IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 515

NOTICE of Supplemental Authority, Witness Disclosure, and Report on Client Authorizations by JAMAL KIYEMBA (Attachments: # 1 Appendix Exhibit List, # 2 Exhibit A, # 3 Exhibit Decision of CADC, # 4 Exhibit B, # 5 Exhibit Gov's Motion to Apply Parhat, # 6 Exhibit C, # 7 Exhibit Florida Uighur Resettlement Plan, # 8 Exhibit D, # 9 Exhibit Adem Decision, # 10 Exhibit E, # 11 Exhibit, # 12 Declaration Jason S. Pinney, # 13 Exhibit, # 14 Declaration Elizabeth P. Gilson, # 15 Errata, # 16 Declaration Kramer Levin, # 17 Declaration Kramer Levin, # 18 Declaration Kramer Levin, # 19 Declaration Kramer Levin, # 20 Exhibit, # 21 Declaration George Clarke)(Gilson, Elizabeth)

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMIA

SALEEM MUHOOD ADEM

Peti tioner
Civil Action No. 05-723 (RWR)
GEORGE W. BUSH et

(AK)

Responden ts .

MEMORADUM OPINION AND ORDER

Peti tioner Saleem

Muhood Adem petitioned for a writ of

habeas corpus challenging the legality of his detention at the

United States Naval facility at Guantanamo Bay, Cuba. Respondents have moved for an order requiring petitioner to show
cause why the petition should not be dismissed for lack of proper
next-friend" standing.

Peti tioner opposes

this motion

rej ecting respondents '
somehow improper or

premise that the direct petition is

suspect.

Because respondents have

established no facts and cited no law on which to base a
conclusion that the direct petition filed by counsel was
unauthori zed, the motion will be denied.

Respondents also seek reconsideration under Fed. R. Civ.
72 (a) and Local Civil Rule 72. 2 (b) of the Memorandum Opinion and

Order issued by Magistrate Judge Alan Kay requiring respondents
to permit petitioner s counsel access to their

client.

Because

), ),

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the magistrate judge s decision was neither clearly erroneous nor

contrary to law, respondents ' motion for reconsideration will be

denied.
BACKGROUND

Adem is one of hundreds of people being held as enemy combatants at the United States Naval facility at Guantanamo Bay,

Cuba.

In late 2004 , Adem, who does not speak English, asked

another detainee, Bisher AI-Rawi, who was represented by attorney

George Brent Mickum, to help Adem contact an

attorney.

Adem also

told AI-Rawi that Adem had sent a letter directly to Mickum. January 4, 2005, AI-Rawi also sent a letter to Mickum , relaying
Adem s request for

counsel.

See Dkt. 31 , Decl. of Bisher Al9, Jan. 7 , 2006.

Rawi

AI-Rawi Decl.

In early 2005,

attorney Murray Fogler contacted the Center

for Constitutional Rights, a public interest group that has

coordinated the prosecution of many habeas petitions on behalf of Guantanamo detainees, to volunteer to represent one of the

detainees.
him.

He learned of Adem s request and agreed to represent

Fogler was later joined by Rachel Clingman in representing

Adem in his habeas petition.

See

Dkt. 25,

Decl. of Murray

Fogler (" Fogler

Decl.

3, Dec. 9, 2005.

On June 3, 2005, a protective order was entered in
anticipation of the sensitive information that usually is involved in these Guantanamo detainee cases and the unusual

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security provisions attendant to the circumstances of the

detainee
2005.

s confinement.

See

Dkt. 12,

Protective Order, June

The terms of this protective order are substantially

identical to the terms of the protective order entered by Judge

Joyce Hens Green on November 8, 2004 , and amended and

supplemented November 10 and December 13, 2004, in In re
Guantanamo Bay Detainee Cases , 344 F. Supp. 2d 174
(D.
C. 2004),

after the parties in those cases had vigorously negotiated and

Ii tigated the terms

of that order.
communica tion with

The protective order governs counsels

peti tioner Adem

by its incorporation of the Revised Procedures

for Counsel Access to Detainees at the U. S.
Guantanamo Bay, Cuba

Naval Base in
See

Revised Access Procedures

Protective Order, Ex. A.

