Filing 1593


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IN RE: GUANTANAMO BAY DETAINEE LITIGATION Doc. 1593 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SIIA WKI A W AD BALZUHAIR ) Petitioners/Plaintiffs. ) ) v. ) ) Civil Action No. CV 08-1238 (RWR) BARACK II. OBAMA al. ) ) Respondents/Defendants. ) ) ) DECLARATION RE: AUTHORIZATION OF REPRESENTATION Counsel for petitioner, Shawki A wad Balzuhair, hereby submit the attached declaration regarding authority for counsel to proceed on petitioner's behalf in this matter. Dated: February ,C(p,' 2009 Respectfully submitted, CARLTON F. GUNN (CA Bar No. i 12344) CRAIG HARBAUGH (D.C. Bar No. 9741 17) Deputy Federal Public Defenders Offce of the Federal Public Defender 32 i East 2nd Street ,_~ 1:0 Los Angeles, CA 90012 (2 i 3) 894-1700; Facsimile: (213) 894-0081 Attorneys for Petitioner DECLARATION OF COUNSEL I, Carlton F. Gunn. hereby declare and state: 1. 1 am a Deputy Federal Publie Defender in the Central District of California. Our offee was appointed to represent Shawki Awad Balzuhair 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 oceasions to meet with Mr. Balzuhair and other clients. Our first trip was during the first week in December. During that trip, on December 4,2008, we met with Mr. Balzuhair for approximately two hours. The meeting was devoted primarily to explaining the habeas corpus process to him and answering questions he had about it. We did not ask him to sign a written authorization at that time, because it was our first meeting and we wanted to devote it primarily to developing a relationship with Mr. Balzuhair and gaining his trust. We believed this was importt because Mr. Balzuhair had been in custody for over six years without even meeting an attorney, and we expected he would feel great frustration and be left with some lack of faith in our legal system. 3. Our second trip to meet with Mr. Balzuhair- as well as two other clients - took place during the week of Januar 19,2009. We scheduled our meeting with Mr. Balzuhair on January 20. When we arrived, we were informed that Mr. Balzuhair had declined to meet with us. We were not informed of his reasons; indeed, we have no reason to think that the guards knew what his reasons were. 4. Under the standard procedures at Guantánamo Bay, we are not allowed to go baek and speak with the client direetly to find out why he does not wish to meet with us. All we are allowed to do is prepare a note to send baek to the client. In accord with that procedure, we 2 prepared the note which is attached to this declaration as Exhibit A. As can be seen, that note indicates that we had drafted a motion seeking Mr, Balzuhair's release and that we were going to fie that motion unless Mr, Balzuhair met with us and told us that he did not want us to fie it. 5. Mr. Balzuhair 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 fie the motion that we had drafted. This is despite the fact that our note indicated that we were going to fie the motion ifhe did not meet with us and affrmatively tell us he did not want us to file the motion. 6, Based on this. we belicve it is appropriate to proceed with our representation of Mr. Balzuhair. Consistent with that view. we proceeded to finalize our motion and fie it, with thc caption of "Motion for Judgment Based on Return," on January 26. We believe the motion Mr. Balzuhair's detention. We has merit and raises important questions about the validity of believe that failing to hear the motion could mean that Mr. Ba1zuhair is detained unlawflly for an indefinite period of time. 7. For a number of reasons, we do not believe that Mr. Balzuhair's decision not to meet with us on January 20 can or should be construed as a decision that he does not want reprcsentation in habeas procecdings, This is because there are a number of other possible reasons why he declined to mcct with us. Those include the following: a. One possible rcason is that this is part of a more generalized "strike" by Guantánamo Bay detainees. A number of detainees, including in particular a numbcr of Yemeni detainees like Mr. Balzuhair, are protesting by cngaging in hunger strikes and other protests of their lengthy detention under poor conditions at Guantánamo Bay. Our conversations with other 3 attorneys confirm that the number of detainees refusing to meet with counsel, especially detainees from Yemen, has increased signifieantly, even in the case of detainees who have previously met with counsel. It is possible that Mr. Balzuhair chose not to meet with us only as par of this "strike," rather then out of some desire to not be represented or not have us seek his release, b. Another possible reason Mr. Balzuhair did not meet with us lies in the processing a detainee 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 scanner whieh 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. c. A third possible reason for Mr. Balzuhair'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. As noted above, he has been in custody for over six years, without having any court hearing and without even seeing an attorney until last December. This, combined with pressures to join in the "strike" activity described in subparagraph a above and a desire not to go through the scaner procedure described in subparagraph b, could be the reason he chose not to meet with us. d. Another possible reason Mr. Balzuhair could have chosen not to meet with us n especially given the process he must go through if he does come out is that he thinks representation is no longer necessary because he has heard 4 about our new president's executive order to close Guatáamo Bay and review all detainee cases. It is possible that Mr. Balzuhair does not understad 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 misunderstading about it. e. Another eoncern is that there could have been some confusion on Mr. Balzuhair's par about who was there to see him. When we came to see him in December, he initially declined to meet with us because he was given the impression that the meeting was with an interrogator, not with attorneys. While the note we sent back would hopefully have cleared up any such confusion on this occasion, it is certainly possible that there is some other miscommunication or confusion that led to Mr. Balzuhair not meeting with us. Furer, the note told him that we would fie a motion if he did not meet with us, and so he might have concluded that he did not need to meet with us unless he wanted us not to fie our motion. f. Finally, we must have some concern about Mr. Balzuhair's competency, given his lengty confinement without representation, in a foreign countr, and without any significant contact with family or frends. All that we have here is a decision not to come out to meet with counsel. We do not have some sort of intelligent 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. Balzuhair 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. 5 8. The likelihood that Mr. Balzuhair'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 attched as Exhibit A. That note tells him that we are going to file a motion unless he meets with us and tells us he does not want to, It follows from this that ifhe truly did not want us to fie a motion, he would have met with us and told us so. It is certainly possible - and even probable - that he relied on the fact that we would file the motion even ifhe did not meet with us. i declare under penalty of perjury that the foregoing is true and correet to the best of my knowledge. Dated: February L, 2009 CARLTON F. GUN ~¡;~ Deputy Federal Public Defender 6

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