IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 1577

TRANSCRIPT OF PROCEEDINGS before Judge Thomas F. Hogan of proceedings held on 08/26/08; Page Numbers: 1-41. Date of Issuance:02/04/09. Court Reporter/Transcriber Catalina Kerr, Telephone number 202.354.3258, Court Reporter Email Address : [e-mail] the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov. Redaction Request due 2/25/2009. Redacted Transcript Deadline set for 3/9/2009. Release of Transcript Restriction set for 5/5/2009.(Kerr, Catalina)

IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Doc. 1577

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA --------------------------X IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Docket No. MC 08-442 CA 02-828 Washington, D.C. August 26, 2008 11:10 p.m.

---------------------------X ORAL ARGUMENTS BEFORE THE HONORABLE THOMAS F. HOGAN UNITED STATES DISTRICT JUDGE APPEARANCES: For the Petitioners: Pillsbury Winthrop Shaw Pittman, L.L.P. By: Mr. David J. Cynamon 2300 N Street, N.W. Washington, DC 20037 202.6636.8000 [e-mail] For the Respondents: United States Department of Justice Civil Division, Federal Programs Branch By: Mr. Alexander K. Haas 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 202.305.9334 [e-mail] Catalina Kerr, RPR U.S. District Courthouse Room 6716 Washington, D.C. 20001 202.354.3258 [e-mail]

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Proceedings recorded by mechanical stenography, transcript produced by computer.

Dockets.Justia.com

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P-R-O-C-E-E-D-I-N-G-S (11:10 A.M.; OPEN COURT.) THE COURT: Good morning, Counsel. Your Honor, this morning, this is

THE DEPUTY CLERK:

in In Re: Guantanamo Bay Detainee Litigation, Miscellaneous No. 08-442; also Civil Action No. 02-828. I'd ask the parties to step forward and identify yourselves for the record, please. MR. CYNAMON: Good morning, Your Honor. David

Cynamon appearing for the petitioners. THE COURT: MR. HAAS: for Respondents. THE COURT: All right. All right. Mr. Haas, thank you. All right. Thank you, Mr. Cynamon. Alexander Haas

Good morning, Your Honor.

Before the Court today is Petitioner's

motion for injunctive relief; originally filed an emergency injunction about six weeks ago and it's now ready for a hearing. Petitioners Fayiz Mohammed Ahmed Al Kandari and

Fouad Mahmoud Al Rabiah's motions involving the Office of the Chief Prosecutor of Military Commissions and its Investigative Task Force Unit, anyone at their request or the direction, from communicating with Petitioner without Petitioner's counsel, consent. And so I've had a chance to review the petition and the opposition and reply and looked at the law a little bit on

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it, so I'll hear from counsel.

Petitioners first and then

I'll hear from the Government after that and give you a chance at a brief reply. All right. Thank you. Mr. Cynamon.

MR. CYNAMON:

May it please the Court, the relief

that Petitioners seek in this motion is straightforward, but it is of fundamental importance to protecting the integrity of these habeas proceedings. What we are asking the Court to do

is to prohibit Government counsel from communicating with our clients, either directly or through their agents, without our knowledge or permission about the very allegations in this habeas case, and thereby in violation of the ethical rules of conduct to which Government counsel are unquestionably bound. If the Government counsel are allowed to do this, as they have already done, it will undermine our attorney/client relationship with our detainee clients and thereby prejudice our clients' ability to pursue the core habeas rights to which the Supreme Court has held they are entitled. THE COURT: You don't see the distinction with the

Military Commissions people and other counsel for the Government who may be involved in a habeas case interviewing your client? MR. CYNAMON: None whatsoever, Your Honor, because

the touchstone is not which Government counsel happened to be talking to our clients. It's what they are talking to our

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clients about.

Rule 4.2, which appears pretty much in

identical guise in all the ethical codes that might be applicable here, and the one we point to in our brief, Your Honor, is Rule 4.2 of the Army Code of Professional Ethics to which the Chief Military Prosecutor is unquestionably bound, and what that prohibits, as all rule -- all the no-contact rules prohibit, is that an attorney cannot talk about the subject of the representation with the party that the lawyer knows to be represented by another lawyer in the matter. THE COURT: In the same matter. Yes. Now, the matter here, Your

MR. CYNAMON:

Honor, are these habeas cases, and what the Government lawyer -- lawyers are communicating with our clients about are the allegations in these habeas cases, and I say that both for two reasons. We know that because as my client, Mr. Al

Kandari, reported to me, the representative of the Criminal Investigation Task Force spoke with him about an incident that occurred in Kuwait after he was already in Guantanamo and that incident is one of the specific grounds that are listed in his CSRT proceeding and in the factual return the Government filed in this case as a basis for his detention. I also say it because it necessarily is the case that any Military Commission charge will inevitably involve the allegations of these -THE COURT: I understand that. They can't be found

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as unlawful enemy combatants, I mean, unless they have evidence to show that. That evidence should be theoretically

some of the same evidence they'd use in the Military Commission charges. MR. CYNAMON: THE COURT: Exactly.