Prior to entry of the protective

order,

respondents stated that they

" (did) not intend (by

seeking a

stay) to block counsel access to properly represented

petitioners "

and that they

" (did) not object to entry

in

(this

case) of the protective order previously entered in other

Guantanamo detainee cases, along with appropriate supplementary
orders, to permit such access.

See Dkt. 4, Mot. to Stay

Proceedings Pending Related Appeals at 2, 4/13/2005.
In accord with the protective order s requirements,

Fogler

and Clingman each applied for and received a security

clearance,

filed a memorandum of understanding regarding the terms of the

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-4protective order , and submitted a Notification of Representation.

Respondents informed Fogler and Clingman that " we require

evidence that petitioner Adem has authorized you directly to
initiate this litigation before you will be provided access to

him. "

(Dkt. 25, Email from Andrew Warden to Fogler and

Clingman,
counsel

Nov. 17 , 2005, appended as Ex. D to Fogler Decl.

Later ,

for respondents re- stated their position:

We cannot agree to process or approve this visit request until we receive evidence of your authority to represent the petitioner in this case, as required by paragraph III. C. 1 of the Revised Procedures for Counsel Access (appended as Ex. A to the protective order of (Y)ou have not provided us with appropriate evidence of your authority to initiate Ii tigation on petitioner (T) he peti tion in this case . is a petition brought directly on petitioner Adem Accordingly, we require evidence that petitioner Adem has authorized you directly to initiate this litigation before you will be provided access to him.

June 3, 2005).

s behalf.
s behalf.

(Dkt. 25, Email from Warden to Fogler and Clingman, 11/29/2005
appended as Ex. G to Fogler Decl.

Counsel for Adem filed an emergency motion to hold
respondents in contempt of the protective order and to compel

access to their

client.

Respondents opposed the motion.

addi tion, respondents filed a motion requesting a show cause

order directing petitioner to show why the case should not be
dismissed for lack of proper next- friend standing.

The emergency motion regarding the operation of the

protective order was referred to Magistrate Judge Kay for

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determination in accord with an Order entered in this case and

many others filed by or on behalf of Guantanamo

detainees, that

referred " all

Motions pertaining to interpretation or

construction of any protective order which has been entered
to Magistrate Judge Alan Kay pursuant to LCvR 72. 2 (a) .
Nov. 2, 2005.

Order

After considering the parties

submissions and

holding a conference with the parties, Magistrate Judge Kay
interpreted the plain language of the protective order and
determined that respondents ' refusal to facilitate counsels
visi t with their client was not supported by the terms of the

protective order and ordered respondents promptly to permit
counsel to meet with petitioner in

person.

Dkt. 36,

Memorandum

Opinion
2006.

Mem. Op. ), Mar. 14, 2006; Dkt. 37 , Order, Mar. 14,

Respondents now contend that the magistrate judge

determination ,

as set forth in his Memorandum Opinion , is clearly

erroneous and contrary to law

and urge that the accompanying

Order dated March 14, 2006 , be vacated.

See

Dkt. 38, Mot. for

Stay and Reconsideration ("Mot.
2006. )

for Recons. ), at 2 , Apr. 4

They also argue that the magistrate judge had no

authori ty to issue the Order.

Id.

at 16- 39.

Respondents also
motion.

seek a stay pending resolution on the merits of the
at 2 , 39-40.

(Id.

Petitioner opposes the relief respondents

seek.

'"
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DISCUSSION MOTION FOR ORDER TO SHOW CAUSE
In respondents ' view , the direct petition filed by counsel

for Adem should have been filed as a next-friend petition.

Further ,

they argue that as a next- friend petition , it fails to

meet constitutional standards for next friend

standing.

Therefore, they seek an order directing petitioner to show cause

why this case should not be dismissed for lack of proper

standing.

(Dkt. 27 , Resp.

' s Mot. for

Order to Show Cause Why

Case Should Not Be Dismissed for Lack of Proper " Next
Standing at 9- 20.

