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Misc. No. 12-mc-398 (RCL)

Civil No. 05-cv-1429 (RCL)

Civil No. 06-cv-1766 (RCL)

Civil No. 07-cv-2338 (RCL)

Case 1:12-mc-00398-RCL Document 47 Filed 07/11/13 Page 1 of 35





On May 23, 2013, President Obama promised, concerning detainees held at Guantanamo

Bay, that “[w]here appropriate, we will bring terrorists to justice in our courts and our military


Case 1:12-mc-00398-RCL Document 47 Filed 07/11/13 Page 2 of 35

justice system. And we will insist that judicial review be available for every detainee.” Remarks

by the President at the National Defense University (May 23, 2013) (transcript available at

university). This matter concerns whether the President’s insistence on judicial review may be

squared with the actions of his commanders in charge of the military prison at Guantanamo Bay.

Currently, it cannot.

Petitioners are detainees at Guantanamo Bay who are in the process of seeking habeas

corpus relief and whose access to counsel is governed by this Court’s 2008 Protective Order.

Petitioners allege that the Joint Detention Group (“JDG”), the group responsible for detention

operations within Joint Task Force-Guantanamo (“JTF-GTMO”), has instituted new search and

procedures that impair petitioners’ access to legal counsel.

The petitioners’ unique circumstances render this case no ordinary challenge to prison

regulations: At its heart, this case is about petitioners’ ability to invoke the writ of habeas corpus

through access to the Court and access to counsel.

Upon consideration of petitioners’ Motions [37 and 38], the government’s Opposition

[42], petitioners’ replies [44 and 45], the arguments presented at this Court’s open and sealed

hearings held June 5, 2013, the entire record herein, the applicable law, and for the reasons set

forth below, the Court finds the JDG’s new procedures invalid as they pertain to access to

counsel and will GRANT petitioners’ motions in part and DENY petitioners’ motions in part.




Procedural Background

Before the Court is an Emergency Motion [37] to Enforce the Right of Access to Counsel


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filed by petitioners Abdurrahman Abdallah Ali Mahmoud al Shubati (ISN 2241) and Fadhel

Hussein Saleh Hentif (ISN 259). Emergency Mot. to Enforce the Right of Access to Counsel 1,

May 22, 2013, ECF No. 37 (“Hentif & Al Shubati Mot.”). Also before the Court is an

Emergency Motion [38] Concerning Access to Counsel filed by petitioner Saeed Mohammed

Saleh Hatim (ISN 255) on his own behalf and on behalf of several other Guantanamo detainees.

Emergency Mot. Concerning Access to Counsel 1–2, May 22, 2013, ECF No. 38 (“Hatim

Mot.”). All the petitioners request that this Court order the government to discontinue the use of

certain procedures that petitioners allege inhibit their access to legal counsel. Specifically,

petitioners request the Court to order (1) that they may meet with counsel in person or by phone

without being subject to the new search protocol instituted by the JDG, (2) that they may meet

with counsel in person or by phone within their housing camps, and (3) that the government may

not transport detainees within the detention facility for attorney meetings or phone calls using

new vans that petitioners contend force them into painful stress positions.

Petitioners are at different stages in their respective habeas cases before the Court. Al

Shubati originally filed a petition for a writ of habeas corpus on December 31, 2007. See Pet.

For Writ of Habeas Corpus, Al Shubati v. Obama, No. 07-CV-2338 (UNA) (D.D.C. Dec. 31,

2007), ECF No. 1. On March 11, 2013, this Court dismissed al Shubati’s petition without

prejudice at petitioner’s and the government’s joint request. See Stipulation and Order

Dismissing Pet., Al Shubati v. Obama, No. 07-CV-2338 (UNA) (D.D.C. Mar. 11, 2013), ECF

No. 261. Hentif filed his petition for habeas corpus on October 16, 2006. See Pet. For Writ of

Habeas Corpus, Hentif v. Obama, No. 06-CV-1766 (HKK) (D.D.C. Oct. 16, 2006), ECF No. 1.

The Court, Judge Henry Kennedy presiding, denied his petition on August 1, 2011. See Mem.

1 “ISN” is the acronym for “Internment Serial Number,” and each detainee currently housed at Guantanamo Bay has
been assigned an ISN. Bostan v. Obama, 821 F. Supp. 2d 80, 82 n.1 (D.D.C. 2011) (citing Al-Harbi v. Obama,
Civil Action No. 05–2479(HHK), 2010 WL 2398883, at *3 n.2 (D.D.C. May 13, 2010)).


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Op., Hentif v. Obama, No. 06-CV-1766 (HKK) (D.D.C. Aug. 1, 2011), ECF No. 281. Hentif’s

appeal of the dismissal of his petition is currently before the D.C. Circuit. See Notice of Appeal,

Hentif v. Obama, No. 06-CV-1766 (RCL) (D.D.C. Oct. 8, 2012), ECF No. 292. Hatim filed his

petition for habeas corpus on July 20, 2005. See Pet. For Writ of Habeas Corpus, Hatim v.

