UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MULLAH NORULLAH NOORI et al. , : : Petitioners, : Civil Action No.: 08-1828 (RMU)

: v. : Re Document Nos.: 66, 73

: BARACK OBAMA et al. , : : Respondents. :

MEMORANDUM OPINION

D ENYING THE P ETITIONER ’ S P UTATIVE C OUNSEL ’ S M OTION TO S TAY ;

H OLDING IN A BEYANCE THE G OVERNMENT ’ S M OTION TO D ISMISS ; S TAYING THE P ROCEEDINGS FOR T HIRTY D AYS

I. INTRODUCTION This matter is before the court on the govern ment’s motion to dismiss and the motion by the petitioner’s 1 putative counsel to stay the proceedi ngs. The government moves for dismissal contending that the petitioner has failed to provid e putative counsel with direct authorization to pursue this action. In response, the petitioner’s putative counse l asserts that the appropriate action is to stay the proceedings pending the ou tcome of the Executive Task Force review of the petitioner’s detention 2 and argues that dismissal could pr ejudice the petitioner’s interests. Because putative counsel has failed to justify st aying the case pending the Executive Task Force review, the court denies the motion to stay. Fu rther, because the decision to decline legal

1 There are two petitioners in this case, one of w hom is acting as a next-friend of Mullah Norullah Noori. Because Mullah Norullah Noori is the only petitioner subject to detention at Guantanamo Bay, the court refers to the petitioner in the singular.

2 Pursuant to Executive Order 13,492, the govern ment convened an Executive Task Force to undertake a review of the factual and legal basis fo r the detention of all persons currently detained at Guantanamo Bay. Exec. Order 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009) §§ 2(d), 4.2 representation and abandon this habeas petition could have a significant impact on the petitioner’s status, the court must ensure that such a decision is made knowingly and voluntarily. The court therefore stays this case for a period of thirty days, during which time the petitioner’s putative counsel may attempt to secure direct authorization from the pe titioner through an inperson meeting. If, after the thir ty-day period, putative counsel has failed to secure direct authorization from the petitione r, the court will dismiss the petition without prejudice.

II. FACTUAL & PROCEDURAL BACKGROUND On October 24, 2008, this petition for a writ of habeas corpus was filed on behalf of the petitioner pursuant to a next-fri end authorization. Pet. for Wr it of Habeas Corpus ¶ 2. On December 12, 2008, Judge Hogan ordered the petitioner’s putative counsel to submit, by February 12, 2009, proof of direct authorization from the petitione r to pursue this action. Minute Order (Dec. 12, 2008). On February 13, 2009, the pe titioner’s putative couns el filed, and this court granted, an unopposed motion to extend the time to f ile the required aut horization to March 31, 2009. 3 Petr’s Mot. for Extension ¶ 6; Minu te Order (Feb. 13, 2009). On April 1, 2009, the petitioner’s putative counsel file d an unopposed motion to stay the proceedings for an additional sixty days, which this court grante d, staying the cas e until June 1, 2009. See Petr’s Mot. to Stay Pet. for Writ of Habeas Corpus ¶ 5; Minute Order (Apr. 1, 2009). Despite continued attempts to obtain the peti tioner’s direct authorization, on June 1, 2009, the petitioner’s putative counsel again file d a motion to stay the proceedings for an additional sixty days. Petr’s Mot. to Stay Pet. for Writ of Habeas Corpus (June 1, 2009) (“Petr’s

3 Unable to meet this extended deadline, the pe titioner’s putative counsel submitted a response to the December 12, 2008 order stating that the petiti oner refused to read two letters that counsel sent to him and refused to meet with them during th eir visit to Guantanamo Bay. Petr’s Resp. to Dec. 12, 2009 Minute Order at 1-2.3 2d Mot. to Stay”) at 1. The government, however , consented only to a th irty-day stay and only

