Case 1:05-cv-02386-UNA Document 84 Filed 07/19/2006 Page 1 of 9 Approved for Public Filing by the CSO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AMER MOHAMMON, et ai., ORAL ARGUMENT REQUESTED
Petitioners,
v. Civil Action No. 05 CV 2386 (RBW) (AK)
GEORGE W. BUSH, et aZ.,
Respondents.
EMERGENCY MOTION OF PETITIONERS ABDUL GHAFFAR AND ADEL NOORI FOR ACCESS TO COUNSEL AND TO HOLD RESPONDENTS IN CONTEMPT
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Petitioners Abdul Rahman aJk/a Abdul GhatTar (ISN 281) and Adel LNU
aJk/a Adel Noori (ISN 584), by and through their undersigned counsel, respectfully
submit this emergency motion for access to their counsel, who are scheduled to visit the
U.S. Naval Station at Guantiinamo Bay, Cuba ("Guantanamo"), between July 24 and July
28, 2006. Petitioners also seek the sanction of contempt for Respondents' refusal to
comply with the Amended Protective Order and allow them access to their counsel -
without a good faith basis, and apparently solely for the purpose of delay.
INTRODUCTION
Petitioners are Uighurs, a Turkic Muslim minority group native to the
Xianjiang Autonomous Region, in western China. We have reason to believe and
Respondents have not denied - that Petitioners may have been cleared for release from
Guantiinamo. Respondents nonetheless refuse to aJlow Petitioners access to their
counsel, who seek, in part, to confirm that Petitioners have been exonerated.
Undersigned cO\ll1sel filed a notice of appearance in this case on June 15,
2006. We also represent five other current and former Guantanamo detainees, all of
whom are Uighurs, in Marnet v. Bush, No. 05 CV 1886 (EGS), and Razakah v. Bush, No.
05 CV 2370 (EGS). We are scheduled to visit the Razakah petitioners at Guantiinamo
between July 24 and July 28, 2006.
On J\ll1C 23, 2006, Petitioners moved for expedited entry of the Amended
Protective Order. Respondents had opposed similar motions filed by other petitioners in this case on the ground that the Detainee Treatment Act of 2005 ("DTA") stripped the
Court of jurisdiction to enter the order, and, with respect to certain petitioners, on the ground that their habeas petitions were not authorized by a valid next friend. Case 1:05-cv-02386-UNA Document 84 Filed 07/19/2006 Page 3 of 9 Approved for Public Filing by the CSO
On June 27, 2006, this Court granted in part and denied in part several
pending motions for entry of the Amended Protective Order, including Petitioners'
motion. The Court expressly rejected both Respondents' DTA and "next-friend"
arguments, concluding with respect to the next-friend issue that there was "no reason why
the alleged deficiencies in the petitioners' representatives' next friend status requires [the
Court] to deny them access to counsel." Mohammon v. Bush, No. 05 CV 2386 (RBW),
slip op. at 4 n.5 (D.D.C. June 27, 2006). Accordingly, the Court fotmd that the Amended
Protective Order should be entered as to all petitioners in this case, except those who
already had petitions pending or whom Respondents were unable to identify. The Court
further ordered that the Amended Protective Order "shall also apply in this case, effective
immediately, to all petitioners as designated above until ordered otherwise by the Court."
Id. at 5. Respondents did not seek reconsideration or appeal from this order.
Immediately after the Court issued its decision, undersigned counsel
submitted a renewed request for permission to visit Petitioners during our upcoming visit to Guantanamo to meet with the Razakah petitioners, who, like the petitioners in this case, have filed a habeas petition pursuant to the next-friend authorization of Usama
Hasan Abu Kabir ("Kabil' authorization"). Respondents denied our request to visit
Petitioners on two grounds: (1) Respondents claim that they are not able to identify
Petitioners as current detainees, and (2) Respondents argue that Petitioners' next-friend authorization is not valid. See July 13, 2006 email from Andrew Warden to J. Wells
Dixon (attached hereto as Ex. A). Both of these arguments are without merit.
Petitioners request that the Court order Respondents to permit them access to counsel, during counsel's scheduled visit to Guantanamo, between July 24 and July 28,
2
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2006. Petitioners also seek sanctions for Respondents' refusal to comply with the
Amended Protective Order and allow them access to counsel pursuant to its terms.