Friend"

Peti tioner ,

citing long- established law

counters that

"' (w)

hen an attorney of record appears in an action

for one of the parties, his authority, in the absence of any

proof to the contrary, will be presumed.
Response to Mot. for Order to Show Cause at

(Dkt. 28, Pet'
3, quoting Hill

Mendenhall

88 U. S. 453, 454 (1874).

(T) he presumption is that an attorney at law who appears in
regular manner on behalf of a party litigant has authority to do
so; and one who would successfully challenge his authority must

present substantial proof in the form of countervailing evidence

that authority is lacking, in order to justify, on that
an order to strike a pleading from the files.

ground,

Booth v.
Respondents have

Fletcher ,

101 F.

2d 676, 683 (D. C. Cir. 1939).

not offered substantial proof that Adem did not intend or desire

).

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that counsel file the petition on his

behalf.

Accordingly,

respondents '

motion for a show cause order will be denied.

II.

MOTION FOR RELIEF PURSUANT TO RECONSIDERATION
Upon a motion for reconsideration
., a judge may modify

or set aside any portion of a magistrate judge s order
found to be clearly erroneous or contrary to law.

LCvR 72. 2

(c);

accord Fed. R. Civ. P. 72 (a)

(directing that a judge " shall

modify or set aside any portion of the magistrate judge s order
found to be clearly erroneous or contrary to law.

A finding

is ' clearly

erroneous ' when although there is evidence to support

it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.
Un i t e d

tat e s v. U.

S.

Gyp s um

Co.

333 U. S.

3 64 , 3

(1948) .

The dispute referred to Magistrate Judge Kay posed the sole issue of the proper interpretation of a specific term of the
protective order - - " evidence
represent the detainee.

of (counsel' s J authority

to

The disputed term is found in two
the protective order s Revised Access

adj acent paragraphs of

Procedures:
Prior to being permitted access to the detainee, counsel must provide DoD with a Notification of Representation. This Notification must include the counsel' s licensing information, business and email addresses and phone number , as well as the name of the detainee being represented by the Additionally, counsel shall provide evidence of his or her authority to represent the

counsel.

detainee.

" (p)

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Counsel shall provide evidence of his or her authority to represent the detainee as soon as practicable and in any event no later than ten (10) days after the conclusion of a second visit with the detainee. The Court recognizes that counsel may not be in a position to present such evidence after the initial meeting with a Counsel for detainees and counsel for respondents shall cooperate to the fullest extent possible to reach a reasonable agreement on the number of counsel visits Should counsel for a detainee believe that the government is unreasonably limiting the number of visits with a detainee, counsel may petition the Court at the appropriate time for

detainee.

allowed.

relief.

Protective Order , Ex. A, Revised Access Procedures

III. C. 1 &

The magistrate judge concluded that the condition "prior to
being permitted access to the detainee, " applied to only the

Notification of Representation, that counsel for petitioner was

required by the terms of the order to make only one evidentiary

showing of his or her authority to represent the detainee, and
that the evidentiary showing is due no later than ten days after

a second visit with the

detainee.

Relying primarily on the fact that the term appears in two
separate paragraphs, respondents contend that the term means

different things in paragraph one and paragraph

two, and requires
Speci fically,

separate "

submissions.

(Mot. for Recons. at 26.

respondents argue that (Revised) Access Procedures require that rior to being permitted access to the detainee, " counsel must " provide evidence of his or her authority to represent the detainee, " and then subsequently provide an additional, direct authorization of representation
from the detainee on whose behalf the habeas

the

petition

);

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was filed, " no later than ten (10) days after the conclusion of a second visit with the detainee. See

(RevisedJ Access Procedures ~ III.

C.

(Mot. to Recons. at 25.

Respondents also contend that the

parties negotiating the Revised Access Procedures understood that

access (wouldJ be (J

conditioned on initial proof of authority to

represent a detainee with the requirement that direct

authorization be submitted ' as

soon as practical

(sicJ'

thereafter. "

Id.

at 28- 29.

Thus, respondents argue that the
(i)

disputed phrase in the Revised Access Procedures requires

separate
that (ii)

id.

at 26), two- step sequential showing of evidence

differs in quantum of proof , with the latter showing
direct" evidence.

requiring " additional,

Id.

at 25.

opposi tion, petitioner argues that Magistrate Judge Kay

interpretation was correct and that respondents ' interpretation

should be rej ected.
Recons. at 5-

(Pet' r

' s Response to

Mot. for Stay and

The starting point for interpreting a court order is the

plain meaning of the

text.

