CLEARED FOR PUBLIC FILING BY CSO
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AHMED ZAID SALEM ZUHAIR,
Petitioner,
v.
GEORGE W. BUSH, ROBERT GATES,
REAR ADM. MARK H. BUZBY, and
ARMY COL. BRUCE VARGO,
Respondents.
Civil Action No. 08-864 (EGS)
PETITIONER’S REPLY IN FURTHER SUPPORT OF HIS EMERGENCY
MOTION TO COMPEL COMPLIANCE WITH THE PROTECTIVE ORDER
AND ATTORNEY-CLIENT PRIVILEGE; FOR TELEPHONIC ACCESS; FOR A
HEARING; AND FOR A WRIT OF HABEAS CORPUS AD TESTIFICANDUM
Petitioner Ahmed Zaid Salem Zuhair respectfully submits this Reply in Further
Support of His Emergency Motion to Compel Compliance With the Protective Order and
Attorney-Client Privilege; For Telephonic Access; For a Hearing; and for a Writ of
Habeas Corpus Ad Testificandum (dkt. no. 51).
INTRODUCTION
Mr. Zuhair identified two guards – including in his letter to counsel the guards’
identifying serial numbers – who threatened his life, and read and confiscated his legal
papers on the night of July 17, 2008. He requests that this Court order his custodians to
return his papers, to cease all threats and interference with the attorney-client
relationship, to allow him telephonic access to his Counsel, and – should further fact
finding be required – the Court should hold a hearing into the matter
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and issue a writ of habeas corpus ad testificandum allowing Petitioner to testify via
videoconference.
Respondents urge this Court to do nothing about their grave misconduct.
Respondents state that no hearing is necessary, and no relief is possible. They argue,
first, that the incident never occurred; and, second, that even if the incident occurred, this
Court lacks the power to ordering the limited relief sought by Mr. Zuhair and counsel.
Respondents are mistaken on both counts.
Respondents seek to discredit Mr. Zuhair’s account by relying on a single
declaration, which is based on a review of unspecified “detention records” by the
Commanding Officer of Guantánamo and a rote recitation of facility regulations. The
Declaration of Commander Bruce Vargo, attached as Ex. 2 to Respondents’ Opposition
(hereinafter, “Vargo Declaration”), cannot shoulder the burden the Government would
have it bear: it does not conclusively refute Mr. Zuhair’s account nor does it preclude the
Court from ordering injunctive relief. The Vargo Declaration is based upon a review of
records that were created by the very individuals whom Mr. Zuhair identified, the same
men who threatened his life and read and confiscated his legal papers.
At most, the Vargo Declaration raises questions of material fact, requiring the
Court to hold a hearing into the events of July 17, 2008, their effect on Mr. Zuhair’s right
to access the Court and on the Court’s ability to exercise its jurisdiction over this matter.
A hearing would help the Court determine, first, the extent of the harm suffered by Mr.
Zuhair and by this Court in its ability to carry out its responsibility as a result of the
guards’ actions and, second, the proper scope of relief.
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The need for inquest is further underscored by information recently received by
Petitioner’s Counsel – information unavailable at the time Petitioner’s Emergency
Motion was filed. Counsel met with Mr. Zuhair at Guantánamo on the 5th and 6th of
August, 2008. The Privilege Review Team unclassified Counsel’s meeting notes on
August 26, 2008. The notes provide further details not included in Mr. Zuhair’s panicked
letter of July 18, 2008, the day after the incident.
This new information undermines the reliability of the Vargo Affidavit, provides
the identities of several additional individuals who were likely witnesses to the incident,
and provides background that demonstrates that the incident with the two guards was not
an isolated event but the most egregious example of a practice of retaliation against Mr.
Zuhair by his guards. This retaliatory behavior violates the very policies cited by the
Vargo Declaration. It is abetted by a failure of the command structure at Guantánamo
Bay to supervise and discipline guards who engage in gross violations of internal policies
by routinely humiliating the detainees in their charge.
The accompanying declaration makes clear that this Emergency Motion for Relief
is not the first time Mr. Zuhair has brought these allegations to the attention of
Guantánamo staff. A willful official silence has met each of Mr. Zuhair’s complaints.
This silence is reflected in the Vargo Declaration itself. Colonel Vargo betrays no
interest in investigating the allegations further. Respondents have not even taken the
simple, but necessary step, of providing declarations, submitted under oath and threat of
perjury, from the men identified by Mr. Zuhair.
For these reasons, this Court should hold order a hearing into this matter to take
testimony from Mr. Zuhair and any other individuals under the care and control of
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Respondents whom the Court believes have relevant, direct information about the
incidents at issue.
