Mohamed v. Gates

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
ISMAIL MOHAMED et al., )
)
Petitioners, )
)
v. ) Civil Action No. 08-1789 (RWR)
)
ROBERT GATES, )
)
Respondent. )
)

MEMORANDUM OPINION AND ORDER

Guantánamo Bay detainee Ismail Mohamed has petitioned for

habeas corpus relief. He moves for an order directing the

government to allow him to review and retain his alleged

statements contained in the respondent’s factual return, and to

have access to those statements before he meets with his counsel

on June 12, 2009. Because Mohamed’s motion legitimately seeks

access to important information that is necessary to facilitate

his right to meaningful assistance of counsel and his right to

pursue habeas relief, his motion will be granted in part.

However, because Mohamed did not timely follow the procedures set

forth in the January 30, 2009 Order by Judge Hogan establishing

the method to request access for a petitioner to material before

a visit from counsel, his motion will be denied in part.

BACKGROUND

Mohamed, a Somali national, has been a detainee at the

United States Naval Base in Guantánamo Bay, Cuba (“Guantánamo”)
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since June 2007. His counsel complains that she has sought

declassification of Mohamed’s alleged statements that are relied

on by the respondent in its factual return since April 10, 2009,

but thus far has received only seven of the twenty-one

statements. (See Petr.’s Emergency Mot. for Order (“Petr.’s

Emergency Mot.”) at 2; Respt.’s Opp’n to Petr.’s Emergency Mot.

(“Respt.’s Opp’n”) at 8.) Mohamed further argues that because of

the complexity of his case, the respondent’s policy of treating

even declassified statements by petitioners as For Official Use

Only (“FOUO”) documents and thus preventing Mohamed from having

access to them when his counsel is not present prevents Mohamed

from meaningfully assisting in his defense. She explains that

Mohamed needs “many hours to sift among his memories from dozens

of interrogation sessions to try to get at the truth of what was

said,” and the complexity of the case will require Mohamed to

spend “weeks to process the information properly.” (See Petr.’s

Reply to Respt.’s Opp’n (“Petr.’s Reply”) at 3, 5).

The respondent asserts that the government has attempted to

declassify Mohamed’s statements as fast as possible, and that it

is “most likely” that all of Mohamed’s statements will be

declassified by the June 12, 2009 petitioner-counsel meeting.

(Respt.’s Opp’n at 1, 8.) However, the respondent argues that it

should not be required to provide Mohamed with his statements

before they have been declassified or to allow Mohamed to keep
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paper copies of his statements with his privileged legal

material, because the matter is currently before Judge Hogan as

part of the respondent’s motion to amend the September 11, 2008

protective order, and because doing so would jeopardize national

security. (Id. at 7, 12.)

DISCUSSION

Detainees at Guantánamo Bay may seek the writ of habeas

corpus, Boumediene v. Bush, 128 S. Ct. 2229, 2240 (2008), and

have the right to be represented by counsel. Hamdi v. Rumsfeld,

542 U.S. 507, 539 (2005). “There is no higher duty of a court,

under our constitutional system, than a careful processing and

adjudication of petitions for writs of habeas corpus.” Omar v.

Harvey, 514 F. Supp. 2d 74, 78 (D.D.C. 2007) (quoting Harris v.

Nelson, 394 U.S. 286, 292 (1969)). The Supreme Court has stated

that “where specific allegations before the court show reason to

believe that the petitioner may, if the facts are fully

developed, be able to demonstrate that he is . . . entitled to

relief, it is the duty of the court to provide the necessary

facilities and procedures for an adequate inquiry.” Harris,

394 U.S. at 292. “[I]n order to properly represent [habeas]

Petitioners, their counsel must have access to them, [and] must

be able to communicate with them[.]” Al-Joudi v. Bush, 406

F. Supp. 2d 13, 21-22 (D.D.C. 2005). While the “Government has a

legitimate interest in protecting sources and methods of
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intelligence gathering,” the procedures created by the district

court for these habeas proceedings must allow a petitioner to

have a “meaningful opportunity to demonstrate that he is being

held pursuant to ‘the erroneous application or interpretation’ of

relevant law.” Boumediene, 128 S. Ct. at 2262, 2276 (quoting INS

v. St. Cyr, 533 U.S. 289, 300-301 (2001)).

Paragraph 29 of the Protective Order of September 11, 2008

states that “Petitioners’ counsel shall not disclose to a

petitioner-detainee classified information not provided by that

petitioner-detainee.” (Protective Order ¶ 29.) Paragraph 39

states that “Petitioners’ counsel shall not disclose protected

information not provided by a petitioner-detainee to that

petitioner-detainee without prior concurrence of government

counsel or express permission of the Court.” (Protective Order

¶ 39.) In In re Guantanamo Bay Detainee Litigation, Civil Action

No. 05-1244 (TFH/CKK), 2009 WL 122803, at *1 (D.D.C. January 15,

2009), Judge Hogan interpreted the Protective Order to “permit

counsel for a petitioner to review with the petitioner statements

in the exhibits to the Classified Factual Return for that

petitioner that the Privilege Review Team determines were made by

that petitioner to agents of the United States government.” Id.

