IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 1593

NOTICE DECLARATION RE: AUTHORIZATION OF REPRESENTATION by GUANTANAMO BAY DETAINEE LITIGATION, SHAWKI AWAD BALZUHAIR (Attachments: # 1 Exhibit A)(Gunn, Carlton)

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: [phone]

Attorneys for Petitioner

Dockets.Justia.com

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
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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
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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
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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.

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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

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