SUPPLEMENTAL FACTUAL BACKGROUND
Petitioner’s counsel met with Mr. Zuhair in Guantánamo on August 5 and 6,
2008. See September 4, 2008 Declaration of Ramzi Kassem (“Kassem Decl.”), attached
as Ex. 1 at ¶ 3. The Privilege Review Team unclassified and faxed the notes from that
meeting on August 26, 2008 – after the Emergency Motion was filed, on August 12,
2008, so as to meet the deadline set by the Court in its scheduling order of June 31, 2008.
Id. at ¶ 4. The contents of counsel’s notes of his conversation with Mr. Zuhair provide
further details and background to the allegations made in Mr. Zuhair’s letter of July 18,
2008. This information is material to the controversy before the court.
On or about May 11, 2008, Mr. Zuhair was transferred to Camp 6. Id. at ¶ 5.
Camp 6 is the worst of all Guantánamo prison camps, featuring permanent lockdown,
little to no natural light, extreme temperatures, and constant surveillance.
Mr. Zuhair is held in Block H in Camp 6. Id. at ¶ 6. With him in Block H in
Camp 6 are 7 other hunger strikers whose names and Internment Serial Numbers were
provided to counsel by Mr. Zuhair and can be shared with the Court should it so wish.
Id. The detainee cells in Block H are arranged around a central common area, which
detainees are not permitted to use as they are kept in their cells almost all times. Id. at ¶
8. Each detainee, therefore, has a view of activity in the common area through a window
in their cell door.
Force-feeding of the hunger strikers occurs in the common area. Id. at ¶ 8.
Guards line the restraint chair in front of the cells and the detainees on hunger strike are
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brought out for force-feeding in groups of four. Id. at ¶ 9. Mr. Zuhair is part of a group
of four who are force-fed from 9:30 to 11:30 AM and again from 4:30 to 6:30 PM. Id.
The other four hunger strikers are fed on alternate shifts. Id.
During his force-feeding ordeals, Mr. Zuhair had interacted with the two guards
who threatened him and read his legal papers. Their identification numbers were noted in
his letter to counsel. See Letter from Ahmed Zaid Zuhair, attached as Ex. 1 to
Petitioner’s Emergency Motion, dkt. 35. Mr. Zuhair identified the guard who confiscated
his privileged papers as the cell block’s Non-Commissioned Officer (NCO) (hereinafter,
“Guard 1”). See Kassem Decl., Ex. 1, at ¶ 11. Mr. Zuhair describes Guard 1 as a six foot
tall man weighing over 200 pounds, with white skin, and a shaved head. Id. at ¶ 12. He
estimates that Guard 1 is approximately 35 years old. Mr. Zuhair recalls this guard’s
insignia as being three inverted “v”s, which makes him a Petty Officer First Class, at
least. Id. Guard 1 is the commanding officer in the cell block. Id. Mr. Zuhair has been
told that subordinates and Soldiers on Guard (“SOG’s”) have complained about this
guard’s behavior on a number of occasions. Id. at ¶ 13.
Mr. Zuhair stated that the second guard is a Navy “seaman.” Id. at ¶ 14. He
described his hair and eyes as dark brown, his build as “skinny,” and estimates that he is
approximately 22 years-old (hereinafter, “Guard 2”). Id. On two occasions before the
July 17th incident, Guard 2 mistreated Mr. Zuhair at the end of his force-feeding session.
First Incident—Mid-June
In mid-June, Mr. Zuhair’s wrist was swollen as a result of the guards’ routine use
of excessive force. Id. at ¶ 15. After a session in the restraint chair, Guard 2 unrestrained
Mr. Zuhair’s left hand from the chair in order to shackle him for transportation a few
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steps back to his cell. Id. When Guard 2 applied the handcuff onto his left hand, Mr.
Zuhair asked Guard 2 to loosen the cuff, as it was cutting into his swollen wrist. Id. at ¶
16.
Guard 2 asked Mr. Zuhair whether he was refusing to be cuffed. Id. at ¶ 17. Mr.
Zuhair responded by repeating his request that the cuff on his wrist be loosened. Id.
Guard 2 took off the cuff and tied Mr. Zuhair’s left hand back into the restraint on the
chair. Id. at ¶ 18. Guard 2 then went to complain to the SOG and filed a report stating
falsely that Mr. Zuhair had attacked him and hit him with his right hand. Id. At no time
was either of Mr. Zuhair’s hands free to hit the guard. As a result of the report filed by
Guard 2, Mr. Zuhair was placed on level 2 discipline status for eighteen days.1 Id. at 19.
Second Incident—On or About the 10th or 11th of July
At the end of the eighteen day period, on or around the 10th or 11th of July, Mr.
