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Petitioners,

v.


___________________________________
)

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



)
)


)
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BARACK H. OBAMA, et al.,
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__________________________________ )

___________________________________




IN RE:
GUANTÁNAMO BAY

DETAINEE CONTINUED
ACCESS TO COUNSEL





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)
)
)
)
)





Respondents.

























Civil Action No. 05-1429 (RCL)

Misc. No. 12-398 (RCL)



Case 1:12-mc-00398-RCL Document 38 Filed 05/22/13 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



EMERGENCY MOTION CONCERNING ACCESS TO COUNSEL

This motion is filed on behalf of Saeed Mohammed Saleh Hatim (ISN 255) in Civil

Action No. 05-1429 (RCL), in order to remove unjustified burdens that the Government has

imposed on his right to access to counsel. This motion is also being filed in In re: Guantanamo

Bay Detainee Continued Access to Counsel, Miscellaneous Docket No. 12-398 (RCL), on behalf

of certain other detainees who have suffered similar impositions on their right to access to

counsel, or who are potentially affected by the existence of these new obstacles to counsel

access. The cases involving these other detainees are listed in the footnote below.1


1 Abdullah v. Bush, Civ. No. 05-0023 (RWR) (D.D.C.); Al-Baidany v. Obama, Civ. No. 05-
02380 (CKK) (D.D.C.); Al-Bihani v. Obama, Civ. No. 05-1312 (RJL) (D.D.C.); Alhag v.
Obama, Civ. No. 05-2199 (RCL) (D.D.C.); Al-Mithali v. Obama, Civ. No. 05- 2186 (D.D.C.);
Al-Zarnouqi v. Obama, Civ. No. 06-1767 (RCL) (D.D.C.); Anam v. Obama, Civ. No. 04-1194
(continued…)



Case 1:12-mc-00398-RCL Document 38 Filed 05/22/13 Page 2 of 13



The need for relief is urgent because various counsel are seeking to meet or talk by

telephone with their clients in the near future.

BACKGROUND



Most Guantánamo detainees are held in two closely-adjacent prisons, known as Camp 5

and Camp 6. (The so-called “high value” detainees are held in a separate facility.) Historically,

counsel have met with their clients either in Camp 5 or Camp 6, i.e., in the prisons where they

are being held, or in a separate nearby facility known as Camp Echo. Ex. A, Declaration of

David H. Remes, ¶ 5 (“Remes Dec.”). Camp Echo contains huts where meetings between

detainees and counsel can take place. Compared to meetings in Camp Echo, meetings with

counsel in Camp 5 or Camp 6 are more convenient for the detainee and the prison staff because

they do not require that the detainee be transported by van from his prison camp to Camp Echo.

Detainees have telephone calls with their lawyers in another facility, Camp Delta. Id.



Counsel for Hatim travelled to Guantánamo in late April 2013, to meet with Hatim and

other clients. Ex. A, Remes Dec. ¶ 9. The meeting with Hatim was to take place on May 1, two

days before a prehearing conference in Hatim’s habeas case. Among other things, counsel

intended to consult with Hatim concerning his newly-reactivated habeas case. Id. The

Government scheduled the meeting for Camp Echo, which would require that Hatim be

transported by van from his cell in Camp 6. Hatim reported that he would meet with counsel in

Camp 6, but not at Camp Echo. Id. ¶ 10. Counsel was ready, willing and able to meet Hatim in


(TFH) (D.D.C.); Al Qyati and Al Azani v. Obama, Civ. No. 08-2019 (RBW) (D.D.C.); Al Warafi
v. Obama, Civ. No. 09-2368 (RCL) (D.D.C.); Hidar v. Obama, Civ. No. 05-2386 (RBW)
(D.D.C.); Mohammed v. Obama, Civ. No. 05-2385 (UNA) (D.D.C.); Obaydullah v. Obama, Civ.
No. 08-01173 (RJL) (D.D.C.); Odah v. Obama, Civ. No. 06-1668 (TFH) (D.D.C.); Sanad al-
Kazimi v. Obama, Civ. No. 05-2386 (RBW) (D.D.C.).



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Case 1:12-mc-00398-RCL Document 38 Filed 05/22/13 Page 3 of 13

Camp 6, but the Government refused, stating that it would not allow meetings in Camp 6 “in any

circumstances.” Id. ¶¶ 11–12.



The Government neither then nor now has provided any justification for its refusal to

allow Hatim to meet with his counsel in Camp 6, which constituted a reversal of long-standing

practice.



As explained below, detainees have substantial reasons for not meeting in Camp Echo,

and it is now clear that many detainees will forgo counsel access rather than meet in Camp Echo

or have telephone calls in Camp Delta.