ARGUMENT
I, The Court should order respondents to permit Petitioners access to counsel
A. Petitioners have been adequately identified as current detainees
Respondents argue that the "differences in the nanlCS and the minimal infol1nation provided about petitioners" prevent them from "identify[ing] [Petitioners] as detainees presently detained in Guantanamo." Ex. A. This contention, which
Respondents have never advanced before with respect to our clients, is baseless.
We have identified both Petitioner Ghaffar and Petitioner Noori by ISN and matched them with detainees bearing the same names and nationalities on
Respondents' own publicly available list of detainees. The habeas petition filed by
Petitioners, and the Kabir next-friend authorization on which it is based, identify Abdul
Rahman (or "Abdurahman LNU") - who we learned, prior to our appearance in this case, is also called Abdul Ghaffar - as being a citizen of Turkestan, which means he is a
Uighur from China.! See Petition for Writ of Habeas Corpus, filed December 21,2005, at ~ 230. Respondents' detainee list identifies a detainee known as "Abdul Rahman,
Abdul Ghappar," born in Kucha - a city in Turkestan and designated by ISN 281. See
Ex. B (attached hereto). Similarly, the habeas petition and Kabir authorization also identify "Adel LNU" - whose full name, we learned prior to our appearance in this case, is Adel Noori as being a citizen of Turkestan. See Habeas Petition at ~ 232.
Uighurs refer to their native region of western China as "Turkestan" or "East Turkestan. " 3 Case 1:05-cv-02386-UNA Document 84 Filed 07/19/2006 Page 5 of 9 Approved for Public Filing by the CSO
Respondents' detainee list identifies a detainee known as Adel Noori, born in "Xian
Xang, China" the Xinj iang Autonomous Region, a/k/a Turkestan .... and designated by
ISN 584. See Ex. B.
There can be no dispute that the Uighurs identified in Respondents' list of
detainees are the Uighurs on behalf of whom we are pnrsuing this action? The Court
therefore should reject Respondents' claim that the Amended Protective Order has not
been entered as to them pursuant to the Court's June 27, 2006 order, and grant this
motion to allow Petitioners access to counsel.
B. The Court has already rejected Respondents' next-friend argument
Respondents also claim that Petitioners may not meet with their counsel
because the petition "is not directly authorized by the petitioners, nor have the putative
'next friend' detainees ... established appropriate next friend standing under Whitmore v.
Arkansas, 495 U.S. 149 (1990)." Ex. A. This argument is frivolous, given that the Court
has already rejected, in this very case, Respondents' claim that their next-friend challenge
precludes entry of the Amended Protective Order and may be used to block counsel from
accessing detainees. See Court's June 27, 2006 Order at 4, n.5 ("[T]he Court sees no
reason why the alleged deficiencies in the petitioner's representatives next friend status
requires it to deny them access to counsel"). Several other courts in this district have also
entered the Amended Protective Order and allowed counsel access to detainees despite
Respondents' claim that the petitioners lacked adequate next-friend authorization. See,
2 We also note that there were only twenty-three Uighurs held at Guantimamo, six of which have been released and the thirteen of which were represented by other counsel at the time we appeared in this case on behalf of Petitioners. We represent the remaining four: Ghaffar and Noori in this case, and the two petitioners in Razakah v. Bush, No. 05 CV 2370 (EGS). 4
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e.g., Razakah v. Bush, No. 05 CV 2370, slip op. at 4 (EGS) (D.D.C. May 18,2006) ("The
Protective Order does not require evidence of authority to represent a detainee as a
prerequisite to counsel meeting with a detainee"); Adem v. Bush, 425 F. Supp. 2d 7
(D.D.C. 2006). In Razakah, the court ordered Respondents to permit undersigned
counsel access to the petitioners, over Respondents' next-friend objections, after counsel
sought an order to show cause why Respondents should not be held in contempt for
refusing to comply with the Amended Protective Order previously entered in that case.
Given the Court's June 27 order, and given that the Petitioners in this case
appear on the same Kabir authorization as the petitioners in Razakah, there is no
colorable basis for Respondents to claim that counsel cannot meet with Petitioners.
