UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ MOHAMED AL-ZARNOUQI, et al. , ) ) Petitioners, ) v. ) Civil No. 06-1767 (RCL) ) BARACK H. OBAMA, et al. , ) ) Respondents. ) ____________________________________) ORDER Now before the Court is petitioner Mashour Alsabri’s (ISN 324) Moti on [402] to Enforce the Protective Order. Upon consideration of the Motion [402], Supporting Memorandum and declarations [403], the government’s Opposition [ 407], the petitioner’s Reply [410], the entire record herein, and the applicable law, the Court will grant in part and deny in part petitioner’s Motion for the reasons set forth below. Petitioner has been imprisoned at the United States Naval Base in Guantanamo Bay, Cuba, for approximately 11 years. Pet’r’s Mot. Enforce 1, ECF No. 402. The Protective Order and Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay, Cuba (“Protective Order”) was entered in petitioner’s case on September 11, 2008. Among other things, it requires the Privilege Team to pr ocess legal mail sent by counsel to petitioners within two days of receipt, and delivered within two days of r eceipt by the military. Protective Order II.D.12.d, ECF No. 73. The military likewise has two days to mail legal communications received from detainees. Id. at II.D.13.c. On February 3, 2011, the Honorable Ricardo Urbina, then assigned to this case, denied Mr. Alsa bri’s habeas petition. Order 1, ECF No. 291. Petitioner’s case came to an end when the D.C. Circuit affirmed the decision on June 20, 2012. Mandate 1, ECF No. 390.2 During the summer of 2012, the government sought to restrict counsel access for detainees whose cases had been dismissed or whose petitions, like Mr. Alsabri’s, had been denied. Petitioners in five Guantanamo cases moved the Court to issue an order confirming that the Protective Order continued to govern petiti oners’ access to counsel even after their cases came to an end. See Scheduling Order 1–2, In re Guantanamo Bay Continued Access to Counsel , Misc. No. 12-398 (D.D.C. Jul. 27, 2012), EC F No. 7. Noting that in “the case of Guantanamo detainees, access to the courts mean s nothing without access to counsel,” this Court determined that the Protective Order remained in effect whether or not a detainee had an active

case. In re Guantanamo Bay Continued Access to Counsel , 892 F. Supp. 2d 8, 28 (D.D.C. 2012) (“ Counsel Access decision”); Order 1–2, Misc. No. 12-398, ECF No. 32. Although the government never filed a motion to stay the C ourt’s Order, the government did file a timely appeal but then moved to dismiss the appeal—a motion that the Court of Appeals granted on January 11, 2013. Order 1, Abdah v. Obama , No. 12-5350 (D.C. Cir. Jan. 11, 2013), Pacer No. 1414803. The Counsel Access decision was entered in only five Guantanamo cases. Petitioner Alsabri’s case was not one of those. In the wake of the government’s dismissal of its appeal of the Counsel Access decision, its practice has been to ask pe titioners to enter into a stipulated agreement confirming that the Protective Order continues to govern their cases. See, e.g. , Stipulation & Order 1, ECF No. 40 8. Such a stipulated agreemen t was entered in this case by order on March 8, 2013. 1 Id.

1 The question presented in the Counsel Access decision was whether the Protective Order—as a matter of law— survived the dismissal or denial of a habeas petitioner’s case. As the decision forcefully demonstrated, it does.3 On February 5, 2013, the Department of Justi ce notified petitioner’s counsel that “the DOD Privilege Team has been holding legal mail received from your clie nt Mr. Al Sabri on November 14, 2012, pending completion of the litiga tion before Chief Judge Lamberth. . . .” DOJ Email, Ex. A to Neff Decl., ECF No. 403-1. Counsel received Mr. Alsabri’s letter two days later. Pet’r’s Mot. 3. Petitioner has also brought to light evidence that the legal mail sent to detainee Moath Hamza Hamza Ahmed Al Alwi (IS N 028) and received from detainees Suleiman Al-Nahdi (ISN 33) and Mohammed Al-Adahi (ISN 511) had also been held. DOJ Emails, Exs. C & D to Neff Decl., 403-3–4. Petitioner sees this as a clea r violation of the Protective Or der and asks the Court to hold an evidentiary hearing to determine the party or parties responsible for the violation, the full scope of the violation, and to fashion an appropr iate remedy. Pet’r’s Mot. 5–7. Petitioner also asks that the “party or parties responsible . . . should be required to provide detailed information regarding any remedial measures undertaken to prevent further viol ations of the Protective Order . . . .” Id. at 7–8. Petitioner avers that after the h earing he will move for “appropriate relief,” including a reprimand of any pa rties found to have violated th e requirements of the Protective Order. Id. The government apologizes for the delay in de livering petitioner’s letter and assures the Court that the “situation that gave rise to Al sabri’s motion was a one-time, temporary delay . . . .” Gov’t Opp’n 1, ECF No. 407. The government says that it “did not have any policy or intention to deprive Petiti oner or any other Guantanamo detainee of legal mail.” Id. This event