First, as has widely been publicized, there is an ongoing hunger-strike at Guantánamo,

involving up to two-thirds of the non-“high value” detainees. As a result, many of the prisoners

are physically weak and debilitated; indeed, at least 30 have gotten so close to death that they are

being force-fed through a tube shoved through the nose and down into the stomach. See Exs. A–

G. (declarations of detainees’ counsel). In these conditions, a trip to Camp Echo or Camp Delta

in a van may be so painful that a detainee will decline to speak with counsel rather than to take

the trip to Camps Echo or Delta. The Government has recently made the trip even more painful

because it has begun using a smaller van, which forces the detainee, while shackled, to be in a

crouched stress position. Ex. A, Remes Dec. ¶¶ 29–34; Ex. G, Declaration of Anne Richardson

(“Richardson Dec.”) ¶ 9.



Second, and perhaps more importantly, the procedure for a trip to Camp Echo has

recently been changed in a highly significant way. Under the new policy, any trip to Camp Echo

(or Camp Delta) requires an intrusive body search of the detainee, which involves touching and

holding a detainee’s genitals and buttocks. Ex. A, Remes Dec. ¶¶ 14–18. Detainees are searched

in this manner at least twice for each trip that they take from Camp 5 or Camp 6, and a guard told



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Case 1:12-mc-00398-RCL Document 38 Filed 05/22/13 Page 4 of 13

one detainee that he would be subjected to four genital searches for each trip to Camp Echo or

Camp Delta to talk with his lawyer. Ex. B, Declaration of Jennifer R. Cowan (“Cowan Dec.”),

¶¶ 7–8, 12. The Government had previously recognized that such searches offend and humiliate

Islamic detainees and had banned them at Guantánamo: “Due to cultural sensitivities, modified

frisk searching procedures are in place that respect the detainee’s groin area, and guards are not

allowed to conduct frisk searches of this area. Guards are limited to grasping the waistband of

detainees’ trousers, and shaking the pants.” Ex. A, Remes Dec. ¶ 37 (quoting Review of

Department Compliance with President’s Executive Order on Detainee Conditions of

Confinement, at 25 (2009)). The new search procedure, however, “does include the buttocks and

groin area” and applies whenever a prisoner leaves his camp to go to another facility, such as

Camp Echo or Camp Delta.2 It is obvious that the new search procedures, another reversal of

long-standing practice, are intended to be an obstacle to counsel access. See Ex. A, Remes Dec.

¶¶ 15–18; Ex. B, Cowan Dec. ¶¶ 10–16; Ex. C, Declaration of Erin Thomas (“Thomas Dec.”) ¶

9; Ex. D, Declaration of Darold W. Killmer (“Killmer Dec.”) ¶¶ 7, 13–14.



The new Government policies that resulted in denial of counsel access with respect to

Hatim have also resulted in a denial of counsel access for numerous other detainees, who have

been unwilling to be transported to Camp Echo for meetings or to Camp Delta for telephone

2 See Ex. H, Leopold, J., Al Jazeera, “New Guantanamo Policy: Genital ‘Pat Down,’” May 15,
2013, available at http://m.aljazeera.com/story/201351583142509183. Detainees who refuse to
endure these searches will not be allowed to consult with their attorneys in meetings or by phone,
and a Guantánamo spokesman has reportedly admitted that “several prisoners have cited the new
policy as the reason they refuse to meet with their attorneys.” Id.; see also Lt. Col. Samuel
House quoted in Ex. I, P. Harris & M. Williams, “Guantanamo Strikers Threatened with Body
Cavity Searches, Lawyer Says,” The Guardian, May 24, 2013, available at
http://www.guardian.co.uk/world/2013/may/14/Guantanamo-hunger-strikers-body-
search?INTCMP=ILCNETTXT3487 (“If a detainee refuses to be searched as part of a routine
move outside of a camp, such as for a phone call, legal appointment or non-emergency medical
appointment, the guard will not take the detainee.”).



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Case 1:12-mc-00398-RCL Document 38 Filed 05/22/13 Page 5 of 13

calls, especially given the new body-search protocols. For instance, one lawyer reports that her

client is unable to go to Camp Delta for a telephone call with her because, if he does, “they will

search the private parts and the anal area.” Ex. E, Declaration of Rebecca Briggs (“Briggs

Dec.”) ¶¶ 6–7. Other lawyers have had similar experiences with their clients, as described in

detail in their attached declarations. See Ex. B, Cowan Dec. ¶¶ 11–13; Ex. A, Remes Dec. ¶¶

13–15 (recounting a meeting refused by detainee Mukhtar al-Warafi); Ex. F, Declaration of John

C. Snodgrass (“Snodgrass Dec.”) ¶¶ 5–6 (recounting telephone call refused by a detainee who

had never previously refused a call in the eight years that the attorney has represented him); Ex.