Moreover, even if the adequacy of next-friend authorization were relevant to entry of the
Amended Protective Order, Mr. Kabir has provided more than sufficient evidence of his
ability to serve as next friend for Petitioners and other detainees. See Declaration of
Gitanjali S. Gutierrez (attached as Ex. C). Nothing more is required here3
II. The Court should hold Respondents in contempt of the Amended Protective Order
Respondents are not free to disregard this Court's order - or the order of
any judge in this district - entering the Amended Protective Order and permitting counsel
access to detainees. Nor may Respondents claim that they are unable to identify
detainees when that is plainly not true. Such conduct is improper, and warrants the
sanction of contempt here. Although we are always reluctant to seek sanctions against an
3 Alternatively, the COllrt could order Respondents to allow us access to Petitioners for the purpose of finding out whether they want us to represent them after nearly five years of imprisonment without charges or access to the outside world. See Order, Mohammon v. Bush, No. 05 CV 2386 (RBW) (D.D.C. July 14,2006). 5
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adversary, we are compelled to do so here in order to put an end, once and for all, to
Respondents' unceasing efforts to deny Petitioners the assistance of counsel assistance
that they desperately need and is long overdue.
"There can be no question that cOUJis have inherent power to enforce
compliance with their lawful orders through civil contempt." Shillitani v. United States,
384 U.S. 364, 370 (1966). The Supreme Court has held that court orders place upon
litigants a "duty to obey." McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949).
Failure to abide by this duty is grounds for contempt. See 17 Am. JUT. 2d Contempt § I
(2005) (defining contempt to include "disobedience to the orders of the judiciary").
Moreover, "a finding of bad faith on the part of the contemnor is not required. Indeed,
the law is clear in this circuit that 'the [contemnor's] failure to comply with the court
decree need not be intentional.'" Food Lion. Inc. v. United Food & Commercial Workers
Int'! Union, 103 FJd 1007, 1016 (D.C. Cir. 1997) (quoting NLRB v. Blevins Popcorn
Co., 659 F.2d 1173, 1183 (D.C. CiT. 1981». A party moving for civil contempt must
only establish by clear and convincing evidence that "the putative contemnor has violated
an order that is clear and unambiguous." Armstrong v. Executive Office of the President,
1 FJd 1274, 1289 (D.C. Cir. 1993) (quoting Project B.A.SIC v. Kemp, 947 F.2d 11, 16
(1st CiT. 1991». Because Respondents have refused to obey the unambiguous tems of
the Court's June 27 order, and have instead asserted arguments that are frivolous in light
of that order, the Court should hold Respondents in contempt.
Petitioners ~ who, again, we have reason to believe may have been cleared
for release from Guantanamo are simply requesting that they be permitted to meet with counsel, so that counsel can better understand their situation and assist in obtaining their
6
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release and resettlement. Under these circumstances, Respondents' long campaign of
delay is particularly illegitimate and egregious. It appears that by their continuing refusal
to permit Petitioners and other detainees to meet with their counsel, Respondents seek to
avoid judicial scrutiny until they are able to remove Petitioners from this Court's
jurisdiction without ever disclosing that these men - who have been held virtually
incommunicado, without charge, and without access to counsel for several years - are
wholly innocent. Indeed, rather than complying with the repeated mlings of judges in
this district permitting counsel access to detainees, Respondents have defied court orders
and generally refused to allow counsel access to detainees until they are specifically
directed to do so. When Respondents are ultimately forced to comply, counsel visits with
detainees invariably proceed without further delay or incident.
Respondents' refusal to abide by the terms of the Amended Protective
Order here and in other cases demonstrates a lack respect for the Court and undermines
the integrity of the judicial process. Their obstructive conduct is designed to deny
Petitioners any chance to talk to a lawyer, which Respondents have no legitimate reason
to oppose. It should not be tolerated.
CONCLUSION
For the reasons set forth above, the Court should order Respondents to
pennit Petitioners to meet with undersigned counsel during our visit to Guantiinamo
scheduled between July 24 and July 28, 2006. The Court should also enter an order holding Respondents in contempt.