Obama, No. 05-CV-1429 (RCL) (D.D.C. Jul. 20, 2005), ECF No. 1. The Court, Judge Ricardo

Urbina presiding, granted his petition for a writ of habeas corpus on December 15, 2009. See

Order, Hatim v. Obama, No. 05-CV-1429 (RCL) (D.D.C. Dec. 15, 2009), ECF No. 334. The

D.C. Circuit vacated Judge Urbina’s order on February 15, 2011 and remanded the case for

further proceedings. Hatim v. Gates, 632 F.3d 720, 721 (D.C. Cir. 2011) (per curiam). Hatim’s

case was subsequently reassigned due to Judge Urbina’s retirement, and this Court entered a

scheduling order for Hatim’s petition for habeas corpus after a classified hearing on May 3,

2013. See Order, Hatim v. Obama, No. 05-CV-1429 (RCL) (D.D.C. Dec. 15, 2009), ECF No.



Factual Background

Petitioners are housed within two separate “camps” within the Guantanamo detention

facility. Resp’t’s Opp’n to Pet’rs’ Emergency Mots. Concerning Access to Counsel 6, June 3,

2013, ECF No. 42 (“Opp’n”). These camps—known as Camps 5 and 6—are modeled after, and

comparable to, maximum security prisons in the United States. Opp’n, Ex. 1, at ¶¶ 10, 14, June

3, 2013, ECF No. 42 (“Bogdan Decl.”). Previously, meetings between petitioners and habeas

counsel took place in Camps 5 and 6, Hatim Mot. Ex. A, at ¶ 5, May 22, 2013, ECF No. 38-1,

though the government contends that attorney–client meetings have not taken place in Camps 5

and 6 for some time. Bogdan Decl. ¶¶ 9, 13.

Currently, to meet with counsel or speak with counsel by phone, petitioners must travel


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from their housing camp to other buildings—known as Camps Delta and Echo—located nearby

within the Guantanamo detention facility. Id. ¶ 22. Petitioners are transported to Camp Delta for

all phone calls with counsel and to Camp Echo for all in-person meetings with counsel. Id. ¶¶ 5,

8. Camps Delta and Echo contain dedicated facilities for conducting detainee phone calls and

meetings. For example, Camp Echo has specialized facilities to screen visitors, including

attorneys, for contraband before they meet with detainees. Id. ¶ 6. Moreover, Camp Echo has a

centralized facility from which guards may visually monitor attorney–client meetings remotely,

meaning guards need not sit outside the meeting room for the duration of the detainee’s meeting

with counsel. Id. Similarly, Camp Delta has facilities “specifically designed and equipped for

telecom operations.” Id. ¶ 8.

Camps 5 and 6, by contrast, lack dedicated facilities for phone calls. Id. ¶¶ 8–9. With

respect to attorney–client meetings, Camp 6 at present has only two small rooms to

accommodate such meetings, though Col. Bogdan, commander of the JDG, directed in

September 2012 that those rooms would no longer be used for meetings between detainees and

any non-JTF-GTMO personnel. Id. ¶¶ 13–16. In his sworn declaration, Col. Bogdan stated that

Camp 5 has no rooms for attorney–client meetings. Id. ¶ 11. Nevertheless, according to a

review of the Guantanamo detention facility prepared by Adm. Walsh in 2009, Camp 5 had “a

climate controlled meeting room for legal representation.” Review of Department Compliance

with President’s Executive Order on Detainee Conditions of Confinement 11 (“Walsh Report”).

It is unclear whether Col. Bogdan has since restricted the use of this room, as in Camp 6, or

whether JTF-GTMO has repurposed the room, though what purpose could be greater than

counsel access this Court cannot say. For security reasons, attorneys cannot meet with detainees

on the cell blocks or within detainee cells in the housing camps. See Bogdan Decl. ¶ 11. As a


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result, detainees must leave their cells and travel to Camps Delta and Echo for phone calls and

attorney–client meetings.

The process of transporting detainees from their housing camps to Camps Delta and Echo

requires that they be searched and then transported by van to the relevant camp. Id. ¶¶ 17–22.

Previously, the search protocol in effect for detainees at GTMO did not allow guards to frisk the

area between a detainee’s waist and mid-thigh except with authorization from the JDG

Commander. Id. ¶ 17; Walsh Report 25. Instead, guards used a modified search procedure

whereby a guard would grasp the waistband of a detainee’s trousers and shake the detainee’s

pants in order to dislodge any contraband. Bogdan Decl. ¶ 17; Walsh Report 25. The purpose of

this modified search procedure was “to avoid actions that could be construed as disrespectful” of

detainees’ religious or cultural sensitivities. Walsh Report 26. The use of the modified

procedures represented a considered policy judgment on the part of the former JDG

commanders: The commanders recognized that the modified search procedures “carrie[d] a level

of risk,” but they “accepted that risk out of an elevated respect for the religious concerns of the

detainees.” Id.

On June 7, 2012, command of the JDG passed to Col. John V. Bogdan. Bogdan Decl. ¶

1. On May 3, 2013, JDG revised its search procedures for detainees to comport with the

standard army search procedure. Id. ¶ 18. This standard procedure includes frisking and

wanding of the detainee’s groin area. Id. ¶ 20. As before, the search involves the guard grasping

the detainee’s waistband and shaking it vigorously to dislodge contraband. Id. The new search

protocol, however, adds several additional elements: First, the guard gathers and crushes the

fabric of the detainee’s pants pockets to detect any objects in the pockets. Id. Second, the guard

will search the detainee’s groin area “by placing the guard’s hand as a wedge between the


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[detainee’s] scrotum and thigh . . . and using [a] flat hand to press against the groin to detect

anything foreign attached to the body.” Id. Third, the guard uses a flat hand to frisk the

detainee’s buttocks to ensure no contraband is hidden there. Id. Fourth, “a hand-held ‘wand’

metal detector . . . is passed over the [detainee’s] body.” Id. ¶ 21. The wand search includes the

detainee’s groin and buttocks area, and guards hold the wand about one to two inches from the

detainee’s body while conducting the wand search. Id.