C, Thomas Dec. ¶¶ 7–12 (detailing telephone calls with client terminated because client

unwilling to submit to physical search of private areas); Ex. G, Richardson Dec. ¶¶ 16–18

(describing barriers to counsel access resulting from requiring meetings and calls to be in Camp

Echo and Camp Delta, and the chilling effect of the new policy with respect to physical

searches); Ex. D, Killmer Dec. ¶¶ 6–12 (describing new policies at Guantánamo that are

designed to interfere with counsel access, and the refusal of a client call as a result).

ARGUMENT



As this Court has held, “it is undisputed that petitioners here have a continuing right to

seek habeas relief. It follows that petitioners have an ongoing right to access the courts and,

necessarily, to consult with counsel.” In re: Guantanamo Bay Detainee Continued Access to

Counsel, 892 F. Supp. 2d 8, 28 (D.D.C. 2012) (“Counsel Access”). The Court noted that “the

Government agrees that ‘the right to counsel attaches to the prisoner’s right of access to the

courts,” and that “[t]he Government has conceded that petitioners here have a right to counsel.”

Id. at 13 n.9, 15 n.10. The Government ultimately declined to appeal this Court’s Counsel

Access decision.



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Case 1:12-mc-00398-RCL Document 38 Filed 05/22/13 Page 6 of 13



Counsel’s access to detainees, if anything, has become even more critical because of the

hunger strike. Access to counsel “is particularly necessary where a detainee’s life and health are

in serious danger.” See Al-Joudi v. Bush, 406 F. Supp. 2d 13, 23 (D.D.C. 2005). “[I]n order to

properly represent Petitioners, their counsel must have access to them, must be able to

communicate with them, and must be made aware if their clients are in such fragile physical

condition that their future ability to communicate is in imminent danger.” Id. at 21–22.



The Government’s newly-adopted policy of denying detainees the ability to meet with

counsel at Camp 6, along with its newly-adopted requirement for highly intrusive physical

searches that it knows are culturally and religiously insulting as a precondition for counsel

access, and its new use of low roof vans, have resulted in cancellation of meetings and phone

calls with counsel in many cases, including Hatim’s. This could not have come as a surprise to

the Government, especially since it is well aware of the weakened condition of the majority of

the detainees due to the hunger strike. Even assuming that there are any legitimate justifications

for these new policies—and none is apparent—they would not come close to outweighing the

burden the policies place on the detainees’ paramount constitutional right to effective and

meaningful access to counsel.3



The inescapable inference, however, is that the new policies have no legitimate purpose,

but are pretextual, imposed in order to chill the right of access to counsel. Indeed, one guard has

admitted that the purpose of the physical searches and the treatment inflicted upon detainees

3 This is not the first time that the Government has interfered with counsel access. For instance,
in a case before Judge Walton, the Government in 2008 falsely stated that a detainee was
refusing to meet with counsel. Ex. D, Killmer Dec. ¶ 14. Judge Walton ordered the Government
to provide an “expeditious, unobstructed, face-to-face meeting” with the detainee. Order
Granting Petitioners’ Counsel An Expeditious, Unobstructed, Face-to-Face Visit with Petitioners
Saad Massir Mukbl Al Azani (ISN 575) and Abdul Rahman Umir Al Qyati (ISN 461), at 1, Al
Qyati v. Obama, Civ. No. 08-2019 (RBW) (D.D.C. May 5, 2009).



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Case 1:12-mc-00398-RCL Document 38 Filed 05/22/13 Page 7 of 13

during transportation from their cells was to deter detainees from speaking with their counsel or

their families. See Ex. D, Killmer Dec. ¶ 7. These new procedures come on the heels of an

attempt to deny counsel access to any detainee without an active habeas petition, an attempt

rejected by this Court last September in its Counsel Access decision. It also follows “[t]he

government’s decision to hold legal mail” in some cases “without notifying the Court or

petitioners’ counsel” and its attempt to curtail flights to Guantánamo. Order, Al-Zarnouqui v.

Obama, No. 06-CV-01767 (D.D.C. May 6, 2013) (Lamberth, C.J.) (emphasis in the original).