7
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Dated: New York, New York July 19,2006
Respectfully submitted,
Counsel for Petitioners:
lsi Paul Scho~m:;tlln ______Paul Schoeman (Pursuant to LCvR 83.2(g» J. Wells Dixon (Pursuant to LCvR 83.2(g» Joel Taylor (Pursuant to LCvR 83.2(g» Michael 1. Sternhell (Pursuant to LCvR 83.2(g» Darren LaVerne (Pursuant to LCvR 83.2(g» KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 Avenue of the Americas New York, New York 10036 Tel: (212) 715-9100 Fax: (212) 715-8000
Barbara Olshansky (NY-0057) Gitanjali S. Gutierrez (Pursuant to LCvR 83.2(g») CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, New York 10012 Tel: (212) 614-6439 Fax: (212) 614-6499
Alison ScJater (Pursuant to LCvR 83.2(g» 245 East 80th Street New York, New York 10021 Tel; (212) 717-2736
8
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EXHIBIT A RE: MohammonCase 1:05-cv-02386-UNA v. Bush, No. 05 CV 2386 Document CREW) 84-2 Filed 07/19/2006 Page 2 Pageof 5 1 of 4
LaVerne, Darren
From: Dixon, J. Wells Sent: Monday, July 17,20067:24 PM To: LaVerne. Darren Subject: FW: Moharnrnon v. Bush, No. 05 CV 2386 (RBW)
-----Original Message---- From: Dixon, J. Wells Sent: Fri 7/14/2006 1:06 PM To: Andrew. [email protected] Cc: Subject: RE: Mohammon v. Bush, No. 05 CV 2386 (RBW)
Andrew,
Thank you for your email. We urge you to reconsider your denial of our request to visit our clients Abdul Ghaffar and Adel Noori. Judge Walton has already rejected your next-friend arguments as to our clients, and entered the Amended Protective Order on Jlme 27, 2006. Your denial of our request to visit these men directly contravenes that order. We also believe that there is no good faith basis for Respondents to claim that they are tillable to identifY our Uyghur clients, While we hope that this matter can be resolved without further motion practice, we will seek emergency relief from the Court, as well as sanctions, if Respondents persist with these claims, Please let me know by Monday at noon whether you will reconsider your position, If we do not hear from you by then, we will assume that you have declined to reconsider your position,
Wells
-----Original Message----- From: Andrew.Warden@usdoj,gov [mailto:[email protected]] Sent: Thu 7113/2006 7 :27 PM To: Dixon, J. Wells Cc: Subject: RE: Mohammon v. Bush, No. 05 CV 2386 (RBW)
Wells,
We cannot consent to counsel access with petitioners Abdul Rahman and Adel LNU at this time because we have not been able to identify these petitioners as detainees presently detained at Guantanamo, Consequently, pursuant to Judge Walton's June 27.2006 Order, the Amended Protective Order (and supplemental orders) are not entered with respect to these two petitioners,
As I understand your e-mail below, it is your position that petitioner Abdul Rahman is also named Abdul Ghaffar (ISN 281) and petitioner Adel LNU is also named Adel Noori (ISN 584). In light of the differences in the names and the minimal infonnation provided about petitioners in the habeas petition, please provide us with a thorough explanation and factual basis for your identifications,
In addition to the identify problem, the petition brought on behalf of petitioners Rahman and AdeI is not directly authorized by the petitioners, nor have the putative "next triend" detainees, Sami Muhyedin a1 Hajj and Usama Hasan Abu Kabir, established appropriate next friend standing under Whitmore y, Arkansas, 495 U.S, 149 (1990), As you know, Judge Walton has ordered that respondents file a status report on July 26
7119/2006 RE: MohammonCase 1:05-cv-02386-UNA v. Bush, No. 05 CV 2386 Document (RBW) 84-2 Filed 07/19/2006 Page 3Page of 5 2 of4
regarding various issues in the Mohammon case. At this time we anticipate raising in our status report next friend standing objections to approximately 150 petitioners in the Mohammon case, including petitioners Rahman and Adel. Accordingly, we believe the appropriate course is for the Court to resolve the various next fi'iend objections in a coordinated fashion. Of course, if the identify and next-friend issues are resolved prior to your next trip to Guantanamo, we can schedule a visit with petitioners at that time.