Judge Hogan ruled that petitioners’ counsel were not allowed to

share with a petitioner “information contained in the exhibits to

the Classified Factual Return beyond the text of petitioner’s
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statements, petitioner’s name, and the dates the statements were

made.” Id. The documents created by petitioner’s counsel to

conform to Judge Hogan’s opinion were to be “marked, transported,

handled, and maintained as classified material” under the

provisions of the Protective Order.” Id. Judge Hogan later

clarified his order by explaining that

If the government completes a declassification review
of a petitioner’s classified statements made to agents
of the United States government before petitioner’s
counsel is scheduled to review such statements with
petitioner, any document created by petitioner’s
counsel containing petitioner’s classified statements
must be screened by the Privilege Review Team. The
Privilege Review Team will compare counsel’s document
with the declassified material. If the Privilege
Review Team determines that a statement in counsel’s
document should be redacted because it is not
declassified, counsel must present that statement
before the appropriate Merit Judge for a particularized
determination if it should be released for review with
petitioner. Documents created by petitioner’s counsel
that contain petitioner’s classified statements made to
agents of the United States government are only subject
to this declassification screening if (i) the
government has completed its declassification review of
petitioner’s classified statements made to agents of
the United States government and (ii) there is
sufficient time for the appropriate Merit Judge to
adjudicate on whether petitioner can review his
classified statements.

In re Guantanamo Bay Detainee Litigation, Civil Action No. 05-

1244 (TFH/CKK), 2009 WL 234956, at *1-2 (D.D.C. January 30,

2009).1

1
The government has moved to alter the Protective Order to
prohibit petitioners’ counsel from sharing statements made by the
petitioners with the petitioners if those statements are not
declassified. In light of that motion, Judge Hogan issued a
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Here, Mohamed has not presented specific statements that

have not been declassified for a particularized determination of

whether they should be released for review with petitioner, and

Mohamed did not seek to insure that there would be sufficient

time for adjudication of whether petitioner can review his

classified statements. Furthermore, the fact that at least seven

of Mohamed’s statements have been provided to Mohamed’s counsel

will assure that his June 12, 2009 meeting with counsel will not

be entirely fruitless. If Mohamed and his counsel have

difficulty creating their factual traverse due to the purported

complexity of Mohamed’s case, they can seek an extension of the

due date of his factual traverse on a showing of good cause.

Mohamed’s emergency request for an order requiring the respondent

to provide him with all of his statements, classified or not,

before the June 12, 2009 meeting with counsel will be denied.

However, for Mohamed to have anything resembling a

meaningful opportunity to demonstrate that he is being held

contrary to law, he must be given an opportunity at some point

to review and discuss with his counsel all of the purported

statements made by him to government agents that are used against

him in the amended factual return. The respondent’s concern that

Minute Order on April 10, 2009, suspending the January 15, 2009
and January 30, 2009 Orders but allowing merits judges to
supercede that suspension for individual cases. (See Minute
Order of April 10, 2009, 08-mc-442.)
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the court might force it to release classified information or

declassify information that could harm the national security

interests of the United States is misplaced. The respondent has

not been directed to declassify any material. However, the

respondent may not justify Mohamed’s detention with statements of

Mohamed’s that he has not had a meaningful opportunity to discuss

with his counsel. If the respondent were to choose not to

divulge these statements to Mohamed, the respondent presumably

would have to seek leave to file a new amended factual return

that does not rely upon the undisclosed statements.

Mohamed also asks to be able to keep copies of his

statements with his privileged legal materials at Guantánamo.

Mohamed has not presented any evidence that his case is

substantially more complex than that of other petitioners who

have not demanded the same level of access to copies of their

statements. The time pressures and logistical impediments cited

by Mohamed’s counsel, while certainly challenging, are not unique

to Mohamed’s case and are not adequate justification for his

request. On the other hand, the respondent’s assertion that

national security interests would not be imperiled if petitioner

and counsel discuss petitioner’s statements, yet would somehow be

jeopardized if petitioner keeps paper copies of his own

statements, is unpersuasive. The parties will be directed to

confer and file a joint status report with proposals for
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alternative methods to facilitate Mohamed’s ability to review his

statements when his counsel is not visiting Guantánamo, whether

it involves the respondent keeping copies of Mohamed’s statements

at some location at Guantánamo and allowing Mohamed time to

review his statements, or using a procedure analogous to the

“adequate substitute” provisions of the Classified Information

Procedures Act (“CIPA”), 18 U.S.C. app. III, whereby the

respondent could fashion and provide to Mohamed a document

containing an adequate substitute for Mohamed’s own statements

that Mohamed could keep with his privileged legal materials at

Guantánamo and review, see Khaled A.F. Al Odah v. United States,

559 F.3d 539, 547 (D.C. Cir. 2009) (stating that procedures under

the CIPA “should also be available in habeas” proceedings), or

using some other method.

CONCLUSION AND ORDER

Mohamed has not complied with the procedures for challenging

classification outlined by Judge Hogan in his January 30, 2009

Order. Accordingly, it is hereby

ORDERED that Mohamed’s request for an order requiring the

respondent to provide him with all of his statements before the

June 12, 2009 meeting with counsel, classified or not, be, and

hereby is, DENIED. It is further

ORDERED that Mohamed’s request that the respondent generally

be required to allow Mohamed to review the statements that he
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purportedly made to government agents and that are relied upon in

the respondent’s factual return be, and hereby is, GRANTED. It

is further

ORDERED that the parties shall file a joint status report

and proposed order by June 24, 2009, suggesting alternatives that

would facilitate Mohamed’s review of the information contained in

his statements during periods of time when his counsel is not

present.

SIGNED this 10th day of June, 2009.

/s/
RICHARD W. ROBERTS
United States District Judge