The true purpose of the new policies is also revealed by the other changes that have recently

been imposed on the detainees by the new hard-line regime at Guantánamo, including solitary

confinements. Ex. A, Remes Dec. ¶ 38 and Attachment D thereto. It seems clear that the real

aim of the new policy on body searches and the requirement to use only Camp Echo for meetings

(thus requiring a painful trip in a van, while shackled and in a stress position) is to reduce

significantly detainees’ access to counsel and to the outside world. In any case, that is its effect.



The Court in its Counsel Access decision refused to “countenance placing the

‘operational needs and logistical constraints’ at Guantánamo ahead of detainees’ constitutional

right to access to counsel,” and emphatically stated that it would not “allow the Government to

transgress on the Court’s duty to safeguard individual liberty by ‘calling the jailer to account.’”

Counsel Access, 892 F. Supp. 2d at 16, 24 (quoting Boumediene v. Bush, 553 U.S. 723, 745–46

(2008)). If detainees’ right to meaningful access to counsel is to be preserved, it is essential for

this Court to intervene once again.

CONCLUSION



Petitioners respectfully request that the Court rule that detainees be allowed to meet with

their counsel in Camp 5 or Camp 6, and to make telephone calls from those locations, and to do



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Case 1:12-mc-00398-RCL Document 38 Filed 05/22/13 Page 8 of 13

so without having to undergo the newly-adopted physical searches of private areas. This request

for relief is an urgent one in view of the number of counsel and detainees whose access is now

being effectively blocked by the Government’s new policies.4


4 Counsel has conferred with Government counsel concerning this motion pursuant to Local Rule
7(m). The Government states that it opposes the motion.



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Case 1:12-mc-00398-RCL Document 38 Filed 05/22/13 Page 9 of 13

Respectfully submitted,





/s/ Brian E. Foster





S. William Livingston
D.C. Bar No. 59005
Brian E. Foster
D.C. Bar No. 988311
Emily White
D.C. Bar No. 1004811

COVINGTON & BURLING LLP
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2401
(202) 662-6000 (phone)
(202) 778-6000 (fax)
[email protected]
[email protected]
[email protected]

David H. Remes
D.C. Bar No. 370372
APPEAL FOR JUSTICE
1106 Noyes Drive
Silver Spring, MD 20910
(202) 669-6508 (phone)
[email protected]









































































Date: May 22, 2013






























Rebecca Briggs
Orrick, Herrington & Sutcliffe LLP
51 West 52nd Street
New York, NY 10019
(212) 506-5000 (phone)
(212) 506-5151 (fax)
[email protected]

Counsel in Al-Baidany v. Obama, Civ. No. 05-
02380 (CKK) (D.D.C.)




















































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Counsel for Saeed Mohammed Saleh Hatim
Counsel for Mukhtar Yahia Naji Al Warafi

Jennifer Rose Cowan
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
(212) 909-6000 (phone)
[email protected]

Counsel in Al-Mithali v. Obama, Civ. No. 05-
2186 (D.D.C.)


Case 1:12-mc-00398-RCL Document 38 Filed 05/22/13 Page 10 of 13

Pardiss Kebriaei (Pursuant to LCvR 83.2(g))
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012
(212) 614-6452 (phone)
(212) 614-6499 (fax)
[email protected]

Counsel in Al-Bihani v. Obama, Civ. No. 05-
1312 (RJL) (D.D.C.) and Odah v. Obama, Civ.
No. 06-1668 (TFH) (D.D.C.)


John C. Snodgrass
D.C. Bar No. 473864
PEPPER HAMILTON LLP
Hamilton Square
600 14th Street NW, Suite 500
Washington, DC 20005-2004
(202) 220-1246 (phone)
[email protected]

Counsel in Alhag v. Obama, No. 05-CV-2199
(RCL) (D.D.C.)


Peter B. Ellis
Mass. BBO #153500
Andrew Loewenstein
Mass. BBO #648074
Foley Hoag LLP
155 Seaport Blvd.
Boston, Massachusetts 02210-2600
(617) 832-1000 (phone)
(617) 832-7000 (fax)

Usha-Kiran K. Ghia
Mass. BBO#: 666711
Foley Hoag LLP
1717 K Street, NW
Washington, D.C. 20036-5342
(202) 223-1200 (phone)
(202) 785-6687 (fax)

Counsel in Hidar v. Obama, Civ. No. 05-2386
(RBW) (D.D.C.)

