Adem v. Bush, CIVA05CV00723RWRAK.

• Court: U.S. District Court — District of Columbia
• Writing for the Court: Kay
• Citation: Adem v. Bush, 425 F.Supp.2d 7 (D. D.C. 2006)
• Decision Date: 21 March 2006
• Docket Number: No. CIVA05CV00723RWRAK.,CIVA05CV00723RWRAK.
• Parties: Salim Muhood ADEM, Petitioner, v. George W. BUSH, et al Respondents.

425 F.Supp.2d 7

Salim Muhood ADEM, Petitioner, v. George W. BUSH, et al Respondents.

No. CIVA05CV00723RWRAK.

United States District Court, District of Columbia.

March 21, 2006.

Rachel G. Clingman, Fulbright & Jaworski, L.L.P., Murray Fogler, McDade Fogler LLP, Houston, TX, for Petitioner.

Terry Marcus Henry, U.S. Department of Justice, Civil Division, Preeya M. Noronha, U.S. Department of Justice, Washington, DC, for Respondents.

MEMORANDUM OPINION

KAY, United States Magistrate Judge.

Pending before the Court is Petitioner Adem's Motion to Hold Respondents in Contempt of the Protective Order [23] ("Peer Contempt Mot."), the Respondents' Opposition [26] ("Resp'ts Contempt Opp'n")¹ and Petitioner's Reply [28] ("Peer Contempt Reply"), as well as Petitioner's Motion to Expedite Petitioner Access to Counsel [31] ("Peer Mot. to Exp."),² a Supplement to the Motion to Expedite [32] ("Peer Supp."),³ Respondents' Opposition to the Motion to Expedite and the Supplement [33]/[34] ("Resp'ts Opp'n to Mot. to Exp."), and Petitioner's Reply in Support of his Motion to Expedite [35] ("Peer Exp. Reply").

In his motions, Petitioner claims that Respondents have refused and continue to refuse counsel access to Petitioner as required by the Protective Order. The Government insists that counsel provide written evidence of their authorization to represent the Petitioner before counsel will be allowed to meet with him. Upon consideration of the filings submitted by the parties, and following a conference with counsel for Petitioner and Respondents, the Court finds that a plain reading of the Protective Order dictates that Petitioner's counsel be allowed to meet with their client in order to obtain the very authorization of representation that Respondents insist be provided prior to any visits. Respondents are ordered to comply with the Protective Order and allow counsel to visit with Adem.

Factual and Procedural Background

At their core, the issues presented to this Court are about the right of detainees at Guantanamo to have access to counsel if they so choose. At some point in late 2004, well over a year ago, Petitioner Salim Muhood Adem asked for a lawyer to help him challenge his potentially indefinite detention without charge by the United States at the Naval Base in Guantanamo Bay, Cuba. Al-Rawi Decl. ¶ 5, attached as Exhibit A to Clingman Decl., attached as Exhibit 1 to Pet'r Mot. to Exp. Adem, who does not speak English, communicated his request for counsel to a fellow detainee, Mr. Bisher Al-Rawi, while they were housed together in Camp Delta. Al-Rawl Decl. ¶ 5. Adem knew that Al-Rawi, who speaks both English and Arabic, was represented by counsel and "he specifically requested that [Al Rawi] try to get him an attorney." Id. Al-Rawi passed Adem's request for counsel to his own lawyer, Brent Mickum, Esq. Id. ¶¶ 2-3. Mr. Mickum, in turn, found Adem a lawyer through the Center for Constitutional Rights, whose lawyers are "of counsel" in the majority of Guantanamo habeas cases.

Murray Fogler, Esq. volunteered to represent Adem free of charge and filed a habeas petition on his behalf in April of 2005. On Nov. 10, 2005, having obtained their security clearances, counsel for Adem requested permission to meet with their client. Fogler Decl. ¶ 6, Dkt. No. 25. Respondents, however, refused to permit counsel to meet with Adem absent written evidence either in the form of a "next friend" petition or directly from Adem authorizing counsel to represent him. Id. ¶¶ 7-9.

On December 9, 2005, Petitioner filed the instant Motion to Hold Respondents in Contempt for refusing to permit counsel to meet with Adem in violation of the Protective Order. Respondents filed their Opposition on December 22, 2006. On December 29, 2005, this Court met with counsel for Petitioner and Respondents. Petitioner's counsel agreed that they would seek additional information from Al-Rawi regarding the circumstances of his relationship with Adem. The undersigned deferred ruling on Petitioner's motions pending receipt of the additional information, which counsel submitted in early February.⁴

Adem has now had a lawyer for nearly a year. However, it is unclear if Adem even knows that his lawyer exists because Respondents refuse to acknowledge counsel's authority to represent him. Counsel for Adem seek to meet with their client in order to confirm that he does, in fact, want representation. See Pet'r Contempt Mot. at 2. Respondents insist that before counsel will be allowed to meet with their client, the Protective Order requires that they provide evidence of their authority to represent him.⁵ See Resp'ts Contempt Opp'n at 5. Alternatively, Respondents argue that Adem may convert his direct petition to a "next friend" petition. Id. at 11. However, as the pleadings in this and other Guantanamo habeas cases demonstrate, Respondents do not consider Al-Rawi to be a proper "next friend." Id. at 11-20. According to Respondents, only a family member or a close personal friend has standing to assert the interests of Adem through the "next friend" device. Otherwise, argue Respondents, how can the Court be assured that Adem really does want to challenge his detention? Id. at 18-19.