Under the JDG’s standard procedure, detainees are searched whenever (1) they are

moved to a facility external to their housing camp or (2) they meet with any non-JTF-GTMO

personnel. Id. ¶ 19. According to Col. Bogdan, all detainee searches are conducted twice—once

before leaving the housing camp or before a meeting with non-JTF-GTMO personnel and a

second time prior to returning to the housing camp or after the meeting. Id. However, during the

sealed hearing held on June 5, 2013, counsel for petitioner Al-Mithali stated that detainees are

actually searched four times—once prior to leaving their cells, once upon arriving at the external

facility or meeting room, once prior to leaving the external facility or meeting room, and once

more upon returning to their cells. Sealed Hr’g Tr. 39, June 5, 2013. The JDG’s standard

procedure requires searching detainees for all movements or meetings, including attorney

meetings, phone calls with attorneys or family members, or medical appointments. Bogdan

Decl. ¶ 19.

For phone calls or attorney–client meetings, detainees must travel outside of Camps 5 and

6 to Camps Delta and Echo. Id. ¶ 21. The JDG transports detainees from Camps 5 and 6 to

Camps Delta and Echo by van. Id. While traveling in the vans, detainees are restrained

following standard military procedure using a 5-point fabric seatbelt harness. Id. On April 1,

2013, the JDG introduced several new vans as part of a routine equipment upgrade and to


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address detainee complaints about a lack of air conditioning in the vans. Id. The new vans

include larger air ducts to improve air conditioning, but lower ceilings. Id. Petitioners contend

that, as a result, the lower ceilings in the vans force detainees to sit in crouched and painful stress

positions for the duration of the van ride. Hatim Mot. 3; Hatim Mot. Ex. A ¶¶ 29–34; Hatim

Mot. Ex. G ¶ 9.


Legal Background

In a litany of rulings, this Court and the Supreme Court have affirmed that the federal

courts are open to Guantanamo detainees who wish to prove that their indefinite detentions are

illegal. In 2004, the Supreme Court rejected the government’s argument that the federal courts

had no jurisdiction to hear detainee habeas petitions. Rasul v. Bush, 542 U.S. 466, 484 (2004).

Congress then twice amended the federal habeas statute, 28 U.S.C. § 2241, in an effort to

overturn the Supreme Court’s ruling. First, Congress passed the Detainee Treatment Act of 2005

(DTA), Pub. L. No. 109-148, 119 Stat. 2680 (2005), but the Supreme Court held that the

provision of the DTA depriving courts of jurisdiction over detainee habeas petitions did not

apply to cases pending when the DTA was enacted. Hamdan v. Rumsfeld, 548 U.S. 557, 575–78

(2006). Second, Congress passed the Military Commissions Act of 2006 (MCA), Pub. L. No.

109-366, 120 Stat. 2600 (2006) (codified in part at 28 U.S.C. § 2241 & note), but the Supreme

Court declared that detainees “are entitled to the privilege of habeas corpus to challenge the

legality of their detention.” Boumediene v. Bush, 553 U.S. 723, 771 (2008). The Supreme Court

further invalidated the provision of the MCA that stripped courts of jurisdiction to hear habeas

petitions from detainees. Id. at 792. This Court and the Supreme Court also held that

Guantanamo detainees have a concomitant right to the assistance of counsel. Hamdi v.

Rumsfeld, 542 U.S. 507, 539 (2004); Al Odah v. United States, 346 F. Supp. 2d 1, 5 (D.D.C.


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These rulings raised significant questions about counsels’ access to detainees and

classified information. This Court first began to address this problem in Al Odah, where Judge

Kollar-Kotelly found that the Court had power “to fashion procedures by analogy to existing

procedures, in aid of the Court’s jurisdiction and in order to develop a factual record as necessary

for the Court to make a decision on the merits of” detainee habeas claims. 346 F. Supp. 2d at 6;

see also Harris v. Nelson, 394 U.S. 286, 298 (1969) (“[A] district court may, in an appropriate

case, arrange for procedures which will allow development . . . of the facts relevant to disposition

of a habeas corpus petition.”). Using this power, she proposed a framework for detainee counsel

access. Al Odah, 346 F. Supp. 2d at 13–15. The government subsequently moved for a

protective order “to prevent the unauthorized disclosure or dissemination of classified national

security information.” In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174, 175 (D.D.C.

2004). This Court designated Judge Joyce Hens Green to coordinate and manage all

Guantanamo proceedings and rule on common procedural and substantive issues. All then-

pending Guantanamo cases, except those being heard by Judge Richard J. Leon, were transferred

to Judge Green. In November 2004, Judge Green issued an “Amended Protective Order and

Procedures for Counsel Access to Detainees,” which set guidelines and procedures for counsel

access to detainees and to classified information. Judge Green’s protective order was ultimately

a boon for the Court, for the Government, and for detainees as it settled many issues that would

have otherwise, no doubt, required a great deal of litigation.

