Hatim v. Obama (In re Guantanamo Bay Detainee Litig.)

• Decision Date: 11 July 2013
• Docket Number: Misc. No. 12–mc–398 (RCL).,Civil Nos. 05–cv–1429 (RCL), 06–cv–1766 (RCL), 07–cv–2338 (RCL).
• Citation: 953 F.Supp.2d 40
• Parties: In re GUANTANAMO BAY DETAINEE LITIGATION. Saeed Mohammed Saleh Hatim, et al., Petitioners v. Barack H. Obama, et al., Respondents. Fadhel Hussein Saleh Hentif, et al., Petitioners v. Barack H. Obama, et al., Respondents. Abdurrahman Abdallah Ali Mahmoud Al Shubati, et al., Petitioners v. Barack H. Obama, et al., Respondents.
• Court: U.S. District Court — District of Columbia

953 F.Supp.2d 40

In re GUANTANAMO BAY DETAINEE LITIGATION.

Saeed Mohammed Saleh Hatim, et al., Petitioners

v.Barack H. Obama, et al., Respondents.

Fadhel Hussein Saleh Hentif, et al., Petitioners

v.Barack H. Obama, et al., Respondents.

Abdurrahman Abdallah Ali Mahmoud Al Shubati, et al., Petitioners

v.Barack H. Obama, et al., Respondents.

Misc. No. 12–mc–398 (RCL).

Civil Nos. 05–cv–1429 (RCL), 06–cv–1766 (RCL), 07–cv–2338 (RCL).

United States District Court, District of Columbia.

July 11, 2013.

Brent Nelson Rushforth, McKool Smith, Mason C. Clutter, National Association of Criminal Defense Layers, Washington, DC, for Guantanamo Bay Detainee.

Alan Arnold Pemberton, Brian E. Foster, Schuyler William Livingston, Jr., Covington & Burling, Aaron M. Tidman, John B. Missing, Debevoise & Plimpton LLP, Stephen M. Truitt, Esq., Washington, DC, David H. Remes, Silver Spring, MD, Jennifer R. Cowan, Debevoise & Plimpton LLP, Rebecca Briggs, Orrick, Herrington & Sutcliffe LLP, New York, NY, Scott B. Rapkin, Michael S. Rapkin, Law Offices of Michael S. Rapkin, Santa Monica, CA, for Petitioner.

Alexander Kenneth Haas, David Hugh White, Hector G. Bladuell, John P. Lohrer, Julia A. Berman, Kathryn Celia Davis, Kristina Ann Wolfe, Linda Beth Alberty, Mark A. Vetter, Nicole Newcomb Murley, Paul Edward Ahern, Paul A. Dean, Ronald James Wiltsie, Scott Douglas Levin, Scott Michael Marconda, William G. Kanellis, U.S. Department of Justice, Andrew I. Warden, James J. Gilligan, Jean Lin, Joseph Charles Folio, III, Judry Laeb Subar, Norman Christopher Hardee, Patrick D. Davis, Phillip Michael Truman, Robert J. Prince, Rodney Patton, Sarah Maloney, Terry Marcus Henry, Timothy Andrew Johnson, Timothy Burke Walthall, Daniel Mark Barish, David P. Avila, U.S. Department of Justice, Civil Division, Stephen P. Finn, U.S. Department of Justice, Environment and Natural Resources Division, Wynne Patrick Kelly, U.S. Attorney's Office, Civil Division, Washington, DC, Howard J. Needle, Howard J. Needle, P.C., Owings Mills, MD, for Respondent.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

I. INTRODUCTION

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 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 http:// www. whitehouse. gov/ the- press- office/ 2013/ 05/ 23/ remarks president- national- defense- 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.

II. BACKGROUNDA. Procedural Background

Before the Court is an Emergency Motion [37] to Enforce the Right of Access to Counsel filed by petitioners Abdurrahman Abdallah Ali Mahmoud al Shubati (ISN 224 ¹) 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), 2013 WL 950557 (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. Op., Hentif v. Obama, 810 F.Supp.2d 33 (D.D.C.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, 677 F.Supp.2d 1 (D.D.C.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, 677 F.Supp.2d 1 (D.D.C.2009), ECF No. 415.

B. 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 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 result, detainees must leave their cells and travel to Camps Delta...