How -- what is your representational

status in the Military Commission area? MR. CYNAMON: Well, of course, there is no Military

Commission hearing yet involving -THE COURT: that. MR. CYNAMON: -- investigation. We -- we are An investigation ongoing, I'll just say

counsel for the Petitioners for all purposes, including the Military Commission proceeding, and I say that because our clients have authorized us to represent them for all purposes. The rules clearly provide that the scope of an attorney's representation of his client is determined by the attorney and the client, not by some third party. The

Government doesn't get to decide to what extent we get to represent our Petitioners, and -THE COURT: The Petitioners have a right to civilian

counsel once they are charged by the Military Commission? MR. CYNAMON: Yes, the Petitioners have the right to

civilian counsel at no cost to the Government, and we are that counsel. Indeed, we --

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THE COURT: that attaches? means charged?

But don't they have to be charged before

Say "accused," in that interpretation, that

MR. CYNAMON:

Well, I'm not sure.

I suppose as a

technical matter we can't very well enter our appearance on their behalf until there's a matter for us to appear in, but I don't see that there's any reason why, if our clients choose, you know, having been told that they are under investigation for Military Commission proceedings, why they can't retain us in advance of that, and I don't see on what basis the Government can say, "Well, we refuse to recognize that engagement." Again, the rule is that an engagement by a client is determined by the client and the attorney. And again, I do

want to emphasize, I think that the distinction that the Government is attempting to make here between representation for habeas purposes and Military Commission purposes is entirely artificial, because otherwise, it just destroys entirely the no-contact rule as it applies to habeas proceedings, because, of course, any discussion about potential Military Commission charges will involve these cases. THE COURT: How do we jump over the elephant in the

room we haven't talked about, and that is, the jurisdictional issue under the MCA or the Section 3 and the second part of

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Section 7? MR. CYNAMON: Well, Your Honor, I really think that That elephant is in an

that elephant is not in this room.

entirely different room and actually hasn't even reared its trunk. There are no Military Commission proceedings, and we

are not asking Your Honor to issue a ruling with respect to any Military Commission proceeding whatsoever. We are not asking the Court to rule on what the Government may investigate, what they may be charged with or anything else. What we are asking for is the Court to rule

that no Government counsel, whether that counsel happens to be counsel sitting at the table here today or whether it's the Chief Military Prosecutor or one of his staff, that none of them can communicate with our clients without our knowledge and permission about the allegations in this habeas case. That's all we're asking about. So I think the Government's lengthy discourse about the jurisdictional issues involving Military Commission is something that this court really doesn't have to even reach or consider. We're not asking the Court to take any steps there. If I might point out, Your Honor, if the Government's argument were followed to its logical conclusion, then this court would have no jurisdiction to hear these habeas cases because, of course, as Your Honor has already recognized, these habeas cases are a necessary predicate to

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any Military Commission charges. If we are successful in the habeas cases on behalf of our Petitioners, a fortiori, there will be no Military Commission charges because they will not have been found to be enemy combatants. THE COURT: What exactly, besides this ethical rule

that you're saying the Government violated, would give me a basis for issuing a preliminary injunction? the harm that can't be cured later? I mean, where is

It seems to me this is That is, it's

very analogous to a Kastigar situation.

analogous -- Kastigar is a case I will give to you. That's where the -- your client is subpoenaed and given immunity in a congressional hearing, and there is a co-- at that time, ongoing criminal investigation. It's what

happened in the Iran Contra, and the client then is compelled to testify in Congress. Then the independent prosecutor in They have to

that case, or the prosecutors, bring charges.

show none of their evidence is related to the evidence that was compelled to be given. And if they can't do that, the

charges are dismissed, and Kastigar is an example of that. But if you can't show that your evidence is totally separate and apart, has nothing to do with what the individual is compelled to testify to previously, you can't bring the case. And in Colonel North's case, that's what happened, and

that's why -- they couldn't show, they didn't learn anything

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from the testimony in Congress. Isn't that the result here, could be that instead of saying there is irreparable injury because it interferes with lawyer/client privilege relationship, that if the Government comes here and attempts to use certain evidence to show why, if that's their burden, or to respond to whatever you produce, that they should be -- that this man should be held as an enemy combatant, you could say they can't use it unless they got it improperly, they violated the attorney/client privilege by getting it? Isn't that how you solve that problem rather

than enjoin the Government from investigating? It does affect the Military Commission. You say it

only affects the habeas, but it does affect their rights to proceed with the Military Commission. MR. CYNAMON: make several points. Your Honor, let me address that and

First of all, this is not -- although we

are asking for injunctive relief in the sense that we're asking the Court to prohibit the Government's attorneys for doing something, this is not a preliminary injunction motion in the sense that we are seeking to preserve the status quo pending a final determination on the merits. This is really collateral to the merits and seeks to preserve the integrity of the very adversary proceeding that will determine those merits. So I think that in that regard,

what this really is, is a motion under which this court's

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authority exists under both the All Writs Act and the Court's inherent authority, which the Government has conceded, the inherent authority to control the proceedings before it and the conduct of counsel for the parties before it. So, I think that there's really no doubt and the Government doesn't dispute that this court does have that authority to control the conduct of counsel. As to why it would not be equally effective to wait until there were some attempt by the Government to use information that it would glean by -- through violations of the ethics code, I think there are two problems with that. One is, of course, it's somewhat difficult to trace the fruits of the poisonous tree. If there's an improper

ethical conduct, then certain statements are obtained and then further leads are taken from that. It may be difficult to

follow, but I think there's a more fundamental point. As the ABA's formal opinion that we cited in our brief points out, one of the principal purposes of the no-conduct -- no-contact rule is to protect the attorney/client relationship from being undermined by an adversary, and that's a particularly acute concern in this case, given the very difficult situation we have in being able to communicate with and represent our clients. And the problem with just focusing on what evidence or information the Government might glean by unethical conduct