Anne Richardson, Esq. (pro hac vice)
Dan Stormer, Esq. (pro hac vice)
Cindy Pánuco, Esq. (pro hac vice)
HADSELL STORMER RICHARDSON &
RENICK, LLP
128 North Fair Oaks Avenue
Pasadena, California 91103-3645
(626) 585-9600 (phone)
(626) 577-7079 (fax)
Ranjana Natarajan, Esq. (pro hac vice)
National Security Clinic
University of Texas School of Law
727 East Dean Keeton St.
Austin, TX 78705
(512) 232-3657 (phone)
(512) 232-0800 (fax)
Lisa R. Jaskol, Esq. (pro hac vice)
Public Counsel
610 S. Ardmore Avenue
Los Angeles, California 90005
(213) 637-3851(phone)
(213) 385-9089 (fax)

Counsel in Obaydullah v. Obama, Civ. No. 08-
01173 (RJL) (D.D.C)



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Case 1:12-mc-00398-RCL Document 38 Filed 05/22/13 Page 11 of 13

Darold W. Killmer
Mari Newman
KILLMER, LANE & NEWMAN, LLP
1543 Champa St., Suite 400
Denver, CO 80202
(303) 571-1000 (phone)
(303) 571-1001 (fax)

Counsel in Anam et al. v. Obama, Civ. No. 04-
1194 (TFH) (D.D.C.) and Al Qyati and Al
Azani v. Obama, Civ. No. 08-2019 (RBW)
(D.D.C.)

Charles H. Carpenter
D.C. Bar No. 432004
CARPENTER LAW FIRM plc
210 North Higgins Avenue, Ste. 336
Missoula, Montana 59802
(406) 543-0511 (phone)

Stephen M. Truitt
D.C. Bar No. 13235
600 Fourteenth Street, N.W.
Suite 500, Hamilton Square
Washington, DC 20005-2004
(202) 220-1452 (phone)
(202) 220-1665 (fax)

Counsel in Abdullah v. Bush, Civ. No. 05-0023
(RWR) (D.D.C.)



Erin E. Thomas (pro hac vice)
ALLEN & OVERY LLP
1221 Avenue of the Americas
New York, NY 10020
(212) 610-6300 (phone)

Counsel in Anam v. Obama, Civ. No. 04-1194
(TFH) (D.D.C.)

Brian J. Neff
SCHIFF HARDIN LLP
666 Fifth Avenue
New York, New York 10103
(212) 753-5000 (phone)
(212) 753-5044 (fax)
[email protected]

Lisa M. Natter
SCHIFF HARDIN LLP
233 S. Wacker Drive, Suite 6600
Chicago, Illinois 60606
(312) 258-5500 (phone)
(312) 258-5600 (fax)
[email protected]

Beth D. Jacob
KELLEY DRYE & WARREN LLP
101 Park Avenue
New York, New York 10178
(212) 808-7800
(212) 808-7897

Barbara A. Miller
KELLEY DRYE & WARREN LLP
Washington Harbour, Suite 400,
3050 K Street, NW
Washington, D.C. 20007
(202) 342-8571

Counsel in Al-Zarnouqi v. Obama, Civ. No. 06-
1767 (RCL) (D.D.C.)



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Case 1:12-mc-00398-RCL Document 38 Filed 05/22/13 Page 12 of 13


Martha Rayner
Associate Clinical Professor of Law
Fordham University School of Law
Lincoln Square Legal Services
33 West 60th Street, 3d Floor
NY NY 10023
212-636-6941

Counsel in Sanad al-Kazimi v. Obama, Civ.
No. 05-2386 (RBW) (D.D.C.)

Geoffrey P. Eaton
Lauren B. Schuttloffel
D.C. Bar No. 494748
Winston & Strawn LLP
1700 K Street, NW
Washington, DC 20006
(202) 282-5000 (phone)
(202) 282-5100 (fax)
[email protected]
[email protected]

Gregory A. McConnell
Kimball R. Anderson
Benjamin P. Carr
Winston & Strawn LLP
35 W. Wacker Drive
Chicago, Illinois 60601-9703
(312) 558-5600 (phone)
(312) 558-5700 (phone)
[email protected]
[email protected]
[email protected]

Counsel in Mohammed v. Obama, Civ. No. 05-
2385 (UNA) (D.D.C.)




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Case 1:12-mc-00398-RCL Document 38 Filed 05/22/13 Page 13 of 13

CERTIFICATE OF SERVICE


I certify that a true and correct copy of Petitioners’ Emergency Motion Concerning
Access to Counsel, Proposed Order Granting Petitioners’ Emergency Motion Concerning Access
to Counsel, Exhibits A through I, and all attachments thereto were served today upon counsel of
record via the CM/ECF system.

Date: May 22, 2013





























Respectfully submitted,



/s/ Brian E. Foster
Brian E. Foster
D.C. Bar No. 988311
COVINGTON & BURLING LLP
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2401
(202) 662-6000 (phone)
(202) 778-6000 (fax)
[email protected]

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