Case 1:17-cv-02069-TSC Document 11 Filed 10/30/17 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
Petitioners,
) Civil Action No. 1:17-cv-2069 (TSC)
)
v.
)
)
GEN. JAMES N. MATTIS,
)
in his official capacity as SECRETARY )
OF DEFENSE,
)
)
Respondent.
)
JOHN DOE,
and the AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, as Next Friend,

RESPONDENT’S MOTION TO DISMISS AND RESPONSE TO
COURT’S ORDER OF OCTOBER 19, 2017

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................................ iii
INTRODUCTION ......................................................................................................................... 1
ARGUMENT ................................................................................................................................. 3
I.

ACLUF FAILED TO SEEK OR OBTAIN LEAVE TO FILE ITS PETITION
ON BEHALF OF AN ANONYMOUS PETITIONER ......................................... 3

II.

ACLUF LACKS STANDING TO SEEK HABEAS RELIEF ON BEHALF OF
AN INDIVIDUAL WITH WHOM IT HAS NOT CONFERRED REGARDING
HIS INTEREST IN PURSUING THIS ACTION AND WITH WHOM IT HAS
NO RELATIONSHIP AT ALL ............................................................................. 4

III.

A.

ACLUF Cannot Show that It Is Truly Dedicated to the Detainee’s Best
Interests When It Has Never Met With, and Does Not Know the Identity
of, the Detainee .......................................................................................... 7

B.

ACLUF Does Not Satisfy the “Significant Relationship” Requirement . 10

C.

This Case Does Not Present Extraordinary Circumstances that
Warrant Deviating from Whitmore’s Requirements ................................ 14

ACLUF’S REQUEST ALSO SHOULD BE DENIED BECAUSE THE
CIRCUMSTANCES DO NOT WARRANT ALLOWING ACCESS BY
UNRELATED ATTORNEYS TO A DETAINEE HELD IN AN ARMED
CONFLICT ZONE IN IRAQ WHOSE FINAL DISPOSITION HAS YET TO
BE DETERMINED ............................................................................................. 16

CONCLUSION ............................................................................................................................ 21

ii

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TABLE OF AUTHORITIES
Cases
*Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010) ................................................. 7, 8, 9, 10
Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003) ......................................................... 11
Al-Odah v. United States, 346 F. Supp. 2d 1 (D.D.C. 2004) ....................................................... 19
Amerson v. Iowa, 59 F.3d 92 (8th Cir. 1995) .............................................................................. 11
Artis v. Greenspan, 223 F. Supp. 2d 149 (D.D.C. 2002) ............................................................. 15
Bear Lodge Multiple Use Ass’n v. Babbitt, 175 F.3d 814 (10th Cir. 1999) ................................ 13
*Boumediene v. Bush, 553 U.S. 723 (2008) .................................................................... 18, 19, 21
Cartner v. Davis, 988 F. Supp. 2d 33 (D.D.C. 2013),
aff’d sub nom. Cartner v. Sibley Mem’l Hosp., No. 13-7187, 2014 WL 4629099
(D.C. Cir. July 11, 2014) ................................................................................................. 10
Centobie v. Campbell, 407 F.3d 1149 (11th Cir. 2005) ............................................................... 12
Coal. for Underground Expansion v. Mineta, 333 F.3d 193 (D.C. Cir. 2003) ............................ 15
*Coal. of Clergy, Lawyers, & Professors v. Bush,
310 F.3d 1153 (9th Cir. 2002) ............................................................. 5, 11, 12, 14, 15. 16
Davis v. Austin, 492 F. Supp. 273 (N.D. Ga. 1980) ..................................................................... 12
*Does 1-570 v. Bush, No. Civ A 05-313,
2006 WL 3096685 (D.D.C. Oct. 31, 2006) .............................. 3-4, 5, 8, 10, 12, 13, 15, 20
Feldman v. Youth Case of Utah, Inc., 345 F. Supp. 2d 1269 (D. Utah. 2004) ............................ 13
*Hamdi v. Rumsfeld, 294 F.3d 598 (4th Cir. 2002) ........................................... 5, 9, 11, 12, 15, 16
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .............................................................................. 11, 17
Idris v. Obama, 667 F. Supp. 2d 25 (D.D.C. 2009) ................................................................... 8, 9
In re Guantanamo Bay Detainee Continued Access to Counsel,
892 F. Supp. 2d 8 (D.D.C. 2012) ..................................................................................... 19
Jamal Adeen v. Obama, No. CIV.A. 08-1236, 2009 WL 3416195 (D.D.C. Oct. 21, 2009) ......... 9
iii

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Kowalski v. Tesmer, 543 U.S. 125 (2004) ................................................................................... 13
Kuman v. Obama, 725 F. Supp. 2d 72 (D.D.C. 2010) ................................................................... 9
Lenhard v. Wolff, 443 U.S. 1306 (1979) ........................................................................................ 7
Miranda v. Arizona, 384 U.S. 436 (1966) ............................................................................. 19, 20
Munaf v. Geren, 553 U.S. 674 (2008) .................................................................. 11, 16, 17, 18, 21
O-J-R v. Ashcroft, 216 F.R.D. 150 (D.D.C. 2003) ......................................................................... 3
Omar v. Harvey, 514 F. Supp. 2d 74 (D.D.C. 2007) ............................................................. 17, 18
Qualls v. Rumsfeld, 228 F.R.D. 8 (D.D.C. 2005) .......................................................................... 3
Rasul v. Bush, 542 U.S. 466, 471 (2004) ............................................................................... 11, 18
Rosenberg v. United States, 346 U.S. 271 (1953) ................................................................... 7, 13
Sanchez-Velasco v. Sec’y of Dep’t of Corr., 287 F.3d 1015 (11th Cir. 2002) ......................... 9, 11
T.W. v. Brophy, 124 F.3d 893 (7th Cir. 1997) ............................................................................. 11
United States v. Microsoft Corp., 56 F.3d 1448 (D.C. Cir. 1995) ................................................. 3
Warth v. Seldin, 422 U.S. 490 (1975) ............................................................................................ 5
*Whitmore v. Arkansas, 495 U.S. 149 (1990) ............................................... 5, 6, 9, 10, 11, 12, 13
Zettlemoyer v. Horn, 53 F.3d 24 (3d Cir. 1995) .......................................................................... 11