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doesn't address the problem of the damage it does to the relationship we have with our clients. If we have to wait

until our clients actually fire us or start being more reticent about talking with us because they know that the Government lawyers and the staff can come in and talk to them whenever they want, if we have to wait till that point, the damage will already be irrevocable and I don't believe that the ethical rules -- I'm not aware of a case that says that the Court cannot enforce the ethical rules in attorneys in cases before it until the victim shows some tangible damage. If I can use an analogy, an ethical rule that more commonly comes up in litigation is the violation of the no conflict rules, and there, if an attorney represents -- is adverse to a former client and it's shown that the attorney is adverse to the former client on a substantially related matter, there is then an irrebuttable presumption that the attorney has gained confidential information from that former client. The former client is not obligated to come in and show that in fact there was. And I would submit that

similarly here, there's no basis for saying that the Government counsel gets to undermine the relationship we have with our client, which is tenuous as it is. I will tell you

that they do not have much faith in our legal process, and from their perspective --

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THE COURT:

You have an affidavit from prior

MR. CYNAMON: THE COURT:

What's that?

You have an affidavit from prior counsel

that was concerning about allegations of statements made to the detainee and by prior counsel. MR. CYNAMON: Correct. And, Your Honor, I'm not

suggesting for a moment that the Government cannot continue to investigate and prepare whatever charges it believes it may have here. methods. It can investigate through other information it has. Why would it need -- I mean, I suppose in any criminal case it would be nice if the prosecutors could waltz in and talk to the defendant or prospective defendant without regard to the fact that the defendant might be represented by counsel. one of the, you know, essential elements of our adversary system is that when parties are represented by counsel, they have a right to full and effective representation, and I think Judge Kollar-Kotelly wrote very eloquently on that very point in this very case. I think we quoted from it. But I mean, the Government can do that through proper

In these cases, in particular, these Petitioners will have no meaningful habeas rights if they do not have meaningful representation by counsel. And I submit to Your

Honor that allowing the Government to undermine that core

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relationship by violating one of the basic rules of the code of ethics, the no-contact rule, would do a great deal of damage. So, that's why I think it would be, if you will, too little and too late to limit us to seeking to exclude information that is improperly obtained. You know, Your Honor, I think those are the principal points I make. Obviously, to the extent the Court

has further questions, I'd be happy to address any other concerns you may have. THE COURT: All right. Have you had any opportunity

to discuss this with the Government to try to resolve this situation about what could be done or not done? MR. CYNAMON: Well, our opportunity to discuss

things with the Government usually -- usually result in, "I'm sorry. We're not really authorized to talk to you about any I think you've seen the communications that --

of this."

we've attached them, the e-mail communications between my colleague, Mr. MacLean and Colonel Morris, and he was pretty blunt. He says, you know, "I'm going ahead and doing it." And so there has been no indication of any -- you know, any view by Government counsel that they will change their view in that. I would also point out, encourage Your Honor to take a look at a case that the Government cites actually. They

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cited a recent decision from the District of Oregon, the Al-Haramain case. It was just decided in June of this year,

and they cite it for the proposition that the Court can't grant a preliminary injunction on a matter not outlined in the complaint. As I have explained, this is not really a preliminary injunction, but the part of the case that they ignore that I think significant is where the Court addresses the concern expressed by the Plaintiffs that not only is the Government in that case allegedly intercepting privileged communications, but the Government counsel are looking at privileged communications and making use of that. And in that

respect, the Court, in the slip opinion, specifically agrees that he has authority to control the process of the litigation, has authority to control the Government counsel but points out that in that case the plaintiffs provided no evidence that Government attorneys were in fact doing anything unethical. And indeed, he points out, the Government counsel

have assured Plaintiffs and me that they understand and take seriously their ethical obligations. In this case, we have precisely the opposite. have a flat statement by Government counsel, the Chief Military Prosecutor that he has no obligation whatsoever to adhere to Rule 4.2 and we have undisputed evidence that such a communication has occurred. So, I think that the Al-Haramain We

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case actually further supports the conclusion that this court has the authority and should exercise the authority to enforce the ethical rules. THE COURT: Obviously, we have an overlap with the The

habeas issues and the Government Military Commission.