on the condition that the petitioner’s putative counsel once ag ain attempt to meet with the petitioner. Petr’s 2d Mot. to Stay ¶ 7. The court granted puta tive counsel’s motion to stay the proceedings until July 1, 2009 and ordered briefing on counsel’s request to stay the proceedings until August 1, 2009. Minute Order (June 1, 2009). The government subsequently filed an oppositio n to the request to stay the proceedings beyond July 1, 2009 and simultaneously moved to dism iss the petition for l ack of jurisdiction on the grounds that the petitioner ha d not authorized the proceedings . Govt’s Opp’n to Petr’s Request for Further Stay & Mot. to Dismiss (“G ovt’s Mot. to Dismiss”) at 3-12. On June 11, 2009, the court stayed briefing on the motion to di smiss pending the resoluti on of the petitioner’s putative counsel’s motion for a stay beyond Ju ly 1, 2009. Minute Order (June 11, 2009). The petitioner’s putative counsel subsequently filed a reply in support of the motion to stay the proceedings, asserting that the government’s oppos ition was premature, and stating that counsel had made, and was continuing to make, a good fa ith effort to estab lish contact with the petitioner. 4 Petr’s Reply in Support of Mot. to Stay at 2. On June 15, 2009, this court ordered the proceedings stayed until August 1, 2009 and se t a briefing schedule on the government’s previously filed motion to dismi ss. Minute Order (June 15, 2009). On August 7, 2009, the petitioner’s putati ve counsel filed an opposition to the government’s motion to dismiss for lack of juri sdiction, asserting that the government had failed to show that the petitioner knowingly, intelligentl y and voluntarily declined legal representation and waived his right to contest his detention through a habeas petition. Petr’s Opp’n to Mot. to Dismiss at 3-8. The petitioner’s putative coun sel simultaneously filed a motion to stay the

4 These efforts included engaging a private inves tigator to locate the petitioner’s family in Afghanistan and attempting to contact the petitioner again by mail. Petr’s Reply in Support of Mot. to Stay at 2.4 proceedings until the Executive Task Force comple tes its review of the petitioner’s case, arguing that such a stay is appropriate to allow furt her development of pro ceedings relating to the petitioner’s status. Petr’s Mot. to Stay Pet. for Writ of Habeas Corpus (Aug. 7, 2009) (“Petr’s 3d Mot. to Stay”) at 2-3. In its reply, the government re iterates its assertion that the court lacks jurisdiction because the petitioner has not authorized counsel to pur sue this case and because this case is being improperly maintained under a next-f riend authorization. G ovt’s Reply in Support of Mot. to Dismiss & Opp’n to 3d Stay Request (“Govt’s Reply in Support of Mot. to Dismiss”) at 2-7. Finally, on August 24, 2009, the petitioner’s putative counsel replied to the government’s opposition to the motion to stay, arguing that th e government failed to demonstrate that the petitioner has effected a knowing and voluntary waiver of his ri ghts. Petr’s Reply in Support of 3d Mot. to Stay at 3-4.

III. ANALYSIS In its motion to dismiss, the government c ontends that this co urt lacks jurisdiction because the petitioner has not di rectly authorized counsel to pursue this case and because putative counsel has failed to establish next-friend st atus. Govt’s Mot. to Dismiss at 3, 5; Govt’s Reply in Support of Mot. to Dismiss at 2-7. The government also notes that although the petitioner may have a right to legal counsel, he also has the right to decline such counsel. Govt’s Reply in Support of Mot. to Dismiss at 3-4. Th e petitioner’s putative co unsel, on the other hand, asserts that the government has failed to demons trate that the petitioner knowingly, intelligently and voluntarily waived his right to legal counsel and his right to pursue this action. Petr’s Opp’n

to Mot. to Dismiss at 3-5. Putative counsel furt her asserts that a stay pending the completion of the Executive Task Force review is the appropr iate solution, arguing that dismissing the case5 now would needlessly render moot the effort s expended thus far in pursuing this action, prejudice the petitioner’s interest s and cause unnecessary delay in the event that the petitioner subsequently grants direct authoriz ation for this case to proceed. Petr’s 3d Mot. to Stay at 2-3. Turning to the motion to stay filed by the pe titioner’s putative c ounsel, the court is not persuaded that a further stay of this action pending review by the Ex ecutive Task Force is appropriate or justified. Putative counsel has po inted to no authority justifying such relief. See generally Petr’s 3d Mot. to Stay. Putative counsel’s assertion that “the pendency of a habeas petition might advance or expedite hi s review before the Task Force,” id . at 3, is speculative and does not address the government’s justified concern that in the absence of direct authorization from the petitioner, this court lacks ju risdiction over this habeas petition. Prior to dismissing a habeas petition for lack of authorization, how ever, this court must ensure that the petitioner’s deci sion to decline representation a nd not pursue his habeas petition has been made knowingly and voluntarily. See Al Wady v. Obama , 623 F. Supp. 2d 20, 23-24 (D.D.C. 2009) (Kay, J.) (holding that because of the potentially adverse impact on the detainee’s status, the court must confirm that any decision to decline representation and abandon a habeas petition is made freely and knowingly); see also Saeed v. Obama , 2009 WL 1312537, at *1 (D.D.C. May 12, 2009) (Walton, J.) (ordering further efforts to facilitate an in-person meeting between the petitioner and putative counsel to ensure that the petitioner’s decision to forego legal representation was knowing and voluntary). To th is end, it is of utmost importance that the petitioner’s putative counsel make every effort possible to meet with the petitioner in person, explain the rights and procedures available to him, describe their role in facilitating his representation in court a nd, if necessary, confirm that the pe titioner has made a free and knowing decision to decline legal assist ance and abandon th is petition. See Al Wady , 623 F. Supp. 2d at6 24 (explaining the benefits of having a non-govern mental attorney confir m the prison guards’

