In Re: Guantanamo Bay Detainee Litigation

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: Misc. No. 08-0442 (TFH) GUANTANAMO BAY DETAINEE LITIGATION

BENJAMIN MOHAMMED AL HABASHI,

Petitioner,

v. Civil Action No. 05-0765 (EGS)

BARACK OBAMA, et al.,

Respondents.

ORDER

On February 26, 2009, the Court received a report from the Privilege Team describing

alleged “unprofessional” conduct by Ahmed Ghappour and Clive A. Stafford Smith, counsel

for Petitioner Benjamin Mohammed Al Habashi (Binyam Mohamed). See Privilege Team

Report (Dkt. No. 115, 05-cv-2349). The Privilege Team accused Mr. Ghappour and Mr.

Smith of making “inappropriate use of the Privilege Team for purposes not authorized by the

protective order entered in [05-cv-2349].” Id. at 1. The report was filed in Civil Action No.

05-2349 (RMC). In that civil action, which is before Judge Rosemary M. Collyer, the

operative protective order is the Court’s Protective Order and Procedures for Counsel Access to

Detainees at the United States Naval Base in Guantanamo Bay, Cuba (Dkt. No. 409,

08-mc-0442) (Sept. 11, 2008) (“Protective Order”). Mr. Ghappour and Mr. Smith filed a

response on March 5, 2009, disputing the Privilege Team’s allegations. The parties appeared to disagree on the meaning of provisions within Court’s Protective Order and the purpose of

the Privilege Team. On March 18, 2009, the Court ordered Mr. Ghappour and Mr. Smith to

“appear for a hearing for the purpose of showing cause why this Court should not hold them in

contempt for violating the Protective Order.” Order to Show Cause (Dkt. No. 1700, 08-mc-

0442).

The Privilege Team has subsequently indicated that their report should have been filed

in Civil Action No. 05-0765 (EGS). The Court was informed on the morning of May 6, 2009,

that in Civil Action No. 05-0765, Judge Emmet G. Sullivan has not adopted the Court’s

Protective Order. The operative protective order in that case is the Amended Protective Order

and Procedures for Counsel Access to Detainees at the United States Naval Base in

Guantanamo Bay, Cuba, first issued on November 8, 2004, as amended by the Order

Addressing Designation Procedures for Protected Information, first issued on November 10,

2004, and by the Order Supplementing and Amending Filing Procedures Contained in the

November 8, 2004, Amended Protective Order, first issued on December 13, 2004. See Order

(Dkt. No. 56, 05-cv-0765) (July 31, 2008).

On April 23, 2009, Mr. Ghappour and Mr. Smith filed a Motion to Discharge the

Court’s Order to Show Cause (Dkt. No. 1741, 08-mc-0442). According to the motion, Mr.

Ghappour and Mr. Smith appear to now understand and accept that the Privilege Team (i) is

not authorized to process communications by counsel to parties who do not share an attorney-

client relationship with their client and (ii) cannot declassify information that has been

designated as classified by other entities of the United States government. See Mot. to

Discharge at 2. The Privilege Team “takes no position” on the motion. Id. at 3.

2 It is unclear if Mr. Ghappour and Mr. Smith have sufficiently addressed the concerns

raised by the Privilege Team. Nevertheless, in light of the fact that the operative protective

order in this case is not this Court’s Protective Order, the Privilege Team’s report should be

directed to Judge Sullivan. The Court therefore

ORDERS that the Court’s March 18, 2009 Order to Show Cause is VACATED.

Accordingly, the Motion to Discharge the Court’s Order to Show Cause is DENIED AS

MOOT. The Court refers this matter to Judge Emmet G. Sullivan.

May 6, 2009 /s/ Thomas F. Hogan United States District Judge