UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
HAMOUD ABDULAH HAMOUD )
HASSAN AL WADY )
)
Petitioner, )
)
v. ) Civil Action No. 08-CV-01237 (RMU)(AK)
)
BARACK OBAMA, et al. )
)
Respondents. )
____________________________________)
MEMORANDUM OPINION1
Pending before the Court is Petitioner Al Wady’s Renewed Motion for Direct Contact
with Client [87] (“Pet’r Mot.”), the Respondents’ Opposition [92] (“Resp’ts Opp’n”),
Petitioner’s Reply [95] (“Pet’r Reply”), Respondents’ Supplemental Filing (“Resp’ts Supp.”)
[108] and Petitioner’s Response (“Pet.r Resp.”) [109].
In their motion, counsel for Petitioner claim that Respondents (“Government”) refuse to
permit them direct contact with Petitioner to ascertain in a face to face meeting whether
Petitioner’s decision not to meet with counsel is knowing and voluntary, and made with a full
understanding of who counsel is and how counsel think they can assist Petitioner. Counsel assert
that an accommodation made by the Government as a result of a prior mediation, which allowed
counsel to attempt to meet with Petitioner only if Petitioner agreed to leave his cell, was tried and
failed. Therefore, Petitioner’s counsel ask this Court to order that counsel be permitted direct
1
United States District Judge Ricardo M. Urbina referred the instant Motion to the undersigned Magistrate
Judge for resolution, pursuant to Local Civil Rule 72.2(a). (See Referral Order [88].)
contact with Petitioner, either via a cell-side visit or by requiring that Petitioner be brought to a
hearing or interview room, so that counsel may ascertain in a face to face meeting whether
Petitioner does or does not want counsel’s assistance in the prosecution of his habeas petition.
The Government opposes the motion and insists that the relief sought by Petitioner’s counsel
would result in an extraordinary intervention into the operation of Guantanamo Bay because the
type of access sought is prohibited under standard operating procedures in place. In the
alternative, the Government moves to dismiss the habeas action for lack of client authorization.
Upon consideration of the filings submitted by the parties, and following a telephone conference
with counsel for Petitioner and Respondents, the Court finds that the terms of the Protective
Order necessitate that Petitioner’s counsel be allowed to meet with their client in order to
determine whether Petitioner’s purported refusal to meet or work with counsel is a voluntary,
knowing, and informed decision. Respondents are therefore ordered to comply with the
Protective Order and facilitate counsel and an interpreter to meet directly with Al Wady in a
hearing room.
Factual and Procedural Background
At their core, the issues presented to this Court are about the right of detainees at
Guantanamo to have access to counsel if they so choose and the Court ensuring that a detainee’s
decision to refuse the assistance of counsel is voluntary and informed. On July 17, 2008, a
habeas petition was filed under the name of Hamoud Abdullah Hamoud Hassan Al Wady, and
2
counsel was appointed on that petition on August 8, 2008.2
During the week of December 1, 2008, counsel for Petitioner traveled to Guantanamo
Bay to meet with Petitioner pursuant to the Protective Order in place for Guantanamo Bay
Litigation.3 Counsel were initially informed that Petitioner refused to meet with them, and were
permitted to write a note that was taken back to Petitioner by guard personnel. (Pet’r Mot. at 4.)
The guard personnel returned shortly thereafter and stated that Petitioner refused to read the note
and would not let the guards read it to him. (Id.) Counsel for Petitioner requested to either send
back a second note, or to meet cell-side with Petitioner, but these requests were denied by the
guard personnel. (Id. at 4-5.)
Petitioner’s counsel subsequently filed a Motion for Direct Contact with Client, which
was referred to the undersigned, and a telephonic mediation conference took place on January 2,
2009. Following the mediation, an agreement was reached by the parties such that Petitioner’s
counsel withdrew their motion without prejudice and the Government permitted counsel to meet
with Petitioner in the particular camp in which he is detained if he agreed to meet with them.
The parties further agreed that if Petitioner declined to meet with counsel but agreed to leave his
cell and go to an interview room, an interpreter would be allowed to speak to Petitioner to try and
change his mind. (See id. at 5.) Counsel traveled to Guantanamo Bay the week of January 19,
but Petitioner again declined to meet with counsel. (Id.) On February 24, 2009, the parties
jointly moved to stay all proceedings in this case until Monday, April 27, 2009 to allow counsel a
2
Counsel for Petitioner assert that a habeas petition was filed under the name of Houmad W arzly, who is
believed to be the same person as the instant Petitioner, but that no counsel was appointed on that petition. (Pet’r
Mot. at 3, n.5.) That prior petition has since been dismissed without prejudice. (Id.)
3
The current Protective Order and Procedures for Counsel Access to Detainees at the United States Naval
Base in Guantanamo Bay, Cuba was entered by Judge Thomas F. Hogan on September 11, 2008.
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third attempt to obtain authorization. (Resp’ts Opp’n at 2-3.) The trial court granted that motion
February 25, 2009.
Analysis
I. Counsel Access to Detainees Under the Protective Order to Ascertain Whether A
Detainee Voluntarily and Knowingly Rejects Legal Assistance
The Protective Order and Procedures for Counsel Access to Detainees at the United
States Naval Base in Guantanamo Bay, Cuba (“Protective Order”) govern the procedures by
which counsel for Guantanamo detainees may meet and communicate with their clients. “[A]
protective order, like any ongoing injunction, is always subject to the inherent power of the
district court.” Poliquin v. Garden Way, Inc., 989 F.2d 527, 535 (1st Cir. 1993); see also
Armstrong v. Executive Office of the President, 1 F.3d 1274, 1289 (D.C. Cir. 1993) (recognizing
courts’ “inherent power to enforce compliance with their lawful orders”); Broderick v.