Statutes
28 U.S.C. § 2242 ............................................................................................................................. 5
Detainee Treatment Act of 2005, 119 Stat. 2739 ......................................................................... 18

iv

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Pursuant to the Court’s Order of October 19, 2017, Respondent General James N. Mattis,
in his official capacity as Secretary of Defense (“Respondent”), hereby opposes the request of
Petitioner and purported next friend American Civil Liberties Union Foundation (“ACLUF”) for
“immediate and unmonitored access” to an individual detained as an enemy combatant in Iraq
and moves to dismiss the petition for a writ of habeas corpus for lack of subject matter
jurisdiction.
INTRODUCTION
Petitioner ACLUF seeks habeas relief as a purported next friend of an individual whose
name it does not know, whom it admittedly does not represent and has never met, and who has
never consented to ACLUF’s habeas petition or otherwise communicated his wishes to ACLUF.
ACLUF’s attempt to interject itself as the advocate for an individual who came into U.S. military
custody less than seven weeks ago, was identified as an enemy combatant, and is currently
detained in Iraq pending a determination of his further disposition is improper, unnecessary, and
should be dismissed. Indeed, by filing its petition improperly in the name of an anonymous
“John Doe,” and by filing the instant emergency motion seeking to compel the U.S. military to
allow access to this individual in an armed conflict zone in order to secure his consent to
representation, ACLUF effectively concedes that it currently lacks such consent. Unlike
numerous other cases where a close relative has sought habeas relief on a detainee’s behalf,
ACLUF has no significant relationship with this detainee, and it also cannot show that it would
act in the detainee’s best interests when it has never conferred with the detainee in order to learn
what those interests are. ACLUF, therefore, fails to meet the prerequisites to litigate as the
detainee’s next friend. Because ACLUF cannot establish next friend standing, the Court should
dismiss its petition for lack of subject matter jurisdiction and deny ACLUF’s request for counsel

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access for that reason alone.
Moreover, the Court should also deny ACLUF’s request because the circumstances here
do not warrant the extraordinary and unprecedented relief that ACLUF seeks. ACLUF asks this
Court to issue an order that would compel the Department of Defense (“Department”) to provide
ACLUF with access to a stranger in U.S. military custody in Iraq for the purpose of offering
legal assistance. Such relief would intrude on U.S. security protocols. Moreover, ACLUF fails to
show that this relief is appropriate, particularly when this individual has already been visited by
representatives of the International Committee of the Red Cross (“ICRC”), which can assist
detained individuals with contacting their family if they so wish. In the event that the detainee
continues to be detained, it therefore is possible that a family member may seek habeas relief as
the detainee’s next friend. In any event, given ACLUF’s lack of any previous relationship with
the detainee, it can only speculate regarding the detainee’s desire to meet with ACLUF attorneys
or to retain them as his counsel. Meanwhile, however, the Department is still in the process of
determining the detainee’s ultimate disposition. The Supreme Court has recognized that, in
circumstances of military operations, the Executive Branch should be given a reasonable period
of time to determine a detained individual’s status, particularly in light of the judiciary’s
reluctance to intrude on matters of military and national security concerns. Here, the Department
is still within that initial reasonable period. Equitable and prudential considerations, therefore,
weigh against granting ACLUF’s motion, and ACLUF cites no authority that requires the access
that it seeks.

2

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ARGUMENT
I.

ACLUF FAILED TO SEEK OR OBTAIN LEAVE TO FILE ITS PETITION ON
BEHALF OF AN ANONYMOUS PETITIONER
As an initial matter, ACLUF’s petition is improper because it was filed on behalf of an

anonymous petitioner, John Doe, without the Court’s leave. Parties initiating an action in federal
district court generally must identify themselves by name in their pleadings. Fed. R. Civ. P. 17(a)
(indicating that “[e]very action shall be prosecuted in the name of the real party in interest”);
Fed. R. Civ. P. 10(a) (mandating that “[i]n the complaint the title of the action shall include the
names of all the parties”); see also LCvR 5.1(c)(1), 11.1 (requiring that the “first filing by or on
behalf of a party shall have in the caption the name and full residence address of the party”). In
exceptional circumstances, most often where matters of a highly sensitive and personal nature
are involved or disclosure of a party’s identity would create a risk of physical harm, a court may
grant “rare dispensation” from this requirement. United States v. Microsoft Corp., 56 F.3d 1448,
1464 (D.C. Cir. 1995); cf. Qualls v. Rumsfeld, 228 F.R.D. 8, 10 (D.D.C. 2005). However, in no
event is a petitioner in this Court entitled to proceed by pseudonym without prior express leave
to do so. See O-J-R v. Ashcroft, 216 F.R.D. 150, 151 (D.D.C. 2003) (noting that plaintiff’s
motion to proceed using a pseudonym had been denied).
By filing its petition in the name of John Doe without seeking such express leave to do
so, ACLUF has violated the applicable rules as described above, and its filing therefore should
be dismissed as improper. In a prior case where attorneys sought to file a habeas petition on
behalf of detained individuals whose names they did not know, and who admittedly had neither
requested nor consented to the filing of such a petition, the attorneys first filed a motion to
proceed using fictitious names, which was granted the same day as a procedural matter. See Does
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1-570 v. Bush, No. Civ A 05-313, 2006 WL 3096685, at *1 (D.D.C. Oct. 31, 2006) (Judge
Kollar-Kotelly noting that the Court need not consider the Government’s request to reconsider
the Court’s order on that motion in light of the Court’s ruling that counsel lacked next friend
standing and that the petition therefore should be dismissed).
Here, in contrast, ACLUF filed no such initial motion, and thus it has not obtained leave
to use a fictitious name in its petition. Nor has ACLUF established that this case falls within any
of the categories where pseudonymous pleading has been allowed. Rather, ACLUF is attempting
to proceed with a fictitious name, not out of concern for the privacy or physical well-being of the
petitioner, but rather because ACLUF itself simply does not know the identity of the real party in
interest on whose behalf it seeks to assert next friend status. Under the authorities cited above,
the failure of an attorney to know the names of his own clients is not a valid basis to allow the
case to be litigated with fictitious names. Indeed, not only does ACLUF’s petition violate this
Court’s procedural requirements, but the fact that ACLUF was unable to file its petition without
using a fictitious name for the detainee also reinforces the conclusion, demonstrated in greater
detail below, that it lacks any relationship with the detainee and thus is in no position to file a
proper petition on his behalf.
II.

