IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 1591

NOTICE DECLARATION RE: AUTHORIZATION OF REPRESENTATION by HOUMAD WARZLY, GUANTANAMO BAY DETAINEE LITIGATION, HAMOUD ABDULLAH HAMOUD HASSAN AL WADY (Attachments: # 1 Exhibit A)(Gunn, Carlton)

IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Doc. 1591

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AL HAMANDY, )

v. )
) )

Petitioner, ))
Civil Action No. 05-CV-2385 (RMU)
) )

BARACK H. OBAMA, et al., )

Respondents. )

HAMOUD ABDULLAH HAMOUD )

HASSAN AL WADY, )

v. )
)

Petitioner, )
Civil Action No. 08-CV-1237 (RMC)
) )

)

BARACK H. OBAMA, et aL, )

Respondents. )

)

DECLARATION RE: AUTHORIZATION OF REPRESENTATION
Counsel for petitioner, Hamoud Abdullah Hamoud Hassan AI Wady, hereby submit the
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Dockets.Justia.com

attched declaration regarding authority for counsel to proceed on petitioner's behalf in this

matter.
Respectfly submittd,

SEAN K. KENNEDY Federal Public Defender
DATED: Februar L, 2009

BY~~/)

CARLTON F. GUN (CA Bar No. 112344) CRAIG HARBAUGH (D.C. Bar No. 974117) FEDERAL PUBLIC DEFENDER 321 East 2nd Street Los Angeles, CA 90012-4202 [phone]; Facsimile: [phone] Attorneys for Petitioner

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DECLARATION OF COUNSEL
I, Carlton F. Gun, hereby declare and state:

1. I am a Deputy Federal Public Defender in the Central District of California. Our

offce was appointed to represent Hamoud Abdullah Hamoud Hassan AI Wady in this matter on
August 8, 2008. I and Deputy Federal Public Defender Craig Harbaugh have been assigned to
the case.

2. Mr. Harbaugh and I have traveled to Guantánamo Bay on two occasions for the

purose of meeting with Mr. AI Wady and other clients. Our first trip was during the first week

in December. We asked the authorities at the detention facilty to schedule our meeting with Mr.
Al Wady on December 3. When we arved at the camp to meet with Mr. AI Wady that day, we
were informed that Mr. AI Wady had declined to meet with us. We were not informed of

his

reasons; indeed, we have no reason to think that the guads knew what his reasons were.

3. Our second trip to meet with Mr. Al Wady - as well as two other clients - took

place during the week of Januar 19,2009. We scheduled our meeting with Mr. AI Wadyon
Januar 21. When we arived on that day, we were again informed that Mr. AI Wady had
declined to meet with us. Again, we were not informed of

his reasons, and, again, we have no

reason to think that the guards knew what his reasons were.

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4. Under the stadard procedures at Guantánamo Bay, we are not allowed to go back

and speak with the client directly to find out why he does not wish to meet with us. All we are

allowed to do is prepae a note to send back to the client. In accord with tht procedure on
Januar 21, we prepared the note which is attched to. this declaration as Exhibit A. As can be

seen, that note indicates that we intend to fight Mr. Al Wady's case as best we can without him

unless he meets with us and afrmatively tells us he does not want us to do that. The note
fuer indicates that we are assuming that he would like whatever help is available to go home.

5. Mr. Al Wady responded to this note by checking the "No" box at the lower righthand portion of

the note, indicating that he still did not wish to meet with us. He did not indicate

in any way that he did not want us to fight the case for him. This is despite the fact that our note
indicated that we were going to fight his case as best we could if he did not rneet with us and

affrmatively tell us he did not want us to fight the case.