Following this rule, Magistrate

Armstronq v. Executive Office of the 830 F. Supp. 19, 22 (D. C. 1993) (" (gJiving plain meaning to (the J language " of the protective order); Posi ti ve Software Solutions, Inc. v. New Century Mortqaqe Corp. 337 F. Supp. 2d 862, 870 & n. 11 (N. D. Tex. 2004) (" The starting point of this inquiry is the language of the (agreedJ Protective Order (, J " and " (wJ hen interpreting the terms of a court order , courts should consider the plain meaning of the language and the normal usage of the terms in question. In re Cement and Concrete Antitrust Litiq. , 817 F. 2d 1435, 1442- 43 (9th Cir. 1987) (starting with the plain language of the class definition in
See, e.

President ,

).

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10

of 18

-10Judge Kay rejected respondents ' interpretation and concluded that

the temporal condition stated in paragraph

one, " (pJ rior

to being

permitted access to the detainee, " is restricted to the

Notification of Representation.

Respondents '

position would have

required reading the first paragraph as if the plain language of

the first sentence of that paragraph

read:

Prior to being

permitted access to the detainee, counsel must provide DoD with a
Notification of Representation and evidence of his or her
authori ty to represent the detainee ; or as if the plain language

of the last sentence of the first paragraph

read: "Additionally,

prior to being permitted access to the

detainee, counsel shall

provide evidence of his or her authority to represent the

detainee

; or as if paragraph one were structured as

follows:

Prior

Addi tionally,

to being permitted access to the detainee Counsel must provide DoD with a Notification

Counsel shall provide evidence of his or her authori ty to represent the detainee.

interpretation of an existing class vacated on other qrounds , 940 F. 2d 1583 (9th Cir. 1991); City of Hartford v. Chase , 942 F. 2d 130, 134 (2d Cir. 1991) (" Because the Confidentiality Order was part of a courtapproved agreement, it must be construed according to general principles of contract Thus, deference is to be paid to the plain meaning of the language . and the normal usage of the terms selected. ) (citations and quotations omitted); Wilder v. Bernstein , 153 F. D. 524 , 527 (S. Y. 1994) ("As is the case in interpreting contracts, a court must look to the plain meaning of the language used in the agreement when interpreting a consent decree.
definition),

reviewing a lower court' s

law.

--"

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11But paragraph one is not composed that way, and there is no
warrant to read non- existent plain language into the existing

plain language of the Revised Access

Procedures.

Thus,

Magistrate Judge Kay concluded that while the Revised Access
Procedures require Notification of Representation prior to the first visit with the detainee, they do not require evidence of
authority to represent the detainee prior

to the first counsel

visit

Magistrate Judge Kay s conclusion on this point, based on
plain language, is well- supported in fact and law and

the text' s

is not clearly erroneous or contrary to

law.

Magistrate Judge Kay s determination also conformed to the
rule of construction that identical phrases are presumed to have
identical meaning.

Sullivan v. Stroop , 496 u. S. 478, 484

( 1990)

(referring to and applying the " normal rule of

(textual
(ci ting

construction that identical words used in different parts of the

same (textJ are intended to have the same meaning

cases) .

Magistrate Judge Kay concluded that the two identical

phrases in the two

adj acent paragraphs

evidence of his or

her authority to represent the detainee " - - refer to a single

standard to be made in a single

showing.

Relying on the

commonplace rule of statutory construction (J that the specific
governs the general " he concluded that the detail in the second
paragraph specifying when

the required evidence must be provided

simply modifies the bare announcement in the first paragraph that

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12-

such evidence would be required.
Lee v. Ashcroft, 368 F. 3d 218, 223

Mem. Op. at

25, quoting

Ki Se

(3d Cir. 2004)

internal

quotations omitted).

The plain language of the Revised Access

Procedures affords no support for respondents ' contention that

the two identical phrases impose different, and
of evidence.

tiered, standards

Magistrate Judge Kay s conclusion in this respect

is not clearly erroneous or contrary to

law.