ACLUF LACKS STANDING TO SEEK HABEAS RELIEF ON BEHALF OF AN
INDIVIDUAL WITH WHOM IT HAS NOT CONFERRED REGARDING HIS
INTEREST IN PURSUING THIS ACTION AND WITH WHOM IT HAS NO
RELATIONSHIP AT ALL
Apart from ACLUF’s failure to obtain leave for its pseudonymous petition, this case

should be dismissed because ACLUF lacks standing to litigate this action on behalf of the
detainee. It is well-established that “before a federal court can consider the merits of a legal
claim, the person seeking to invoke the jurisdiction of the court must establish the requisite
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standing to sue” under Article III of the Constitution. Whitmore v. Arkansas, 495 U.S. 149, 154
(1990). The standing doctrine “ensure[s] that the plaintiff has a sufficient personal stake in the
outcome of a dispute to render judicial resolution of it appropriate in a society that takes
seriously both the idea of separation of powers and, more fundamentally, the system of
democratic self-government that such separation serves.” Hamdi v. Rumsfeld, 294 F.3d 598, 60203 (4th Cir. 2002) (internal quotations omitted). “In essence, the question of standing is whether
the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”
Warth v. Seldin, 422 U.S. 490, 498 (1975).
The requirement of standing applies in the habeas context just as it does in other civil
cases. Cf. Coal. of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153, 1157 (9th Cir. 2002)
(“This case stands or falls on whether the [petitioner] has standing to bring a habeas petition on
behalf of the Guantanamo Bay detainees.”); Hamdi, 294 F.3d at 607 (recognizing that the
question of a habeas petitioner’s standing “is jurisdictional and thus fundamental”). A habeas
petitioner has proper standing only if the petition is “signed and verified by the person for whose
relief it is intended or by someone acting in his behalf.” 28 U.S.C. § 2242; see Does 1-570, 2006
WL 3096685, at *4. In this case, the anonymous “John Doe” detainee is the person “for whose
relief the [petition] is intended,” but he has not “signed and verified” the petition. See Pet’n [ECF
No. 1]. Rather, ACLUF purports to act on this unnamed detainee’s behalf as his “next friend.”
See id. at 2 & ¶ 3. However, as demonstrated below, ACLUF, as an entity that has never met
with the John Doe detainee, does not know his identity, much less his preferences regarding the
pursuit of habeas relief, and has no relationship with him whatsoever, is not a proper next friend.

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Next friend standing has most often been invoked “on behalf of detained prisoners who
are unable, usually because of mental incompetence or inaccessibility, to seek relief themselves.”
Whitmore, 495 U.S. at 162. However, next friend standing is “by no means granted automatically
to whomever seeks to pursue an action on behalf of another” person. See id. at 163. The Supreme
Court has recognized that those with only a “generalized interest in constitutional governance”
must not be allowed to “circumvent the jurisdictional limits of Art. III simply by assuming the
mantle of ‘next friend.’” Id. at 164. In order to prevent third parties seeking to advance their own
interests and agendas from litigating another’s claims in the guise of a next friend, the Supreme
Court thus articulated “at least two firmly rooted prerequisites” for next friend standing. Id. at
163, 164. First, a purported “next friend” “must provide an adequate explanation—such as
inaccessibility, mental incompetence, or other disability—why the real party in interest cannot
appear on his own behalf to prosecute the action.” Id. at 163. “Second, the ‘next friend’ must be
truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has
been further suggested that a ‘next friend’ must have some significant relationship with the real
party in interest.” Id. at 163-64. The putative next friend bears the burden of clearly establishing
his status and justifying the exercise of the court’s jurisdiction over the action. See id. at 164. As
discussed below, ACLUF fails to meet its burden here because it cannot show that it is truly
dedicated to the John Doe detainee’s best interests, and it has no relationship at all with the
detainee, much less a “significant” one. 1

1

ACLUF argues that the first prong of the Whitmore test is satisfied because the government
has allegedly “denied [the John Doe detainee] access to a court and to counsel—and any means
to secure counsel for himself”—because “[t]he government does not appear to have notified any
member of the [detainee’s] family of his detention or provided any member of his family with
access to him.” ACLUF Mot. [ECF No. 7] at 4. While for purposes of this filing Respondent
6

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A.

ACLUF Cannot Show that It Is Truly Dedicated to the Detainee’s Best
Interests When It Has Never Met With, and Does Not Know the Identity of,
the Detainee

In regard to Whitmore’s second requirement, courts have made clear that “a purported
‘next friend’ may not simply speculate as to the best interests of the party on whose behalf he
seeks to litigate.” Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 20 (D.D.C. 2010). Instead, he “must
provide some evidence that he is acting in accordance with the intentions or wishes of the real
party in interest.” Id. The purpose of this showing is to ensure that the next friend will genuinely
pursue the interests of the person in custody (who at all times remains the real party in interest)
and will not merely use the litigation as a vehicle for advancing a broader agenda. As thenJustice Rehnquist explained, “however worthy and high minded the motives of ‘next friends’
may be, they inevitably run the risk of making the actual defendant a pawn to be manipulated on
a chessboard larger than his own case.” Lenhard v. Wolff, 443 U.S. 1306, 1312 (1979)
(Rehnquist, J., in chambers); see also Rosenberg v. United States, 346 U.S. 271, 291-92 (1953)
(Jackson, J., concurring with five other Justices) (“That such disorderly intervention [by
strangers to the prisoner] is more likely to prejudice than to help the representation of accused
persons in highly publicized cases is self-evident.”).

