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)
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
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