Best regards,
Andrew
Andrew L Warden Trial Attorney U.s. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW, Room 6120 Washington, DC 20530 Tel: 202.616.5084 Fax: 202.616,8470
-----Original Message----- From: [email protected] [mailto:JDixon@KRAMERLljYlli,fQm] Sent: Thursday, July 13,200610:25 AM To: Warden, Andrew (ClV) Subject: FW: Mohammon v. Bush, No. 05 CV 2386 (RBW)
Andrew,
Please let me know whether the govel11ment will allow us to meet with our clients Abdul Ghaffar (ISN 281) and Adel Noori (ISN 584) during our upcoming visit to the base, scheduled for July 24-28, 2006. If we do not hear from you by Monday morning, we will assume that the government has denied our request and would not consent to a motion for counsel access to these detainees.
Thanks,
Wells
1. Wells Dixon Associate Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, New York 10036 Tel: 212-715-9491 Fax: 212-715-8000 Email: [email protected] h~tR; // WW\Y.: kC{Dl1 ~t: It;)jIl ~ G,P lJl
7/19/2006 RE: MohammonCase 1:05-cv-02386-UNA v, Bush, No, 05 CV 2386 Document (RBW) 84-2 Filed 07/19/2006 Page 4Page of 5 3 of 4
This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is confidential, privileged or legally protected. Any unauthorized use or dissemination orthis communication is strictly prohibited. If you have received this communication in error, please immediately notifY the sender by rctum e-mail message and delete all copies of the original communication. Thank you for your cooperation.
-----Original Message---- From: Dixon, J. Wells Sent: Tue 6/27/2006 11 :53 AM To: '[email protected]' Cc: Subject: RE: Mohammon v. Bush, No. 05 CV 2386 (RBW)
Andrew,
Thanks for your email. In light of Judge Walton's ruling this morning granting our motion (and related motions) for entry of the protective order, we renew our request for permission to meet with our clients Abdul Ghaffar (lSN 281) and Adel Noori (ISN 584) during our upcoming visit to the base. These men have not previously filed habeas petitions, and their identities are not in dispute. Please let me know as soon as possible whether the government will allow us to meet with them.
Separately, in response to your email of June 2, 2006, concerning our visit request in Razakah v. Bush, No, 05 CV 2370 (EGS), we will confirm for you in the next few days which attorneys will be traveling to the base between July 24 and July 28, 2006,
Thanks,
Wells
-----Original Message----- From: Andrew,[email protected] [ll1ailt():;\llclre_w,Ward_'lI1@lIsd_Qj.gov] Sent: Thursday, June 22, 2006 4:01 PM To: Dixon, J. Wells Subject: RE: Mohammon v. Bush, No. 05 CV 2386 (RBW)
Wells,
Thanks for confen-ing with us, but we cannot consent to entry of the protective order in the Mohammon case, We also cannot consent to meetings with the Mohammon petitioners as if the protective order was entered in the case. Entry of the protective order by the Court is one of the prerequisites that must be established before counsel visits at Guantanamo may occur.
Best regards,
Andrew
Andrew I. Warden Trial Attorney
7119/2006 RE: MohammonCase 1:05-cv-02386-UNA y, Bush, No. 05 CV 2386 Document (RBW) 84-2 Filed 07/19/2006 Page 5Page of 5 4 of 4
U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW, Room 6120 Washington, DC 20530 Tel: 202,616.5084 Fax: 202.616.8470
-----Original Message----- From: [email protected] [maillo:)Qixon@JZRAj\;f1;RI.EVIN.s:Q1n] Sent: Wednesday, June 21, 2006 6:56 PM To: Warden, Andrew (CIV) Subject: Mohamman v. Bush, No. 05 CV 2386 (REW)
Andrew,
We represent petitioners Abdul Rahman aJk/a Abdul Ghaffar (ISN 281), and Adel LNU a/kJa Adel Noori (ISN 584), in the above-captioned case. I am writing to request that the government consent to entry of the Amended Protective Order in this case as to those two Uyghur petitioners. Alternatively, we request permission to visit these men while we are at GTMO between July 24 and July 28, 2006, based on our representation that we would abide by the tenns of the Amended Protective Order entered in our other cases, Razakah v. Bush, No. 05 CV 2370 (EGS), and Mamet v, Bush, No. 05 CV 1886 (EGS), each of which involves Uyghur detainees (or fonner detainees) whose circumstances we believe may be similar to those of Abdul Ghaffar andior Adel Noori.
