Filter Team review of the

impounded materials in these cases. See, e.g., Abdah, No. 04-CV-1254-HHK (dkt. no. 184); Al

Anazi, No. 05-CV-0345-JDB (dkt. no. 59); Sadkhan, No. 05-CV-1487-RMC (dkt. no. 33). That

order, however, does not undermine the appropriateness of the Filter Team review procedure

requested by respondents with respect to the impounded materials.

The Rayburn House Office Building case involved documents seized from the office of a

United States Congressman pursuant to a search warrant as part of a bribery investigation. The

United States proposed to examine the documents using a government filter team, but the

Congressman contended that the documents had been unlawfully seized and that the Speech or

Debate Clause precluded review of them by anyone until the Congressman was permitted to

segregate documents he viewed as privileged. The District Court rejected the Congressman’s

arguments. See In re Search of Rayburn House Office Building Room Number 2113, 432 F.

Supp. 100, 119 (D.D.C 2006), stayed pending appeal.

The Congressman appealed, and sought a stay pending appeal. In the order relied upon

by petitioners, the Court of Appeals temporarily stayed the filter team procedure, and remanded

the record for the District Court to determine what “legislative” documents, if any, had been

seized pursuant to the search warrant. See Rayburn House Office Building, No. 06-3105, slip op.

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Case 1:05-cv-01429-UNA Document 55 Filed 08/11/2006 Page 11 of 12

at 1 (remanding for findings “regarding whether the specific documents or records [seized] are

legislative in nature”); id. at 2 (District Court to notify Court of Appeals “promptly upon its

determination of the question on remand”). The Court of Appeals directed that a judicial officer

or special master conduct the necessary review of the seized documents, id. at 1, but the Court of

Appeals in its brief order did not hold or even suggest that government filter review of materials

that include potentially privileged documents is impermissible. Rather, it simply elected to

utilize a different procedure in the context of a remand of the record to obtain information it

apparently wished to have before ruling more definitively in the appeal. The Court of Appeals’

choice of procedure in that setting did not establish any rule of law concerning the use of

government filter teams to review potentially privileged material.

In any event, the Rayburn House Office Building case involved features that firmly

distinguish it from the NCIS impoundment here. First, the privilege assertedly applicable to the

seized materials in Rayburn House Office Building is constitutional in nature, arising directly

under the Speech or Debate Clause. Furthermore, the volume and nature of materials involved

was such that the special master review process conceivably could be conducted in an expedited

and manageable fashion. See id. at 1 (ordering congressman to respond with claims that

documents are legislative in nature within two days of receiving at set of copies of the seized

materials).

As explained in the July 7 Motion and July 28 Reply in support of that motion, however,

the volume of the NCIS-impounded materials at issue here is massive, multiple languages are

involved, and the need for review is to fully comprehend matters directly pertaining to

maintenance of safety and security within a wartime detention facility. See July 28 Reply at § II

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Case 1:05-cv-01429-UNA Document 55 Filed 08/11/2006 Page 12 of 12

(pp. 19-25). Indeed, the differences between the cases further undermine any argument that the

Court of Appeals order in Rayburn House Office Building compels rejection of the use of a Filter

Team in the unique situation presented by the NCIS impoundment. The unique circumstances

involved in the matter before the Court, and the contemplated Court-ordered safeguards in use of

the Filter Team provided for in respondents’ proposal – safeguards imposed in order to protect

attorney-client privilege – all call for Court authorization of Filter Team review.

Dated: August 11, 2006

Respectfully submitted,



PETER D. KEISLER
Assistant Attorney General

DOUGLAS N. LETTER
Terrorism Litigation Counsel

/s/ Terry M. Henry
JOSEPH H. HUNT (D.C. Bar No. 431134)
VINCENT M. GARVEY (D.C. Bar No. 127191)
TERRY M. HENRY
JAMES J. SCHWARTZ
PREEYA M. NORONHA
ROBERT J. KATERBERG
NICHOLAS J. PATTERSON
ANDREW I. WARDEN
EDWARD H. WHITE
MARC A. PEREZ
Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20530
Tel: (202) 514-4107
Fax: (202) 616-8470

Attorneys for Respondents

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