[ORAL ARGUMENT NOT SCHEDULED] IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT In re MUSTAFA AHMED AL HAWSAWI, Petitioner ) ) No. 12-1004 ) ) THE GOVERNMENT S OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION DOUGLAS N. LETTER (202) 514-3602 ROBERT M. LOEB (202) 514-4332 SYDNEY FOSTER (202) 616-5374 Attorneys Civil Division, Appellate Staff United States Department of Justice 950 Pennsylvania Avenue, Rm. 7258 Washington, D.C. 20530
Petitioner Mustafa Al Hawsawi filed a petition for writ of mandamus and prohibition, challenging two orders issued by the Commander of Joint Task Force Guantanamo on December 27, 2011. Those orders govern written communications between Guantanamo Bay detainees involved in military commissions and their counsel. By separate motion, petitioner requests a preliminary injunction enjoining the enforcement of the two orders pending resolution by this Court of his mandamus/prohibition petition. The government hereby opposes petitioner s motion for a preliminary injunction. Petitioner has not established a substantial likelihood of success on his petition, which requires a showing that petitioner is clearly and indisputably entitled to relief. Indeed, this Court lacks jurisdiction over petitioner s claim. In any event, petitioner s mandamus/prohibition petition is without merit. In reviewing such a petition, this Court examines whether the party seeking the writ has any other adequate means... to attain the desired relief, and whether that party will be harmed in a way not correctable on appeal. Nat l Ass n of Criminal Def. Lawyers, Inc. v. U.S. Dep t of Justice, 182 F.3d 981, 986 (D.C. Cir. 1999). Here, petitioner can raise his claims before a military judge if his case is referred to a military commission. Further, he can seek to raise claims of violation of his asserted rights as a ground for appeal from any adverse final judgment. Petitioner s challenge to the orders also fails on the merits. The orders are subject to highly deferential review, as they concern matters of security at a military base abroad housing
detainees, some of whom, like petitioner, are charged with serious war crimes. The rules requiring screening, by a walled-off privilege team, for physical contraband and to ensure proper marking are reasonable and do not, in any event, violate the applicable attorneyclient privilege. Thus, no drastic remedies are required in this context. Other equitable considerations also counsel against the grant of injunctive relief. Petitioner will not be irreparably harmed. His counsel is permitted to meet with him (and has attempted to do so as recently as yesterday). Further, the use of a privilege team to screen written communications causes no significant or irreparable harm. Moreover, if charges are referred against petitioner, the merits issue pressed here can be considered by the military judge in petitioner s case. Finally, the relief requested by petitioner is contrary to the governmental and public interests in maintaining national security and safety at the military base at Guantanamo. This Court should deny petitioner s motion. STATEMENT 1. a. The Military Commissions Act ( MCA ), 10 U.S.C. 948a et seq., establishes procedures governing the use of military commissions to try alien unprivileged enemy belligerents for violations of the law of war. Id. 948b(a). Further military commissions procedures are set forth in the Rules for Military Commissions and in the Military Commission Rules of Evidence ( MCRE ). See Rule for Military Commissions 101(a); 1 MCRE 101(a). 1 The Rules for Military Commissions and the MCRE appear in Parts II and III, (continued...) 2
When the government seeks to try a detainee before a military commission under the MCA, the first step is the swearing of charges against the detainee. 10 U.S.C. 948q. Next, the Secretary of Defense or his designee known as the Convening Authority considers the charges and decides whether each charge should be dismissed or instead referred to a military commission. See id. 948h. b. On December 27, 2011, the Commander of Joint Task Force Guantanamo ( JTF-GTMO ) issued two orders that are the subject of petitioner s motion for a preliminary injunction (Mot. 1). The first order governs written communications between detainees involved in military commissions and their commission defense counsel ( communications order ); the second addresses the logistics concerning defense counsel access to those detainees ( logistics order ). See Petitioner s Excerpts of Record Exhibit ( Exh. ) A (communications order); id. Exh. B (logistics order). The communications order bars counsel from including Contraband in any communications. Exh. A. 10 4(a). Contraband is defined as certain physical item[s] or prohibited information that have been determined to be inappropriate for a detainee to possess, be informed of, or view, id. at 5 2(h)(1), except that some types of information are not Contraband if defense counsel reasonably believe[s] they are directly related to the military commission proceeding involving the Detainee-Accused. 1 (...continued) respectively, of the Manual for Military Commissions (2010), available at http://www.mc.mil/legalresources/militarycommissionsdocuments/curre ntdocuments.aspx. 3