Military Commission issues in part and you have a statute depriving us of jurisdiction, and that concerns me. What type of order were you envisioning for the Court? Because one of the problems I had, and I read through

it, is the breadth of your order as submitted would be basically, I think, barring the Government from investigating very much at all about the charges they wish to bring against the Petitioner. MR. CYNAMON: Well, Your Honor, I mean, I didn't --

I didn't perceive that the relief we're requesting here is any broader than what the ethical rule requires, which is that the Government counsel or agents acting on behalf of Government counsel cannot communicate directly with our clients without our knowledge and permission. doesn't -THE COURT: The order submitted originally, the one It doesn't -- as I say, it

that Judge Kotelly that was just now before me, filed July 2nd, alleges that -- states that neither the Military Commission's Chief Prosecutor nor anyone else on their behalf shall have any communications with the Petitioners without

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consent of Petitioners' counsel relating to matters alleged to be grounds for their confinement, including any matters for which Military Commission charges may be brought. So, I mean, you want to have no communications at all with the detainee, basically, without your permission or your being present, basically, because condition of confinement cover everything, the way I read that. MR. CYNAMON: confinement. Yes. Well, it's not conditions of

It's grounds for their confinement; in other

words, the basis for why they're there, which is are they or are they not enemy combatants, and that's -- that's really it. I would point out, Your Honor, that this order would not prohibit communications by the Government with our clients that are not by or at the behest of Government counsel for use in this case. For example, nothing in what we're requesting here would require -- would prohibit legitimate intelligence gathering efforts by Government attorneys -- not Government attorneys -- by Government interrogators at the Department of Defense engaged in legitimate intelligence gathering. Now, it's kind of a moot point in our case. My

clients have not been interrogated for quite a long time, because presumably, since they've been in Guantanamo for almost seven years, they have nothing of value to provide, but we're not suggesting that the Government, as a whole, is

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precluded from engaging in proper intelligence gathering or whatever. What we are saying is that Government lawyers who

are involved in these cases and under the ethical rules cannot violate those ethical rules by talking to our clients. I do not think that that is an overly broad order. I do not think it in way affects the ability of the Government to investigate, prepare, prosecute whatever cases, other than to the extent, as I said before, that any limitation on the Government, be it in these cases, be it in criminal cases, that prevents them from talking with defendants without the consent of their counsel is a limitation, but I submit that that's a necessary concomitant of our adversary system and the ethical rules that were built up to protect that adversary system. THE COURT: Mr. Cynamon. MR. CYNAMON: THE COURT: Mr. Haas. MR. HAAS: May it please the Court. By seeking to Thank you, Your Honor. On the Government's behalf, All right. Thank you very much,

All right.

enjoin the office or communications by Office of Military Commission attorneys that by Petitioners' own allegations relate directly to the bringing of Military Commission charges, Petitioners ask this court for remarkable injunctive relief that goes to the very heart of the Military Commission

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progress. Congress has expressly withdrawn jurisdiction to consider such claims, such as the Petitioners here, that concern either the Military Commission process on the one hand, or on the other, to the extent that these claims truly do relate to the habeas case, they seek relief as to ancillary issues distinct from challenges to the legality of the detention, or as my opposing counsel just stated, ones that were, quote, collateral to the merits. Now, whatever the appropriate form may be to evaluate ethical charges by OMC personnel in these OMC communications with Petitioners, surely this court is not it. At bottom, Petitioners' motion has been brought in the wrong form and at the wrong time. THE COURT: Didn't they try to bring it before the

Commission and were told they couldn't? MR. HAAS: They did. They did try to bring it. It

was dismissed without prejudice for lack of jurisdiction, but I don't think that they argue and we certainly don't argue that they couldn't bring it when charges were actually brought. THE COURT: How do you address the overlap where the

charges would necessarily relate to the reasons why they are being declared enemy combatants and held and have to justify that eventually here in our court in the habeas matters? I

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don't understand the difference. between the two? MR. HAAS:

How do you distinguish

Well, I think in even the ordinary case,

Your Honor, the Petitioner -- the relief that's sought would be remarkable. And taken to its logical ends, they

essentially ask this court to conclude that representation in a civil matter, such as this habeas case, is an absolute shield to investigative inquiry of criminal charges by separate attorneys. the norm. In fact, as I understand it, the opposite is true, and that in cases where you have both civil and criminal potential liability, for example, in False Claims Act or CERCLA or securities actions cases, it is permissible at the pre-indictment stage to have interviews. Now, in fact -THE COURT: Are they represented by counsel, without I'm aware of no set of cases where that's

counsel's knowledge, in a civil case, you could go and interview the -MR. HAAS: Well, again, it goes to what the matter

is, of course, Your Honor, and we haven't addressed the merits of 4.2, but I point out, consistent with the Court's questions about the representational status that the statute is quite clear in defining the legal relationship, the attorney/client relationship here.

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10 USC 948k(a)(3) states specifically that the provision of detailed defense counsel occurs only after the swearing of charges in the Military Commission case. And with

respect to the -- whatever subjective feeling that Petitioners and their counsel may have about the scope of their representation, I think that the law is clear. THE COURT: first point here. I'm still concerned that -- on your

If there's counsel representing an

individual, I don't care if it's civil or criminal, let's just say in a civil case because that's what you're saying, these are civil proceedings, and the Government wished to investigate that person for other reasons, criminal matters, that necessarily include the civil case basis, they are free to go and talk to this individual without their individual's counsel's permission or knowledge. MR. HAAS: Well, again, Your Honor, I think that the

easiest answer here is to focus on the comments to Rule 4.2 itself. Comment 2 states that communications authorized by

law include constitutionally permissible investigative activities representing governmental entities, directly or indirectly, prior to the commencement of civil or criminal proceedings, and they're separate proceedings. The same is true here. The OMC and Military