Please let me know as soon as possible.
Thanks,
Wells
J. Wells Dixon Associate Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, New York 10036 Tel: 212-715-9491 Fax: 212-715-8000 Email: [email protected] tIttQ:j/wwv,:,kmm.l'J:leB!l",(:Qln
This communication (including any attachments) is intended solely for the recipient(s) named above and may contain infonnation that is confidential, privileged or legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received this communication in error, please immediately notiJY the sender by return e-mail message and delete all copies of the original communication. Thank you for your cooperation.
7/19/2006 Case 1:05-cv-02386-UNA Document 84-3 Filed 07/19/2006 Page 1 of 19
EXHIBITB Case 1:05-cv-02386-UNA Document 84-3 Filed 07/19/2006 Page 2 of 19 511512006 I i I """ 15, 2006 Birth May of 1/111973 1/111982 1/1/1954 11il1973 5/111977 1/111976 1/111969 111/1975 1/1/1977 1/111971 3/611977 1/111965 11111972 1f1f1974 6{111977 8/5/1973 111/1983 417/1976 11111980 1/1/1979 9/811967 8f111977 1i1f19-82 6/5/1975 9/22/1974 6118/1979 1111/1-974 3/2811973 3115/1973 1/18/1984 7/1711970 6/24/1973 12/1211955 3[15/1973 1011111978 12116/1963 10!10f1974 11112/1961 10129/1979 12127/1975 11/1311969 UNKNOWN UNKNOWN Date through I I 2002 SA Birth PK January of CH AF MO MO AF PK Tajikistan AF Wala, Tajikistan AF Menawa, from Denmark SA CH Uganda Kazakhstan Place AF Tajikistan JO CH Algena YM CH YM CH LY CH Tunisia SO CH l Y SP Khel, SY iraq AF 426, Sang, UAE Kate CH YM JO 0 E Cuba Bayda.LY Jilat, Medina Sanaa. Kabul, Khushawa, Kashkar, UNKNOVVN Konduz, Halab, Casablanco, Kandahar, Xinjian, AI Tripoli, Ghulja, Ghufja, Kucha, Konashahar, Basra, Irbid, Baora, Roskilde, Amman, Algiers, Shaqara, Ibb,YM AI Al Khan Menzll, Entebbe, Village iRoy Semeya, ltsfaratz. lCasablanca, Lenenabad, jCueta, jChah !Ghulja, !Oushanbe, 'Dubai, lTa'iz, iMuday, ,Aksu, Bay. Emirates Kingdom Arab Arabia Arabia Citizenship Guantanamo at Uzbekislan Syria Spain China Libya Pakistan Morocco Pakistan Afghanistan Afghanistan Yemen China China China France Afghanistan Afghanistan Jerdan China Libya Denmark Iraq Aigetia Tajikistan Jordan Saudi China Yemen Yemen Yemen China Kazakhstan United Pakistar: United Afghanistan Tajikistan Tajikistan !Ubya jSomalia "Tunisia lChina !Saudi 58 44 67 46 24 31 37 90 326 104 267 76 956 525 Defense 116 164 454 295 282 293 285 289 260 70g 323 695 589 435 281 257 65g 156 206 704 711 309 685 275 671 542 526 1005 1460 ISN of i i i I I I , i birth. 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EXHIBITC Case 1:05-cv-02386-UNA Document 84-4 Filed 07/19/2006 Page 2 of 8
Case 1:05-cv-02370-EGS Document 8 Filed 02/03/2006 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ABDUR RAZAKAH, et aI.,
Petitioners,
v. Civil Action No. 05-CV-2370 (EGS)
GEORGE W. BUSH, et aI.,
Respondents. ------1'
DECLARA TION OF GITANJALI S. GUTIERREZ
I, Gitanjali S. Gutierrez, declare that the following statements are true to the best of my knowledge, information, and belief:
1. I am an attorney with the Center for Constitutional Rights, co-counsel for
Petitioners Abdur Razakah and Ahmad Doe in the above-captioned action. I offer this
Declaration in support of Petitioners' Petition for Writ of Habeas Corpus.