Judge Green’s protective order stood without objection for four years. In light of the

Boumediene decision in 2008, the members of this Court again determined that a single judge

should rule on common procedural issues to facilitate the expeditious resolution of Guantanamo


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habeas cases. In re Guantanamo Bay Detainee Litig., Miscellaneous No. 08-442 (TFH), Order

[1] at 1–2, July 2, 2012. The Court designated Judge Thomas F. Hogan, like Judge Green, “to

coordinate and manage proceedings in all cases involving petitioners presently detained at

Guantanamo Bay, Cuba.” Id. All then-pending Guantanamo habeas cases, and all such cases

thereafter filed, were transferred to Judge Hogan for case management and coordination.2 Id.

Judge Hogan also determined that the Court should issue a new protective order. After

considering the parties’ positions espoused both in written submissions and at a status

conference, Judge Hogan issued a carefully crafted and thorough protective order that contained

procedures for counsel access to detainees and to classified information. In re Guantanamo Bay

Detainee Litig., 577 F. Supp. 2d 143 (D.D.C. 2008) (“Protective Order” or “P.O.”). Judge

Hogan’s protective order was substantially similar to the protective order issued by Judge Green.

This Court recently revisited Judge Hogan’s protective order as it pertained to detainees

without any pending habeas petition before the Court. In re Guantanamo Bay Detainee

Continued Access to Counsel, 892 F. Supp. 2d 8 (D.D.C. 2012). At that time, the government

argued “that the Protective Order cease[d] to control counsel-access in the absence of a pending

or imminent habeas petition” and sought to enter into Memoranda of Understanding (MOUs)

with detainees that would set the terms for counsel access. Id. at 11. The terms of the MOUs

proposed by the government differed substantially from those of Judge Hogan’s Protective Order

and would have hampered both petitioners’ access to counsel and counsels’ access to classified

information. Id. at 13–14. This Court rejected the government’s argument and the proposed

MOUs. Instead, the Court held that Judge Hogan’s protective order governed counsel-access

issues for all petitioners, including those without any pending habeas action. Id. at 28.

2 The Order specifically excluded cases over which Judge Richard Leon presided as well as Hamdan v. Bush, 04-cv-
1519. Order at 2 n.1, In re Guantanamo Bay Detainee Litig., Misc. No. 08-442 (TFH) (July 2, 2008), ECF No. 1.


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The foundation of the Supreme Court’s habeas jurisprudence is that the Great Writ lies at

the core of this nation’s constitutional system and that it is the duty of the courts to remedy

lawless executive detention.

Executive imprisonment has been considered oppressive and lawless since John,
at Runnymede, pledged that no free man should be imprisoned, dispossessed,
outlawed, or exiled save by the judgment of his peers or by the law of the land.
The judges of England developed the writ of habeas corpus largely to preserve
these immunities from executive restraint.

Rasul, 542 U.S. at 474 (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 218–

219 (1953) (Jackson, J., dissenting)). “The Framers viewed freedom from unlawful restraint as a

fundamental precept of liberty, and they understood the writ of habeas corpus as a vital

instrument to secure that freedom.” Boumediene, 553 U.S. at 739; see also Harris, 394 U.S. at

290–91 (noting that the Great Writ serves as the “fundamental instrument for safeguarding

individual freedom against arbitrary and lawless state action.”). Moreover, the separation of

powers also points to the fundamental importance of the Great Writ. See Boumediene, 553 U.S.

at 742 (noting that the separation of powers “serves not only to make Government accountable

but also to secure individual liberty” (citing Loving v. United States, 517 U.S. 748, 756 (1996))).

Indeed, under our Constitution it is the Suspension Clause that “protects the rights of the

detained by affirming the duty and authority of the Judiciary to call the jailer to account.” Id. at

745 (citing Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)).

The duty imposed by the Great Writ requires the Judiciary to ensure that access to the

courts is “adequate, effective, and meaningful.” Bounds v. Smith, 430 U.S. 817, 822 (1977); see

also Harris, 394 U.S. at 292. Practically, this means “that the privilege of habeas corpus entitles

the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the


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erroneous application or interpretation’ of relevant law.” Boumediene, 553 U.S. at 779 (quoting

INS v. St. Cyr, 533 U.S. 289, 302 (2001)) (emphasis added).

In the context of Guantanamo Bay habeas litigation, “access to the Court means nothing

without access to counsel.” Al-Joudi v. Bush, 406 F. Supp. 2d 13, 22 (D.D.C. 2005). They are

inseparable concepts and must run together.

To say that Petitioners’ ability to investigate the circumstances surrounding their
capture and detention is “seriously impaired” is an understatement. The
circumstances of their confinement render their ability to investigate nonexistent.
Furthermore, it is simply impossible to expect Petitioners to grapple with the
complexities of a foreign legal system and present their claims to this Court
without legal representation. Petitioners face an obvious language barrier, have
no access to a law library, and almost certainly lack a working knowledge of the
American legal system. Finally, this Court’s ability to give Petitioners’ claims the
“careful consideration and plenary processing” which is their due would be
stymied were Petitioners to proceed unrepresented by counsel.

Al Odah, 346 F. Supp. 2d at 9.

Cognizant of both its duty to enforce the Writ and the context of Guantanamo habeas

litigation generally, the Court now turns to the petitioners’ emergency motions for counsel




The government contends that this Court lacks jurisdiction to address petitioners’

emergency motions. “Federal courts are courts of limited subject-matter jurisdiction. A federal

court created by Congress pursuant to Article III of the Constitution has the power to decide only

those cases over which Congress grants jurisdiction.” Al-Zahrani v. Rodriguez, 669 F.3d 315,

317 (D.C. Cir. 2012) (citing Micei Int’l v. Dep’t of Commerce, 613 F.3d 1147, 1151 (D.C. Cir.


