IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 1731

RESPONSE re (1700 in 1:08-mc-00442-TFH, 1700 in 1:08-mc-00442-TFH, 139 in 1:05-cv-00765-EGS, 139 in 1:05-cv-00765-EGS) Order, Set Hearings Privilege Team's Opposition to Interim Response to Order to Show Cause filed by DEPARTMENT OF DEFENSE PRIVILEGE TEAM. (Attachments: # 1 Exhibit Stafford Smith Salon Radio Interview)(Van Horn, Daniel)

I N RE: GUANTANAMO BAY DETAINEE LITIGATION

D o c . 1731

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF COLUMBIA _______________________________________ ) I N RE: ) ) G U A N T A N A M O BAY ) D E T A IN E E LITIGATION ) ) B IN Y A M MOHAMED AL HABASHI, ) ) P e t i t io n e r , ) ) v. ) ) B A R A C K H. OBAMA, ) P re s id e n t of the United States, et al., ) ) R e s p o n d e n ts . ) _______________________________________)

M is c . No. 08-442 (TFH)

Civil Action No. 05-0765 (EGS)1

P R IV I L E G E TEAM'S OPPOSITION TO I N T E R I M RESPONSE TO ORDER TO SHOW CAUSE B y Order issued March 18, 2009, the Court, sua sponte, directed that petitioner's co u n sel, Ahmed Ghappour, Esquire, and Clive A. Stafford Smith, Esquire, appear for a

The Privilege Team's Report to the Court in this civil action was initially filed in A h m e d Ben Bacha v. Obama, Civil Action No. 05-2349 (RMC), due to confusion about th e petitioner's name. When the Report was initially filed, the only name undersigned c o u n se l had to connect the petitioner to a pending case was "Binyam Mohamed," and an e x a c t match for that name appeared in the Court's electronic civil docket only under Civil A c tio n No. 05-2349 (RMC), as a next friend. Undersigned counsel subsequently learned th a t "Binyam Mohamed" is identified in Civil Action No. 05-765 (EGS) as "Benjamin M o h a m m e d Al Habashi," and that the Report should have been filed in that civil action. Consequently, the Report was refiled in Civil Action 05-765 (EGS). See Notice of Filing o f Privilege Team's Report to the Court, Doc. 137 filed March 5, 2009, in Civil Action N o . 05-765 (EGS).

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h e a rin g on May 11, 2009, "for the purpose of showing cause why this Court should not h o ld them in contempt for violating the Protective Order" previously entered in this and o th e r habeas cases. On April 8, 2009, petitioner's counsel, through their attorneys, filed a p a p e r titled Interim Response to Order to Show Cause, which is in effect a motion by w h ich petitioner's counsel request "that the Court direct the Privilege Team to clarify its R e p o rt to the Court (Dkt 137, No. 05-cv-0765) by identifying the specific provision(s) of th e Court's Protective Order that the Privilege Team contends Petitioner's counsel v io la te d ." This motion is misguided and should be denied as moot because the Privilege T e a m did not and does not contend that petitioner's counsel "violated" any provision of th e Protective Order in connection with the incident that is the subject of the Privilege T e a m 's February 26, 2009 Report to the Court. T h e Privilege Team submitted its Report to advise the Court of conduct by p e titio n e r's counsel "that was unprofessional and that made inappropriate use of the P r iv ile g e Team for purposes not authorized by the protective order entered in the abovec a p tio n e d case." 2 In petitioner's Reply to the Privilege Team's Report, filed under seal on

On September 11, 2008, Judge Hogan entered a protective order for use in the c o o rd in a te d Guantanamo Bay habeas cases included in Miscellaneous Case No. 09-442 (T F H ). On September 19, 2008, respondents filed a consent motion (Doc. 85) to enter the S e p te m b e r 11, 2008 protective order in Civil Action No. 05-0765 (EGS), but Judge S u lliv a n has apparently not acted on that motion. Thus, the operative protective order in C iv il Action No. 05-0765 (EGS) appears to be the Amended Protective Order and P ro c e d u re s for Counsel Access to Detainees at the United States Naval Base in G u a n ta n a m o Bay, Cuba, first issued on November 8, 2004, as amended by the Order A d d re ss in g Designation Procedures for Protected Information, first issued on November -2 -