Id. at 6 2(h)(4). Physical Contraband includes certain enumerated materials such as paper fasteners, drugs, and items that present a threat to the operation of the detention facilities or to U.S. Government personnel but not including written communications, id. at 7 2(i); id. at 6 2. In addition to barring Contraband, the communications order requires defense counsel to separate documents that are mailed or brought to a detainee into three categories: (1) Lawyer-Client Privileged Communications ; (2) Other Case-Related 2 Material ; and (3) Non-Legal Mail and Material. Id. at 10 4(b). Among other things, defense counsel are directed to label each page of material with counsel s initials and the category of material at issue. See id. at 11 4(d)(1), 4(e)(1), 12 4(f)(1). With two exceptions, counsel must also include a cover sheet for Lawyer- Client Privileged Communications and Other Case-Related Material, attesting as appropriate that the communication is privileged or related to the case. The attestation must also state that, to the best of counsel s knowledge, the communication does not include Contraband, classified, Controlled Unclassified Information or Sensitive but 2 Lawyer-Client Privileged Communications are communications that are privileged within the meaning of MCRE 502 and include Attorney Work Product, Exh. A. 4 2(e). Other Case-Related Material are communications... that are related to the Detainee-Accused s military commission proceeding but are not privileged within the meaning of MCRE 502 and include discovery and records of commission proceedings when releasable to the Detainee-Accused, id. at 5 2(f). Non-Legal Mail and Material is [a]ll correspondence, documents, media in any form, or similar material that is not Lawyer-Client Privileged Communications or Other Case- Related Material, id. at 5 2(g). 4
Unclassified Information that the intended recipient is not authorized to see. Id. at 11 4(d)(2), 12 4(e)(4). The exceptions concern two types of Other Case-Related Material material provided by the Government in discovery and filings and other military commission proceeding material which need not include an attestation and must instead be marked by the Government as approved for release to the detainee. See id. at 11 4(e)(2), (3). The order establishes a privilege team made up of one or more [Department of Defense] attorneys and one or more intelligence or law enforcement personnel who have not taken part in, and, in the future, shall not take part in, a military commission, a Combatant Status Review Tribunal, Administrative Review Board, Periodic Review Board, or habeas corpus proceedings involving the Detainee-Accused (other than acting as a Privilege Team member for the habeas corpus or other proceedings). Id. at 4 2(d). Members of the privilege team are bound by a non-disclosure agreement to preserve the lawyer-client and other related legally-recognized privileges to the fullest extent possible in a manner consistent with this Order. Id.; id. at 13 5(a). The order permits disclosure by the privilege team in very limited, enumerated circumstances. Under the order, the team may consult with security and intelligence experts... as needed regarding potential Contraband or other unauthorized information of which they become aware, but in doing so, they may not disclos[e] specifics about the information. Id. at 13 5(b). In addition, the team is required to 5
report to the Commander of JTF-GTMO any information that reasonably could be expected to result in immediate and substantial harm to the national security, imminent acts of violence, or future events that threaten national security, or that presents a threat to the operation of the detention facilities or to U.S. Government personnel, a requirement that is likewise imposed on defense counsel. Id. at 14 5(d) (privilege team); see also id. at 9 3(d) (defense counsel). The privilege team opens incoming mail to inspect the contents for Physical Contraband and to verify that each page of the material includes the markings required by 4 of the order. Id. at 15 6(f). The order specifically provides that [t]his inspection shall not include a review of