IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 585

NOTICE of Authorization by BILAL LNU re (524 in 1:05-cv-02386-UNA, 210 in 1:08-mc-00442-TFH) Order (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B)(O'Hara, Matthew)

EXHIBIT A

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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)

Respondents.

MEMORADUM OPINION AND ORDER

Peti tioner Saleem

Muhood Adem petitioned for a writ of

habeas corpus challenging the legality of his detention at the
Uni ted 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 ' premise that the direct petition
somehow improper or

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 wi 11

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 Al-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, Al-Rawi also sent a letter to Mickum , relaying
Adem s request for counsel.

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

Rawi

Al-Rawi Decl.

In early 2005, attorney Murray Fogler contacted the Center

for Constitutional Rights, a public interest group that has
coordina ted 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.

I 1- 3,

Dec. 9, 2005.

On June 3, 2005, a protective order was entered in
an ticipation of the sensi

ti ve information that usually

invol ved in these

Guantanamo detainee cases and the unusual

S

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securi ty 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.

The protective order governs counsels

communication with

peti tioner Adem

by its incorporation of the Revised Procedures

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

Naval Base in
ee

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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protective order , and submitted a Notification of Representation.

Respondents informed Fogler and Clingman that " we require

evidence that petitioner Adem has authorized you directly to

ini tiate this litigation
him.

before you will be provided access to

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

Nov. 17, 2005, appended as Ex. D to Fogler Decl.
for respondents re- stated their position:

Later ,

counsel

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 I II. 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 (T)he litigation on petitioner . is a petition brought peti tion in this case Accordingly, we directly on petitioner Adem require evidence that petitioner Adem has authorized you directly to ini tia te 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
addi tion

client.

Respondents opposed the motion.

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

a

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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.
Nov. 2, 2005.
2 (a) .

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 facili ta te counsels

visit 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
t 2 , Apr. 4

Stay and Reconsideration ("Mot.
2006. )

for Recons.

They also argue that the magistrate judge had no

authori ty to issue the Order.

Id.

at 16-39.

Respondents also
Id.
seek.

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

Petitioner opposes the relief respondents

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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

Friend

Standing at 9- 20.

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.

,n (Dkt. 28, Pet'
3, quoting Hill

Response to Mot. for Order to Show Cause at

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

A

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that counsel file the petition on his

behalf.

Accordingly,

respondents '
11.

motion for a show cause order will be

denied.

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.

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
United States v. U. S. Gypsum Co. , 333 U. S. 364, 395

committed.

(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

adjacent paragraphs of the protective order s Revised Access

Procedures:
Prior to being permitted access to the detainee, 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 must provide DoD with a

counsel.

detainee.

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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
wi th

the detainee. The Court recogni zes 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 Should counsel number of counsel visits 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.
applied to only the

1&

The magistrate judge concluded that the condition " prior to

being permitted access to the

detainee,

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

separate submissions.

(Mot. for Recons. at

two, and requires Specifically, 26.

respondents argue that

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

the (Revised)

petition

a

I

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

(Revised) Access Procedures ~ III.
(Mot. to Recons. at 25.

See
C.

Respondents also contend that the

parties negotiating the Revised Access Procedures understood that

access (would) be ()

conditioned on initial proof of authority to

represent a detainee with the requirement that direct

authorization be submitted ' as
thereafter.

soon as practical

(sic) ,

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

requiring " additional direct evidence.

Id.

at 25.

opposition, 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 I? Supp. 19, 22 (D. C. 1993) fJi- '"irig- plain meaning to (the) language of the protective order); Positive 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 (agreed) Protective Order nd " (w) hen interpreting the terms of a court order , courts should consider the plain meaning of the language and the normal n re Cement and Concrete usage of the terms in question. Antitrust Litiq. , 817 F. 2d 1435, 1442- 43 (9th Cir. 1987) (starting with the plain language of the class definition in

Presiderlt ,

See, e.