As amended by Section 7(a) of the Military Commissions Act of 2006, the federal habeas

statute provides, in relevant part,


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(1) No court, justice, or judge shall have jurisdiction to hear or consider an
application for a writ of habeas corpus filed by or on behalf of an alien detained
by the United States who has been determined by the United States to have been
properly detained as an enemy combatant or is awaiting such determination.
(2) [N]o court, justice, or judge shall have jurisdiction to hear or consider any
other action against the United States or its agents relating to any aspect of the
detention, transfer, treatment, trial, or conditions of confinement of an alien who
is or was detained by the United States and has been determined by the United
States to have been properly detained as an enemy combatant or is awaiting such

28 U.S.C. § 2241(e)(1)–(2) (emphasis added). However, the Supreme Court invalidated §

2241(e)(1) as an unconstitutional suspension of the writ, and thus this Court has jurisdiction over

petitions for writs of habeas corpus. Boumediene v. Bush, 553 U.S. 723, 792 (2008).

Nevertheless, § 2241(e)(2) remains a valid bar to this Court’s jurisdiction. See Al-Zahrani, 669

F.3d at 319 (upholding “the continuing applicability of the [§ 2241(e)(2)] bar to our jurisdiction

over ‘treatment’ cases.”). Thus, were this case an “other action”—that is, an action other than a

petition for habeas corpus—relating to the “treatment . . . or conditions of confinement” of the

Guantanamo detainees, this Court would have to dismiss for lack of jurisdiction.

The instant litigation, however, is not a general challenge to petitioners’ treatment or

conditions of confinement. Instead, it is a narrow challenge to alleged government interference

to petitioners’ access to counsel that prevents them from prosecuting habeas cases before this

Court. Petitioners’ challenge falls squarely within the Court’s jurisdiction. The Supreme Court

implicitly recognized that counsel access issues relating to habeas cases fall within the district

court’s jurisdiction over habeas petitions. In Boumediene, the Supreme Court explained that it

“ma[de] no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise

during the course of the detainees’ habeas corpus proceedings. . . . These and . . . other

remaining questions are within the expertise and competence of the District Court to address in

the first instance.” 553 U.S. at 796. Logically, the Supreme Court would not refer counsel-


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access issues to the expertise of the District Court if it lacked jurisdiction to consider the issues

in the first place.

Indeed, all the cases the government cites where this Court or the D.C. Circuit has

concluded it lacked jurisdiction under § 2241(e)(2) are inapposite. The present controversy is

neither a request for a mattress and a blanket, see In re Guantanamo Bay Detainee Litig., 577 F.

Supp. 2d 312 (D.D.C. 2008), nor a request for transfer to another facility, see Tumani v. Obama,

598 F. Supp. 2d 67 (D.D.C. 2009); Al-Shurfa v. Obama, No. 05-CV-431 (RJL), 2009 WL

1451500 (D.D.C. May 21, 2009); Khadr v. Bush, 587 F. Supp. 2d 225 (D.D.C. 2008); Al-

Ghizzawi v. Bush, No. 05-CV-2378 (JDB), 2008 WL 948337 (D.D.C. Apr. 8, 2008), nor a

request for medical records or changes to medical procedures, see Al Adahi v. Obama, 596 F.

Supp. 2d 111 (D.D.C. 2009); In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d at 313–14,

nor a tort claim against federal officials, Al-Zahrani, 669 F.3d at 316–17. This action focuses

solely on what rules will govern counsel access for the Guantanamo detainees during their

habeas cases and whether the government, in contravention of Judge Hogan’s protective order

and numerous other rulings, may interfere with detainees’ access to counsel. Of course, it may


The government also argues that petitioners lack standing because they have failed to

show “actual harm” under Lewis v. Casey, 518 U.S. 343 (1996). In Casey, the Supreme Court

found that prisoners could not bring claims alleging interference with their access to the courts

“by establishing that [the] prison’s law library or legal assistance program is subpar in some

theoretical sense.” Casey, 518 U.S. at 351. Instead, the constitutional requirement for standing

meant that prisoners could only bring claims alleging interference with their right of access to the

courts where they could show actual injury. Id. at 349–352. The Court did find, however, that


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an illiterate and non-English-speaking prisoner had established actual injury by showing that he

had been unable to bring his claims. Id. at 356.

The government’s reliance on Casey is misplaced. Quite contrary to the government’s

conclusory statement that petitioners have made no showing of actual harm, Opp’n 19, the record

is replete with examples of “past or imminent official interference with individual [detainees’]

presentation of claims to the courts.” Casey, 518 U.S. at 349. For proof, one need only look to

this Court’s previous opinions concerning counsel access and the numerous government attempts

to interfere with counsel access identified therein. See In re Guantanamo Bay Detainee

Continued Access to Counsel, 892 F. Supp. 2d at 24–26 (collecting cases). Moreover, the

petitioners’ situation is most similar to that of the illiterate and non-English-speaking prisoners

for whom the Supreme Court found there was actual injury in Casey. With respect to detainees

at Guantanamo, as this Court has oft repeated, “access to the Court means nothing without access

to counsel.” Al-Joudi, 406 F. Supp. 2d at 22. “Petitioners are from foreign countries, . . . do not

speak English, and are in all likelihood totally unfamiliar with the United States legal system. As

such they have ‘no alternative form of legal assistance available to them.’” Id. (citing Bounds v.

