In re Guantanamo Bay Detainee Continued Access to Counsel

Decision Date06 September 2012
Docket NumberCivil Action Nos. 04–1254 (RCL), 05–1638 (CKK), 05–2185 (RCL), 05–2186 (ESH), 05–2380 (CKK).,Miscellaneous No. 12–398 (RCL).
Citation892 F.Supp.2d 8
CourtU.S. District Court — District of Columbia


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

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




Eleven years after the September 11, 2001, attacks on the Pentagon and World Trade Center and the subsequent invasions of Afghanistan and Iraq, 168 people captured in the Global War on Terrorism remain detained at the United States Naval Base in Guantanamo Bay, Cuba (“Guantanamo”). This matter concerns six of those detainees. At its heart this case is about whether the Executive or the Court is charged with protecting habeas petitioners' right to access their counsel. Petitioners contend that the terms and conditions of this Court's 2008 Protective Order (“Protective Order” or “P.O.”) governtheir access to counsel regardless of whether they are currently petitioning for habeas relief. The Government argues that once a detainee's habeas petition is terminated, the Court's Protective Order expires and the Executive has the prerogative of assuring counsel-access. Upon consideration of the Motions [1, 2, 3, 4, 5, and 6], the Combined Opposition [12], the Replies [19, 20, 21, and 26], the oral arguments, the entire record herein, the applicable law and for the reasons below, the Court finds that the Protective Order governs access to counsel issues for Guantanamo detainees who have a right to petition for habeas corpus relief, whether or not such a petition has been dismissed or denied.2

II. BACKGROUNDA. Procedural Background.

In the process of litigating their individual habeas cases, petitioners Abdu Al–Qader Hussain Al–Mudafari (ISN 3 40), Hayal Aziz Ahmed Al–Mithali (ISN 840), Mohammed Rajeb Abu Ghanem (ISN 44), and Zakaria Al–Baidany (ISN 1017) each moved to dismiss their habeas petitions, without prejudice, conditioned on their continued access to counsel under the Protective Order. Resp. Opp. [12] at 1, Aug. 7, 2012.4 In the alternative, petitioners Al–Mudafari and Al–Mithali seek indefinite stays of their cases in order to ensure they continue to have access to counsel under the Protective Order. Id. Petitioners Uthman Abdul Rahim Mohammed Uthman (ISN 27) and Yasein Khasem Mohammad Esmail (ISN 522) had their petitions for habeas relief denied after full merits hearings.5 Counsel for these two petitioners requested permission under the procedures set out in the Protective Order to meet with his clients in May and August 2012. Esmail & Uthman Reply [21] at 7, Aug. 13, 2012. However, the Government denied counsel's requests and barred counsel from meeting with either detainee unless counsel signed a Memorandum of Understanding (MOU), promulgated by the Government that would henceforth set the terms for counsel-access. Esmail Mot. [1] at 2; Uthman Mot. [2] at 1. Esmail and Uthman now move the Court for an Order affirming that the Protective Order continues to apply to them. Resp. Opp. [12] at 1.6

The Government objects to court-ordered counsel-access under the Protective Order for all six petitioners and argues that the Protective Order ceases to control counsel-access in the absence of a pending or imminent habeas petition. Resp. Opp. [12] at 1–2. The Government believes that the Protective Order, or at least its counsel-access provisions, expires once a detainee's original habeas petition has been adjudicated on the merits or the case is dismissed. Id. at 26–31; Hr'g Tr. 6–7, Aug. 17, 2012. The Government warns that should the Court find for the detainees in this case, such a holding would constitute an abuse of discretion as it would result in a permanent injunction without the required showing of actual harm necessary for such an “extraordinary remedy.” Id. at 2–3.

The universal nature of the counsel-access question cried out of singular resolution. The Court, upon motion by Respondents, and after telephonic consultations on July 27 with counsels for various petitioners and the Government, and after further discussions with Judges Huvelle and Kollar–Kotelly, decided to consolidate the disparate motions into a single miscellaneous case. See, e.g., Ghanem, et al. v. Bush, et al., 05–cv–1638 (CKK), Opp. & Cross–Mot. [264] at 2, July 26, 2012. The above captioned miscellaneous case was opened and this Court entered a scheduling order for briefing and oral arguments.7 Sched. Order [7] at 1–2, July 27, 2012. Oral arguments were held on August 17, 2012.

B. Legal Background.

In the ten years since the first detainees were brought to Guantanamo Bay, only a handful have been tried or convicted. Despite this, the Government has fought to deny detainees the ability to challenge their indefinite detentions through habeas proceedings. 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, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004). Congress then twice amended the Federal habeas statute, 28 U.S.C. § 2241, in an effort to overturn the Supreme Court's ruling. Congress first 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, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006). Next, 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 invalidated the jurisdiction-stripping provisions of the MCA and declared that detainees have a constitutional right to petition for habeas relief. Boumediene v. Bush, 553 U.S. 723, 732, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). 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, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004); Al Odah v. United States, 346 F.Supp.2d 1, 5 (D.D.C.2004).

These rulings raised significant questions about counsels' access to detainees and classified information. The 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, 299, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). 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). Judge Joyce Hens Green was designated 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 she issued an “Amended Protective Order and Procedures for Counsel Access to Detainees,” which set guidelines and procedures for counsel-access to both detainees and 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 over every minute issue of counsel-access.

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 in order to facilitate the expeditious resolution of Guantanamo habeas cases. In re Guantanamo Bay Detainee Litig., Miscellaneous No. 08–442(TFH), Order [1] at 1–2, July 2, 2012. Judge Thomas F. Hogan was designated, 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 to be transferred to Judge Hogan for case management and...

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4 cases
  • Hatim v. Obama (In re Guantanamo Bay Detainee Litig.)
    • United States
    • U.S. District Court — District of Columbia
    • July 11, 2013
    ...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 t......
  • United States v. Kirkaldie
    • United States
    • U.S. District Court — District of Montana
    • May 22, 2014
    ...(holding that a citizen-detainee “unquestionably has the right to access to counsel”); see also In re Guantanamo Bay Detainee Continued Access to Counsel, 892 F.Supp.2d 8, 28 (D.D.C.2012) (confirming access to counsel for non-U.S. detainees held at the U.S. naval base in Guantanamo Bay). Th......
  • Al-Zarnouqi v. Obama
    • United States
    • U.S. District Court — District of Columbia
    • May 6, 2013
    ...determined that the Protective Order remained in effect whether or not a detainee had an active case. In re Guantanamo Bay Continued Access to Counsel, 892 F.Supp.2d 8, 28 (D.D.C.2012) (“Counsel Access decision”); Order 1–2, Misc. No. 12–398, ECF No. 32. Although the government never filed ......
  • Alhag v. Obama, Case No. 05–CV–2199 (RCL).
    • United States
    • U.S. District Court — District of Columbia
    • September 27, 2012
    ...It is hereby ORDERED that this action be stayed until this Court's Order in In re: Guantanamo Bay Detainee Continued Access to Counsel, No. 1:12–mc–00398–RCL, 892 F.Supp.2d 8, 2012 WL 4039707 (D.D.C. Sept. 9, 2012) becomes final, either by the passing of the government's time to appeal or s......

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