Mandamus Opposition in Al Hawsawi

The government has filed its answer to Mustafa Ahmed Al Hawsawi's petition for a writ of mandamus concerning monitoring of attorney-client communications at Guantanamo. Al Hawsawi's motion for a preliminary injunction against the mail screening has already been denied. The government now argues:

Petitioner is a military detainee at the United States Naval Station, Guantanamo Bay, Cuba. Military commission charges have been sworn against petitioner, but the Convening Authority has not yet determined whether to refer any of the charges to a military commission. On December 27, 2011, the Commander of Joint Task Force Guantanamo (“JTF-GTMO”) issued two orders governing, inter alia, the exchange of documents between detainees involved in military commissions and their defense counsel. Petitioner filed a petition for a writ of mandamus and prohibition requesting that this Court enjoin the enforcement of those orders. The petition should be denied. As an initial matter, this Court lacks jurisdiction over the petition because it “relat[es] to an[] aspect of [petitioner’s] detention, . . . trial, or conditions of confinement.” 28 U.S.C. § 2241(e)(2). In any event, the petition should be denied because petitioner has adequate alternative avenues of relief. If charges against him are referred to a military commission, he may seek prospective and retrospective relief from a military judge. In addition, if petitioner is convicted, he may raise his claims in appeals to the Convening Authority, the Court of Military Commission Review, and this Court. If the Court reaches the merits, the petition should be denied because petitioner has not clearly and indisputably established a violation of the applicable rule-based attorney-client privilege or statutory right to representation. The Commander’s orders authorize a highly circumscribed inspection of legal mail by a walled-off privilege team. That inspection is far less extensive than the review this Court has previously held that privilege teams at Guantanamo may conduct. The Commander’smilitary assessment that this limited and reasonable review is necessary to protect national security and maintain safety and security at Guantanamo is owed substantial deference. Mandamus relief requiring this Court to second-guess the military Commander regarding these security issues is unwarranted and inappropriate.