the substantive content of the Incoming Mail, but enables the Privilege Team to flag for different processing any items that appear to violate this Order that are apparent (in plain view) from the inspection for Physical Contraband. Id. If the team observes material that appears to be Contraband in conducting this inspection, that material shall not be processed for delivery to the Detainee-Accused. Id. at 15 5(f)(3). Additionally, if the privilege team identifies material it believes is not properly marked, it is directed by the order to consult with the detainee s counsel to attempt to resolve the issue. Id. at 16 6(g). Materials that defense counsel seek to bring to a meeting with a detainee must likewise be inspected by the privilege team in accordance with the procedures governing the inspection of incoming mail. See id. at 18 8. If a detainee wants to retain written 6
notes made during meetings, defense counsel must mark the notes according to the procedures in 4 of the order, and that material must be inspected by the privilege team in accordance with the foregoing procedures. See id. at 19 9(a)(2). In addition, if a detainee gives defense counsel any non-legal mail for individuals other than defense counsel, counsel must return the documents to military personnel for processing as non-legal mail. Id. at 9-10 3(e). The logistics order issued the same day as the communications order reiterates some of the requirements in the communications order, see, e.g., Exh. B. 7 4(d), (e), and reaffirms that counsel must comply with the communications order, see, e.g., id. at 8 5(a), (c). The logistics order also establishes several other requirements concerning meetings between counsel and detainees, see id. at 8-13 5-17, none of which petitioner refers to in his motion for a preliminary injunction. Before being permitted to provide written Lawyer-Client Communications or Other Case-Related Materials to a Detainee-Accused, counsel are required by the communications order to sign a written agreement indicating that they will comply with the order, Exh. A 8 3(b)(1), (2); id. at 22; the logistics order likewise requires counsel to sign a document agreeing to comply with that order prior to being granted access to a Detainee-Accused, Exh. B 6 4(b)(1), (2); id. at 14. The orders provide, however, that counsel s signatures on these agreements shall not be considered an agreement by Defense Counsel... that the terms and conditions herein are necessarily legally 7
permissible. Exh. A 8 3(b)(1), (2); id. at 22; Exh. B 6 4(b)(1), (2); id. at 14. As explained in an attachment to a declaration submitted with this opposition, the government is currently permitting defense counsel to meet with their clients without signing these agreements. See Decl. of Commander Thomas J. Welsh, Staff Judge Advocate of JTF-GTMO ( Welsh Decl. ) att. (attached as Exh. 1 att.). Any written materials counsel seek to bring to the meetings, however, are subject to the screening requirements established in the communications order, and counsel are expected to follow the requirements of the logistics order during any visits. Id. 2. Petitioner is a detainee at the United States Naval Base in Guantanamo Bay, Cuba. On May 31, 2011, military commission charges were sworn against him and four others, including Khalid Sheikh Mohammed, for their alleged role in the terrorist attacks of September 11, 2001. See Charge Sheet, Khalid Sheikh Mohammed et al., available at http://www.mc.mil/cases/militarycommissions.aspx. Petitioner is charged with conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding aircraft, and terrorism. Id. at 1-20. At this time, the Convening Authority has not determined whether to refer the charges against petitioner to a military commission. Since the issuance of the December 27, 2011, orders governing communication and logistics, petitioner s counsel has attempted to visit his client once, on January 5, 8
2012. See Welsh Decl. 4 (Exh. 1). Petitioner refused the visit. Id. 4. ARGUMENT Petitioner seeks a preliminary injunction to block implementation of the orders issued on December 27, 2011, by the Commander of JTF-GTMO governing written communications between detainees involved in military commissions and their counsel. This Court should deny petitioner s motion because petitioner has not made the showing necessary to justify the extraordinary remedy of injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (internal quotation marks omitted); see also Munaf v. Geren, 553 U.S. 674, 689-90 (2008). The four criteria that must be addressed with respect to a motion for this injunctive relief are: (i) the likelihood that the moving party will prevail on the merits; (ii) the prospect