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M a rc h 5, 2009, petitioner's counsel essentially admit that the Privilege Team's central co n ce rn about counsel's conduct -- which was the impetus for the Privilege Team's R e p o rt -- is true. In particular, petitioner's counsel acknowledge that the Privilege Team d o e s not process material that is destined for a third party. Despite this knowledge, p e titio n e r's counsel has falsely claimed that they are unable to present information to P r e sid e n t Obama -- indisputably a third-party communication -- because of the Privilege T e a m ' s "censorship" of that information.3 Furthermore, petitioner's counsel manipulated th e process created by the Protective Order for Privilege Team review of privileged a tto rn e y-c lie n t communications in furtherance of counsel's false claim about the Privilege T ea m 's alleged censorship. Such conduct is nowhere authorized in the Protective Order, is not an appropriate use of the Privilege Team, and, if done knowingly, is unprofessional. See ABA Model Rule of Professional Conduct 4.1 (Truthfulness in Statements to Others) (20 0 9 ).

10, 2004, and by the Order Supplementing and Amending Filing Procedures Contained in th e November 8, 2004 Amended Protective Order, first issued on December 13, 2004. See Order, Doc. 56 in Civil Action No. 05-0765 (EGS) (July 31, 2008). The provisions o f September 11, 2008 protective order and the November 8, 2004 protective order, h o w e v e r, are substantively identical insofar as they pertain to the incident that is the su b ject of the Privilege Team's Report to the Court. Consequently, the Privilege Team's R e p o rt involves a matter of general concern under either version of the Court's protective o rd e r. Mr. Stafford Smith recently repeated this claim during an interview on Salon R a d io on April 7, 2009. See Exhibit A, attached hereto. -33

P e titio n e r's counsel profess to have "never understood" why the Privilege Team d o e s not process third-party communications such as counsel's putative memorandum to P r e sid e n t Obama. If true, this assertion would bespeak an extraordinary level of c o n f u s io n and lack of knowledge about the limitations of the Privilege Team's authority, th e provisions of the Protective Order, and the role of the Court Security Officer with re sp e c t to the use of classified information by habeas counsel. T h e Privilege Team has no independent authority to do anything; its powers are e n tirely derivative. Consequently, the Privilege Team is empowered to perform only th o s e specific, narrowly-defined functions that have been expressly delegated to it by the re sp o n d e n ts and the Court. Under the terms of the Protective Order, the Privilege Team is authorized to review certain privileged attorney-client communications between the in d iv id u a ls detained at Guantanamo Bay and their counsel. By contrast, the Privilege T e a m has no authority, either under the Protective Order or otherwise, to review any other k in d s of communications. Thus, the Privilege Team could not "censor" a memorandum f ro m petitioner's counsel to President Obama because the Privilege Team lacks the a u th o rity to review a document of that sort. Moreover, because the Privilege Team is not a n original classification authority, even if the Privilege Team were given authority to re v ie w such third-party communications, the Privilege Team could not declassify any c la ss if ie d information contained therein, which seems to be the ultimate result that p e titio n e r's counsel seek.

