gate his own cause due to mental incapacity, lack of access to court, or other similar disability; and (2) the next friend has some significant relationship with, and is truly dedicated to the best interests of, the petitioner.
Massie ex rel. Kroll v. Woodford, 244 F.3d 1192, 1194 (9th Cir.2001).
We first examine whether the Guantanamo Bay detainees are able to litigate their own cause, and then turn to an examination of whether the Coalition has a relationship with any of the detainees sufficient to meet the second prong of Whitmore–Massie.
- i. Detainees’ inability to litigate own cause.
The first prong of the Whitmore–Massie test, lack of access to the court, has most often been considered a question of mental capacity, usually in the context of an inmate’s capacity to bring his own petition. See, e.g., Massie, 244 F.3d 1192; Vargas, 159 F.3d 1161. In Whitmore, the Supreme Court noted:
[O]ne necessary condition for “next friend” standing in federal court is a showing by the proposed “next friend” that the real party in interest is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability. That pre-requisite for “next friend” standing is not satisfied where … his access to court is otherwise unimpeded.
Whitmore, 495 U.S. at 165, 110 S.Ct. 1717.
The Coalition does not urge that the detainees suffer a mental or physical disability precluding their representation of their interests before the court, rather it argues that the first prong of the Whitmore–Massie test is satisfied because the detainees “appear to be held incommunicado,” and thus are physically blocked from the courts. This hyperbolic argument fails because it lacks support in the record; in fact, the prisoners are not being held incommunicado.[1]
The record shows that the detainees have been visited by members of the International Red Cross and diplomats from their home countries, and have had limited opportunities to write to friends and family members. Family members have filed habeas petitions on the behalf of some detainees, and diplomats from several countries including Pakistan, Kuwait, Australia, and the United Kingdom have made inquiries into the status of the detainees and sought their release. Rasul v. Bush, 215 F.Supp.2d 55, 57 (D.D.C.2002) (“[T]he Court would point out that the notion that these aliens could be held incommunicado from the rest of the world would appear to be inaccurate.”); see also Hamdi II, 296 F.3d at 279 (Father filed a petition for a writ of habeas corpus as next friend of his son, who is detained at the Norfolk Naval Station Brig as an alleged enemy combatant captured during ongoing military operations in Afghanistan.). As noted by the District Court for the District of Columbia, “the government recognizes that these aliens fall within the protections of certain provisions of international law and that diplomatic channels remain an ongoing and viable means to address the claims raised by these aliens.” Rasul, 215 F.Supp.2d at 56–57.
- ↑ The Coalition requested at oral argument that we remand for an evidentiary hearing on a variety of issues, including the detainees’ lack of access to lawyers or courts. We deny this request because the Coalition has not even made a preliminary showing that upon remand it could prove, in light of the record that is before the court, that any individual detainee is being held totally incommunicado. A bald assertion that the detainees are held incommunicado, when the record makes clear the contrary, does not necessitate a hearing; indeed it appears such a hearing would be futile.