Zuhair was again strapped to the feeding chair when Guard 2 approached him and said,
“Shut up! Don’t speak!” Id at ¶ 20.
Mr. Zuhair, who had not said anything, asked “What did I do wrong? What did I
say?” Id at ¶ 21.
Guard 2 once again told him to “shut up.” Id at ¶ 22.
Mr. Zuhair, angered, called Guard 2 an “animal.” Guard 2 then returned the other
3 hunger strikers to their cells, leaving Mr. Zuhair strapped to the restraint chair. Id at ¶¶
23, 24.
1 Level 2 discipline status is the worst status at Guantánamo. For a long term hunger striker stripped of all
“comfort items” and privileges such as Mr. Zuhair, however, it makes scant difference—he was offered
night-time recreation only, meaning he had absolutely no opportunity to see natural light for that period of
time.
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Mr. Zuhair had a view of a clock on the wall. Mr. Zuhair waited in his restraint
chair for forty minutes. Id at ¶ 26. Mr. Zuhair then asked a nurse, “why am I still here?”
The nurse was a black female, in the Navy Command, and approximately thirty years old.
Id at ¶¶ 26, 27.
The nurse instructed Guard 2 to return him to the cell. Id at ¶ 28. Guard 2
ignored the nurse. Id at ¶ 29. The client then asked the NCO on duty at the time to return
him to his cell. Id at ¶ 29. The NCO was a white female in her 30s. Id at ¶ 29. Her
insignia was 2 inverted Vs. Id at ¶ 29. Guard 2 told the NCO that Mr. Zuhair was on
punishment. Id at ¶ 30. The NCO then went to the Soldier on Guard, who stands outside
the cell block. Id at ¶ 31. Upon her return, the NCO told Guard 2 that the SOG ordered
that Mr. Zuhair should be returned to his cell. Guard 2 refused. The NCO found two
other guards to moved Mr. Zuhair back to his cell. Id at ¶ 32. It had then been forty
minutes since the other detainees had been returned to their cells, amounting to a
continuous 2 hours and 40 minutes in the restraint chair for Mr. Zuhair. Id at ¶¶ 32, 33.
Third Incident—July 17, 2008
On July 17th, at 6:30 PM – the end of Mr. Zuhair’s evening feeding – three guards
came to release him from the restraining chair: Guard 1 (the Non-Commissioned
Officer), Guard 2, and an unidentified seaman. Id at ¶ 34. The third seaman cuffed Mr.
Zuhair properly, leaving the width of one finger between the cuff and his wrist so as not
to cut off circulation. Id at ¶ 35. Guard 1 told the seaman to tighten the cuff. Id at ¶ 36.
The seaman refused to tighten the cuff on Mr. Zuhair left hand. Id at ¶ 36. Guard 2
immediately tightened the cuff on Mr. Zuhair’s right hand. Id at ¶ 37.
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Guard 2 then sharply tightened the buckle tying Mr. Zuhair’s cuffed hands to his
waist. Id at ¶ 37. Mr. Zuhair felt like he was going to vomit and screamed out in pain.
Id at ¶ 38. Guard 1 yelled that Mr. Zuhair was refusing and called for an IRF team. Id at
¶ 39. Guard 1 then went to speak to the SOG outside. Id at ¶ 39. When he returned,
there was no IRF team. Id at ¶ 40. Guard 1 ordered Guard 2 and the seaman to tighten
Mr. Zuhair’s cuffs again and return him to his cell. Id at ¶ 40.
Angered by this treatment, Mr. Zuhair addressed Guard 1 in English. Id at ¶ 41.
He stated, “We are prisoners. Do you think you are Rambo? If you are Rambo, go to
Iraq. We are prisoners. We cannot hurt you.” Id at ¶ 42.
Guard 1 laughed. Id at ¶ 43. The three guards took Mr. Zuhair to his cell. Id at ¶
44. Mr. Zuhair stood outside his cell with the NCO as Guard 2 and the other seaman
patted him down. Id at ¶ 45. The seaman performed the bodysearch normally, whereas
Guard 2 did it in a manner that was deliberately brutal and demeaning, leading the
seaman to shake his head disapprovingly. Id at ¶ 46.
Guard 1 then asked Mr. Zuhair, “I should go to Iraq?” Id at ¶ 47.
Mr. Zuhair replied, “Yes.” Id at ¶ 48. Guard 1 then told Mr. Zuhair that he would
kill him and cut his body into pieces. Guard 2 said that they should cut off Mr. Zuhair’s
ears and nose instead, as detailed in Petitioner’s letter to counsel and in the Motion filed
with the Court. Id at ¶ 49.