assurances that the detainee’s decisi on is fully informed and voluntary); Saeed , 2009 WL 1312537, at *1 (observing that the procedures employed by the Jo int Task Force-Guantanamo did not adequately ensure that a petitioner’s decision to reject counsel was made knowingly and voluntarily). Indeed, acknowledgi ng the importance of these in-p erson meetings and recognizing the difficulty of securing client authorization after just one meeting, Judge Hogan’s Protective Order requires only that authorization be submitted as soon as practicable and “not later than ten days after the c onclusion of a second visit with a detainee.” Prot ective Order & Procedures for

Counsel Access to Detainees at the U.S. Naval Base in Guantanamo Bay, Cuba, Misc. Case No. 08-0442, at 17 (Sept. 11, 2008) (emphasis added). In light of the importance and acknowledged di fficulty of securing detainee authorization on the first attempt, the court is concerned w ith the petitioner’s putat ive counsel’s apparent refusal to heed the government’s request that they make a second attempt to meet with the petitioner in person, as well as putative counsel’s unexplained asse rtion that such an attempt

would be futile. 5 Govt’s Mot. to Dismiss at 6; see Petr’s Opp’n to Mot. to Dismiss at 1-2 (describing putative counsel’s efforts to contact the petitioner). Furthe rmore, in failing to attempt a second visit, as contemplated by the Pr otective Order, the petitioner’s putative counsel

has failed to exhaust all availabl e avenues to obtain direct au thorization from the petitioner. 6 Cf.

5 The petitioner’s putative counsel states only that “in the short term, another attempt to visit is not likely to result in the meaningful communi cation essential to” assess whether the detainee’s decision to decline representation and abandon this habeas petition is fully knowing and voluntary. Petr’s Opp’n to Mot. to Dismiss at 2-3.

6 The court is aware that putative counsel h as attempted alternate means of establishing communication with the petitioner, such as by se nding three letters to the petitioner and engaging a private investigator to locate th e petitioner’s family in Afghanistan. See Petr’s Opp’n to Mot. to Dismiss at 1-2. These efforts, however, are no s ubstitute for a subsequent attempt to meet with the petitioner in person at Guantanamo Bay.7 Idris v. Obama , 2009 WL 3182609, at *2 (D.D.C. Oct. 6, 2009) (dismissing a habeas petition because putative counsel was unable to obtain dir ect authorization from the petitioner despite traveling to Guantanamo Bay on at least five se parate occasions to attempt to meet with the petitioner). Given the significant impact that dismissal could have on the peti tioner’s status and despite the government’s well-founde d concerns regarding further de lays in this case, the court will temporarily withhold resolution of the governme nt’s motion to dismiss. The court instead orders that this case be stayed for a period of thirty days while the petitioner’s putative counsel attempts to meet with the petitioner in person to explain the petitioner’s habeas rights and their role as counsel. Upon expiration of this thirty-day pe riod, if the petitioner’s putative counsel has

failed to secure direct authori zation from the petitioner or provide new information regarding the petitioner’s inability to provide such authorizat ion, the court will dismiss this habeas petition without prejudice.

IV. CONCLUSION For the foregoing reasons, the court denies th e petitioner’s putative counsel’s motion to stay the proceedings pending review by the Guan tanamo Review Task Force, while holding in abeyance the government’s motion to dismiss. Th e court further orders the proceedings stayed for thirty days from the date of entry of this or der while the petitioner’s c ounsel attempts to meet with the petitioner in person. An Order consiste nt with this Memorandum Opinion is separately and contemporaneously issued this 22nd day of October, 2009.

RICARDO M. URBINA United States District Judge