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Case 1:05-cv-01429-UNA Document 57 Filed 08/16/2006 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA





Civil Action No. 05-01429 (RMU) (AK)





















Petitioners,

v.


____________________________________
)

SAEED MOHAMMED SALEH
)
HATIM, et al.,

)

)




)


)


)


GEORGE W. BUSH, et al.,
)
)


)


)


____________________________________)








)










Respondents.





PETITIONERS’ REPLY TO RESPONDENTS’

SUPPLEMENTAL MEMORANDUM CORRECTING JULY 7, 2006 MOTION





More than a month ago, the Government assured the Court and Petitioners that NCIS had

“sorted” the attorney-client materials of no more than eleven (unidentified) detainees, after

excoriating Petitioners’ counsel for challenging NCIS’s version of its confiscation of these

materials.1 The Government now claims that the sworn declaration submitted by the NCIS

Special Agent in Charge contained an “inadvertent” error. Contrary to its prior representations,

the Government now “estimate[s]” that, in fact, NCIS “sorted” eleven bags of materials

belonging to “approximately” 155 detainees.2 This revelation further undermines the


1

In its consolidated Reply Memorandum in Support of July 7, 2006 Motion for Procedures Related to
Review of Certain Detainee Materials and in Opposition to Petitioners’ Requests for Relief Associated with
Impoundment of Detainee Materials (“Gov’t Reply”) at 11-12 & n.11, the Government characterized the
detainees’ counsel’s challenge to NCIS’s version of its confiscation of the detainees’ materials as “a
particularly galling and unjustified stunt,” an attempt “to expand the scope of their conspiracy theory to
include a criminal investigative service that acts independently in the execution of its investigative
judgment,” and nothing less than “outrageous” and “offensive” claims of “deception and lying by
respondents, which are refuted by the declaration submitted with respondents’ July 7 motion.” Elsewhere
the Government accused detainees’ counsel of engaging in a “histrionic tirade” of “insulting,” “irrational,”
and “improper” allegations that “reflect a penchant for ignoring or dismissing as lies any fact or matter
inconsistent with a preconceived ‘torture narrative’ concerning Guantanamo.” Id. at 2, 9.

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

1

2




Case 1:05-cv-01429-UNA Document 57 Filed 08/16/2006 Page 2 of 7

Government’s defense of its confiscation of attorney-client materials and its request for a “Filter

Team” to read those materials.



1. The Government had previously argued that NCIS’s confiscation of Petitioners’

attorney-client materials did not, standing alone, violate the Court’s Orders of October 20 and

November 8, 2004, because NCIS merely “sorted” the materials of a handful of detainees at

Guantanamo and had not “read” any of them.3 In the Government’s previous words, “on June

18, 2006, NCIS personnel began sorting materials from bags pertaining to eleven detainees,”4

and “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.”5 The Government claimed that “attorney-client

communications were not read.”6



The Government’s claim can no longer stand. The Special Agent in Charge of NCIS’s

suicide investigation, Carol Kisthardt, now avers that the materials NCIS confiscated from the

detainees were first placed into plastic or paper bags and “labeled with information identifying

the detainee (for example, the detainee’s ISN, camp, cell block, cell number).”7 Next, these

plastic or paper bags labeled with detainee identification information were placed in “large,

brown paper bags.”8 Finally, NCIS began “sorting” eleven of these large, brown papers bags,



(“Gov’t Supp. Memo”) at 1-3 and Declaration of Carol Kisthardt, dated August 11, 2006 (“Second
Kisthardt Dec.”) ¶¶ 4-6.

3

4

5

6

7

8



Gov’t Reply at 4.

Respondents’ Motion for Procedures Related to Review of Certain Detainee Materials and Request for
Expedited Briefing (“Gov’t Motion”) at 7.

Gov’t Reply at 4.

Id.

Second Kisthardt Dec. ¶ 3.

Id.

2

Case 1:05-cv-01429-UNA Document 57 Filed 08/16/2006 Page 3 of 7

which contained the smaller plastic or paper bags of materials confiscated from “approximately”

155 detainees.9 According to Special Agent Kisthardt, this “sorting process” involved

“separating any documents or envelopes containing documents that appeared even remotely to be

possible Attorney Client Privileged information from information that gave no indication of

being privileged, and conducting a preliminary scan of non-privileged information for items that

could be of evidentiary value.”10



Given this description of the “sorting” process, the Government’s claim that the process

“did not involve the reading” of the detainees’ attorney-client materials, and that, therefore, “no

‘abrogation’ of attorney-client communications has occurred,”11 is preposterous. It is impossible

to determine if documents have “Attorney Client Privileged information” or information “that

could be of evidentiary value” without reading them. The Government’s latest filing

demonstrates that, in fact, NCIS unilaterally conducted a massive preliminary reading and review

of the confiscated materials of 155 detainees, including attorney-client materials, in abrogation of

the detainees’ attorney-client relationship and their attorney-client privilege and in violation of

the Court’s Orders of October 20 and November 8, 2004. That warrants the imposition of

sanctions against the Government.



2. The Government has also argued in support of its request – that the Court authorize a

“Filter Team” to read and review the attorney-client materials of virtually all the detainees at

Guantanamo – that “just a sampling” of materials of eleven detainees “uncovered” several

documents NCIS considers relevant to its suicide investigation.12 The documents were an


9

Id. ¶¶ 3-4, 6 (numbered as a second “5” in the Kisthardt Dec.).