That night, at around 11:00 PM or midnight, Guard 1 removed Mr. Zuhair’s box
of personal and legal papers from the vacant cell where it is kept. Detainees on hunger
strike are not permitted to keep their legal papers in their cells. Guard 1 took the papers
to the common area outside Mr. Zuhair’s cell and read through them, as detailed in
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Petitioner’s letter to counsel and in the Emergency Motion filed with the Court. Id at ¶
54.
Guard 1 went through Mr. Zuhair’s papers page by page. Id at ¶ 54. He read
everything that was in English, including legal papers marked attorney-client privileged.
Id at ¶ 54. He then pulled all handwritten papers and notes and took them with him. Id at
¶ 55. He did so in full sight of Guard 2, the other guards on duty that night, and the other
prisoners in the block who could have witnessed it through the windows in their cell
doors. Id at ¶ 53.
As he read Petitioner’s privileged papers, from 11:00 PM or midnight on, Guard 1
would shake and bang on Mr. Zuhair’s door every 30 minutes. Id at ¶ 52. This lasted
until dawn, approximately 4 or 5 AM the next day, July 18. Guard 1 did so in full sight
of Guard 2, the other guards on duty that night, and the other prisoners in the block who
could have witnessed it through the windows in their cell doors. Id at ¶ 53.
The next day, on July 18th, the mental health doctor toured the cell block. Id at ¶
56. Mr. Zuhair told the doctor, who was a Navy physician from the camp’s PHU, about
the threats. Id at ¶ 56. Mr. Zuhair believes that the doctor noted his complaints, but does
not know if he ever reported them to his superiors. Id at ¶ 56.
On July 18th, Mr. Zuhair asked an interpreter for the soldier on guard, a tall black
man with three inverted superposed “v”’s to lodge a formal complaint. Id at ¶57.
ARGUMENT
I. A Hearing Is Appropriate to Determine the Extent of the Harm Suffered
by Petitioner Ahmed Zuhair
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“If there are genuine issues of material fact raised in opposition to a motion for a
preliminary injunction, an evidentiary hearing is required.” Cobell v. Norton, 391 F.3d
251, 261 (D.C. Cir. 2004).
Particularly when a court must make credibility determinations to resolve key
factual disputes in favor of the moving party, it is an abuse of discretion for the
court to settle the question on the basis of documents alone, without an
evidentiary hearing. . . . The circumstances and interests at stake will affect
whether an abbreviated or more extensive evidentiary hearing is necessary.
Id.
The Vargo Declaration is insufficient to rebut the allegations raised in Petitioner’s
Emergency Motion. Its contents are too insubstantial to rebut Mr. Zuhair’s twin
allegations – first, that guards read and confiscated his legal mail and, second, that the
guards threatened his life. The Vargo Declaration is not based upon Colonel Vargo’s
personal knowledge of the events at issue but on Colonel Vargo’s review of “detainee
records.” Colonel Vargo does not define the scope or nature of the records reviewed. To
the extent that sources of the information in these records are identified, those only
undermine the records’ reliability. These records were created by the very individuals
Mr. Zuhair identifies as interfering with attorney-client relationship, violating the
attorney-client privilege, threatening Mr. Zuhair’s life and obstructing the jurisdiction of
this Court. Their reliability is highly questionable at best. The guards had every reason
to hide their perfidy from their superior officers.
Mr. Zuhair has identified, by physical description and ID number, the two guards
who read and removed his legal papers. Given the apparent reluctance of Guantánamo’s
commanding officers to investigate serious allegations against the guard force, greater
scrutiny by this Court is required before deciding Mr. Zuhair’s Motion.
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Furthermore, it is clear that the Court has the power to order the relief requested
by Mr. Zuhair pursuant to either its powers under the All Writs Act, 28 USC 1651, or
FRCP 65. If Mr. Zuhair cannot accept legal mail from Counsel without confidence in the
inviolability of attorney-client privilege, his habeas proceedings will be severely
compromised.
The relief requested – the return of legal papers and telephonic access to Mr.
Zuhair – is neither overbroad nor precluded by traditional notions of deference to prison
administration. Mr. Zuhair is at the mercy of his jailors. He faces the same guards 24
hours a day, seven days a week. They have repeatedly acted in a threatening manner
towards him. They have already demonstrated their willingness to violate his rights in
clear violation of internal policy. Telephone access with his Counsel – already
contemplated by the terms of the Protective Order – is one remedy that can allow this
Court to ensure that Mr. Zuhair’s ability to litigate his habeas proceedings is not chilled
by the actions of his guards.