Commission proceedings are separate, and frankly, that's why Congress wanted to funnel specific claims through that

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process, and that's why, through the review channeling provision that we cited in Section 3 of the MCA, Congress withdrew jurisdiction over claims just -- just as these. THE COURT: Well, Congress obviously had a overall

picture where they had included habeas, as well, being outside our ambit, and when that's been tossed by the Supreme Court, I think it changes the field somewhat that we're playing on. MR. HAAS: THE COURT: Well, I don't think -I'm concerned because it seems to me --

I don't know how you distinguish between the grounds for habeas and interviewing the detainee, be that whatever they want to interview them about, about the nature of charges that could be brought against them in the Military Commission. Won't they necessarily overlap in that what they learn in their interviews in the criminal investigation could be used against a detainee in the civil case here? MR. HAAS: Well, again, there's no evidence that

that has actually occurred, Your Honor. THE COURT: Well, I'm not saying -- it's

speculation, I understand that, but I mean, isn't that true, that that could happen? MR. HAAS: that's -THE COURT: If he's charged with committing a war Well, could it happen? I suppose

crime, whatever it may be, wouldn't that necessarily be the

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grounds of why they're trying to hold them as an enemy combatant? MR. HAAS: Well, not necessarily, no. I think that

there are -- there could be independent bases for a Military Commission charge and for holding somebody in a habeas case. I think it would depend on the facts of the particular case, but again, that's not a question I think we can talk about in the abstract. later stage. I guess I would also point out, though, that even to the extent that this claim relates to the habeas litigation, and I am somewhat dubious about that, because I think it is inextricably intertwined with the Military Commission process, and then, therefore, subject to Section 3 of the MCA, we believe and I think Judge Urbina recently agreed in the Vighur cases that part of Section 7 applies. I guess, before I get too ahead of myself, I would point out also that the Petitioners have really only pointed to the lack of formal charges as the reason why Section 3 doesn't apply. I find that entirely unconvincing, It's one that can addressed by the Court at a

particularly in light of the argument or the precedent in this circuit concerning exclusive review forwarded to the -- or entrusted into the courts of appeals. Telecommunication

research and action committee v. FCC and the companion case that comes right after it are prime examples that show that

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the mere fact that some agency action has not yet occurred is not a basis to allow a district court to oust the jurisdiction of the court of appeals. The interesting thing, Your Honor, about that case is that it was the D.C. Circuit that relied on the All Writs Act to ensure that it had exclusive jurisdiction over its -over any future case. THE COURT: I think that would squarely apply here. What about the practice of -- since this

is a civil matter, you're saying, the habeas and the Military Commission criminal matter, of the Government attorney, relays a discussion with habeas Petitioners, setting aside the Military Commission, are those not charged or contemplated to be charged for a Military Commission, is it the Government's position that Government attorneys are there represented in the interview of the detainees about matters that will be coming before the Court as to their status as enemy combatants representing detainees? MR. HAAS: Your Honor, the OMC personnel do not We don't --

represent the Government in habeas cases, period.

and Government counsel in the habeas cases don't control them and their actions. THE COURT: intertwined." You used the word "inextricably

I think that's right, and it does concern me

because obviously there are ethical rules binding all attorneys that we all agree to that it seems to me would

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normally not be having our representatives ourselves interviewing the other's client without counsel's knowledge. MR. HAAS: And I'd point out, there's no allegation

that Government habeas counsel are engaged in these contacts. THE COURT: I understand that. But there's no

question that the Military Commission people have begun their investigation or continued with it by interviewing the detainee. From the e-mails from the Colonel, it's obvious

they feel they have the right to do that, regardless if they're represented, and regardless if they also represent the military matter because they said they are not yet charged so they don't have the right to representation. MR. HAAS: But again, there is an avenue open to As soon as they

petitioners to challenge these very things.

are charged, they can preserve these arguments, they can have an Article III court look at them, and if the Court upholds it at -- by necessity, makes it okay to use it here. THE COURT: Would not the Government have some

concerns that if this military proceeds this way in these cases, that we will end up with hearings here in court as to the legitimacy of the evidence attempting to be used against the detainees to hold them as enemy combatants before us if they -- some of that evidence may have come or be tainted by the criminal investigation that was done without a lawyer present?

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MR. HAAS:

Well, again, that would present, I think,

a more concrete factual situation that would allow us to, I think, make a determination, and in fact, formally brief whether or not we felt that there was a 4.2 violation that had occurred. But I think, as the Court recognized, there are

also other remedial aspects that the Court could employ should that situation arise. THE COURT: I mean, I would think it would be a

concern, because, as I said, it's a little analogous to Kastigar, but the Court could then limit the evidence that could be used before this court that was gathered by the Military Commission people and attempted to be used here, particularly where there's the same basic charges in each case. I mean, that's my concern. The Government may end up

unwittingly, not because they wished that it happened that way, but where they could have problems here with the validity of the evidence that was gathered by the Criminal Investigation Task Force or the Military Commissions people. That's a concern for the Court. How do we answer the allegation that the -- this process would undermine the attorney/client relationship with the detainee and their counsel where the Military Commission or their task force are allowed to interview the individual without the counsel's consent or presence, how do we respond to that? What -- doesn't that necessarily interfere with the