Second Kisthardt Dec. ¶ 5.

Gov’t Reply at 3.

Id. at 7.

10

11

12



3

Case 1:05-cv-01429-UNA Document 57 Filed 08/16/2006 Page 4 of 7

unclassified “note providing instructions concerning the tying of knots,” which was found in the

materials of one detainee, “a potentially classified e-mail from a camp officer containing

information regarding cell locations of detainees and other details regarding camp operational

matters,” and “three legal mail envelopes” that contained non-classified markings, which were

found in the materials of another detainee.13



It now emerges that the Government “sampled” the materials of 155 detainees. It also

now emerges that the Government knows (1) the names and cellblocks of the two detainees

among these 155 whose confiscated materials included documents that NCIS considers relevant

to its investigation and (2) the names and cellblocks of the other 153 detainees whose confiscated

materials did not have any relevant documents.



Thus, it is now abundantly clear that the Government cannot make a particularized

showing of need, as required by United States v. Zolin, 491 U.S. 554, 572 (1989), to allow a

Defense Department “Filter Team” to read and review Petitioners’ attorney-client materials. The

Government has not claimed that Petitioners are among the two detainees whose confiscated

materials were “sorted” and yielded documents NCIS considers relevant to its investigation.

Thus, either Petitioners are among the other 153 detainees whose confiscated materials NCIS

sorted and did not consider relevant to its investigation, or Petitioners’ materials were not

“sorted” at all. In either circumstance, the Government has no basis to subject Petitioners’

attorney-client materials to further reading and review by a “Filter Team.”



3. The Government also attempts to distinguish the D.C. Circuit’s recent order that

rejected the use of a government “Filter Team” to review potentially privileged documents. See

United States v. Rayburn House Office Building, No. 06-3105, 2006 U.S. App. LEXIS 19466


13

Gov’t Reply at 4.



4

Case 1:05-cv-01429-UNA Document 57 Filed 08/16/2006 Page 5 of 7

(D.C. Cir. July 28, 2006).14 Petitioners maintain that the Government has failed to make the

requisite particularized showing justifying any review of their confiscated materials. Even if

there is to be a review of these materials, the Government’s three bases for distinguishing the

D.C. Circuit’s decision are unavailing.



First, the Government says that the D.C. Circuit “did not establish any rule of law

concerning the use of government filter teams” but “simply elected to utilize a different

procedure.”15 But the District Court had authorized the use of a government “Filter Team” to

review Representative Jefferson’s potentially privileged materials. 432 F. Supp. 2d at 106. The

D.C. Circuit expressly overruled that authorization: the Court enjoined the “Filter Team” from

proceeding with that review and ordered instead that the review be conducted by a judicial

officer or court-appointed special master. 2006 U.S. App. LEXIS 19466. That order is as much

a “rule of law” as any.



Second, the Government notes that Representative Jefferson’s privilege was

“constitutional in nature, arising directly under the Speech and Debate Clause.”16 The attorney-

client privilege, at issue here, pre-dates the constitutional privilege embodied in the Speech and

Debate Clause and deserves as much if not greater protection. “The attorney-client privilege is

the oldest of the privileges for confidential communications known to the common law,” Upjohn

Co. v. United States, 449 U.S. 383, 389 (1981), and “has long held an exceptional place in the

legal system in the United States,” Al Odah v. United States, 346 F. Supp. 2d 1, 10 (D.D.C.

2004). Thus, the D.C. Circuit’s conclusion – that the Government should not be permitted to use

its “Filter Team” to review materials potentially covered by Speech and Debate Clause privilege

14
Gov’t Supp. Memo at 4-6.

Id. at 5.

Id.

15

16



5

Case 1:05-cv-01429-UNA Document 57 Filed 08/16/2006 Page 6 of 7

– applies a fortiori to the potential attorney-client materials in this case. That is especially so

given that, whereas the Government lawfully seized Representative Jefferson’s materials

pursuant to a search warrant, Petitioners’ materials were confiscated unlawfully.



Third, the Government claims that “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.”17 But nothing in the D.C. Circuit’s order turned on the volume of

materials to be reviewed. There is no reason to believe that a judicial officer or court-appointed

special master would be less capable of timely reviewing the materials than would a government

“Filter Team.”


17

Id.



6

Case 1:05-cv-01429-UNA Document 57 Filed 08/16/2006 Page 7 of 7

CONCLUSION



For these reasons and the reasons set forth in Petitioners’ opening papers, the Court

should grant Petitioners’ motion for sanctions and interim relief and deny the Government’s

motion for procedures to review Petitioners’ confiscated attorney-client materials.





























Dated: August 16, 2006










Respectfully submitted,









COVINGTON & BURLING

______/David H. Remes/ ___
David H. Remes
D.C. Bar No. 370782
Covington & Burling
1201 Pennsylvania Ave. NW
Washington, DC 20004
202-662-5212 (tel)
202-778-5212 (fax)

Marc D. Falkoff
D.C. Bar No. 491149
College of Law
Northern Illinois University
2166 Broadway #12A
New York, NY 10024
(347) 564-5043 (tel)
(917) 441-0904 (fax)


Counsel for Petitioners









7