A. The Vargo Declaration is Insufficient to Rebut Mr. Zuhair’s
Allegations that the Guards Read and Confiscated his Confidential
Legal Papers
The Vargo Declaration is insufficient to rebut Mr. Zuhair’s allegations that on the
night of July 17, 2008, two guards threatened his life, read his legal papers, and
confiscated several of the pages, for three reasons. First, Colonel Bruce Vargo did not
bear witness to the incidents. His Declaration is not based upon his personal knowledge
of the events but upon “information made available to [Colonel Vargo] through [his]
official duties, including the detention records of ISN 669[.]” Vargo Decl. ¶ 1.
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Second, Colonel Vargo does not provide copies of these records or identify the
sources of the information. Respondents have provided this Court with absolutely no
indicia to ensure that the records or information reviewed by Mr. Vargo is either reliable
or exhaustive, or that his review itself was exhaustive of the universe of materials before
him. The Vargo Declaration merely states that the records “do not reflect any
information to support the allegations of ISN 669 that any guards read through or
removed any legal mail from the detainee’s cell or possessions on or about 17 July 2008.”
Vargo Decl. ¶ 4. No mention is made in the Vargo Declaration as to any reporting
requirements that would necessitate guards indicating, in any form, that they read or
confiscated a detainee’s mail. But see Vargo Decl. ¶ 5 (detailing requirement that guards
“immediately report detainee noncompliance and agitation to . . . supervisors [who], in
turn, are trained to ensure the timely reporting and documentation of these incidents . . .
[and] are regularly trained on these requirements).
Third, Respondents’ dependence on an Affidavit limited solely to these “detainee
records” is inappropriate given Mr. Zuhair’s identification of the two guards who read
and confiscated his legal papers. In the letter attached to his Emergency Motion as
Exhibit 1, Mr. Zuhair gave the badge numbers of the two guards who entered his cell and
engaged in these acts. “Camp guards are not permitted to read a detainee’s legal mail.”
Vargo Decl. ¶ 3. A guard who engaged in these actions, in clear violation of attorney-
client privilege and internal regulations, would be less than enthusiastic to report his own
intransigence to a superior officer, let alone create a lasting document that would
presumably lead to some sort of disciplinary action. As Counsel’s meeting notes explain,
Mr. Zuhair has witnessed both Guard 1 and Guard 2 be grossly insubordinate towards a
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superior officer. See Kassem Decl. at ¶¶ 32, 61. Given the incentive these guards had to
cover up their malfeasance, reliance on a written record is simply insufficient to rebut Mr.
Zuhair’s allegations. Only statements from individuals with direct knowledge of the event
– Mr. Zuhair, Guard 1, Guard 2, and the third seaman – can suffice to settle the facts of
the matter.
Recently cleared meeting notes between Counsel and Mr. Zuhair show that the
guards undertook their action in sight of the other detainees held in Mr. Zuhair’s cell
block in Camp 6. These detainees bore witness through the windows in their cell doors.
Because of the limitations Respondents have placed on Counsel’s access to Mr. Zuhair,
let alone any other detainee whose recollection of the night is germane to this matter, it
has not been possible to collect Affidavits from these detainees. The Court, however, can
require the production of their testimony in a hearing.2
B. The Vargo Declaration is Insufficient to Rebut Mr. Zuhair’s
Allegations that the Guards Threatened His Life
The Vargo Declaration is insufficient to rebut Mr. Zuhair’s allegation that two
guards threatened his life on or about the night of July 17, 2008 for the three reasons
enumerated supra at IA. First, Colonel Vargo did not bear witness to the incidents.
Second, he has provided no indicia by which to measure the comprehensiveness or
reliability of either the records reviewed or the scope of his review. Third, the record is
based upon the testimony of the very guards who Mr. Zuhair alleges to have threatened
his life.3
2 Should the Court so desire, Counsel can provide the names and ISN numbers of these detainees.
3 Colonel Vargo states that Mr. Zuhair “has a very long history of disciplinary violations and noncompliant,
resistant and competitive behavior.” Vargo Decl. ¶ 6. Colonel Vargo provides no evidence in support of
this statement, besides the single incident based on the testimony of the guards who threatened Mr.
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The Vargo Declaration states that, on the night of 17 July 2008, Mr. Zuhair
became “noncompliant after members of the guard force instructed him to place his hand
eight inches in front of his stomach so that he could be shackled.” Vargo Decl. ¶ 6. Mr.
Zuhair then refused and began to “use profanity while the guards escorted him” to his
cell. Vargo Decl. ¶ 6. Finally, according to the Vargo Declaration, Mr. Zuhair
threatened the lives of the guards by stating “come in my cell, I will cut off your head.”