Smith, 430 U.S. 817, 823 (1977)). Absent aid from counsel, petitioners will be unable to

prosecute their habeas claims. Thus, interference with petitioners’ access to counsel impairs

their access to the courts in a direct and concrete fashion and not “in some theoretical sense.”

Petitioners have shown imminent harm and therefore have standing to bring their claims for

counsel access. Consequently, this court may exercise jurisdiction over those claims.

In concluding that it has jurisdiction over petitioners’ motions, the Court notes that §

2241(e)(2) does remove the Court’s jurisdiction over any action by Guantanamo detainees other

than (1) a petition for habeas corpus or (2) any attendant issues that arise under that petition, such


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as the counsel-access or evidentiary issues that the Supreme Court identified. Thus, the court

would lack jurisdiction to consider any claims by petitioners relating to, for example, their

medical treatment or access to regular mail. Of course, the Protective Order has always operated

within the jurisdictional bounds set out by the Supreme Court in Boumediene and by §

2241(e)(2). See, e.g., P.O. at ¶¶ II.D.12–.13 (setting out in great detail the procedures to be used

for processing detainee legal mail, but noting that any non-legal mail would be processed

according to the military’s standard operating procedures).




The Turner v. Safley Standard is Logically Inapplicable to this Case

The government contends that the new search procedures instituted by Col. Bogdan pass

muster under the deferential standard for prison regulations identified by the Supreme Court in

Turner v. Safley, 482 U.S. 78 (1987). The government’s reliance on the Turner standard is

misplaced, however, as Turner is logically inapplicable to regulations impinging on a detainee’s

right to petition for a writ of habeas corpus.

The logical foundation of the Turner line of cases lies in striking a balance between a

circumscribed constitutional right and the judgment of prison administrators. The Supreme

Court described this reasoning clearly in Bell v. Wolfish, 441 U.S. 520 (1979). There, the Court

laid out four “general principles [to] inform [its] evaluation of the constitutionality of the” prison

regulations at issue. Id. at 545. First, the Court recognized “that convicted prisoners do not

forfeit all constitutional protections by reason of their conviction and confinement.” Id. (citing

Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 129 (1977); Meachum v. Fano,

427 U.S. 215, 225 (1976); Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974); Pell v. Procunier,

417 U.S. 817, 822 (1974)). Second, however, “[l]awful incarceration brings about the necessary


Case 1:12-mc-00398-RCL Document 47 Filed 07/11/13 Page 17 of 35

withdrawal or limitation of many privileges and rights, a retraction justified by the considerations

underlying our penal system.” Id. at 545–46 (quoting Price v. Johnston, 334 U.S. 266, 285

(1948)). Third, the Court noted that maintenance of security and internal order are penological

“goals that may require limitation or retraction of the retained constitutional rights of both

convicted prisoners and pretrial detainees.” Id. at 546. Fourth, the Court acknowledged that

“the problems that arise in the day-to-day operation of a corrections facility are not susceptible of

easy solutions.” Id. at 547. Consequently, courts should accord “wide-ranging deference [to] the

adoption and execution of policies and practices that” prison administrators judge necessary for

preservation of order and security. Id. As the Court further explained, “judicial deference is

accorded not merely because the administrator ordinarily will . . . have a better grasp of his

domain than the reviewing judge, but also because the operation of our correctional facilities is

peculiarly the province of the Executive and Legislative Branches.” Id. at 548 (citing Procunier

v. Martinez, 416 U.S. 396, 405 (1974)).

The logical progression of the Court’s analysis in Bell is clear and simple: Prisoners

retain basic constitutional rights, but those rights may be necessarily limited in the prison

context. Further, the government, acting as prison administrator, may limit prisoners’

constitutional rights to accomplish valid penological objectives. Finally, given the Executive and

Legislative branches’ particular roles and expertise in prison administration, the Judiciary should

give deference to the Executive and Legislature in how they chose to circumscribe prisoners’

rights to achieve legitimate penological ends. Most importantly for this case, the second

principle that the Court identified acts as a logical predicate for the principles that follow: the

Executive or Legislature may limit a prisoner’s rights in order to accomplish valid penological

objectives because those rights are limited or withdrawn in the prison context. Similarly, the


Case 1:12-mc-00398-RCL Document 47 Filed 07/11/13 Page 18 of 35

court defers to the Executive or Legislature because it has balanced the prisoner’s limited rights

against the valid penological interest according to its prerogatives and expertise. Turner adds to

this analysis by formalizing the deference the Judiciary must show to the Executive and

Legislature into a test, though the analysis and logic underlying the Court’s decision remain the

same. See Turner, 482 U.S. at 84–91.

This logical analysis, however, is inapplicable to the right of habeas corpus itself. The

notion that habeas corpus, like the freedoms of association3 or speech,4 may necessarily be

limited or withdrawn in the penological context is absurd: “the essence of habeas corpus is an

attack by a person in custody upon the legality of that custody, and . . . the traditional function of

the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484

(1973). The right of habeas corpus is neither limited nor withdrawn in the prison context—

indeed it is most valuable as a right to one who is incarcerated. To restrict a detainee’s access to

habeas corpus solely by virtue of his detention would run counter to the writ’s purpose and

would eviscerate the writ.

