                         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) Motion [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 process legal mail sent by counsel to petitioners

within two days of receipt, and delivered within two days of receipt 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. Alsabri’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.
         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 petitioners’ 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), ECF No. 7. Noting that in “the case of

Guantanamo detainees, access to the courts means 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 Court’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 petitioners to enter into a stipulated

agreement confirming that the Protective Order continues to govern their cases. See, e.g.,

Stipulation & Order 1, ECF No. 408. Such a stipulated agreement 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.
                                                         2
        On February 5, 2013, the Department of Justice notified petitioner’s counsel that “the

DOD Privilege Team has been holding legal mail received from your client Mr. Al Sabri on

November 14, 2012, pending completion of the litigation 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 (ISN 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 clear violation of the Protective Order 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 appropriate 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 violations of the Protective Order

. . . .” Id. at 7–8. Petitioner avers that after the hearing he will move for “appropriate relief,”

including a reprimand of any parties found to have violated the requirements of the Protective

Order. Id.

        The government apologizes for the delay in delivering petitioner’s letter and assures the

Court that the “situation that gave rise to Alsabri’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 Petitioner 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 stipulated agreements confirming the ongoing effectiveness of
the Protective Order, it believes such agreements are unnecessary.
                                                         3
was caused by “regrettable oversight, together with a turnover in personnel” that occurred as a

result of the government’s initial 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 sure that “appropriate

personnel are notified in the event that a question about processing legal mail arises in the

future” in a “good-faith effort to ensure that this situation will not happen again.” Id. at 7.

       The government states that it has now processed and delivered the accidentally-held legal

mail in this case, and the Court will take the government at its word. The Court, therefore, sees

no reason to hold a hearing at this time. However, 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 Court or petitioners’ 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 Guantanamo has further interfered 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 Guantanamo
                                           4
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 legal mail not processed in accordance with the

Protective Order in all cases involving Guantanamo detainees. The accounting shall include (1)

the name of the detainee, (2) the associated case number, (3) the date 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 the intended recipient(s), (6) the number of days

between its submission to respondents and its delivery, (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.




                                                 5
