UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) SAKI BACHA (a.k.a. MOHAMMED JAWAD), ) ) Petitioner, ) ) v. ) Civil Action No. 05-2385 (ESH) ) (Jawad, ISN 900) BARACK H. OBAMA, et al., ) ) Defendants. ) __________________________________________)

MEMORANDUM OPINION AND ORDER

Before the Court is respondents’ sealed motion to confirm designation of certain

information from respondents’ statement of material facts as “protected” information (Dkt. No.

299) and petitioner’s sealed opposition thereto. (Dkt. No. 309.) For the reasons stated below,

the Court will deny in part and grant in part respondents’ motion.

Paragraph 34 of the protective order governing the Guantanamo Bay habeas cases

requires the government to notify habeas counsel if it seeks to designate information as

protected. If the parties cannot agree – as is the case here – then the government is required to

file a motion asking the Court to order the designation. See Protective Order and Procedures for

Counsel Access to Detainees at the United States Navel Base at Guantanamo Bay, Cuba, In re

Guantanamo Bay Detainee Litig., Misc. No. 08-442 (TFH) (D.D.C. Sept. 11, 2008) (Dkt. No.

409).

On July 8, 2009, the government moved to have the date, month, and year portion of the

titles of intelligence reports designated as protected information. In support of its motion, the

government argues that the release of interrogation dates could enable someone to discern the

1 identity of the speaker, which could lead to retaliation against that speaker or his family, and

“disrupt the safe, secure and orderly running of” the Guantanamo Bay detention facility.

(Respts.’ Mot. at 2-4.)

At the outset, the Court notes that the government has declined to exercise its authority to

designate the date, month, or year portion of the reports as classified material.1 It is therefore left

to this Court’s discretion to decide whether the unclassified information in question should be

deemed “protected.” “It is the court, not the Government, that has discretion to seal a judicial

record, which the public ordinarily has the right to inspect and copy. Therefore, insofar as a

party seeks to file with the court nonclassified information the Government believes should be

‘protected,’ the Government must give the court a basis for withholding it from public view.”

Bismullah v. Gates,

(D.C. Cir. 2007). “[T]he government has the burden of

showing that it has a compelling interest in keeping the materials secret.” In re Guantanamo Bay

Detainee Litig.,

(quoting In re Application of New York Times Co. for

Access to Certain Sealed Court Records,

(D.D.C. 2008)).

First, with respect to intelligence reports regarding petitioner’s statements, the Court

concludes that the date, month, and year information should not be designated as protected. The

Department of Defense has already published a record that lists the date and location of every

interrogation of petitioner from December 26, 2002 to May 28, 2006. (See Defs.’ Mot. to

Dismiss Based on Torture of Detainee Pursuant to R.M.C. 907, Attach. 10 at 153-155 (citing

1 The Executive has “authority to classify and control access to information bearing on national security,” and the Supreme Court has stated that “the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” Dep’t of the Navy v. Egan,

(1988); see also Fitzgibbon v. Cent. Intelligence Agency,

(D.C. Cir. 1990).

2 www.defenselink.com materials).)2 The law “precludes the government from seeking to

designate as protected information that is already in the public domain.” In re Guantanamo Bay

Detainee Litig.,

(citing Parhat, 532 F.3d at 853.)

Second, with respect to the intelligence reports regarding statements by declarants other

than petitioner, the Court concludes that the specific date of the interview should be protected

because the government’s argument that someone could use that date to reconstruct the speaker’s

identity is a compelling reason to protect the information. However, the Court concludes that the

government has failed to present a sufficient reason for why the month and the year of the

interviews should not be made public.

Withholding the specific date from the public is sufficient to protect the speaker’s

identity without unfairly limiting the public’s access to these proceedings. The Court recognizes

that “public access plays a significant positive role in the functioning” of habeas proceedings.

Mem. Opin. at 14, In re Guantanamo Bay Detainee Litig., Misc. No. 08-442 (TFH) (D.D.C. June

1, 2009) (“[O]pening the judicial process ensures actual fairness as well as the appearance of

fairness.”). The public has a legitimate interest in gaining access to the month and year of the

reports containing inculpatory statements to determine whether those statements are reliable (i.e.,

whether the interrogation occurred a substantial time after the event in question). See Brown &

Williamson Tobacco Corp. v. FTC,

(6th Cir. 1983) (“Without access to the

proceedings, the public cannot analyze and critique the reasoning of the court. The remedies or

penalties imposed by the court will be more readily accepted, or corrected if erroneous, if the

2 Respondents concede that at least some of petitioner’s statements are already available in the public domain and withdraw their motion with respect to the following reports: ISN 900 Handnote (Dec. 26, 2002); ISN 900 Handnote (Dec. 27, 2002); ISN 900 Handnote (Dec. 28, 2002); ISN 900 Handnote (Jan. 4, 2002); ISN 900 MFR (Feb. 10, 2003); ISN 900 SIR (Feb. 11, 2003); ISN 900 MFR (Feb. 19, 2003); ISN 900 MFR (Apr. 9, 2003); ISN 900 MFR (July 21, 2003); and ISN MFR (Sept. 3, 2003). (Respts.’ Reply at 1 n.1.)

3 public has an opportunity to review the facts presented to the court.”). Accordingly, the Court

designates the dates of the intelligence reports as protected, but declines to designate the month

and the year as protected.

For the foregoing reasons, the Court DENIES IN PART AND GRANTS IN PART

respondents’ motion. The date, month, and year information for petitioner’s own statements

shall not be designated as protected because that information is already in the public domain.

The dates for reports of other declarants shall be designated protected; however, the month and

year shall not be designated protected.

The Court DENIES petitioner’s request that respondents’ motion be unsealed and filed on

the public docket.

SO ORDERED.

_________/s/______________ ELLEN SEGAL HUVELLE United States District Judge

Date: September 4, 2009

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