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attorney/client relationship? MR. HAAS: Well, I don't think that it's been I think it was,

established in this case, that's for certain.

again, Petitioner's counsel who said that it was Al Kandari himself who reported to him that these contacts had occurred. We haven't, in fact, inquired as to whether or not Mr. Cynamon then advised him not to say anything further to these investigators. There certainly are less invasive remedies than ordering an injunction that I think, as the Court rightfully recognizes, is quite broad in holding all communications between the OMC and Petitioners concerning the possibility of Military Commission charges. THE COURT: resolve this matter? MR. HAAS: If there has, I'm not aware of it. I do Has there been any attempt to informally

know that early on in this litigation, or I'm aware at least that early on in this litigation, that the Department of Justice advised Petitioners' counsel that we don't control the OMC, that they are independent. leave it at that. THE COURT: MR. HAAS: That's interesting. Okay. So, I mean, I guess I would

I guess I would point out also, Your

Honor, the breadth of the proposed injunctive order struck me as well, and I think I would point out, focusing again on the

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habeas case, that there really is no logical stopping point. Petitioner's argument would bar any and all contacts with the detainees represented by habeas counsel, even those solely for intelligence purposes, if it could be shown that an attorney touched it at all. That's a truly remarkable conclusion, in my opinion, and simply cannot be the reach of the ethical rule, particularly given the commentary that I provided to the Court to the rule itself. And I would suggest that to the extent

that Petitioners disagree and say that these contacts are different, well, they are different. The difference is that

the purpose is to bring charges against them where they have an avenue to bring these claims, and we think it's quite clear, for the reasons that we set forth and the reasons that Judge Urbina has recognized with regard to Section 7 of the MCA, there is simply no jurisdiction over this matter at this time. THE COURT: appreciate it. MR. HAAS: THE COURT: this briefly? MR. CYNAMON: Yes. Thank you, Your Honor. Thank you. Mr. Cynamon, do you want to respond to All right. Thank you, Mr. Haas. I

Your Honor, I'm surprised that counsel for the Government takes the position that a prosecutor can violate or

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disregard Rule 4.2 in a criminal case even when the Defendant is represented in a simultaneous civil case by counsel, and the prosecutor knows that, and I would point to United States versus Bowman, which we cited at page 10 of our opening brief in which the Court made exactly that point, that it's not only -- not only had the Government prosecutors made an unauthorized contact there, but the Court pointed out it was -- it was particularly inappropriate since the Government knew that the defendants were represented by counsel in an adversary judicial proceeding at the time of their conversations and that adversary proceeding was a civil forfeiture proceeding arising out of the same facts. very analogous here. You have a civil -- a civil case in which the defendants are represented by counsel and then a -- an investigation into a potential criminal case in which the prosecutors, knowing that the defendants or the potential defendants are represented by counsel, disregard Rule 4.2, and I think that Bowman clearly rejects the position that Government counsel has taken here. Second, I think it's entirely artificial to say that, Well, gee, we hear -- we, the Government lawyers in the habeas cases, say, you know, we're -- we're not going to violate the ethical rules, but we can't do anything about the office of military counsel, neither can this court. It's

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Again, this court has and the Government conceded it has, inherent authority to exercise control and enforce the disciplinary rules over counsel for the parties that appear before it. And to say that counsel at this table can't do it

but some other Government lawyers can would be like me going back to my law firm and saying, "Hey, one of my partners, I can't talk to my adversary in this case but you're not in the case, you go talk to them." Again, Rule 4.2 doesn't focus on who's in the case and who's not. It's in representing a client, and absolutely

the Office of Chief Military Counsel is representing the Government. A lawyer, like the Chief Military Counsel, shall

not communicate about the subject of the representation that the party the lawyer knows to be represented by another lawyer in the matter. And again, contrary to what Government counsel

said, it is undisputed that there has been a communication by a staff member for the Office of Chief Military Prosecutor about one of the very allegations that is the basis for detaining my client that will be in issue in this habeas case. And finally, again, I do not believe that our order requests -- certainly we did not intend it to request that there can be no communication by Government agents with our clients. What there cannot be are communications in violation

of the ethical rules by Government counsel or people acting as their alter-egos, and there's a lot of law on that, so there

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isn't a lot of confusion about what that would be, and that's what's going on and that's what we're trying to stop, and that is not an overly broad request, Your Honor. THE COURT: How do I issue this injunction without

violating the military -- the law in Section 7 of the MCA, Military Commissions Act, where it says no court or judge or jurisdiction to consider -- I've already heard the hearing -it says to hear or consider, any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment or conditions of confinement of an alien who is detained by the United States as an enemy combatant, and an aspect of their detention would be who can communicate with them? MR. CYNAMON: Your Honor, I respectfully disagree.

First of all, Section 7 has been held unconstitutional by the Supreme Court, and I know the Government -- the Government has a lot of arguments about why the Supreme Court really didn't hold it all unconstitutional, but the language of the Supreme Court is that Section 7 is unconstitutional. But putting that aside, Your Honor, this is not -- I emphatically state this is not a request to this court to present a claim relating to conditions of confinement. This

is -- this motion would be identical, even if our clients were not in confinement. What we are asking the Court to do is

exercise its jurisdiction in this case, which it

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unquestionably has.