does not dispute the detainee’s inaccessibility under Whitmore’s first prong, given that he is
currently in U.S. military custody in Iraq, ACLUF is incorrect in suggesting that the detainee has
no means of contacting his family. As explained in the Declaration of Steven W. Dalbey
(“Dalbey Decl.”), attached hereto, the detainee has been visited on two separate occasions by
representatives of the International Committee of the Red Cross (“ICRC”) and thus has been
afforded an opportunity to have ICRC contact his family, if he so wished. As discussed below,
this avenue for access to a family member who might legitimately serve as next friend means
that there is no reason in this case to deviate from requiring a putative next friend to show a
“significant relationship” with the real party in interest.
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Courts thus repeatedly have denied next friend standing “where the putative ‘next friend’
has never conferred with the party in interest and, as a result, can offer no ‘basis on which to
conclude that the [party] want[s] legal representation as a general matter or more specifically by
counsel in the instant matter.’” Al-Aulaqi, 727 F. Supp. 2d at 20 (quoting Does 1-570, 2006 WL
3096685, at *5). In Al-Aulaqi, the court held that an individual’s father lacked next friend
standing because he “presented no evidence that his son want[ed] to vindicate his U.S.
constitutional rights through the U.S. judicial system,” and admitted that he had not spoken with
his son during the relevant time period so as to be certain that the lawsuit he had filed “accords
with his son’s best interests.” Id. Similarly, in Idris v. Obama, 667 F. Supp. 2d 25, 29 (D.D.C.
2009), the court held that a detainee’s brother could not establish that he would represent the
detainee’s best interests where he had “never met with [the detainee] since his confinement,” and
attorneys had attempted to visit the detainee five times previously but the detainee had refused to
see them.
Here, there is even less reason to presume that ACLUF would represent the detainee’s
best interests, when no ACLUF attorney has ever spoken to the detainee, and ACLUF admittedly
does not know the detainee’s identity. As other members of this Court have recognized, “‘[w]hile
it may be fair to assume that the detainee[] want[s] to be released from detention . . ., there may
be reasons why detainees may not want to file habeas petitions as a vehicle for accomplishing
this purpose.’” Al-Aulaqi, 727 F. Supp. 2d at 20 (quoting Does 1-570, 2006 WL 3096685, at *6).
For example, a detainee may “‘mistrust the United States judicial system and choose to avoid
participating in such proceedings altogether.’” Id. (quoting Does 1-570, 2006 WL 3096685, at

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*6). 2 When attorneys who have never met or conferred with a detainee cannot prove his
“specific ‘interests and preferences,’” they cannot meet the second requirement for next friend
standing. See id.; see also Idris, 667 F. Supp. 2d at 29 (holding that “because [the putative ‘next
friend’] has never met with petitioner since his confinement, counsel cannot be certain that [the
‘next friend’] represents petitioner's best interests”).
ACLUF’s request that the Court compel Respondent to allow ACLUF attorneys access to
the detainee “in order to afford him legal assistance” is tantamount to a concession that, at
present, ACLUF cannot provide the detainee with legal assistance, or serve as his next friend,
because it has no idea what the detainee’s wishes are, in regard to prosecuting this action. Cf.
Sanchez-Velasco v. Sec’y of Dep’t of Corr., 287 F.3d 1015, 1027 (11th Cir. 2002) (“[N]o
attorney should ever file a habeas petition in the name of an inmate he has not even bothered to
speak with, much less obtain permission from . . . .”). Rather, there is a genuine danger here that
ACLUF is pursuing its own agenda, or simply asserting a “generalized interest in constitutional
governance,” rather than adhering to the detainee’s best interests. Whitmore, 495 U.S. at 164; see
also Hamdi, 294 F.3d at 605 (cautioning against permitting lawsuits filed by “someone who
seeks simply to gain attention by injecting himself into a high-profile case” as he is “much more
likely to be utilizing the real party’s injury as an occasion for entry into policy-laden proceedings
of all sorts”). Indeed, in arguing that it satisfies the “best interests” prong, ACLUF merely asserts

2

The notion that a detainee may choose not to seek habeas relief is not mere speculation. There
are documented examples in cases in this District where detainees have met with attorneys, yet
have refused to authorize those attorneys to file habeas petitions on their behalf. E.g., Kuman v.
Obama, 725 F. Supp. 2d 72, 78 (D.D.C. 2010) (indicating that a Guantanamo detainee’s “two
face-to-face meetings with counsel” failed to produce an authorization to proceed); Jamal Adeen
v. Obama, No. CIV.A. 08-1236, 2009 WL 3416195, at *2 (D.D.C. Oct. 21, 2009) (indicating that
the detainee “has unequivocally rejected representation on multiple occasions”).
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that it “is committed to upholding the civil liberties guaranteed by the Constitution,” ACLUF
Mot. at 4, making no reference at all to any individual interests of the detainee. Such generalized
concerns, even if well-intentioned, do not provide a predicate for “circumvent[ing] the
jurisdictional limits of Art. III” under the next friend standing doctrine. See Whitmore, 495 U.S.
at 164.
B.

ACLUF Does Not Satisfy the “Significant Relationship” Requirement

The lack of any relationship between ACLUF and the detainee reinforces the conclusion
that ACLUF lacks standing. Courts in this District most recently have recognized a “significant
relationship” as a third prerequisite independent of the first two requirements under the
Whitmore test. E.g., Cartner v. Davis, 988 F. Supp. 2d 33, 36-37 (D.D.C. 2013) (referring to
Whitmore’s “three-pronged test,” including the “significant relationship” requirement as the third
prong), aff’d sub nom. Cartner v. Sibley Mem’l Hosp., No. 13-7187, 2014 WL 4629099 (D.C.
Cir. July 11, 2014); Al-Aulaqi, 727 F. Supp. 2d at 16 (recognizing that the Supreme Court in
Whitmore required that there be a “significant relationship” even if that requirement was not
necessarily “firmly rooted”). Previous decisions have concluded that even if a significant
relationship is not a stand-alone requirement, in all but the most exceptional circumstance (which
no court thus far has found to exist), the absence of a significant relationship fatally undermines
a would-be next friend’s ability to show that it would act in the real party’s best interests. Does
1-570, 2006 WL 3096685, at *6-7 (an extension of the “next friend” doctrine to allow counsel to
use its habeas petition as a vehicle to establish a relationship with unidentified detainees, where
no such relationship existed before, “would be unprecedented, and indeed improper”). 3

3

Even in Circuits that have not construed the “significant relationship” requirement as an
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Under the “significant relationship” requirement, courts generally have limited next
friend standing to close relatives such as parents, siblings, and spouses. See, e.g., Munaf v.
Geren, 553 U.S. 674, 682-83 (2008) (in case involving two U.S. citizens detained in Iraq, habeas
petition for one (Omar) was filed by his wife and son while habeas petition for the other (Munaf)
was filed by his sister); Hamdi v. Rumsfeld, 542 U.S. 507, 511 (2004) (plurality) (father filed
habeas petition as detained son’s next friend); Rasul v. Bush, 542 U.S. 466, 471 (2004)
(petitioners had filed suit “through relatives acting as their next friends”); Al Odah v. United
States, 321 F.3d 1134, 1136-37 (D.C. Cir. 2003) (describing “fathers and brothers” acting as next
friends in Al Odah, two fathers and a mother acting as next friends in Rasul, and detainee’s wife
acting as next friend in Habib). Attorneys who have previously represented an individual seeking
habeas corpus have also been permitted to act as next friends based on that pre-existing
relationship. See Sanchez-Velasco, 287 F.3d at 1026 (“‘[S]ome significant relationship’ does

