Page:Coalition of Clergy, Lawyers, and Professors v. Bush.pdf/15

 with Whitmore’s second prong. In particular, the record is devoid of any Coalition effort even to communicate with the detainees. See Sanchez-Velasco, 287 F.3d at 1026–27 (where attorney had no prior relationship with client, fact that attorney did not even attempt contact before filing petition suggested that interests were not aligned). Although actual contact may be unnecessary if, for example, prisoners are being held incommunicado, the complete lack of any attempt to communicate counsels against next friend standing. Id.

Further, the Coalition, while it asserts an interest in the detainees’ welfare, is an ad-hoc, self-appointed group. An institution with an established history of concern for the rights of individuals in the detainees’ circumstances—such as the Red Cross or Amnesty International—would be more likely to be able to show that it is truly dedicated to the best interest of the detainees than a group without that history and with more broad ranging interests and background.

As the majority recognizes, the requisite alignment of interests must adapt to the circumstances facing each individual detainee. Not all detainees have a relative, friend, prior attorney, or other suitable person to act on their behalf. In the extreme case, where there is no next friend under traditional criteria, the showing required to meet Whitmore’s second prong should be relaxed, to the degree that no relationship should be required if none is practically possible. See Hamdi I, 294 F.3d at 604 n. 3.

Coalition has argued that this was such a situation. Some detainees, however, have pursued legal action on their own behalf or through family members. See e.g. Rasul v. Bush, 215 F.Supp.2d 55 (D.D.C.2002) (habeas petition brought by citizens of Australia and United Kingdom; injunction requested by twelve Kuwaiti nationals and their family members). Coalition responds by noting that legal action has only ensued on behalf of Australian, English and Kuwaiti detainees, and suggests that people from those countries, independently or with the help of their government, are likely to have the money and sophistication to investigate and bring legal claims in the United States. These lawsuits, Coalition argues, do not indicate that the other prisoners, such as the Afghani and Pakistani detainees, have access to suitable next friends.

On a different record, this contention might have merit. Here, however, Coalition has not proven except by assertion that the remaining detainees have no relationship with anyone who could appropriately serve to litigate the legality of the detention.

Indeed, at least with respect to the complicated threshold jurisdictional issues presented by this case, the detainees’