of irreparable injury to the moving party if relief is withheld; (iii) the possibility of harm to other parties if relief is granted; and (iv) the public interest. D.C. Cir. R. 8(a)(1), 18(a)(1); Washington Metro. Area Transit Comm n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). These four factors strongly militate against granting the requested injunction. A. Petitioner has not shown a substantial likelihood that he will prevail on the merits in his petition. The standards that apply to petitions for writs of mandamus or prohibition are stringent: a party must show, inter alia, that his right to relief is clear and indisputable and that there are no other adequate means to attain the [desired] relief. Kerr v. District Court, 426 U.S. 394, 403 (1976) (internal quotation marks omitted). As 9
explained below, petitioner s right to relief is far from indisputable; to the contrary, this Court lacks jurisdiction to grant any relief, and petitioner is not in any event entitled to any relief on the merits. In addition, petitioner has other means to obtain meaningful relief. 1. This Court has no jurisdiction to grant the relief that petitioner requests. Under the Military Commissions Act, this Court has exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority and, where applicable, the United States Court of Military Commission Review). 10 U.S.C. 950g(a) (emphasis added). The statute limits the [s]cope and nature of this Court s review, stating that this Court may act under this section only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the United States Court of Military Commission Review, and shall take action only with respect to matters of law, including the sufficiency of the evidence to support the verdict. Id. 950g(d). Here, there is no final judgment subject to review under the MCA. Indeed, no military commission has even been convened in petitioner s case. Thus, under 950g, this Court plainly lacks jurisdiction over petitioner s interlocutory challenge to the orders issued by the Commander of JTF-GTMO. Petitioner argues that this Court can exercise mandamus jurisdiction prior to the issuance of a final judgment. Congress has made clear, however, that, beyond the review 10
jurisdiction otherwise provided by statute, no court, justice, or judge shall have jurisdiction to hear or consider any... action [other than habeas corpus] against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy 3 combatant. 28 U.S.C. 2241(e)(2) (emphases added). Petitioner s claims for relief, outside of the statutory review provided by the MCA, from the orders governing attorney-client communications manifestly fall within 2241(e)(2) s prohibition. 2. Beyond this dispositive jurisdictional flaw, petitioner has not established a likelihood of prevailing. The remedy of mandamus is a drastic one, to be invoked only in extraordinary circumstances. Kerr, 426 U.S. at 402. In determining whether mandamus is warranted, this Court considers, prior to reaching the merits, whether the party seeking the writ has any other adequate means, such as a direct appeal, to attain the desired relief, and whether that party will be harmed in a way not correctable on appeal. Nat l Ass n of Criminal Def. Lawyers, Inc. v. United States Department of Justice, 182 F.3d 981, 986 (D.C. Cir. 1999). Here, petitioner has other meaningful remedies available to him. Petitioner may seek relief before a military judge in the event that charges against him are referred to a 3 Although Boumediene v. Bush, 553 U.S. 723 (2008), invalidated 28 U.S.C. 2241(e)(1) withdrawing habeas jurisdiction, it left 2241(e)(2) undisturbed. See Kiyemba v. Obama, 561 F.3d 509, 512 n.1 (D.C. Cir. 2009); see also, e.g., Al-Adahi v. Obama, 596 F. Supp. 2d 111, 117-20 (D.D.C. 2009). 11
4 military commission. Indeed, another detainee, Nashiri, against whom charges have already been referred to a military commission has brought similar challenges to past policies and procedures regarding attorney-client communications and materials, and the military judge invalidated an earlier practice by the government. See Exh. E 167-70. In 5 Nashiri s commission case, the defendant has challenged the communications rules, and the military judge has set a hearing for January 17 on these matters. Notably, other military commission defendants have filed amicus briefs in regard to Nashiri s challenge to the rules, and petitioner could do likewise. In addition, in the event that petitioner is convicted by a military commission, petitioner may seek review before the United States Court of Military Commission Review and then before this Court. When seeking such review, petitioner can contend that the relevant orders amounted to a