independent prong of next friend standing, they have required a “significant relationship” as part
of the second prong, reasoning that the significant relationship works to ensure that the next
friend is indeed acting in the detainee’s best interests. See Hamdi, 294 F.3d at 604 (“Whitmore is
thus most faithfully understood as requiring a would-be next friend to have a significant
relationship with the real party in interest.”); Coal. of Clergy, Lawyers, & Professors, 310 F.3d at
1162 (“Combining the ‘significant relationship’ requirement, however, with the ‘dedicated to
best interests’ consideration . . . meets the concerns the Whitmore Court addressed.”); T.W. v.
Brophy, 124 F.3d 893, 897 (7th Cir. 1997) (“It follows, as the Court suggested in the Whitmore
case, that not just anyone who expresses an interest in the subject matter of a suit is eligible to be
the plaintiff’s next friend – that he ‘must have some significant relationship with the real party in
interest’”); Amerson v. Iowa, 59 F.3d 92, 93 n.3 (8th Cir. 1995) (under Whitmore, the “next
friend has [the] burden to establish . . . that she has some “significant relationship with [the] real
party in interest”); Zettlemoyer v. Horn, 53 F.3d 24, 27 n.4 (3d Cir. 1995) (observing that “[t]he
Whitmore Court also . . . suggested that the party ‘must have some significant relationship with
the real party in interest’”). Although the Eleventh Circuit questioned whether Whitmore
established “some significant relationship” as an independent requirement, it nevertheless noted
the importance of a relationship in demonstrating whether a putative next friend “can show true
dedication to the best interests of the person on whose behalf he seeks to litigate.” SanchezVelasco v. Secretary of the Dep’t of Corrections, 287 F.3d 1015, 1026-27 (11th Cir. 2002).
11

 Case 1:17-cv-02069-TSC Document 11 Filed 10/30/17 Page 16 of 26

exist when the would-be next friend has served in a prior proceeding as counsel for the real party
in interest and did so with his consent.”).
On the other hand, distant relatives or simple acquaintances generally do not have a
sufficient relationship to establish next friend standing. See, e.g., Davis v. Austin, 492 F. Supp.
273, 274-76 (N.D. Ga. 1980) (neither detainee’s first cousin nor a minister who had counseled
detainee could sue as next friend) (cited with approval in Whitmore, 495 U.S. at 164). And
petitions filed by total strangers purporting to be next friends—who often, as in this case, are
attorneys arguing that they wish to advocate on behalf of certain rights they believe the detainee
should assert—are typically dismissed for lack of jurisdiction. See, e.g., Coal. of Clergy,
Lawyers, & Professors, 310 F.3d at 1162 (rejecting next friend standing for a group of clergy,
lawyers and professors seeking to represent Guantanamo detainees without their knowledge
because the Coalition “has not demonstrated any relationship with the detainees”); Hamdi, 294
F.3d at 603-07 (dismissing petitions brought by a public defender and private citizen who had no
relationship to the detainee); Centobie v. Campbell, 407 F.3d 1149, 1151 (11th Cir. 2005)
(holding federal public defender lacked next friend standing to file habeas petition on behalf of
inmate she had “never represented” and “ha[d] no relationship to . . . outside of this matter”);
Does 1-570, 2006 WL 3096685, at *8 (“Regardless of Counsel’s intentions, a determination that
Counsel is acting in the best interests of 570 unidentified detainees cannot be made where there
is no relationship between Counsel and the unidentified detainees” and no indication that the
detainees wished to be represented by counsel in general or by “this Counsel attempting to
pursue litigation on their behalf”).

12

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Here, ACLUF has no relationship with the detainee, and it does not claim otherwise.
Instead, ACLUF asserts that a “significant relationship” is not a requirement at all under
Whitmore. ACLUF Mot. at 4. Such an assertion directly contradicts the law applied in this
District, as explained above. Moreover, ACLUF identifies no case where a court has granted
next friend standing in the absence of a significant relationship. Rather, like the would-be next
friend counsel in Does 1-570, ACLUF has not “point[ed] to any case in any context in which
counsel has been allowed to pursue habeas (or other) relief on behalf of a non-class of
unidentified plaintiffs or petitioners where plaintiffs’ actual identity is unknown by counsel
representing such plaintiffs at the time of filing.” Does 1-570, 2006 WL 3096685, at *7.
Allowing attorneys to seek habeas relief for anonymous clients whom they have never met, and
whose intents and desires are completely unknown to them, would open the floodgates to
“intruders or uninvited meddlers” running to court in the name of the rights of unwitting
strangers who may want to have nothing to do with them. Whitmore, 495 U.S. at 164. Although
ACLUF may be acting with good intentions, “[c]are and concern alone are not enough to create
standing.” Feldman v. Youth Case of Utah, Inc., 345 F. Supp. 2d 1269, 1270 (D. Utah. 2004)
(citing Bear Lodge Multiple Use Ass’n v. Babbitt, 175 F.3d 814 (10th Cir. 1999)) (denying next
friend status to mother of friend of minor detained at youth facility because “clear relationship”
was lacking). ACLUF is a “stranger to the detained person[] and [his] case” and, thus, plainly
does not qualify for next friend standing. Whitmore, 495 U.S. at 164 (citing Rosenberg, 346 U.S.
at 291-92). 4

4

For the same reason that ACLUF cannot establish next friend standing, it is also precluded
from establishing standing under the third-party doctrine, which requires a “close relationship”
with the real party in interest. See Kowalski v. Tesmer, 543 U.S. 125, 130-31 (2004) (holding
13

 Case 1:17-cv-02069-TSC Document 11 Filed 10/30/17 Page 18 of 26

C.