Vargo Decl. ¶ 6. The Vargo Declaration attributes this record to two unidentified guards
who took Mr. Zuhair to his cell, as well as the “guard force supervisor.” Vargo Decl. ¶
6.
The recently cleared information received from Mr. Zuhair further undermines the
reliability of the Vargo Declaration and the credibility of the assertions therein. Mr.
Zuhair has clarified that three men were involved in the June 17th incident: the Non-
Commissioned Officer described as the “guard force supervisor” in the Vargo
Declaration, Guard 1; the “skinny seaman,” Guard 2; and an unidentified seaman.4 The
record reviewed in the Vargo Declaration was created by these three men. Counsel
believes that Guard 1 is identified in the Vargo Declaration as the “guard force
supervisor.” It is simply impossible to rely on the very individuals accused of violating
attorney-client privilege and internal regulations to report honestly and accurately news
of their own transgressions to supervising officers. In this instance, the reliability of the
records is further diminished due to the active involvement of a “guard force supervisor.”
Zuhair’s life. The existence of records reflecting an incident on the night of July 17, 2008 confirms only
that an incident transpired, consistent with Petitioner’s account. These statements, unsourced,
uncorroborated, and flawed as they are do not settle the precise content of the incident. The Court must
hold a hearing to shed further light. Furthermore, Mr. Zuhair disciplinary history, whatever it may be, in no
way authorized guards to violate attorney-client privilege, disrupt this Court’s jurisdiction over Mr.
Zuhair’s habeas claim.
4 Mr. Zuhair did not mention the latter seaman in his initial letter, as that man explicitly refused to tighten
his cuff, did not issue death threats, and did not read or confiscate his mail.
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Furthermore, the involvement of a commanding officer no doubt chilled any desire the
second seaman had to report the violations he witnessed.
The Vargo Declaration provides the Court with two layers of unreliable hearsay
evidence. The record itself is ill-defined, as is the scope of Colonel Vargo’s search of the
records. To the extent the record is defined, it is based exclusively upon statements made
by the very individuals who Mr. Zuhair alleges to have threatened his life.
To the extent the Vargo Declaration does dispute any of Mr. Zuhair’s allegations
regarding the death threats, a hearing is necessary. Again, these acts took place in clear
view of the other detainees, listed above, in Mr. Zuhair’s cell block. Furthermore, Mr.
Zuhair has identified – both by physical description as well as by serial number – the
guards in question. No less than their testimony and the testimony of Mr. Zuhair is
necessary to the resolution of this motion.
C. To The Extent the Vargo Declaration Raises Genuine Issues of
Material Fact in Opposition to Mr. Zuhair’s Emergency Motion, A
Hearing is Necessary
This Court must hold a hearing to resolve any issues of material fact that the
Vargo Declaration must raise. Ruling against Mr. Zuhair’s Emergency Motion before
such a hearing would be premature, and an abuse of discretion, given the Vargo
Declaration’s insubstantiality.
II. The Court Has the Power to Grant the Relief Requested by Mr. Zuhair
The Government argues that, even if Mr. Zuhair’s allegations are true, this Court
has no power to remedy the harm the guards’ actions inflicted on Mr. Zuhair or the Court
itself. If the Government’s argument is accepted, this Court would have no recourse
should the actions of Respondents’ agents practically bar Mr. Zuhair from litigating his
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habeas case. This cannot be so. The Supreme Court did not order that Mr. Zuhair and
similarly situated detainees be allowed a “prompt habeas hearing” only to allow
Respondents’ agents to frustrate the habeas proceeding. The Court has broad equitable
powers under the All Writs Act, 28 USC § 1651, as well as the power to issue injunctive
relief under FRCP 65.5
A. The Relief Requested is Necessary to Remedy the Harm Experienced
by Mr. Zuhair and the Court
The Government argues that this Court cannot “amend” the Protective Order to
grant Mr. Zuhair telephonic access to his counsel because to do so would be an
“unwarranted departure from the terms of the Protective Order.” Resp. Mot’n at 6.
Contrary to Respondent’s position, the Court does not need to amend the Protective
Order to grant Mr. Zuhair’s requested injunctive relief. Furthermore, the requested relief
is a necessary remedy, given the harm Mr. Zuhair has experienced.
It is not necessary for the Court to amend the terms of the Protective Order in Mr.
Zuhair’s case.6 Section VIII(A) of the Procedures for Counsel Access to Detainees at the
United States Naval Base in Guantánamo Bay, Cuba states that phone calls to by counsel
to the detainee are available in “special circumstances”:
Requests for telephonic access to the detainee by counsel or other persons will not
normally be approved. Such requests may be considered on a case-by-case basis
due to special circumstances.7
5 Respondents do not contest that this Court has the power to order the return to Mr. Zuhair of legal papers
that have been removed from his possession.
