MUHAMMAD HUSAYN v. GATES

Filing 638

ORDER finding as moot in part and denying in part 399 Motion for Sanctions. Signed by Judge Emmet G. Sullivan on 5/30/2023. (lcegs1)

Case 1:08-cv-01360-UNA Document 638 Filed 05/30/23 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ZAYN AL ABIDIN MUHAMMAD
HUSAYN (ISN #10016),
v.

Petitioner,

LLOYD AUSTIN, et al.,

Civil Action No. 08-1360
(EGS)

Respondents.
ORDER
Pending before the Court is Petitioner’s Motion for
Sanctions Due to Respondent’s Improper Seizure and Review of
Documents That Are Subject to the Attorney-Client Privilege and
the Work Product Doctrine, see generally Pet’r’s Mot., ECF No.
399; 1 which Respondents oppose, see Resp’ts’ Opp’n, ECF No. 340.
Upon careful consideration of Petitioner’s motion, Respondents’
opposition, the reply thereto, and for the reasons explained
below, the Court FINDS AS MOOT IN PART AND DENIES IN PART
Petitioner’s motion.
Petitioner “moves the Court to order a hearing and impose
sanctions against Respondents for wrongfully and improperly
seizing and reviewing legal materials in Petitioner’s possession
that were known, or should have been known to be subject to the
When citing electronic filings throughout this opinion, the
Court cites to the ECF header page number, not the original page
number of the filed document.
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Attorney-Client Privilege and/or the Work Product Doctrine.”
Pet’r’s Mot., ECF No. 399 at 1. Petitioner states that once
counsel learned of the “improper document sweep,” they requested
confirmation of the incident from Respondents’ counsel, but no
response was received as of the date of the filing of the
motion. Id. at 6. Petitioner seeks the following relief: (1) a
hearing regarding the incident; (2) a written explanation from
the Government of the basis and justification for the search,
including identifying all documents that were seized and
reviewed; (3) confirmation of whether seized documents were
returned to Petitioner and whether any copies were retained by
the Government; (4) require the Government to confirm in writing
that no irregularities or abuses were determined to exist in
connection with Petitioner’s legal mail; and (5) that the Court
impose appropriate sanctions against the Government. Id. at 7.
Respondents oppose, stating that the October 2011 security
inspection was “in fact a carefully executed security inspection
of detainee cells that involved no content review of
Petitioner’s privileged communications” and that “Petitioner is
not entitled to any relief in this matter because the Government
may properly conduct contraband inspections to protect security
at the . . . Guantanamo . . . facility.” Resp’ts’ Opp’n, ECF No.
340 at 1. Respondents represent that “the inspection was
conducted in a manner that respects the confidentiality of
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properly-marked communications from his counsel” and so
Petitioner is not entitled to sanctions. Id. Finally,
Respondents state that the Government has responded via letter
to “Petitioner’s request for information concerning the purpose
and justification of the searches and its execution.” Id.
Respondents attach the letter to their opposition briefing. See
id. at 26-27.
Respondents have attached a sworn Declaration of the thenStaff Judge Advocate of Guantanamo to their opposition briefing.
See Decl. of Commander Thomas J. Welsh, ECF No. 340 at 21-24.
The Declaration describes the separate processes for screening
non-legal mail by Guantanamo staff, for inspecting legal mail
sent to detainees by attorneys representing them in habeas
proceedings by the Habeas Privilege Team, and the procedures
governing written communications between detainees and their
military commission defense counsel. See id. ¶¶ 5, 6, 8. The
Declaration states that the latter procedure resulted in
inconsistencies in the manner in which the communications were
initialed and that in addition, the Guantanamo “Commander was
concerned about some contraband materials that were discovered
within the detention facility and which appeared to have not
undergone any security screening.” Id. ¶ 9. Accordingly, “in
October 2011, a one-time security inspection or ‘baseline
review’ [was] conducted of all the materials in the cells of the
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detainees in [the] camp [where Petitioner resides], for the
purposing of ensuring that documents properly in those cells
were marked as having been through an appropriate procedure. As
part of that process, documents bearing a security screening
stamp from the Habeas P[rivilege] T[eam] were to be immediately
cleared, stamped by the guard force with a new uniform marking,
and returned to the detainee as soon as possible without any
further review.” Id. ¶ 11. The Declarant avers that “the
contents of documents inspected were not disclosed outside of
the security inspection team.” Id. ¶ 12.
Petitioner dismisses Respondents’ opposition in a one-and-a
half-page Reply briefing as “utterly self-serving” but provides
no substantive response to Respondents’ averments and arguments.
See generally Reply, ECF No. 425.
In view of Respondents’ opposition briefing and February
22, 2012 letter, the following of Petitioner’s requests are
largely moot: (1) a written explanation from the Government of
the basis and justification for the search, including
identifying all documents that were seized and reviewed; (2)
confirmation of whether seized documents were returned to
Petitioner and whether any copies were retained by the
Government; and (3) require the Government to confirm in writing
that no irregularities or abuses where determined to exist in
connection with Petitioner’s legal mail. The Court notes that it
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took Respondent four months to respond to Petitioner’s email
query. The Court expects Respondent to respond to requests such
as these in a prompt fashion. In view of the Declaration
provided, and Petitioner’s failure to respond substantively to
Respondents’ opposition briefing, the Court concludes a hearing
and sanctions are unwarranted.
For the reasons stated above, it is hereby
ORDERED that Petitioner’s Motion for Sanctions Due to
Respondent’s Improper Seizure and Review of Documents That Are
Subject to the Attorney-Client Privilege and the Work Product
Doctrine, and Related Relief, ECF No. 342 is FOUND AS MOOT IN
PART AND DENIED IN PART AND.
SO ORDERED.
Signed:

Emmet G. Sullivan
United States District Judge
May 30, 2023

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