This Case Does Not Present Extraordinary Circumstances that Warrant
Deviating from Whitmore’s Requirements

ACLUF argues that this case presents “extraordinary circumstances” that warrant an
exception from the Whitmore requirements for next friend standing. See ACLUF Mot. at 5. The
basis for this assertion appears to be ACLUF’s contention that the detainee is being held “at a
secret location” with no means to access counsel or his family. See id. at 4. However, this
contention is speculation on ACLUF’s part, and the circumstances of this case do not warrant
taking the unprecedented step of allowing attorneys to act as next friend for an individual they
have never met, whose interests they cannot claim to know.
ACLUF relies heavily on Judge Berzon’s concurrence in Coalition of Clergy, which
ACLUF construes as suggesting that the “significant relationship” requirement might be
bypassed where no relationship “is practically possible.” ACLUF Mot. at 5 (quoting Coal. of
Clergy, Lawyers, & Professors, 310 F.3d at 1167 (Berzon, J., concurring)). However, Judge
Berzon rejected the notion that a detainee’s lack of a relationship “with anyone who could
appropriately serve” as a next friend could be proven “by assertion” only. Coal. of Clergy,
Lawyers, & Professors, 310 F.3d at 1167 (Berzon, J., concurring). Rather, Judge Berzon
explained that, even under her slightly more lenient reading of Whitmore, a putative next friend
with no prior relationship with a detainee would have to “show that the circumstances entirely
preclude both the appearance as next friend of anyone with any relationship to the detainee[] as

attorneys could not establish third-party standing based on the notion that they would represent
“as yet ascertained . . . criminal defendants” because the attorneys “do not have a ‘close
relationship’ with their alleged ‘clients’; indeed, they have no relationship at all.”).
14

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well as the practical representation of the detainee[]’s interests in court by others similarly
situated.” Id.
ACLUF has made no such showing here, nor could it. As explained by Respondent’s
declarant, 5 the detained individual has been in U.S. military custody for less than seven weeks,
and during that time he has been visited twice by ICRC representatives, who seek to contact the
family members of a detained person, if requested to do so. Dalbey Decl. ¶¶ 3-4. 6 There is no
reason to think that the detainee could not contact, through the ICRC, a relative who then could
satisfy the requirements for next friend standing if the detainee desired to file a petition. At the
very least, it is too soon to conclude otherwise.
This case, therefore, does not present extraordinary circumstances that might warrant
granting next friend standing to an entity with no prior relationship at all to the real party in
interest. Moreover, such an unprecedented step, granting standing to an entity that does not even
know the identity of the real party in interest, should not be taken lightly. “The question of next
friend standing is not merely ‘technical,’ . . . Rather, it is jurisdictional and thus fundamental.”
Hamdi, 294 F.3d at 607. And “[t]he requirement of a significant relationship is . . . connected to
a value of great constitutional moment.” Id. at 605. As the Fourth Circuit explained, “there is all
the difference in the world between a next friend who represents the interests of someone with

5

Because ACLUF’s lack of next friend standing is an issue of the Court’s subject matter
jurisdiction, the Court may consider material outside the pleadings when resolving Respondent’s
Motion to Dismiss. See Does 1-570, 2006 WL 3096685, at *3 (concluding that dismissal was
warranted even assuming arguendo that the legal standards under Federal Rule of Civil
Procedure 12(b)(1) applied, citing Coal. for Underground Expansion v. Mineta, 333 F.3d 193,
198 (D.C. Cir. 2003); Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002)).
6

Cf. ICRC website, available at https://www.icrc.org/en/document/what-we-do-detainees
(listing “restore and maintain family contacts” as among ICRC’s goals).
15

 Case 1:17-cv-02069-TSC Document 11 Filed 10/30/17 Page 20 of 26

whom he has a significant relationship and a next friend who files suit on behalf of a total
stranger” because the former situation “promotes the values of the law of Article III standing,”
while the latter raises an “irreconcilable conflict with basic constitutional doctrine.” Id. at 607.
Indeed, absent a significant relationship, “the efficacy of [a would-be next friend]’s
representation is in serious doubt” because the next friend would simply be asserting “a
generalized interest in constitutional governance”—exactly what the Supreme Court in Whitmore
warned against. Coal. of Clergy, Lawyers, & Professors, 310 F.3d at 1163. ACLUF’s petition,
therefore, should be dismissed for lack of subject matter jurisdiction because ACLUF lacks
standing.
III.

ACLUF’S REQUEST ALSO SHOULD BE DENIED BECAUSE THE
CIRCUMSTANCES DO NOT WARRANT ALLOWING ACCESS BY
UNRELATED ATTORNEYS TO A DETAINEE HELD IN AN ARMED
CONFLICT ZONE IN IRAQ WHOSE FINAL DISPOSITION HAS YET TO BE
DETERMINED
Because ACLUF lacks standing under the next friend doctrine, its habeas petition should

be dismissed, and its emergency request accordingly should be denied for that reason alone.
However, even apart from ACLUF’s lack of standing, its request for emergency relief in the
form of “provid[ing] attorneys from the ACLUF with immediate and unmonitored access” to the
detainee in order to “advise [him] of his legal rights and to afford him legal assistance to
challenge his unlawful military detention,” ACLUF Mot. at 1,should be denied.
The Supreme Court has emphasized that “[h]abeas corpus is governed by equitable
principles” and that a habeas court “is not bound in every case to issue the writ”; rather,
ultimately, a court must determine, based on law and justice, whether the power of habeas corpus
“ought to be exercised.” Munaf, 553 U.S. at 693 (internal quotation omitted). Among the

16

 Case 1:17-cv-02069-TSC Document 11 Filed 10/30/17 Page 21 of 26

relevant considerations that the Court identified was the judiciary’s well-founded “reluctan[ce] to
intrude upon the authority of the Executive in military and national security affairs.” Id. at 689.
Here, neither law nor equitable considerations favor an order requiring the Department to grant
ACLUF attorneys, who do not represent the detainee and have no prior relationship with him,
access to the detainee while he is in U.S. military custody in Iraq.
ACLUF argues that the detained individual has a “right to access counsel,” citing the
Supreme Court’s plurality decision in Hamdi. ACLUF Mot. at 6-7. However, Hamdi did not
recognize such a right. In Hamdi, the petitioner had asked the Court to hold that the Fourth
Circuit “erred by denying him immediate access to counsel upon his detention,” but the Court
declined to issue such a holding. Hamdi, 542 U.S. at 539 (plurality). The plurality observed that,
by the time of Supreme Court proceedings, nearly three years after Hamdi was captured during
military operations in Afghanistan, he had met with counsel several times. See id. at 510, 539.
None of the other cases cited by ACLUF support the notion that an individual captured
on the battlefield while military operations are ongoing has an “immediate” right to access
counsel, much less to access attorneys who in fact have not been retained as the individual’s
counsel. In Omar v. Harvey, 514 F. Supp. 2d 74 (D.D.C. 2007), Omar had been arrested by U.S.
military forces in Iraq in October 2004. Id. at 76. The Court’s decision nearly three years later, in
September 2007, noted that the Government had voluntarily agreed to allow attorney access
subject to the same conditions that others were able to visit the facility where Omar was held at
that time. Id. at 77. However, the Court also recognized that the scope of the petitioner’s right to
counsel under the circumstances of the case “remain[ed] ill-defined” and declined to order the
Government to transfer Omar in order to facilitate counsel’s access. Id. at 77-78.

