Muhammad Husayn v. Gates

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ZAYN AL ABIDIN MUHAMMAD HUSAYN (ISN #10016),

Petitioner, v. Civil Action No. 08-1360 (EGS) LLOYD AUSTIN, et al.,

Respondents.

ORDER

Pending before the Court is Petitioner’s Motion for

Sanctions Due to Respondent’s Improper Seizure and Review of

Documents That Are Subject to the Attorney-Client Privilege and

the Work Product Doctrine, see generally Pet’r’s Mot., ECF No.

399; 1 which Respondents oppose, see Resp’ts’ Opp’n, ECF No. 340.

Upon careful consideration of Petitioner’s motion, Respondents’

opposition, the reply thereto, and for the reasons explained

below, the Court FINDS AS MOOT IN PART AND DENIES IN PART

Petitioner’s motion.

Petitioner “moves the Court to order a hearing and impose

sanctions against Respondents for wrongfully and improperly

seizing and reviewing legal materials in Petitioner’s possession

that were known, or should have been known to be subject to the

1 When citing electronic filings throughout this opinion, the Court cites to the ECF header page number, not the original page number of the filed document. Attorney-Client Privilege and/or the Work Product Doctrine.”

Pet’r’s Mot., ECF No. 399 at 1. Petitioner states that once

counsel learned of the “improper document sweep,” they requested

confirmation of the incident from Respondents’ counsel, but no

response was received as of the date of the filing of the

motion. Id. at 6. Petitioner seeks the following relief: (1) a

hearing regarding the incident; (2) a written explanation from

the Government of the basis and justification for the search,

including identifying all documents that were seized and

reviewed; (3) confirmation of whether seized documents were

returned to Petitioner and whether any copies were retained by

the Government; (4) require the Government to confirm in writing

that no irregularities or abuses were determined to exist in

connection with Petitioner’s legal mail; and (5) that the Court

impose appropriate sanctions against the Government. Id. at 7.

Respondents oppose, stating that the October 2011 security

inspection was “in fact a carefully executed security inspection

of detainee cells that involved no content review of

Petitioner’s privileged communications” and that “Petitioner is

not entitled to any relief in this matter because the Government

may properly conduct contraband inspections to protect security

at the . . . Guantanamo . . . facility.” Resp’ts’ Opp’n, ECF No.

340 at 1. Respondents represent that “the inspection was

conducted in a manner that respects the confidentiality of

2 properly-marked communications from his counsel” and so

Petitioner is not entitled to sanctions. Id. Finally,

Respondents state that the Government has responded via letter

to “Petitioner’s request for information concerning the purpose

and justification of the searches and its execution.” Id.

Respondents attach the letter to their opposition briefing. See

id. at 26-27.

Respondents have attached a sworn Declaration of the then-

Staff Judge Advocate of Guantanamo to their opposition briefing.

See Decl. of Commander Thomas J. Welsh, ECF No. 340 at 21-24.

The Declaration describes the separate processes for screening

non-legal mail by Guantanamo staff, for inspecting legal mail

sent to detainees by attorneys representing them in habeas

proceedings by the Habeas Privilege Team, and the procedures

governing written communications between detainees and their

military commission defense counsel. See id. ¶¶ 5, 6, 8. The

Declaration states that the latter procedure resulted in

inconsistencies in the manner in which the communications were

initialed and that in addition, the Guantanamo “Commander was

concerned about some contraband materials that were discovered

within the detention facility and which appeared to have not

undergone any security screening.” Id. ¶ 9. Accordingly, “in

October 2011, a one-time security inspection or ‘baseline

review’ [was] conducted of all the materials in the cells of the

3 detainees in [the] camp [where Petitioner resides], for the

purposing of ensuring that documents properly in those cells

were marked as having been through an appropriate procedure. As

part of that process, documents bearing a security screening

stamp from the Habeas P[rivilege] T[eam] were to be immediately

cleared, stamped by the guard force with a new uniform marking,

and returned to the detainee as soon as possible without any

further review.” Id. ¶ 11. The Declarant avers that “the

contents of documents inspected were not disclosed outside of

the security inspection team.” Id. ¶ 12.

Petitioner dismisses Respondents’ opposition in a one-and-a

half-page Reply briefing as “utterly self-serving” but provides

no substantive response to Respondents’ averments and arguments.

See generally Reply, ECF No. 425.

In view of Respondents’ opposition briefing and February

22, 2012 letter, the following of Petitioner’s requests are

largely moot: (1) a written explanation from the Government of

the basis and justification for the search, including

identifying all documents that were seized and reviewed; (2)

confirmation of whether seized documents were returned to

Petitioner and whether any copies were retained by the

Government; and (3) require the Government to confirm in writing

that no irregularities or abuses where determined to exist in

connection with Petitioner’s legal mail. The Court notes that it

4 took Respondent four months to respond to Petitioner’s email

query. The Court expects Respondent to respond to requests such

as these in a prompt fashion. In view of the Declaration

provided, and Petitioner’s failure to respond substantively to

Respondents’ opposition briefing, the Court concludes a hearing

and sanctions are unwarranted.

For the reasons stated above, it is hereby

ORDERED that Petitioner’s Motion for Sanctions Due to

Respondent’s Improper Seizure and Review of Documents That Are

Subject to the Attorney-Client Privilege and the Work Product

Doctrine, and Related Relief, ECF No. 342 is FOUND AS MOOT IN

PART AND DENIED IN PART AND.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge May 30, 2023