2. I met with Petitioners' Next Friend, Mr. Usama Abu Kabir, a detainee at
Guantanamo Bay Naval Station, Guantanamo Bay, Cuba ("Guantanamo") on December 15,
2005, to discuss his role as a Next Friend for numerous petitioners.
3. The Department of Defense (DOD) sent my attorney notes from
Guantanamo to the secure work facility for habeas counsel in Washington, D.C. I submitted the notes for review by the Privilege Team on January 12,2006 and received my unclassified notes from the Court Security Office on January 20, 2006.
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4. Mr. Abu Kabir is a Jordanian citizen who speaks English quite well, as well as Arabic. He has been detained in Guantanamo for almost four years. He has a fairly good understanding of our legal system and comprehends the meaning of a "next friend."
5. I asked Mr. Abu Kabir about the ability of the detainees to access the federal courts or counsel to challenge the legality of their detention and about the relationship between the prisoners.
Inability to Access the Courts or Legal Counsel
6. According to Mr. Abu Kabir, the detainees do not have access, much less meaningful access, to the federal courts or a lawyer to challenge the legality of their detention because (a) the prisoners do not receive the DOD notifications about habeas petitions, (b) the prisoners cannot understand the meaning of the notifications, and (c) when prisoners have contacted the court directly, they receive no response or only a response in English that they do not understand.
7. Some prisoners received the "Enemy Combatant Notification" (BCN) during the Combatant Status Review Tribunal (CSRT) process. The notice simply instructed the detainees to write the "United States District Court for the District of Columbia" to file a habeas petition and listed the court's address in Washington, D.C.
8. Mr. Abu Kabir explained that this notification was confusing for many of the prisoners. The detainees have no means to understand whether the "United States District
Court for the District of Columbia" is another military or government agency affiliated with the military or whether it is an independent body.
9. He also said that while the EeN referred to a "court", the detainees were seeking an "attorney" to help them. Mr. Abu Kabir further explained that the detainees believe
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strongly that writing the court, by itself, will not help them. The detainees want lawyers to help them present their case to the courts in an unfamiliar legal system.
10. Although the BeN states that detainees can write letters to the court, Mr.
Abu Kabir stated that the prisoners did not know what to say and the BeN did not provide any information about what to write. The detainees did not know if they needed an attorney to file the petition for them. They thought that they needed a lawyer to make sure whatever letter they might write to the court was right.
11. The military police (MPs) at Guantanamo did not explain to the detainees what the BeN was. Neither could the prisoners get advice from other military people there. The
'personal representatives' were not available for this kind of advice.
12. Mr. Abu Kabil" was aware of some detainees who simply mailed the entire
BeN sheet itself back to the court because they did not know what else to do get legal assistance.
13. The detainees know that, in general, when they send letters in the military mail system, the letters do not arrive at the destination. Even the legal mail system established for the habeas proceedings is not reliable. Mr. Abu Kabir personally sent letters to his attorney that did not arrive. He has not received one letter from his attorney in six months even though his attorney has written to him several times. He also pointed out that the detainees must hand their own legal letters to the MPs for mailing. The detainees conclude that it is useless to send regular letters through the military to an unfamiliar court to get an attorney.
14. Mr. Abu Kabir stated that the detainees told one another of some prisoners who spoke English and wrote to the court address three or four times and never received anything back. Mr. Abu Kabir knew of no prisoner who had written to the court or who had received an attorney visit as a result of that letter, yet it has been months since those letters were
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written, and in some cases almost a year. From Mr. Abu Kabir's perspective, this confinned the futility of writing to the court address provided by the military as a means of getting legal counsel.
15. He also emphasized that the interrogators at Guantanamo were regularly
"playing games" with the detainees and would say all manner of things to the detainees.
Because the interrogators will "engage in nonsense" with the detainees, the detainees are suspicious of anything that comes from the military or government, including the ENC, as being simply another hick or deception. For example, when it became known that lawyers were going to come to Guantanamo, interrogators would pretend to be the lawyers, during interrogation. All of this was designed to deceive the prisoners, which makes it particularly difficult for them to trust some notice like the ECN when it comes from the military.
16. To Mr. Abu Kabir's knowledge, not all of the detainees received all of the various notifications DOD claims to have provided to the detainees. This is not simply a matter of a detainee who is confused about the different notifications. Mr. Abu Kabir is a sophisticated individual, well aware of what is happening around him. He was aware that the Catholic
Workers were protesting and fasting outside the gates of the military base the week I was visiting and knows that the Associated Press is litigating a case seeking the CSRT records.