17

 Case 1:17-cv-02069-TSC Document 11 Filed 10/30/17 Page 22 of 26

The Supreme Court’s decisions in Rasul and Munaf also did not address a detainee’s right
to access counsel. Rather, the Court in Rasul held that federal courts have jurisdiction to hear
habeas petitions of individuals captured abroad who sought to challenge their “potentially
indefinite detention” at the U.S. Naval Base at Guantanamo Bay, Cuba. Rasul, 542 U.S. at 485.
The Court in Munaf similarly held that federal courts have jurisdiction to hear habeas petitions
filed by U.S. citizens held by the U.S. military overseas. Munaf, 553 U.S. at 688. Ultimately, the
Court in Munaf declined to prohibit the Government from transferring the petitioners to Iraqi
custody so that Iraq could exercise its sovereign authority to prosecute the petitioners for crimes
committed on its soil. Id. at 699, 704.
In Boumediene v. Bush, 553 U.S. 723 (2008), the Court held that the Detainee Treatment
Act of 2005, 119 Stat. 2739, did not override Guantanamo detainees’ ability to seek habeas relief
in federal court. Boumediene, 553 U.S. at 732-33. The Court also rejected the notion that
Guantanamo detainees must exhaust the statutory procedure before seeking habeas relief, noting
that the cases before it “do not involve detainees who have been held for a short period of time”;
rather, some detainees had been held, at that point, for as long as six years. Id. at 794.
At the same time, the Court in Boumediene warned that its decision “should not be read
to imply that a habeas court should intervene the moment an enemy combatant steps foot in a
territory where the writ runs.” Id. at 795. Rather, the Court recognized that “[t]he Executive is
entitled to a reasonable period of time to determine a detainee’s status before a court entertains
that detainee’s habeas corpus petition.” Id. Thus, “[e]xcept in cases of undue delay, federal
courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least
until after the Department [of Defense] . . . has had a chance to review his status.” Id.

18

 Case 1:17-cv-02069-TSC Document 11 Filed 10/30/17 Page 23 of 26

(identifying the specific process that the Department had established for such a review of the
status of Guantanamo detainees).
ACLUF also cites district court decisions addressing Guantanamo detainees’ access to
counsel, but those cases also do not hold that a detainee must be allowed access to attorneys
immediately upon his capture. Instead, the cited decisions concerned the Government’s attempt
to establish procedures for detainees’ existing counsel (defined as counsel who had already been
employed or retained by a detainee) to access the Guantanamo detention facility in order to visit
their clients. See In re Guantanamo Bay Detainee Continued Access to Counsel, 892 F. Supp. 2d
8, 21, 28 (D.D.C. 2012) (holding that six Guantanamo detainees whose prior habeas petitions
were either dismissed or denied could continue to receive access to their counsel, pursuant to an
existing protective order, in order to pursue the possibility of filing new habeas petitions in the
future); Al-Odah v. United States, 346 F. Supp. 2d 1, 8, 15 (D.D.C. 2004) (concluding that,
although the habeas statute may not provide a right to counsel, the Court in its discretion would
hold that the Guantanamo detainees were entitled to the assistance of counsel for the purpose of
seeking habeas relief, and that a framework would be adopted to govern counsel access).
Finally, ACLUF cites Miranda v. Arizona, 384 U.S. 436 (1966), as “reinforc[ing] the
urgency of counsel access.” ACLUF Mot. at 8. However, Miranda is not a case about providing
individuals in detention with access to attorneys that they might then hire as their counsel to
pursue habeas corpus relief. Rather, the Supreme Court’s focus in Miranda was on custodial
police interrogation, and under what circumstances statements made by an individual in police
custody were admissible in a criminal prosecution of that individual. Miranda, 384 U.S. at 439.
Ultimately, the Supreme Court in Miranda held that statements made by an individual in custody

19

 Case 1:17-cv-02069-TSC Document 11 Filed 10/30/17 Page 24 of 26

were only admissible if the individual had first been given the specific warnings set forth in the
opinion. Id. at 479. Thus, the question of whether the detainee here was given Miranda warnings
may be relevant to whether any statements made by the detainee could be used by the
Government in a criminal prosecution. However, nothing in Miranda suggests that this Court
should grant ACLUF’s motion and require Respondent to allow ACLUF or other interested
attorneys to contact the detainee and discuss the possibility of pursuing habeas relief on his
behalf.
The relief that ACLUF seeks through its emergency motion, thus, is not mandated by the
case law that it cites, and indeed, ACLUF does not even attempt to explain how the right to
access counsel that it invokes could translate here into requiring immediate access to attorneys
who in fact are not presently the detainee’s counsel, but simply wish to speak to the detainee
about the possibility of providing legal services. ACLUF acknowledges that it is possible that the
detainee “might refuse legal assistance.” ACLUF Mot. at 6 n.2. It is also possible that ACLUF is
not the counsel that the detainee would choose to retain. See Does 1-570, 2006 WL 3096685, at
*6 (“The Court further notes that not all detainees [on whose behalf counsel in that case sought
to act as next friend] may want to be represented by the Counsel in this case.”). ACLUF does not
explain why its attorneys should be uniquely entitled to access the detainee. Indeed, if the Court
were to grant ACLUF’s motion, it is not clear on what basis it could deny similar motions by
other attorneys who, like ACLUF, also have no relationship with the detainee.
Ultimately, ACLUF fails to provide a sound basis to grant its motion. Indeed, in many
respects such a motion should be denied on its face as premature. As described above, the
detainee here has had an avenue to contact his family, through ICRC representatives, if he