violation of his rights and rendered any verdict 4 Moreover, if this Court declines review, plaintiff s counsel could then renew his request to the Judge Advocate General of the Navy to seek extraordinary relief in district court. Counsel s initial request was denied because he had not presented information why [he] cannot seek relief from [the Court of Military Commission Review]... or from... the [D.C. Circuit]. Exh. K 1 3. Should this Court hold it lacks jurisdiction, counsel could seek reconsideration by the Judge Advocate General on that basis. It is the government s position, however, that the district court would lack jurisdiction over any such claim relating to the conditions of confinement and trial, see 28 U.S.C. 2241(e). If any court were to have extraordinary mandamus jurisdiction at this stage (which, as already explained no court has), it would be this Court in relationship to its exclusive jurisdiction under 10 U.S.C. 950g. See Telecommunications Research and Action Center v. FCC, 750 F.2d 70 (D.C. Cir.1984) 5 Nashiri s challenges were in regard to the rules applicable prior to December 27. We anticipate, however, that the January 17 hearing will now address the current rules. 12
unlawful. See 10 U.S.C. 950g. In the domestic context, including the criminal context, it is established that such claims must be pursued upon appeal from a final judgment, and not before. See Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599, 604-09 (2009) (holding that disclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal under the collateral-order doctrine because challenges to such orders can be adequately vindicated by other means, including appeal of final judgment); Flanagan v. United States, 465 U.S. 259, 263-70 (1984) (holding, in a criminal case, that disqualification of defense counsel is not immediately appealable under the collateralorder doctrine). The same rule should apply here. 3. Even if petitioner could overcome these jurisdictional problems, his claim would fail on the merits. Courts are generally deferential to security rules established in domestic prisons. See Turner v. Safley, 482 U.S. 78 (1987). Here, even further deference is required because the orders at issue relate to security at a foreign military detention facility housing detainees charged with serious war crimes. Cf. Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953) ( Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. ); Dep t of Navy v. Egan, 484 U.S. 518, 530 (1988) ( [U]nless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military... affairs. ). As Congress recently recognized, detainee access and communications policies require a balancing of 13
any applicable legal privileges... with national security considerations. National Defense Authorization Act for Fiscal Year 2012, 1025 (signed Dec. 31, 2011). Petitioner asserts (Mot. 3-4) that the requested injunction is critical to preserve Petitioner s attorney-client privileges and that petitioner s right to effective assistance of counsel is being denied. The facts simply do not support that position. The challenged December 27, 2011 orders governing communication between detainees and counsel are fully consistent with the rights to the attorney-client privilege and to counsel afforded by the MCA and the applicable military commissions rules, see 10 U.S.C. 6 949a(b)(2)(C), 949c(b); MCRE 502. The privilege team inspection of material covered by MCRE 502 Lawyer- Client Privileged Communications, in the terminology of the orders, Exh. A. 4 2(e) is highly circumscribed. The privilege team may inspect such materials, along with unprivileged Other Case-Related Materials, only to inspect the contents for Physical Contraband and to verify that each page of the material includes the markings required by the order. Id. 15 6(f). The inspection shall not include a review of the substantive content of the materials, but if any items that appear to violate the order are apparent (in plain view) from the inspection for Physical Contraband, those items can be 6 Petitioner s motion for a preliminary injunction does not specifically argue that any of the constitutional claims raised in his petition for a writ of mandamus or prohibition could separately form the basis for a conclusion that he is likely to prevail on the merits. In any event, the relevant rights petitioner has under the MCA and the military commissions rules are as robust as petitioner s asserted rights. 14