6 However, the Court does have the power to amend the Protective Order, should it choose to do so. The
Protective Order governing this case was enacted pursuant to the Court’s power, under the All Writs Act,
28 U.S.C. § 1651, to “arrange for procedures which will allow development . . . of the facts relevant to the
disposition of a habeas corpus petition.” Al Odah v. United States, 346 F.Supp. 2d 1, 6 (D.D.C. 2004). It is
axiomatic that a Protective Order created by the Court as an extension of its equitable powers may be
amended by the Court utilizing the same.
7 The Procedures for Counsel Access are attached to the Amended Protective Order first entered by Judge
Green, In re Guantánamo Detainee Cases, 344 F. Supp. 2d 174 (D.D.C. 2004). The Amended Protective
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The Protective Order clearly contemplates situations where the telephonic access is
required. The instant case, should a hearing demonstrate the truth of Mr. Zuhair’s
allegations, presents precisely such a situation.
The actions of the guards left Mr. Zuhair unwilling to communicate with counsel
through legal correspondence. That Respondents so readily turn a blind eye to their
subordinates’ misconduct – their failure to provide testimony from the guards identified
in Mr. Zuhair’s motion, for example – only further erodes whatever expectation Mr.
Zuhair may have had that the guards will not repeat their actions and again read and
confiscate his legal materials or threaten him. Ordering that he be allowed telephonic
access to his counsel to relay and discuss confidential legal information is a remedy that
will allow this Court to protect its jurisdiction over this case.
B. The Court has the Power to Order All Requested Relief Under the All
Writs Act, 28 U.S.C. § 1651
According to Mr. Zuhair – and there is no reason to believe his account is
inaccurate – the guards have interfered with this Court’s ability to hear Mr. Zuhair’s
habeas petition. This Court’s jurisdiction over Mr. Zuhair’s habeas petition is governed
by the habeas corpus statute, 28 U.S.C. § 2241, and it has the power to take all measures
“necessary and appropriate” to aid that jurisdiction under the All Writs Act, 28 U.S.C. §
1641, including the power to grant the limited relief sought here.
The Court of Appeals for the District of Columbia Circuit has already held that
district courts have the power under the All Writs Act to protect their jurisdiction where
the actions of Respondents in the Guantánamo detainee cases may threaten proceedings.
Order was entered in this case by Judge Sullivan on June 25, 2008. See, Minute Order Granting Motion for
Protective Order, Zuhair v. Bush, 08-CV-864 (D.D.C. June 25, 2008)
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Belbacha v. Bush, 520 F.3d 452 (D.C. Cir. 2008). Respondents seek to distinguish this
case by arguing that what was at issue in Belbacha was the power of a District Court to
prohibit governmental action, by preventing the transfer of detainees, whereas Petitioner
is asking the Court for affirmative relief. Nowhere does Belbacha construct such a facile
distinction. Furthermore, the distinction is meaningless. Petitioner can easily phrase his
request of this Court in the negative by requesting relief to prevent Respondents from
further threatening this Court’s jurisdiction in the same manner that Belbacha allowed
courts to require Respondents take affirmative steps to prevent transferring detainees.
Finally, Respondents seem to argue that this Court is prohibited from ordering
any amendments to the Protective Order by the language of 28 U.S.C. § 2241(e)(2).
Respondents seek to characterize Petitioner’s Emergency Motion as one that seeks
changes in Mr. Zuhair’s conditions of confinement. Resp. Br. At 10 at fn 5. Respondents
intentionally misconstrue Mr. Zuhair’s request. The relief Mr. Zuhair requests is not an
ancillary issue or an attempt to litigate the conditions of his confinement but rather is
necessary for this Court to exercise its undisputed jurisdiction over Mr. Zuhair’s habeas
petition.
C. Mr. Zuhair Meets the Standard for a Preliminary Injunction Under
FRCP 65
a. Mr. Zuhair has demonstrated his likely success on the merits.
Respondents contest neither Mr. Zuhair’s right to access this Court nor the
inviolability of the attorney-client privilege. They state, in general terms, that courts
accord “substantial deference to the judgment of prison administrators and generally
refrain from interfering in the day-to-day operations of prison facilities.” Resp. Br. At
10. This deference has never been held to bar judicial intervention meant to protect the
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basic rights of individuals held in prison facilities, including the right to access courts of
law or legal materials. Deference to prison administration is not a talisman, the simple
invocation of which is sufficient to prevent a court from issuing narrow injunctions
necessary to prevent officials from egregious violations of prisoners’ rights.