20

 Case 1:17-cv-02069-TSC Document 11 Filed 10/30/17 Page 25 of 26

wished to do so. Dalbey Decl. ¶ 4. Meanwhile, the Department is still in the process of
determining what its final disposition regarding this individual will be—which is not
extraordinary given the relatively short time that has passed and the fact that the individual is
currently being held within an armed conflict zone. Id. ¶¶ 3, 5. As described above, the Supreme
Court has recognized that “[t]he Executive is entitled to a reasonable period of time to determine
a detainee’s status” before a habeas petition is appropriate. See Boumediene, 553 U.S. at 795.
Here, because the Department is still in the process of making that determination, it would be
inappropriate at this time to require the Department to grant access to the detainee, particularly
by attorneys who do not represent him and have no prior relationship to him. Respondent’s
declarant has also explained that granting access to the detainee, even via teleconference, would
be no easy matter, given that the detention location has restricted civilian access based on
military operational concerns and lacks any unclassified video-teleconference capability. Dalbey
Decl. ¶¶ 3, 6.
Equitable and prudential considerations thus weigh against taking the unprecedented step
that ACLUF’s motion, seeking attorney access to an unknown detainee held in a U.S. military
zone, would require. See Munaf, 553 U.S. at 689 (indicating that courts should be “reluctant to
intrude upon the authority of the Executive in military and national security affairs”). The Court
therefore should deny ACLUF’s request for an order requiring that its attorneys be allowed
access to the detained individual.
CONCLUSION
For the foregoing reasons, the Court should dismiss ACLUF’s petition for lack of subject
matter jurisdiction and should deny ACLUF’s request for attorney access.
21

 Case 1:17-cv-02069-TSC Document 11 Filed 10/30/17 Page 26 of 26

October 30, 2017
CHAD A. READLER
Acting Assistant Attorney General
JESSIE K. LIU
United States Attorney
TERRY M. HENRY
Assistant Director, Federal Programs Branch
/s/ Kathryn L. Wyer
KATHRYN L. WYER
U.S. Department of Justice, Civil Division
20 Massachusetts Avenue, N.W.
Washington, DC 20530
Tel. (202) 616-8475 / Fax (202) 616-8470
kathryn.wyer@usdoj.gov
Attorneys for Defendant

 Case 1:17-cv-02069-TSC Document 11-1 Filed 10/30/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
Petitioners,
)
)
V.
)
)
GEN. JAMES N. MATTIS,
)
in his official capacity as SECRETARY )
OF DEFENSE,
)
)
Respondent.
)

JOHN DOE,
and the AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, as Next Friend,

Civil Action No. 1: 17-cv-2069 (TSC)

DECLARATION OF STEVEN W. DALBEY
I, Steven W. Dalbey, declare as follows:
1. I am the Director for the Office of Detainee Policy in the U.S. Department of Defense
("DoD").

I have worked in the Office of Detainee Policy since October 2007.

I am

responsible for developing policy recommendations and coordinating policy guidance relating to
individuals captured or detained by DoD.

In this capacity I am also responsible for conducting

regular meetings and communicating with officials from the International Committee of the Red
Cross (ICRC).

My office is the primary point of contact for DoD policies related to the ICRC.

My office receives and reviews all ICRC reports regarding detainees in DoD custody.
2. I am familiar with the subject matter and procedural posture of the above-captioned
proceeding. I understand that the American Civil Liberties Union Foundation seeks habeas relief
on behalf of a detainee currently in U.S. military custody in Iraq. The statements made below are
based on my personal knowledge and information made available to me in the performance of

 Case 1:17-cv-02069-TSC Document 11-1 Filed 10/30/17 Page 2 of 3

my official duties.
3. On or around September 12, 2017, an American citizen surrendered to Syrian Democratic
Forces, who subsequently turned him over to United States forces. U.S. forces have identified
the individual as an enemy combatant and are detaining him at a location in Iraq. This location is
within an armed conflict zone with restricted civilian access based on military operational
concerns, security concerns, and political sensitivities of the host nation
4. Consistent with the Department of Defense's practice of providing the ICRC access to
detained individuals, ICRC representatives were granted access to the detainee on September 29,
2017 and again on October 23, 2017.

ICRC access to detained individuals is not a regularly

scheduled event but generally takes place upon ICRC request, absent a need to restrict access due
to military necessity. During the course of a visit, detainees are offered the opportunity to send a
Red Cross message to a family member(s) and/or request that the ICRC communicate with their
family.

The detained individual makes the personal choice whether or not the ICRC will notify

their next-of-kin. The Department of Defense is not involved in this process. Under longstanding practice, communications between the ICRC and the government regarding any ICRC
observations and findings as to that detainee are conducted on a confidential basis in order to
enable the ICRC to ensure its continued access and thus conduct its missions effectively.
Accordingly, neither the U.S. government nor the ICRC will publicly disclose the details of any
meetings with detainees or subsequent conversations with the U.S. government about those
meetings.

In the case of this detainee, the ICRC has confirmed that the initial ICRC visit

occurred but, in accordance with the confidential approach taken on these matters, has not
commented publicly on the individual's identity, location, or conditions of detention.
2

 Case 1:17-cv-02069-TSC Document 11-1 Filed 10/30/17 Page 3 of 3

5. This individual is currently being detained pending appropriate and expeditious consideration
of various disposition options by the United States government, consistent with U.S. and
international law. Consistent with the Geneva Conventions' prohibition on exposing detainees
to public curiosity, the Department of Defense does not release details regarding the identities of
detained individuals who are still undergoing these disposition assessments.
6. The detention location does not have an unclassified video-teleconference capability.

As a

known security risk, there is no capability to provide this detainee with an unclassified system
for a video-teleconference in a private setting to discuss legal matters.
Pursuant to 28 U.S.C. § 1746, I declare, under penalty of perjury, that the foregoing is
true and correct to the best of my knowledge and belief.

Executed on 30 October 2017
Washington, D.C.

3

 Case 1:17-cv-02069-TSC Document 11-2 Filed 10/30/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
Petitioners,
) Civil Action No. 1:17-cv-2069 (TSC)
)
v.
)
)
GEN. JAMES N. MATTIS,
)
in his official capacity as SECRETARY )
OF DEFENSE,
)
)
Respondent.
)
JOHN DOE,
and the AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, as Next Friend,

[proposed] ORDER GRANTING RESPONDENT’S MOTION TO DISMISS
PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Respondent’s Motion to Dismiss Petition for Writ of Habeas Corpus.
Upon consideration of the Motion, the opposition filed thereto, and any reply, as well as the entire
record in this case, and it appearing that good cause exists for granting the motion, it is hereby
ORDERED that Respondent’s motion to dismiss is GRANTED and that the above-captioned case
is hereby DISMISSED. Petitioner American Civil Liberties Union Foundation’s request for
counsel access is accordingly DENIED.
SO ORDERED.

Dated: ___________

_______________________________
The Honorable Tanya S. Chutkan
United States District Judge