IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 586

NOTICE of Authorization by ABDULLAH BO OMER HAMZA YOYEJ 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)

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EXHIBIT A Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 1 of 18 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 Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 2 of 18 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 Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 3 of 18 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 Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 4 of 18 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 Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 5 of 18 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 Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 6 of 18 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 Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 7 of 18 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. Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 8 of 18 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 Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 9 of 18 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. Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 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 Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 11 of 18 -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 Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 12 of 18 -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. Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 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 Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 14 of 18 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 - Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 15 of 18 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 Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 16 of 18 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 Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 17 of 18 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 Case 1 :05-cv-00723- RWR Document 42 Filed 04/28/2006 Page 18 of 18 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

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