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10

of 18

10-

Judge Kay rej ected respondents '
permitted access to the

interpretation and concluded that

the temporal condition stated in paragraph
detainee,

one, "

rior to being

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,

Counsel must provide DoD with a Noti fication

to being permitted access to the detainee

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) i ClLv of I-IdLLforu v. Cl1d2)e , 942 F. 2li 130 , 134 (2ei elL. 1991) (" Because the Confidentiality Order was part of a courtapproved agreement, it must be construed according to general Thus, deference is to be paid principles of contract . and the normal usage to the plain meaning of the language (citations and quotations omitted); of the terms selected. D. 524, 527 (S. Y. 1994) ("As is Wilder v. Bernstein , 153 F. the case in interpreting contracts, a court must look to the plain meaning of the language used in the agreement when
definition),

reviewing a lower court' s

law.

interpreting a consent decree.

e

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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 (text) are intended to have the same meaning

cases) .

Magistrate Judge Kay concluded that the two identical

phrases in the two

adj acent paragraphs showing.

vidence of his or
- - refer to a single

her authority to represent the detainee

standard to be made in a single

Relying on the

commonplace rule of statutory construction () that the specific
governs the general,

he concluded that the detail in the second
when

paragraph specifying

the required evidence must be provided

simply modifies the bare announcement in the first paragraph that

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-12such evidence would be required.
Lee v. Ashcroft, 368 F.
quota tions

Mem. Op. at 25 , quoting Ki Se
Cir. 2004)

3d 218, 223 (3d

internal

omitted).

The plain language of the Revised Access

Procedures affords no support for respondents ' contention that

the two identical phrases impose different, and tiered, standards
of evidence.

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, Notification of counsel must provide DoD with a 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.

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 Ii tiga tion 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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Page

13

of

18

13(Access Procedures
. II III.

1 and 2, appended at Tab 4 and

at Tab 5, Ex. 1, to Mot. for Recons.

Respondents '

argument is unavailing in multiple respects.

First, the history and context of text is of no consideration if

the text affords a straightforward

interpretation.

See BedRoc

Limited, LLC v. United States , 541 U. S. 176, 183 (2004)

(stating

that " inquiry

begins with the statutory text and ends there as

well if the text is

unambiguous.

Exxon Mobil Corp.
As we

Allapattah Servs., Inc. ,

125 S. Ct. 2611, 2626 (2005)

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,
(referring with approval

Inc.

900 F. 2d 318, 325 (D. C. Cir. 1990)

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 Judqe 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

protecti ve 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 resul ting 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

supra

-

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15authority to represent the detainee

prior 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
respondents argue that access is

order.

On review here,
on " initial

condi tioned

proof of authority to represent a

detainee plus a "
submi tted

requirement that

direct authorization be
thereafter (though in no

as soon

as practical (sic)'

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

repea tedly demanded " evidence that petitioner Adem has
you directly

authorized
prior

to initiate this
(nIT-y \c..UlY.lJ.\.'--'"-"U'J""Uj

litigation,

to permitting
(Fogler Decl. , Exs.
rY"tT "Y'tT ,Y dcrnaYld ..1.f.l""-+.-l.l'-..--..

counsel to visit their client in Guantanamo.
,.rl

rl\

rrhr-

.. .l.i", .J.JJ... ....I...

.t.L

\.v..F"

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 protective 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 unj ustly 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 lurisdiction to entertain any habeas corpus

petition 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 Circuit.
See

Kalid v. Bush

355 F.

Supp. 2d 311 (D.

C. 2005),

appeal docketed sub nom.
05-5063 (D. C. Cir. Mar. 10,

Boumediene v. Bush, Nos. 05- 5062,

2005) .

Until that dispute is resolved, respondents ' argument is

premature.
Respondents concede that the protective order remains in

effect.
1234 (D.
rule in

Mem. Op. at 21.

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

its own lawful

orders.

Cir. 2006) .

Adem has a right to counsel under the

Al Odah v. United States , 346 F. Supp. 2d 1, 8 (D.
He has expressly elected to exercise that

2004) .

right.

The

protective order establishes the procedures to follow in
facilitating a detainee s access to counsel given the unusual

circumstances of detention at Guantanamo.

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

merits 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
will be denied.

Accordingly, it is hereby

ORDERED that respondents ' motion for an order directing

peti tioner to show
further

cause (27) be, and hereby is, DENIED.

It is

ORDERED that respondents ' motion for relief based on

recons ideration

(38) be, and hereby is, DENIED.

It is further

ORDERED that respondents ' motion for a stay pending

resol ution of the

motion for reconsideration on the merits (39)

be, and hereby is, DENIED as moot.
SIGNED this 28th day of April, 2006.

/s/
RICHARD W. ROBERTS Uni ted States District Judge