Respondents turn to language used in other protective orders

to argue that their interpretation is consistent with the
intention of the parties who negotiated the Revised Access

Procedures issued by Judge Green as part of the protective order
in In re Guantanamo Detainee

Cases.

(Mot. for Recons. at 26- 29.

Specifically, they point to the following precursor

language:

Prior to being permitted access to the detainee Noti fi ca tion of Representation. This Notification must include the counsel' s licensing information , business and email addresses and phone number , as well as the name of the detainee being represented by the Furthermore, the counsel must provide sufficient details regarding the circumstances of his/her retention to demonstrate the counsel' authori ty or standing to bring a habeas or other federal court action on the detainee s behalf.
counsel must provide DoD with a

counsel.

After meeting with the detainee , counsel must provide DoD with an Acknowledgment of Representation. This document must be signed by the detainee and must specifically state that the detainee is being represented in habeas or other federal litigation by counsel named in the Acknowledgment. This document shall be provided by the DoD and shall be signed and submitted as soon as is practical.

);

);

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-13(Access Procedures
Respondents '
. ~~ III.

1 and 2, appended at Tab 4 and

at Tab 5, Ex. 1, to Mot. for Recons.
argument is unavailing in multiple

respects.
BedRoc

First, the history and context of text is of no consideration if
the text affords a straightforward interpretation.
See

Limited, LLC v. United States , 541 U. S. 176, 183

(2004 )

(stating

that " inquiry

begins with the statutory text and ends there as
Exxon Mobil Corp.

well if the text is unambiguous.

Allapattah Servs., Inc. ,

125 S. Ct.

2611, 2626 (2005)

As we

have repeatedly held, the authoritative statement is the
statutory text, not the legislative history or any other
extrinsic material.

Sec y of Labor v. Western Fuels-Utah,
325

Inc.

900 F. 2d 318 ,

(D. C. Cir. 1990)

(referring with approval

to the " norm

counseling courts to rely on the ' plain meaning ' of

(agency) regulations

Second, the protective order in this

case is not the product of a negotiated agreement between the
parties to this

action.

Only the respondents, not the

peti tioner

in this case were privy to and involved in the

negotiation of the Revised Access Procedures that were entered as
part of Judge Green s protective order.

Thus, to the extent that

the terms of Judge Green s order were negotiated and principles

of contract construction apply here, the intention of the parties
in that case does not control an interpretation of this
protective order.

Third ,

the fact that particular language was

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-14used in a prior order but not used in a subsequent order does not
compel a conclusion that the precursor language better explains

the meaning of the subsequent text than does the latter text

itself

It shows only that the negotiating parties knew of the

precursor language and did not use it in the subsequent
Finally, respondents ' assertion that the Revised Access

text.

Procedures were designed with next-friend petitions in mind (Mot.
for Recons. at 27- 29), is undercut by the fact that the Revised

Access Procedures do not even mention the next-friend

device.

Whatever the backdrop and intentions of the parties negotiating
the Revised Access Procedures may have been, it is the express language of the resulting order that is given effect by a

reviewing court.

Magistrate Judge Kay did not clearly err or

act contrary to law when he refused to read into the protective

order terms that had been revised or left out, regardless of
whether they had been in the contemplation of one or more of the

parties. Respondents '

interpretation of the Revised Access

Procedures incorporated into the protective order in this case
cannot prevail in light of the order s plain language and the

law.
Even if their interpretation could be credited, respondents position in this case is untenable for other

reasons.

First,

counsel here have in fact provided " evidence of his or her

See note 1

supra

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15

of 18

15authority to represent the detainee " prlor to a visit to the

detainee.

Here, a sworn statement provides evidence that Adem

was actively seeking a lawyer to represent him.

(AI-Rawi Decl.

Under the circumstances, where the detainee s ability to freely

and timely communicate with the outside world is severely

compromised, counsel have provided prima facie evidence of
authori ty to represent Adem.

Second, respondents ' counsel'

demands of Fogler and Clingman are not consistent with

respondents '

own stated current interpretation of the protective

order.

On review here, respondents argue that access is
proof of authority to represent a

conditioned on " initial

detainee "

plus a " requirement that

direct authorization be

submitted ' as

soon as practical

(sic)' thereafter

(though in no

event more than 10 days after a second visit, under the final

version of the
at 28-

(Revised) Access Procedures).