Thus, it is clear to the Court that the Protective Order continues to govern the instant case. Although the Court supports the government’s practice of entering into stipul ated agreements confirming th e ongoing effectiveness of the Protective Order, it believes such agreements are unnecessary.4 was caused by “regrettable oversight , together with a turnover in personnel” that occurred as a result of the government’s initia l decision to temporarily hold legal mail pending the outcome of its appeal of the Counsel Access decision. Id. at 4–5. The mail was held by the Privilege Team, unopened, in a safe at the secure facility. Id. The attorney-client privilege was never threatened. Id. After the government decided to dismiss its appeal, the delay in delivering legal mail was caused by “human error, not design.” Id. at 2. The government reiterates its apology and says that it has “implemented corrective measures ,” including making su re that “appropriate personnel are notified in the event that a ques tion about processing lega l mail arises in the future” in a “good-faith effort to ensure th at this situation will not happen again.” Id. at 7. The government states that it has now proce ssed and delivered the accidentally-held legal mail in this case, and the Court wi ll take the government at its wo rd. The Court, therefore, sees no reason to hold a hearing at this time. Howeve r, the Court is concerned with the continuing erosion of counsel access at Guantanamo. The government’s decision to hold legal mail in this and other cases without notifying the Cour t or petiti oners’ counsel or moving for a stay pending appeal after the Counsel Access decision makes it more difficult for the parties and the Court to resolve these complicated, thorny cases and threatens the government’s credibility. The government’s decision to curtail flights to Guanta namo has further interf ered with petitioners’ counsel’s ability to represent their clients. See Pet’r’s Reply 3–4, ECF No. 410. Moreover, attorneys for at least 11 detainees have reported to the Court that the federal sequester has placed a budgetary burden on their offices, forcing them to cancel or postpone visits to their clients. See Mot. Continue Stay 1–2, Nadir Omar Abdullah Bin Sa’Adoun Alsa’ary (ISN 30) v. Obama , Civ. No. 09-745, ECF No. 1703 (D.D.C. Apr. 10, 2013). Given that telephone calls to Guantanamo5 take a minimum of 20 days to schedule, last a maximum of 30 minutes, and are monitored, this has effectively eviscerated many of the protections established over the last decade in court ruling after court ruling. See id. Moreover, in a closed hearing held on May 3, 2013, in the case of Hatim v. Obama , 05-cv-1429, the Court learned that new restrictions on where detainees can meet with counsel at Guantanamo were imposed last September. Those restrictions will be addressed in the Hatim case. Nevertheless, given the facts of this case and the relief sought, it is hereby ORDERED that the petitioner’s request for an evidentiary hearing is DENIED ; and it is FURTHER ORDERED that, within thirty days from the date of this order, respondents shall submit to the Court an accounting of all le gal mail not processed in accordance with the Protective Order in all cases i nvolving Guantanamo detainees. The accounting shall include (1) the name of the detainee, (2) the associated case number, (3) the da te upon which the mail was submitted to or received by respondents, (4) the addressee(s) of the legal mail, (5) the date on which it was delivered or made available to th e intended recipient(s), (6) the number of days between its submission to respondents and its de livery, (7) the reason for delay, and (8) whether the parties have entered into a stipulated agreement confirming that the Protective Order continues to govern in each case. SO ORDERED. Signed by Royce C. Lamberth, Chief Judge, on May 6, 2013

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