Moreover, the particular circumstances of the petitioners in this case strengthen, rather

than weaken, the power of the writ. As the Supreme Court recognized in Boumediene, “where[,

as here,] a person is detained by executive order, rather than, say, after being tried and convicted

in a court, the need for collateral review is most pressing. . . . In this context the need for habeas

corpus is more urgent.” 553 U.S. at 783; see also Rasul, 542 U.S. at 474 (“[A]t its historical

core, the writ of habeas corpus has served as a means of reviewing the legality of Executive

3 See, e.g., Overton v. Bazzetta 539 U.S. 126, 131 (2003) (“[F]reedom of association is among the rights least
compatible with incarceration. . . . Some curtailment of that freedom must be expected in the prison context.”
(citing Jones, 433 U.S. at 125–26; Hewitt v. Helms, 459 U.S. 460 (1983)).
4 See, e.g., Bell, 441 U.S. at 550–51 (concluding that a prison rule against receipt of hardback books unless sent
directly from publishers, book clubs, or book stores was reasonable and therefore did not violate inmates’ First
Amendment rights).


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detention, and it is in that context that its protections have been strongest.” (quoting St. Cyr, 533

U.S. at 301)). Any effort by the Executive or Legislature to limit a detainee’s right to seek

habeas corpus, just as they might limit the detainee’s freedoms of speech or association, would

be antithetical to the purpose of the writ. Indeed, the Constitution forbids suspension of the writ

except in limited circumstances. U.S. Const. art I, § 9, cl. 2 (“The Privilege of the Writ of

Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public

Safety may require it.”). This conflicts with the Court’s logic in Bell and Turner because the

right at issue is not limited in the prison context.

The Supreme Court’s analysis in Bell and Turner cannot apply to petitioners. Since the

right to seek habeas relief is not limited or withdrawn in the prison context, neither may the

Executive or the Legislature circumscribe the petitioners’ right, see id.; Boumediene, 553 U.S. at

798, nor must the court defer to the Executive’s or Legislature’s attempt to do so. Though the

Turner test is inappropriate here, this Court need not define the contours of the proper test

because the new procedures challenged by petitioners would fail even under Turner.


The New Search Procedures Fail Under the Turner Standard

As the Supreme Court has noted, “federal courts must take cognizance of the valid

constitutional claims of prison inmates.” Turner, 482 U.S. at 84 (citing Martinez, 416 U.S. at

405). “Prison walls do not form a barrier separating prison inmates from the protections of the

Constitution.” Id. For example, those detained at Guantanamo “may invoke the fundamental

procedural protections of habeas corpus.” Boumediene, 553 U.S. at 798. Because detainees

retain certain constitutional rights like habeas, “[w]hen a prison regulation or practice offends a

fundamental constitutional guarantee, federal courts will discharge their duty to protect

constitutional rights.” Martinez, 416 U.S. at 405–06.


Case 1:12-mc-00398-RCL Document 47 Filed 07/11/13 Page 20 of 35

Nevertheless, the Court must recognize both the special expertise of the Executive and

Legislature in prison administration and its own limited expertise in that area. “Running a prison

is an inordinately difficult undertaking that requires expertise, planning, and the commitment of

resources, all of which are peculiarly within the province of the legislative and executive

branches of government.” Turner, 482 U.S. at 84–85. The Supreme Court has also identified

prison administration as “a task that has been committed to the responsibility of those branches.”

Id. at 85.

In order to balance the competing considerations between prisoners’ rights and prison

administration, the Supreme Court formulated its test as follows: “when a prison regulation

impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to

legitimate penological interests.” Id. at 89. By contrast, a prison regulation is invalid if it

represents an “exaggerated response” to legitimate penological concerns. Id. at 87. To aid its

analysis, the Supreme Court identified “four factors [that] are relevant in deciding whether a

prison regulation affecting a constitutional right that survives incarceration withstands

constitutional challenge: whether the regulation has a ‘valid, rational connection’ to a legitimate

governmental interest; whether alternative means are open to inmates to exercise the asserted

right; what impact an accommodation of the right would have on guards and inmates and prison

resources; and whether there are ‘ready alternatives’ to the regulation.” Overton v. Bazzetta, 539

U.S. 126, 132 (2003) (quoting and citing Turner, 482 U.S. at 89–91).

Applying the first Turner factor, the Court finds that the new search procedures lack a

“valid, rational connection” to the legitimate government interest—security—put forward to

justify them. As the government correctly asserts, “internal security of detention facilities is a

legitimate government interest.” Block v. Rutherford, 468 U.S. 576, 586 (1984). The


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government argues that three justifications satisfy the “valid, rational connection” between the

revised search procedures and the government’s legitimate penological interest in security of the

Guantanamo detention facility: First, the old, modified search, i.e. shaking the detainee’s

waistband, is contrary to the military’s standard procedure and increased the risk of inconsistent

searches and decreased the searches’ effectiveness. Second, detainee Adnan Farhan Abd Latif

(ISN 156) was able to commit suicide while in detention, and a subsequent review recommended

changing the search policy in response. Third, the transition of Camp 6 from communal living to

single cell housing revealed contraband, including homemade weapons, shanks, and prohibited

electronic devices. The Court will address each of these justifications in turn.

The first justification, that the modified search used previously was contrary to the

military’s standard procedure, fails. According to Col. Bogdan, since soldiers are not generally

trained in the modified procedure previously used by the JDG, that procedure created a risk that

the searches would be performed inconsistently and would be ineffective. Opp’n 11; Col.