17. Yet, Mr. Abu Kabir could not remember ever having seen or heard of the
American Bar Association (ABA) notification infonning detainees that the ABA could help them secure lawyers.
18. The ECNs were not translated into enough languages. If a detainee was illiterate, he would need to ask another detainee to read the notification to him, if he was in a camp where this was even possible. The MPs were prohibited from helping the detainees with
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any legal or other questions about the notification. The ECN in Arabic was much more difficult to understand. While he is sophisticated, and was able to read the ECN in both English and
Arabic, Mr. Abu Kabir did not understand what a petition for habeas corpus was until he talked to his own lawyer.
19. Mr. Abu Kabir does not understand why there is any problem with his acting as a "next friend." He and his lawyer talked this over, and discussed the fact that the ECN says right on its face that a prisoner can as any "friend" to file a petition for him. That much of the ECN seemed very clear. Mr. Abu Kabir felt that he could help people who he knew wanted lawyers in this way, and does not understand why the Government would not allow something that they specifically said he could do.
20. Indeed, the detainees would wait until one detainee with a lawyer had an attorney-client meeting and the entire group would send their questions with that detainee to ask his lawyer. Mr. Abu Kabir trusted his lawyer, and consequently the other prisoners trusted him
(Mr. Abu Kabir) to seek help through his lawyer.
Close Relationship Between the Detainees
21. Before discussing the relationship between the detainees, Mr. Abu Kabir provided three specific reasons why it is difficult for the detainees to have family members acting as next friends, thus creating the need for a fellow detainee to act of a person's behalf.
22. First, Petitioners Razakah and Ahmad and many other Uighur detainees have specifically expressed that they do not want their families to be contacted about becoming next friends because they fear the Chinese government becoming aware of and persecuting their families. This leaves the men with no other recourse other than to tum to fellow detainees for assistance.
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23. Second, the detainees know that only U.S. lawyers can meet with them at the base. Most of the detainees left at Guantanamo are from Arab countries. The prisoners cannot fathom how their families could possibly contact an American lawyer to help them. And even if their families did, the detainees and their families would face language and other barriers with these lawyers. The detainees cannot imagine how their families are supposed to deal with this.
24. finally, after years of interrogation, some detainees are very concemed about the interrogators reading their letters. Every letter a detainee sends through the regular mail system is reviewed and censored by the military. According to Mr. Abu Kabir, if the interrogators review and censor these letters, they will see the detainee asking for legal assistance. Some of the detainees conclude from this that the interrogators will believe the detainee is hiding something and interrogate him more aggressively. They believe that interrogators will think that the detainee has done something wrong if he is asking for the help of a lawyer.
25. Mr. Abur Kabir consistently described the relationship between himself and the other detainees as being one of the closest relationships he had experienced in his life.
26. In general, as Muslim men, the detainees have their religious community, which is as strong as biological relatives. Some men from the same region also have tribal or regional bonds from their home countries prior to imprisonment.
27. In Guantanamo in particular, the relationship between the detainees is extremely strong. Mr. Abu Kabir described it as being as strong as, if not at times stronger, than his relationship with this father or actual brother.
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28. As described in Brent Mickum's declaration in AI-Razak v. Bush, 05-CV-
01601 (GK) (D.D.C.), some of the detainees expose themselves to retaliation by acting as a next friend to help a fellow detainee.
29. Finally, Mr. Abu Kabir explained that the DOD has moved some of the
prisoners who asked him to act as a next friend. This can make is impossible to communicate
with them once they are separated. Because the next fliend authorizations were given such a
long time ago, by the time an attorney finally can schedule a client meeting, the two detainees
have been moved aprut.
30. Mr. Abu Kablr made clear, however, that the geographical separation
between the detainees when DOD transferred one of them to a different cell block cannot
weaken or undennine the strength of the relationship and his personal commitment to acting in
his friend's best interest.
31. I declare, under penalty of peljury under the laws of the United States that the foregoing is true and correct.
Executed this 3 day of February, 2006 in New York, New York.
Gitanjali S. Gutierrez
·7·