The Supreme Court has said this court has

jurisdiction to hear core habeas cases, and what we're saying is that the ability to prosecute that core habeas case is undermined if Government counsel, whether the counsel at this table or otherwise, are allowed to undermine our attorney/client relationship. the conditions of confinement. So it has nothing to do with It has to do in which the

manner in which this adversary proceeding is proceeding. THE COURT: You agree, as counsel said, inextricably

intertwined with the Military Commissions proceeding, the investigation and the habeas? MR. CYNAMON: THE COURT: Yes, I do. And as I said before --

And then what Section 3 of the MCA, if

you don't like Section 7, get around Section 3 for me, clearly says no court, again, even to hear or consider any claim related to the prosecution under the Military Commission, including challenge of lawfulness of the proceedings. we get over that? MR. CYNAMON: Your Honor, we get over that, as I How do

said before, because the fact that they're inextricably intertwined means that there are going to be some circumstances where this court's unquestionable jurisdiction over the habeas cases are inevitably going to have some effect on the Military Commission. That does not mean -- it

certainly cannot mean what the Government has argued.

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As I said before, the logic of the Government's argument in Section 3 is we might as well stop these cases right now because anything we do to try to establish that the Government has no basis for holding our clients as enemy combatants will unequivocally affect the Military Commissions, and therefore, what I am saying is that the fact that this court is exercising its inherent authority to control the ethical conduct of the counsel appearing before it, in no way trespasses on the limitations of Section 3 of the Military Commissions Act. It's a necessary corollary to being able to effectively prosecute these habeas cases which this court unquestionably has jurisdiction to do. THE COURT: Mr. Cynamon. MR. CYNAMON: THE COURT: Thank you, Your Honor. The Court has before it the All right. Thank you very much,

All right.

emergency motion for the injunction to prohibit the Office of the Chief Prosecutor, the Military Commissions or its alter-ego alleged -- I'm reading from the brief of the Plaintiff -- the commission, the Criminal Investigation Task Force or anyone else acting on behalf or at the direction of the Office of the Chief Prosecutor of Military Commissions from having any communications with Petitioners without the consent of Petitioners' counsel relating to matters alleged to

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be grounds for the confinement, including any matters in which the Military Commission charges may be brought. They obviously have expressed their concerns about the situation of their client being interviewed by representatives of the Government in the Military Commissions proceedings when they represent them in the habeas proceedings before us, which is a civil action number or civil case. The Court is obviously concerned any time there is ethical issues brought before it, as I'm sure Government counsel are as well, and it concerns the Court and it's certainly, in the normal case -- that counsel would be having their staff, or people involved with them, in any fashion, communicating with the litigant on the other side without the other side's litigant counsel being present or with their consent, that is something that's simply not done and the Court would take immediate remedial action if it was brought to its attention that was happening. The situation here is a little different than that, unfortunately. I think, because of the way that the Supreme

Court has decided Boumediene and has upset the congressional crafted relief that was provided for the Guantanamo detainees, it has tossed, colloquially, I guess, a monkey wrench into how these proceedings are normally going to go forward, and we are faced now with the aftermath in this court after the decision of the Supreme Court.

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I am troubled by the challenge that has been brought in the sense that the Government represents that its habeas lawyers have nothing to do with the criminal proceedings and that they have no way of controlling them, in essence, and that the military prosecutors can act as they wish. I think that that ultimately could represent a situation where there would be problems when they get to the merits of the habeas cases where the Court, because of potentially tainted evidence problems, analogous to Kastigar and other cases, if that is the decision to go forward that way and have representatives from the military people be allowed to interview the detainees that are represented in the habeas cases where the grounds for the military prosecution and the detainees' grounds for being held as an enemy combatant are the same or overlap closely, at the same time, granting a preliminary injunction, which would directly affect the Military Commissions' proceedings, although couched in terms of its -- only relates to the habeas, the effect would be to interfere with the Military Commissions' proceedings where they would not be allowed to interview the detainee in preparation of the charges and obtain information prior to the time that he has a right to counsel, flies directly in the Military Commissions Act, statute under Article -- Section 3 that I referred to, and I think still the remaining viability of what remains in Section 7. (e)(1) was specifically held

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unconstitutional in the Supreme Court. specifically.

(e)(2) maybe not

It wasn't specifically, but may be

inferentially, and has, I think, still some life to it. It does concern the Court. I think it concerned

Judge Kotelly, and it's unfortunate it has come to this extent when we could not have had some communications to attempt to resolve this without trying to put the Court in the middle of the -- what is a very muddled situation in these cases. What the Court's going to do is as follows, with that preamble, and this will be the ruling of the Court in its findings under the rule. preliminary injunction. I'm going to deny the motion for When you consider a motion for

preliminary injunction, you obviously consider the four factors set forth in multiple cases under the statute in our circuit, the excess -- substantial likelihood of success on the merits is the first and most important one, combined with suffer irreparable injury if the injunction is not granted. The injunction would not substantially injure other persons and the public interest would be furthered by the injunction. Looking at those factors, the first one, likely success of the merits, the Supreme Court just held in a -recently about where you're faced with a difficult question as to jurisdiction that makes the success of the merits more unlikely due to the potential impediments to reaching the merits, that it should not then grant a summary -- a

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preliminary injunction as requested. at 128 Supreme Court 2219.