Respondents further argue that this Court has no jurisdiction to enter an injunction
in this matter, as Mr. Zuhair’s habeas petition challenges the legality of his detention and
not his conditions of confinement. Mr. Zuhair’s Emergency Motion is clearly not
seeking relief from general conditions of confinement. He is not asking the Court to
prevent the guards from cruelly and intentionally causing him pain when force feeding
him. He is simply asking that the Court intervene where the actions of prison guards
burden his ability to access this Court and properly litigate his habeas petition.
b. Mr. Zuhair has suffered irreparable injury
Petitioner is injured by his current level of access because the actions of the
guards in reading through and confiscating his papers left him unwilling to accept legal
communications from his attorneys at that time and severely undermined his belief in the
confidentiality of communications with counsel. Unless active steps are made to
reinstate Mr. Zuhair’ faith that the guards will respect the inviolability of the attorney-
client privilege, his ability to access this Court and judicial relief is in jeopardy.
The actions of the guards and the failure of their superiors to investigate their
actions and discipline them accordingly has chilled Mr. Zuhair’s ability to petition this
Court. The Supreme Court has recognized ‘chilling’ effect as an adequate injury for
establishing standing because the “alleged danger . . . is, in large measure, one of self-
censorship.” Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 393 (1988)).
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Furthermore, as opposed to the plaintiff in the case cited by Respondents,
City of Los Angeles v. Lyons, 461 U.S. 95 (1983), Mr. Zuhair is not a resident in a city of
millions who faces little chance of coming into contact with the police who once abused
him. He is the thrall of his guards twenty-four hours a day, seven days a week. There are
potentially limitless opportunities for further retaliation, especially against petitioners
who have exposed themselves by taking the stand and testifying against Respondents. Cf.
Goff v. Nix, 803 F.2d 358, 361 n.6 (8th Cir. 1986) (rejecting argument that prisoner
plaintiffs lacked standing to challenge a strip search procedure because “it seems not
unlikely” that plaintiffs would be subjected to strip searches in the future).
c. Injunctive relief will further the public interest
There is a “strong public interest in the integrity of the judicial process.” United
States v. Hasting, 461 U.S. 527 (1983). If the protective order, as it is currently applied
in Mr. Zuhair’s case cannot guarantee the integrity of the judicial process, changes must
be made. As explained, supra in IIA, the Protective Order itself contemplates telephonic
access in certain situations. Petitioner does not seek to upset the balance set in the
Protective Order – only to protect it and utilize it properly given the egregious actions of
Respondents’ agents.
d. The injunctive relief requested is not overbroad
The injunctive relief requested by Mr. Zuhair is extremely narrow, given the nature
of the harm inflicted. Guards threatened his life, read through his confidential legal
papers, and confiscated a portion of these papers. He asks that his papers be returned and
that he be allowed telephonic access to his counsel, a form of communication
contemplated by the Protective Order itself. This remedy does not require the continuous
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supervision of the court, nor does it require judicial interference in the running of the
prison system. The relief requested addresses only the harm caused an individual
detainee. It does not apply to the prison system as a whole, or even to classes of
prisoners. At most, the injunction affects a few isolated decisions over the course of Mr.
Zuhair’s detention. In the face of egregious violation of Mr. Zuhair’s rights, the narrow
injunction can only be characterized as minimal and virtually non-intrusive.
CONCLUSION
For the foregoing reasons, Mr. Zuhair requests that this Court hold a hearing to
resolve any disputed issues of material fact and grant the relief requested in his
Emergency Motion.
Dated: September 4, 2008
Respectfully submitted,
____/s/_________________
Ramzi Kassem
Michael J. Wishnie
Supervising Attorneys
Anand Balakrishnan
Madhuri Kumar
Darryl Li
Law Student Interns
Allard K. Lowenstein International
Human Rights Clinic
National Litigation Project
Yale Law School
127 Wall Street, New Haven, CT
06511
(203) 432-0138
ramzi.kassem@yale.edu
Counsel for Petitioner
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22
CERTIFICATE OF SERVICE
I hereby certify that on September 4, 2008, I caused a true and accurate copy of
Petitioner’s Reply In Further Support of His Emergency Motion to Compel Compliance
With the Protective Order and Attorney-Client Privilege; For Telephonic Access; For a
Hearing; and For a Writ of Habeas Corpus Ad Testificandum to be served upon the
following counsel for Respondents by electronic filing via the Court’s ECF system:
Arlene Groner, Esq.
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave, NW
Washington, DC 20530
_____/s/_____________________
Anand Balakrishnan
Allard K. Lowenstein International Human
Rights Clinic
National Litigation Project
Yale Law School
127 Wall Street
New Haven, CT 06511
(203) 432-0138
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