For reasons explained in this memorandum opinion, Respondents' arguments are misplaced. The Protective Order manifestly does not require evidence of authority to represent a detainee as a prerequisite to counsel meeting with a detainee. Rather, the Protective Order plainly provides that counsel who purportedly represent a particular detainee must provide evidence of their authority to represent that detainee within 10 days of counsel's second visit with the detainee. See Protective Order, Ex. A § III.C.2 Because Adem, through counsel, has filed a direct petition, the Court's Order rests on this holding alone.

However, as is explained in greater detail below, even if counsel had filed Adem's habeas petition through Al-Rawi as "next friend," the Protective Order would still grant counsel two visits with Adem directly (plus 10 days) before any challenge to Al-Rawi's standing as next friend would be ripe. Had Adem's habeas petition been filed through Al-Rawi as `next friend,' upon receiving evidence of counsel's authority to represent Adem directly, the Court would simply convert the "next friend" petition into a direct petition. If, on the other hand, evidence of counsel's authority to represent Adem is not forthcoming within ten days of counsel's second visit with Adem, then, and only then, would a motion to dismiss for lack of proper "next friend" standing be appropriate.

Analysis

I. History of the Protective Order and the Use of "Next Friends" in Guantanamo Habeas Cases

It appears to the Court that the dispute between Adem and Respondents is the result of unnecessary confusion over the use of the terms "friend" and "next friend." This confusion is unfortunate, but perhaps understandable given the history of the Guantanamo habeas cases. On June 28, 2004, the Supreme Court ruled that the District Court had jurisdiction to consider aliens' "habeas corpus challenges to the legality of their [executive] detention at the Guantanamo Bay Naval Base." Rasul v. Bush, 542 U.S. 466, 484, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004).

Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court's jurisdiction over petitions' custodians. Section 2241, by its terms, requires nothing more.

Id. at 483-84, 124 S.Ct. 2686

Prior to Rasul, the Government claimed authority to hold detainees at Guantanamo completely incommunicado and without access to counsel. Id. at 471-72, 124 S.Ct. 2686. Until Rasul, therefore the detainees at Guantanamo had neither access to the attorneys claiming to represent them nor the ability to personally seek relief from the courts reviewing their claims. Thus, Rasul and the related habeas cases were necessarily filed through other individuals, primarily relatives, acting as "next friends" as that term is traditionally used in the law. Id. at 471, 124 S.Ct. 2686. A "next friend," as traditionally understood, functions as a guardian ad litem, standing in the shoes of the real party in interest throughout the entire litigation when the real party in interest is unable to represent himself or herself.⁶

Once Rasul rejected the proposition of Guantanamo Bay as a legal black hole, the "next friend" device, at least as the term is traditionally understood in its legal context, became unnecessary to sustain a habeas petition because detainees could eventually access counsel directly. On July 19, 2004, the Court of Appeals for the D.C. Circuit remanded Rasul and the related cases back to the District Court for further proceedings in light of the Supreme Court's opinion. On remand, the Government began drafting proposed procedures that would govern detainees' access to counsel. See Rasul v. Bush, 215 F.Supp.2d 55 (D.D.C.2004) (Dkt. No. 51) (order instructing parties to file a joint status report and briefing schedule regarding proposed procedures for counsel access to detainees); Al Odah v. United States, No. 02-828 (D.D.C. July 23, 2004) (Dkt. No. 38) (order setting briefing schedule on issue of "all proposed procedures with respect to counsel access that the Government intends to apply to the Guantanamo Bay detainees").

On Oct. 20, 2004, Judge Kollar-Kotelly ruled on the merits of the Government's proposed procedures. Al Odah v. United States, 346 F.Supp.2d 1, 5-14 (D.D.C.2004). Al Odah set the parameters for the final Amended Protective Order and Revised Access Procedures subsequently approved by Judge Joyce Hens Green in In re Guantanamo Cases, 344 F.Supp.2d 174 (D.D.C.2004).⁷ In Al Odah, petitioners had challenged the government's proposed procedures for counsel access, which contained significant restrictions on attorneyclient communications, including real-time monitoring of counsel meetings...