Donaldson, 427 F.3d 1226, 1234 (D.C. Cir. Feb. 10, 2006) (same); cf. Gambale v. Deutsche
Bank, AG, 377 F.3d 133, 140-41 (2d Cir. 2004) (recognizing court’s jurisdiction to modify
protective orders that remain in effect, even after dismissal of the underlying litigation); United
Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (same), cert. denied,
American Special Risk Ins. Co. v. Rohm & Haas Co., 498 U.S. 1073 (1991). It would be
untenable for the District Court to be put in a position where it is powerless to enforce its own
protective order, presently in effect and over which it has continuing control.
The Protective Order governs in-person meetings with detainees, procedures for sending
and receiving legal mail, handling of classified information and any other access and
communications issues involving Guantanamo detainees who are seeking habeas relief in this
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District Court. The requirements for in-person access to detainees by their counsel are laid out in
Section II of the Protective Order. Under that section, habeas counsel must verify that they
represent the detainee in question.4 Protective Order § III.C. The Protective Order divides the
verification process into two steps: 1) notification of representation5 and 2) evidence of authority
to represent the detainee. Id. As this Court has previously held, the Protective Order entitles
counsel to two visits with a detainee plus ten days before they must submit evidence of their
authority to represent the detainee in question. See Adem v. Bush, No. 05-723, (D.D.C. March
14, 2006.) In the instant case, counsel for Petitioner have not been able to visit with the detainee
even once because of his refusal to read or listen to notes from counsel passed to him by guard
personnel.
The Court initially notes that Respondents do not oppose a face to face meeting between
Petitioner and his designated counsel. Respondents argue that it is Mr. Al Wady who has refused
to meet with his designated counsel, and that guard personnel will not force a detainee to meet
with counsel.6 Thus, the purpose of the instant motion is to direct Respondents to facilitate a
face to face meeting between the Petitioner and his designated counsel accompanied by an
4
In addition to providing DoD with verification of representation, Counsel must also hold a valid security
clearance at the Secret level or higher, see Protective Order § III.C, and must sign an affirmation acknowledging that
they agree to “fully comply with the[] procedures” in the Protective Order, id.
5
The Notification of Representation must include “counsel’s licensing information, business and email
addresses and phone numbers, as well as the name of the detainee being represented.” Id. § III.C.
6
In their Supplemental Filing, Respondents contend that to effectuate a court order to facilitate a face to
face meeting between Petitioner and counsel the guard personnel would “be required to execute a Forced Cell
Extraction.” (Resp’ts Supp. at 3.) The Court is not convinced that a such a technique is necessarily required in this
case to permit a face to face meeting between Petitioner and his designated counsel in a hearing room. For example,
as Petitioner’s counsel suggest, the Petitioner could be shown a court order stating that the he is to be brought to a
hearing room because the court needs to know that he is voluntarily refusing to meet with counsel. (See Pet’r Resp.)
In any event, Petitioner’s counsel have requested that this Court order that if Petitioner will not come to the hearing
room under court order that he be permitted to remain in his cell without the use of a forced cell extraction. (Id.)
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interpreter at his cell or a hearing room, notwithstanding Petitioner’s prior refusal to meet with
them.
The Court concludes that the trial court faced with a motion by Respondents to dismiss a
habeas petition for failure to obtain client authorization to be represented cannot proceed without
some direct assurance that the detainee’s decision to reject the assistance of counsel and not
pursue the habeas petition is voluntary and fully informed. The decision to decline legal
representation and potentially abandon a habeas petition could have an adverse impact on his
status, and the Court must confirm that such decision is freely and knowingly made. The
Protective Order permits multiple counsel visits before a client authorization is required and
recognizes that counsel may not initially be in the position to present evidence of their authority
to represent the detainee, and further directs counsel for both detainees and the Respondents to
cooperate to the fullest extent possible to reach a reasonable agreement on the number of counsel
visits allowed. These provisions recognize the logistical difficulties of counsel attempting to
meet with Guantanamo detainees, most of whom do not speak English and may have reason to
distrust American visitors. See Adem, No. 05-723, at 25-26. Because of this potential distrust, it
is vital that counsel who are not affiliated with the military or Government be permitted to speak
to Petitioner in person to explain their role and the procedures available to him, so that they may
ascertain whether his refusal of legal services is voluntary and well-informed. Furthermore, it is
to the trial court’s benefit that a non-governmental attorney provide confirmation beyond the
assurances of guard personnel that a detainee’s decision to refuse legal assistance and abandon a
habeas petition filed on his behalf is voluntary and fully informed.
While the Court recognizes the respondents’ concerns about requiring a face to face
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meeting between counsel and Petitioner, this potential temporary inconvenience must be weighed
against the trial court’s need for assurance that the detainee’s decision to abandon his habeas
petition and refuse the assistance of counsel is knowingly and voluntarily made before it
considers and rules upon the Respondents’ motion to dismiss the petition. Respondents are
therefore ordered to permit and facilitate Al Wady’s counsel to meet with him in person in a
hearing room for the purpose of explaining their role as counsel and his rights as a habeas
petitioner, so that the Court may ascertain whether his refusal of counsel is knowing and
voluntary.
Dated: May 1st, 2009 _________/s/_____________________
ALAN KAY
UNITED STATES MAGISTRATE JUDGE
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