flagged for further processing. Id. (emphases added). The privilege team thus is prohibited from reviewing the substance of the materials, and any violations must be apparent in plain view. Moreover, as explained supra, the privilege team is bound by a strict nondisclosure agreement and is prohibited from making any disclosure not permitted by the order. See id. at 4 2(d), 13 5(a). The disclosures permitted by the order are highly circumscribed. See, e.g., id. at 13 5(b) (privilege team may consult with security and intelligence experts at JTF-GTMO as needed regarding potential Contraband or other unauthorized information that the team becomes aware of, but the team may not disclos[e] specifics about the information at issue). Indeed, the only significant substantive disclosure the order permits concerns information that reasonably could be expected to result in immediate and substantial harm to the national security, imminent acts of violence, or future events that threaten national security, or that presents a threat to the operation of the detention facilities or to U.S. Government personnel, id. at 14 5(d). Significantly, petitioner does not contend that this required disclosure which his counsel is likewise required to make, id. at 9 3(d) violates the attorney-client privilege. Given the limited degree to which the privilege team handles documents subject to the attorney-client privilege, and the strict disclosure limitations imposed on the team, there is no violation of the attorney-client privilege or the right to assistance of counsel here. Cf. Bismullah v. Gates, 501 F.3d 178, 189-90 (D.C. Cir. 2007) (authorizing use of a 15
privilege team for Guantanamo detainees pursuing relief under the Detainee Treatment Act), vacated on other grounds, 554 U.S. 913 (2008); Hicks v. Bush, 452 F. Supp. 2d 88, 99-104 (D.D.C. 2006) (permitting use of a filter team for certain Guantanamo detainees); cf. Weatherford v. Bursey, 429 U.S. 545, 558 (1977). Nor is the system established by the communications order improper in this context of a high-security military detention facility. Notably, the order itself observed that the system is comparable in certain respects to the rules governing the Federal Bureau of Prisons, see Exh. A 1 1(b); 28 C.F.R. 501.3(d)(3) (allowing the use of a privilege team), and to the procedures in effect since 2008 that apply to Guantanamo detainees and their habeas counsel, see Exh. A. 2 1(c); In re Guantanamo Bay Detainee Litigation, 577 F. Supp. 2d 143 (D.D.C. 2008) (establishing a privilege team and requiring certain labeling of each page of legal mail). Far from clear[ly] and indisputabl[y] violating petitioner s rights to the attorney-client privilege and effective assistance of counsel, Kerr, 426 U.S. at 403 (internal quotation marks omitted), the order governing attorney-client communications in the military commissions context fully honors those rights. B. Petitioner has also failed to establish a likelihood of irreparable harm. Petitioner alleges (Mot. 1-3) that [a]bsent an order from this Court, defense counsel will not be able to meet with Petitioner without substantially compromising professional and ethical obligations pertaining to the attorney client privilege. He further asserts that, as 16
a prerequisite to meeting and communicating in writing with clients, the challenged orders require counsel to sign agreements stating that counsel will comply with the orders. Ibid. But counsel has been permitted to meet with his client. Indeed, on January 5, 2012, Commander Thomas J. Welsh, Staff Judge Advocate of JTF-GTMO, explained to counsel that he could visit his client without signing the agreements referenced in the challenged orders, but that any written documents that counsel sought to bring to the visit must be screened in accordance with the communications order. See Welsh Decl. 5 (Exh. 1); id. att. That date January 5, 2012 was the first date that counsel sought to visit his client since the issuance of the December 2011 orders, and counsel proceeded with the attempted visit, although his client refused to meet with him. Welsh Decl. 4. (Exh. 1). In addition, contrary to petitioner s declaration that no working privilege team exists and [n]o mail is currently being delivered, Exh. D. 12, the government s declaration establishes that the privilege team has been in place and ready to perform its duties as [of] 4 January 4 2012. Welsh Decl. 3. Moreover, as previously explained, if charges against petitioner are referred to a military commission petitioner may, at that time, seek relief from the military judge. Cf. Exh. E. Requiring petitioner and his counsel to comply with the December 2011 orders (or to abstain from written communications) in the interim does not constitute irreparable harm. In addition, as noted above, a challenge to the communications rules 17