That's Munaf, M-u-n-a-f,

So Section 3, it seems to me,

provides a substantial impediment to granting a preliminary injunction. It indicates that I have no authority even to

hear -- and Government counsel could have said there shouldn't have been a hearing in this case, I think -- even to hear or consider any claim related to the prosecution of a Military Commission, and that's what we're talking about, including challenges to the lawfulness of the procedures. Well, now,

this is a procedure that they're alleging is inappropriate or unlawful because it violates ethical rules. I think that potential impediment is a -- weighs heavily against granting a injunctive relief, even if there is -- the Court has expressed its concerns about the Government proceeding with what may be found eventually to be unethical activities in their investigation in the criminal commission charges where we have the habeas cases pending over the same issues. But further than that, even if I assume I had jurisdiction to hear this, because it's strictly a habeas matter, the Supreme Court has given us authority to hear now. I have some questions on the substantial likely success on the merits and irreparable injury. For these reasons, you could

argue that the Section 3 of the Act is not applicable, I guess, because those charges have not yet been brought, but

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the rule that the Petitioners arguing apply, the ethical rule is Rule 4.2 of the Army Rules of Professional Responsibility of the lawyers. as follows: That's the, quote, no-contact rule. It reads

In representing a client, a lawyer shall not

communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the same manner -- matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. Now, it seems to me then that the Government would only be prohibited from communicating with Petitioners about the basis for their designation as a unlawful enemy combatants, which is a jurisdiction prerequisite of the Military Commission charge. So, they could argue that it's --

that the Petitioners' counsel don't represent him yet in that because he's not been charged, so it wouldn't apply because of the subject of the representation in the same matter; although both sides recognize these are intertwined matters. The -- additionally, the Government has argued before the Military Commissions that he's not entitled to counsel yet because he's not been formally charged so that they are not interfering with any relationship. The concern

the Government has to face, obviously, is what the Court is -and Petitioner's counsel argued somewhat, is that -- and the Court has expressed interest in is that since they're basically the same subject matter, it's very difficult to

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distinguish then the materials that -- information gained from the Military Commissions interview and proceedings when they come here to justify that they should be detained as enemy combatants and it may result in evidentiary hearings as to what evidence can be used and what has been tainted if it's determined there was a violation of the ethical rules. The other issue is irreparable injury, and counsel argued that damage, which is very difficult, attorney/client relationships in these individuals who understandably, very leery of American lawyers representing them in the context of their being detained for up to seven years without any proceeding in court. The -- and they have affidavits attached

as to that harm that could be done or harm that had been done in the past with references to the counsel's representations by investigators talking to these individuals. Petitioner didn't address whether or not he's now informed his client not to talk to anyone and he's not to cooperate and what damage could result in the future, if any, and has not shown that there could be any harm in the future if he so advised his client not to talk to individuals from the Government. The -- really, no specific showing before me at this time, but speculative showing, it may interfere with the attorney/client relationship. The problem with counsel as to

Petitioners is, it's really not a preliminary injunction case.

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It's really, he's attempting to get an order for the Court to order the Government to behave in accordance to with what he believes is the proper ethical obligations of the Government under this military code of justice and our general rules of ethical conduct as lawyers. Obviously, I do have inherent authority to order corrective actions to be taken, if necessary, but obviously, there is issues that have not been resolved over the jurisdiction of the Court for interfering with the Military Commission process. It's very clear I do not have that

authority, unless it's determined to be unconstitutional, that section of the statute. But certainly as to irreparable injury at this time, it seems to me it's speculative and that there is an avenue, eventually, to repair any harm, so it's not irreparable, to suppression of any evidence that's improperly gathered that would be coming into the habeas hearing if that is ultimately determined. And finally, and for the Military Commission, Petitioner would have a right to raise this issue again as to allegations of harm incurred by the interviews of the petitioner without counsel present when Petitioner asserts he represents the individual in the military charge as well, and that would be up to the Military Commission and the Court of Military Commission Review and finally the D.C. Circuit, if

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that stay is in issue, so there is ultimately ways to repair what is alleged to be irreparable injury. So, the substantial harm to other persons and the public interest, I think, are just equally weighed, and either side, that is, objection of this does not harm other interested parties at this time in this case and in the end that the public interest is necessarily forwarded by -furthered by the injunction or not, but the overall balance, it seems to the Court, is that because of the jurisdictional issue, which is overriding, regardless of the -- categorizing this as a case affecting only the habeas, it necessarily affects the Criminal Commission's proceedings, and that the statute bars the Court from taking any action in those regards at this time, I'm going to deny the motion for preliminary injunction for those reasons, but the Government has, I think, been clearly put on notice as to consequences that could occur in these proceedings if it's determined the military individuals, who, the Government asserts are acting outside the Justice Department on their own, decide to go forward in these types of interviews and impact the habeas proceedings. All right. Thank you for coming in. I'll issue an

order to the effect of my bench ruling. THE DEPUTY CLERK: All rise.

All right.

(PROCEEDINGS END AT 12:00 P.M.) *-*-*-*

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ________________________________ ____________________ Catalina Kerr Date CERTIFICATE OF REPORTER I, Catalina Kerr, certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.