(Mot. for Recons.

29 (emphasis added).

Counsel for respondents,

however,

repeatedly demanded " evidence that petitioner Adem has
you directly

authorized
prior

to initiate this litigation

to permitting
(Fogler Decl., Exs.

counsel to visit their client in Guantanamo.

o & G (emphasis added).

The " initial proof" evidentiary demand

made to Fogler and Clingman as a threshold requirement of
scheduling a visit to their client is indistinguishable from the

evidence respondents assert is required under paragraph two,
after the second counsel visit.

Thus, respondents ' demands for

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16proof have exceeded what they argue the correct interpretation of

the protective order requires.
Aside from the fact that the plain language of the

protecti ve order does

not require evidence that the petitioner

directly authorized the particular lawyer to file a petition

before the lawyer has even met the detainee, any such requirement
prior to counsel meeting a Guantanamo detainee would unjustly

pose a conundrum for

petitioner.

That Adem has requested a Requiring a Guantanamo

lawyer to represent him is not

disputed.

detainee to identify a specific lawyer from among all the

volunteer lawyers - - most of whom are unknown to the detainee

before a meeting - - is a meaningless exercise.

It would be

unconscionable to tether a detainee s access to counsel to such
an unworkable prerequisite.

Respondents '

argument that the magistrate judge lacks

authori ty to issue the Order dated March 14 , 2006, was not before

the magistrate judge, was not briefed, litigated or considered

below , and is not properly the

subj ect of a motion for

reconsideration.

The premise of their argument - - that this

court is without jurisdiction to entertain any habeas corpus

peti tion filed

by a Guantanamo detainee, including one already

pending when the Detainee Treatment Act was signed into law on

December 30, 2005 - - is a disputed issue that was litigated and
is currently under consideration by the United States Court of

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-17Appeals for the District of Columbia
355 F. Supp. 2d 311
(D. D. C. 2005),

Circuit.

See

Kalid v. Bush

appeal docketed sub nom.
i r.

Boumediene v. Bush, Nos. 05- 5062 , 05- 5063 ( D . C. C

Ma r. 1 0 ,

2005) .

Until that dispute is resolved, respondents ' argument is

premature.
Respondents concede that the protective order remains in

effect.

Mem . Op. at 21.

A court has inherent power to enforce
Broderick v. Donaldson , 437 F. 3d 1226

its own lawful orders.

1234 (D. C. Cir. 2006).
rule in

Adem has a right to counsel under the
(D.

Al Odah v. United States , 346 F. Supp. 2d 1 , 8

2004) .

He has expressly elected to exercise that

right.

The

protecti ve order establishes the procedures
circumstances of detention at Guantanamo.

to follow in

facilitating a detainee s access to counsel given the unusual

Enforcing the terms of

the protective order in this case does not pose a danger of

exceeding the court'

s jurisdiction

even if it is ultimately

determined that this court does not have jurisdiction to

determine the merits of a petition for habeas corpus

relief.

Respondents '

request for a stay pending resolution of the

meri ts of their motion for relief upon reconsideration is

rendered moot by this Memorandum Opinion and
CONCLUSION AND ORDER

Order.

Because the pending petition was filed as a direct petition

respondents '

motion for an order directing petitioner to show

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-18cause why the case should not be dismissed for lack of proper

next- friend

standing will be

denied.

Because Magistrate Judge

Kay did not clearly err or act contrary to law in interpreting

the June 3, 2005 protective order entered in this case , and
because a court has inherent authority to enforce its own orders
the relief respondents seek in their motion for reconsideration

wi 11 be denied.

Accordingly, it is hereby

ORDERED that respondents ' motion for an order directing

peti tioner to show
further

cause

(27 J

be, and hereby is, DENIED.

It is

ORDERED that respondents ' motion for relief based on

reconsideration (38

J

be, and hereby is, DENIED.

It is further

ORDERED that respondents ' motion for a stay pending

resolution of the motion for reconsideration on the merits (39 J
be, and hereby is, DENIED as moot.
SIGNED this 28th day of April , 2006.

/s/
RICHARD W. ROBERTS Uni ted States Di strict Judge