Bogdan Decl. ¶ 17. This justification does not hold water. The modified search procedure had

been in use since “the early years of detention operations at Guantanamo,” or approximately

eight or nine years. Walsh Report 25. The government does not explain how, other than by bald

assertion, soldiers would be unable to follow a search procedure that had been in place for years.

Moreover, American soldiers are intelligent and capable and have proven themselves able to

implement correctly different protocols in different situations. Indeed, the soldiers at

Guantanamo do so already: one standard protocol is used for regular detainee mail and mail to

the International Committee of the Red Cross, while a second protocol is used for legal mail. Id.

at 36–37; see also Protective Order ¶¶ II.D.12–.13. This Court’s previous opinion on legal mail

notwithstanding, the soldiers and commanders at Guantanamo have proven themselves capable


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of navigating the differences between these two systems. Contrary to Col. Bogdan’s

bureaucratic desire for uniformity, every procedure employed at Guantanamo need not follow

the same standard protocol. As petitioners correctly argue, there is no basis in the record to

support the government’s argument that guards performed the old, modified searches

ineffectively or inconsistently. Pet’rs’ Reply 3–4, June 4, 2013, ECF No. 44 (“Hatim Reply”).

The government’s second justification for the new search procedures involves the suicide

of detainee Adnan Farhan Abd Latif. Latif committed suicide in September 2012 by overdosing

on medication that he had hoarded over a short time period. Opp’n 11. The command

investigation performed after Latif’s suicide noted that he may have hidden the medications in

his groin area. Id.; Bogdan Decl. ¶ 18. According to the government, this incident provides a

further “valid, rational connection” to satisfy the first Turner factor. At this Court’s sealed

hearing on June 5, Counsel for petitioners noted, however, that Col. Bogdan’s affidavit nowhere

states that Latif actually hid medications in his groin area, only that the prior search procedure

provided him with the opportunity to do so. Sealed Hr’g Tr. 7; see also Bogdan Decl. ¶ 18. In

response, government counsel only stated that Latif “might” have hoarded medication in his

groin area. Sealed Hr’g Tr. 20.

Petitioners correctly conclude that Latif’s possible opportunity to hoard medication bears

no logical connection to a policy to search the groin area of every detainee every time he is

moved or meets with non-JTF personnel, whether that be medical personnel, representatives

from the International Committee of the Red Cross, or legal counsel. Hatim Reply 4. The

government’s attempts to justify the new procedure on the basis of Latif’s suicide have the patina

of pretext to them. The mere possibility that Latif hoarded medications in his groin area, with

nothing more, will not support the new search policy because the logical connection between the


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policy and this supposed justification “is so remote as to render the policy arbitrary or irrational.”

Turner, 482 U.S. at 89–90.

Moreover, the government’s actions in regards to the command investigation of Latif’s

suicide belie the suggestion that Latif’s death was a justification for the new search policies.

Latif’s death occurred in September 2012, and the command investigation of his death released

its report in November 2012. Bogdan Decl. ¶ 18. Col. Bogdan and the JDG, however, did not

implement the new search procedures until May 3, 2013. Id. Though Col. Bogdan states that he

“developed a phased approach in December 2012 to gradually” implement the new search

procedure, his statement stands in contrast to his decision to institute the new search procedures

almost immediately upon discovering contraband in the transition of Camp 6 from communal

housing to single cell housing. Id. To the Court’s view, Col. Bogdan’s swiftness in

implementing the new searches in May 2013 shows that linking the new searches to the death of

Latif and the subsequent investigation was merely an afterthought.

The third justification the government offers for the new search policies under the first

Turner factor is the discovery of contraband in Camp 6. According to Col. Bogdan’s statement,

in April 2013, the JDG transitioned Camp 6 from communal living for detainees to keeping

detainees in individual cells. Id. In the course of the transition, the JDG discovered “a number

of contraband items, including homemade weapons, such as shanks, and prohibited electronic

devices.” Id. The presence of contraband or weapons would represent a threat to camp security.

On its face, this justification appears to offer the strongest logical relationship between the new

search procedures and the government’s legitimate interest in security at the Guantanamo

detention facility. Indeed, this Court “understand[s] why [prison administrators] might need to

do an overall search of the prison to be sure there are no shanks” or other improvised weapons.


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Sealed Hrg. Tr. 22. The Court has heard of similar generalized searches at domestic prisons. Id.

(citing the local jail in Washington, D.C. as an example).

When viewed in isolation, as the government has presented it, the presence of contraband

makes the new search procedure appear reasonably related to the government’s legitimate

penological interest in security. The Court, however, must view the new procedure and the

proffered justification in light of the government’s previous actions at Guantanamo. As

petitioners’ counsel correctly noted during this Court’s hearing, “[t]he government is a recidivist

when it comes to denying counsel access.” Sealed Hrg. Tr. 11. The government, seemingly at

every turn, has acted to deny or to restrict Guantanamo detainee’s access to counsel. The

government designated Guantanamo as a “detention facility” rather than as a “corrections

facility” because, under the Navy’s own regulations, those incarcerated at a corrections facility

have unconditional access to their attorneys. See In re Guantanamo Bay Detainee Continued

Access to Counsel, 892 F. Supp. 2d at 17. The government sought to require detainees without

pending habeas petitions to sign memoranda of understanding that would have removed them

from the ambit of the Court’s Protective Order and only allowed access to counsel at the

government’s whim. See id. at 13–14. The government has se