will likely be pressed before a military judge in Nashiri s military-commission case, which is set for a hearing on January 17. Furthermore, as explained above, in subsection A(2), petitioner can seek to raise his claims after any judgment of final conviction and sentence. See, e.g., Mohawk Industries, Inc., 130 S. Ct. at 604-09 (attorney-client privilege claims can adequately be reviewed after final judgment). Petitioner nevertheless argues that jurisdiction is appropriate under United States v. Phillip Morris, Inc., 314 F.3d 612 (D.C. Cir. 2003). Notably, Phillip Morris s holding that attorney-client privilege claims are appealable under the collateral-order doctrine was overruled by the Supreme Court in Mohawk, and so the decision s similar holding that breach of the attorney-client privilege constitutes irreparable injury, see id. at 621-22, was entirely undermined. In any event, alleged harm caused by the privilege team s limited inspection of documents here, where the team is bound by a general duty of nondisclosure, is wholly different from the claimed harm in Phillip Morris, where 7 disclosure of particular documents to an adverse party was mandated. C. The Supreme Court has stressed that courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Winter, 555 U.S. at 24 (internal quotation marks omitted). The Court has 7 In re Papandreou, 139 F.3d 247 (D.C. Cir. 1998), and In re Sealed Case, 151 F.3d 1059 (D.C. Cir. 1998), are likewise inapposite in light of the limited screening by a privilege team and Mohawk s holding applicable here that review of attorney-client privilege claims may await final judgment. 18
further emphasized the importance of assessing the balance of equities and the public interest in determining whether to grant a preliminary injunction. Id. at 26. In the instant case, the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the government. Id. The orders at issue here were promulgated in furtherance of the duty of the Commander of JTF-GTMO to maintain[] safety and security, as well as good order and discipline, within JTF-GTMO detention facilities, protect[] national security, and safeguard[] classified information while facilitating legal processes associated with JTF- GTMO Detainees. Exh. A. 1 1(a). The Supreme Court has repeatedly held that the primary governmental and public interest at stake here the interest in maintaining national security and safety is compelling. See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2728 (2010); Haig v. Agee, 453 U.S. 280, 307 (1981) ( no governmental interest is more compelling than the security of the Nation. ). The possibility of harm to the government and to the public interest from enjoining the JTF-GTMO orders is very real, as the government would be precluded from taking the limited measures prescribed in those orders for ensuring that materials provided to detainees contain no physical contraband, which by definition includes materials that present a threat to the operation of the detention facilities or to U.S. Government personnel. Exh. A. 7 2(i); see also id. at 15 6(f). A stay of the orders could likewise result in the government failing to discover other types of contraband that 19
would be discovered during the government s plain-view search of documents. Id. at 15 6(f). Furthermore, the government would be prohibited from ensuring that counsel comply with the labeling requirements in the communications order, such as the requirement that counsel attest that certain materials do not include contraband or other inappropriate items, see id. at 11 4(d)(2), 12 4(e)(4), 15 6(f), and the requirement that certain material material provided by the Government in discovery and records relating to the military commission proceeding be approved by the government for release to the detainee, see id. at 11-12 4(e)(2), (3); see also id. at 15 6(f). Enforcement of these labeling requirements helps ensure that detainees do not receive material that could result in harm to national security or the safety of others at JTF-GTMO. The governmental interest and public interest in this case strongly militate against the issuance of an injunction. In sum, under the relevant standard, no injunction pending review should be issued in the instant case. Petitioner has failed to make the necessary showing required for the extraordinary relief he seeks. denied. CONCLUSION For the foregoing reasons, the motion for a preliminary injunction should be Respectfully submitted, DOUGLAS N. LETTER (202) 514-3602 20
ROBERT M. LOEB (202) 514-4332 s/ Sydney Foster SYDNEY FOSTER (202) 616-5374 Attorneys Civil Division, Appellate Staff United States Department of Justice 950 Pennsylvania Avenue, Rm. 7258 Washington, D.C. 20530 JANUARY 2012