6. Based on this, we believe it is appropriate to proceed with our representation of

Mr. Al Wady. We do not believe that Mr. AI Wady's decision not to meet with us on Januar 21

can or should be constred as a decision that he does not want representation in habeas
proceedings. This is because there are a number of other possible reasons why he declined to
meet with us. Those include the following:

a. One possible reason is that this is par of a rnore generalized "strike" by
Guantáamo Bay detainees. A number of detainees, including in
paricular a number of

Yemeni detainees like Mr. Al Wady, are protesting
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by engaging in hunger strikes and other protests of their lengthy detention
under poor conditions at Guatáamo Bay. Our conversations with other

attorneys confirm tht the number of detaes refuin to meet with
counsel, especially detainees from Yemen, has increased significantly,

even in the case of detainees who have previously met with counsel. It is
possible that Mr. Al Wady chose not to meet with us only as par of

this

"strike," rather than out of some desire to not be represented or not have us
seek his release.
b. Another possible reason Mr. AI Wady did not meet with us lies in the

processing a detanee must go through when he leaves his cell for a

meeting with counsel. One of the things a detainee is required to do is to
go through a scaner which reveals his body, including his genitals,
underneath his clothes. This is very embarassing for someone of

the

Muslim faith, and we have been told by other habeas attorneys that clients

have told them that this is sometimes a reason clients do not want to come

out for visits with their attorneys. While we were allowed to meet with
Mr. Al Wady in the camp where he is in custody, it is not clear to us that
this means he would not have had to go through the scaner.
c. A third possible reason for Mr. Al Wady's decision not to meet with us is

that rather than not wanting help in getting out, he has simply lost hope, is

feeling defeated, and sees no potential benefit in meeting with us. He has

been in custody for over six years, without having any cour hearing and
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without even having the opportunity to meet with an attorney until

last

December. This, combined with pressures to join in the "strike" activity

described in subparagaph a above anor a desire not to go thoug th
scaner procedure described in subparagraph b, could be the reason he

chose not to meet with us.
d. Another possible reason Mr. Al Wady could have chosen not to meet with

us is that he thinks representation is no longer necessar because he has
heard about our new President's executive order to close Guantáamo Bay
and review all detainee cases. It is possible that Mr. Al Wady does not

understand that this order wil not necessarily assure his release, that he
does not understad that the process could take a very long time, and/or

that he has some other rnisunderstading about it.
e. Finally, we must have some concern about Mr. Al Wady's competency,

given his lengty confinement without representation, in a foreign countr,
and without any significant contact with family or friends. All that we

have here is a decision not to come out to meet with counsel. We do not
have some sort of

intellgent and voluntar waiver such as is taken when a

defendant enters a guilty plea or waives counsel in a criminal case.
In sum, we believe there are a number of

possible reasons why Mr. AI Wady chose not to

meet with us other than a desire not to be represented and not seek habeas relief. We believe that inferring that his decision to meet with us means he does not desire to be represented or seek
habeas relief would be speculation at best.
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7. Another reason for our belief

that Mr. AI Wady's decision not to meet with us

does not reflect a lack of desire for habeas relief and release is that it is inconsistent with his past
behvior in conntion with the Combat Sta Review Tribunl and Administrative Review
Board proceedings. The publicly available sumaries of

those proceedings reveal that Mr. AI

Wady chose to paricipate in both the Combatat Status Review Tribunal and Administrative

Review Board proceedings. See Exhibit B (Wikipedia materials). This raises grave doubt in our
minds about whether Mr. AI Wady's decision not to meet with us is a product of a lack of desire

for habeas relief if it is available, as opposed to reflective of simply giving up hope, based on a mistaken judgment that there is no need for habeas relief now that the new President has issued
his executive order, or a product of one of

the other possible reasons suggested above.

8. The likelihood that Mr. Al Wady's decision not to meet with us is not related to

the absence of a desire not to seek release is enhanced by what we wrote in the note attached as

Exhibit A. That note tells him that we are going to fight his case as best we can unless he meets

with us and affrmatively tells us he does not want us to. It follows from this that ifhe truly did
not want us to fight his case, he would have met with us and told us so. It is certainly possibleIII III III
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and even probable - that he relied on the fact that we would fight his case even ifhe did not meet
with us.

I declare under penalty of perjur that the foregoing is tre and correct to the best of my
knowledge.

Dated: Februar'I, 2009

CARLTON F. GUN

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Deputy Federal Public Defender

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