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U n d e r the terms of the Protective Order,4 the use of classified information by p e titio n e r's counsel is to be coordinated with the Court Security Officer, not with the P r iv ile g e Team.5 Specifically, Paragraph 16 [¶ I.C.15] of the Protective Order states that " P e titio n e rs' counsel shall seek guidance from the Court Security Officer with regard to a p p ro p ria te storage, handling, transmittal, and use of classified documents or in f o rm atio n ." Paragraph 23 [¶ I.D.22] of the Protective Order provides that "No d o c u m e n t s containing classified information may be removed from the secure area unless a u th o riz e d by the Court Security Officer or Court Security Officer designee supervising th e area." Paragraph 25 [¶ I.D.24] states that "Petitioners' counsel shall not copy or rep rod u ce any classified information in any form, except with the approval of the Court S e c u rity Officer or in accordance with the procedures established by the Court Security O f f ic e r for the operation of the secure area." And, most pertinent here, Paragraph 26 [¶ I .D .2 5 ] of the Protective Order requires that "All documents prepared by . . . petitioners' co u n sel that do or may contain classified information . . . shall be maintained in the secure Citations to the "Protective Order" herein refer to the November 8, 2004 p ro te c tiv e order, as amended. Citations to the corresponding provisions of the September 1 1 , 2008 protective order are shown thereafter in brackets, i.e., "[¶ __]." The Court Security Officer and the Privilege Team, of course, are entirely sep ara te entities. The Court Security Officer and Alternative Court Security Officer are d e s ig n a te d by the Court pursuant to Paragraph 16 [¶ I.C.15] of the Protective Order. By co n trast, the Privilege Team is designated by respondents and consists of "one or more D o D attorneys and one or more intelligence or law enforcement personnel who have not tak e n part in, and, in the future will not take part in, any domestic or foreign court, m ilita ry commission or combatant status tribunal proceedings involving the detainee." See Protective Order, Exhibit A, § II.D [¶ II.B.6]. -5 5 4

are a unless and until the Court Security Officer advises that those documents . . . are u n c la s s if ie d in their entirety." P a ra g ra p h s 26 [¶ I.D.25] and 28 [¶ I.D.27] of the Protective Order prohibit the C o u rt Security Officer from disclosing documents prepared by petitioners' counsel to re sp o n d e n ts, and insure that the Court Security Officer's knowledge of those documents d o e s not waive, limit, or otherwise render inapplicable the attorney-client privilege or w o rk product protections "unless authorized by the Court, by petitioners' counsel, or as o th e rw ise provided in this Protective Order." Petitioner's counsel, however, plainly c a n n o t claim any privilege or protection with respect to material that they desire to send to President Obama because the President is one of the named defendants in this action. Sending material to President Obama, therefore, would be tantamount to serving it on an o p p o s in g party, which would of course waive any privilege or protection that might o th e rw is e apply. Accordingly, if petitioner's counsel want to submit a memorandum c o n ta in in g classified information to the President, they should discuss the proposed su b m iss io n with the Court Security Officer and, if necessary, authorize the Court Security O f f ic e r to request guidance from the appropriate government authorities about how the in f o rm a tio n in question should be handled, similar to the procedures set forth in P ara g rap h 46 [¶ I.F.47] of the Protective Order with respect to court filings by petitioners th a t do or may contain classified information.

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In short, petitioner's counsel's purported inability to send a memorandum c o n ta in in g classified information to the President is not attributable to "censorship" by the P riv ileg e Team, but rather to counsel's failure to present the issue to the appropriate entity in accordance with the procedures specified by the Protective Order. Thus, the "problem" a b o u t which petitioner's counsel have complained so loudly to the media has nothing to d o with the Privilege Team and is entirely of counsel's own making. A lth o u g h petitioner's counsel improperly involved the Privilege Team in c o n n e c t io n with their putative memorandum to President Obama, and then made false c la im s of censorship after being told that the Privilege Team lacks the authority to process su ch a memorandum, the Privilege Team did not seek any sanction against petitioner's c o u n s e l on account of that conduct. If this incident was in fact the product of an honest m is u n d e rs ta n d in g about the Privilege Team's proper role under the Protective Order, the P riv ileg e Team assumes that Mr. Stafford Smith -- who has gallantly accepted full resp o n sibility for the conduct in question -- will promptly and publicly admit his error, re tra c t his false claims, and commit that he and his colleagues will undertake to resolve a n y future third-party communications issues through the proper channels. An h o n o u ra b le gentleman would certainly do no less, and such action would fully address the c o n c e rn s that impelled the Privilege Team to submit its Report to the Court. Respectfully submitted, J E F F R E Y A. TAYLOR, D.C. Bar No. 498610 U n ite d States Attorney -7-

/s / DANIEL F. VAN HORN, D.C. Bar No. 924092 A s s is ta n t United States Attorney 5 5 5 4th St., NW - - Room E4816 W a sh in g to n , D.C. 20530 [phone] d a n ie l.v a n h o rn @ u s d o j.g o v O F COUNSEL J A N E M. LYONS A s s is ta n t United States Attorney

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