CERTIFICATE OF SERVICE I hereby certify that on January 6, 2012, I filed and served the foregoing with the Clerk of the Court by causing a copy to be electronically filed via the appellate CM/ECF system. I hereby certify that on the same date, I caused four copies to be delivered to the Court via hand delivery. The participant in the case, who is listed below, is not a registered CM/ECF user. I hereby certify that on January 6, 2012, I caused a copy of the foregoing to be delivered to the participant listed below via hand delivery and via e-mail. Walter Bernardo Ruiz Jr. Office of Military Commissions Office of the Chief Defense Counsel 1099 14th Street, N.W. Franklin Court Building, Suite 2000E Washington, D.C. 20005 walter.ruiz@osd.mil s/ Sydney Foster Sydney Foster
ADDENDUM
DECLARATION OF COMMANDER THOMAS J. WELSH, U.S. NAVY I, Commander Thomas J. Welsh, hereby declare under penalty ofperjury: 1. I am a Commander in the United States Navy, with 17 years ofactive duty service. I currently serve as the Staff Judge Advocate (SJA) of Joint Task Force-Guantanamo (JTF-GTMO), at the Naval Station Guantanamo Bay, Cuba. I have held this position since 24 May 2011. As such, I am the principallegal advisor to the JTF-GTMO Commander and his subordinate commanders. 2. This declaration is based on my personal knowledge or information provided to me during the course ofmy official duties. 3. In paragraph 12 ofhis declaration dated 3 January 2012, Commander Walter B. Ruiz, Jr., contends that, "[a]s oftoday, no working privilege team exists" and "[n]o mail is currently being delivered." That is incorrect. The Military Commission Privilege Team, as authorized by the Written Communications Management Order dated 27 December 2011, has been in place and ready to perform its duties as 4 January 2012 when the Privilege Team members signed the required non-disclosure agreement. The Privilege Team's first occasion to be involved with written communications between CDR Ruiz and his client was on 5 January 2012, as described below. 4. On 5 January 2012, CDR Ruiz was at JTF-GTMO to visit his client, Mustafa Al Hawsawi, who is detained by JTF-GTMO. This was the first attempted visit by CDR Ruiz since the issuance on 27 December 2011 of the Written Communications Management Order. Mr. Hawsawi refused to meet with CDR Ruiz.
5. As part ofthis attempted visit, I explained to CDR Ruiz that the Military Commissions Privilege Team was in place and available to perform its obligations under the Written Communications Management Order. I also conveyed to him (and the other military commissions defense counsel who were at JTF-GTMO for client visits) the information found in the document attached to this declaration. This included the fact that defense counsel, to include CDR Ruiz, were, at this time, being allowed to visit with their clients without being required to sign the acknowledgements that are attached to the Written Communications and Logistics Orders. 6. At least one military commission defense lawyer submitted materials to the Privilege Team on 5 January. Those materials were inspected by the Privilege Team under the procedures in the Written Communications Management Order and transmitted to the detainee. 7. Consistent with information that had been conveyed to the military commission defense bar previously, I conveyed to CDR Ruiz that the JTF-GTMO Commander's invitation to defense counsel to submit comments on the Written Communications Management and Logistics Order remained open and that he would consider any such matters that were submitted. 8. I declare under penalty ofperjury that the foregoing is true, accurate, and correct to the best of my knowledge. Date: 6 January 2012 ommander, JAGC, U.S. Navy Staff Judge Advocate, JTF-GTMO
Access to Detainee At this time, we will allow you to visit with your client without requiring you to sign the acknowledgements that are attached to the Written Communications and Logistics Orders. It is our expectation that you will follow the requirements of the Logistics Order while you are visiting with your client. If we become aware that you are violating the terms of that order, we may terminate your visit. If you want to bring written materials into your meeting, that material will be required to undergo the security screening procedures described in the Written Communications Order. The Privilege Team will inspect the material for Physical Contraband. This inspection will not include a review of the substantive content of the material but enables the Privilege Team to flag for different processing any items that appear to violate the Order that are apparent (in plain view) from the inspection for Physical Contraband. A copy of the Written Communications Order has been pre-cleared for you to provide to your client.