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UNITED SI'ATES DISTRICT corR'!.'· FOR TIlE DJ:'\TRICT OF COL.C\lBIA

) MOHA\1.!\1ED i\H\l[J) SLA..1Vl ) AL-KHATEEB (ISl\ 689), ~ I Petit i.on cr, ) ) ) Ci"il l\o. 09-745 (ReL.) ) BAlt·:\CK OBA.MA, e! al., ) ) Respondents. ) ---------------)

MEl\'IORANDUM & ORDER

Petitioner is challenging the legality afhis detention at the United States Naval Base in

Gllantanamo Bay, C'llba CGuantanamo"}, Before the Court. is petitioner"st\lotion [J 186J tD

Com pel or, in the i\ Ilernative, for Leave to Seek Discovery. As described herein, the Court shall

grant petitioner leave tel seek certain discovery.

'fhe Court is operating under the Casei\1anagement Order ('"eMU') issued by Judge

IJogan of this Court in the consolidated Guantanamo habeas cases (T'v'fisc. No. 08-4..2) on

November 6, 2008, as amended on Decemher 16, 2008.! The subjects of petitioner's mOTion aloe

I'f'he Amended CMO was later amended fUlther by Judge Walton of this Court. Gherebi Bush, Ci\'. "t\o. 04~1164, Order [797J (D.D.C. Dec. 19,2(08) (\Valton, J.).Because that Order 1'. was issued before petitioner's case ·was transfcn-cd from Judge Walton to the underslgned member of the Court, it is binding on petitioner's case. Ho\!,rever, Judge Walton's amendmems do not affect Amended CMO § I.E, which is the only section at issue for petitioner's requests.

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Petitioner's moti0D seeks to compel production, or, in the alternative, leave to seek

discovery of three categories of evidence:

A., Petitioner's l\lotioll to Compel

Petitioner'S motion first seeks to compel respondents' production oftlle

1Petitioncr originally included a fourth request for "a \\Titten descri )tion of how the

but that request was later withdra~'T1. (See Reply at 3 n.l.)

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under Amended C/\IO § I.E. 1. Section I.E. I requires the government tIl

disc.lose. if requested by the petitioner. "any documents or objects in the govenl:11eITl's

possession that the government relies (H110 JUSTify detention" lan1ong'ol,her thingsL P:::tili,mer

B. Petitioner's Motion, in the Alternative, for Leave to Seek Discovel1'

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In the altcmaliv.:. petitioner tnDVCS 1eave to seek ,I i ~:t"t\','l"I"\' under

J:,mended C\10; LE.2. Section I.E.2 Stlm~s that

It]he !vlerits .Judge may, for good cause. permit the petitioner to obtain limitcO discovery beyond that described in [Section I.E.] I· Discovery requests shall .. (1) be Dnrruwly tailored, not open-ended; (:2 spec if) the soughr: :::: explain wh] the r"cquest, if gWI1I;:Q, is likely to pr()(!uce evidence that demonstrates lhal petitioner's detention is unltl\\'ful; and (4 e.xplain why the request..:d discovery \\ill enable the petitioner to rebut the factual basis [~~)," his detention \"'ithout unfairly disrupTing or unduly burdening the government.

Amended C1\'IO § I.E.: Icitations omitted), Petitioner's discovery reques1 \vi 1I be evaluated

according to this standard.

Petitioner's request is certainly bOlh narrowly tniJoreJ and specitic. Petiti :mer is 'l.sking

a finite number llsed OJ: a sped fie Dccasion with a single detainee.

Petitioner's request alse appears not to be un lairly disruptive or unduly burdensome to the

government: tl1;;' Rerum's i~)otnote nOled that th~accounl was accessible as

as 2007, and respondents do not indicate that it is no longer accessible. The only remaining

issue. then, is whether petitioner has 5ho\\"n that it is likely that his request, if granted, would

produce evidence demonstrating that his detention is unl.awful. The Court concludes that. for a,

least some of his requests, petitioner has met that standard.

It is therefore likely that petitioner's request will

produce evidence that will weaken the govcmment's justificati':"I!i f0r his detemiotl,

However, not an of the specific requests made b~v petitioner are likely to show he is being

unlawfully detained.

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Such broad disclosure would go

beyond what is allovved by Amended CMO § I.E.2.

To bring petitioner's discover)' requests within the confines of Amended C!'vfO § I.E,2,

the Court will order the following: First.. if, using reasonably available4 information, respondents

41n accordance with the Court's other orders dealing \"lith discovery under Amel1ded CMO § I.E, the Court \vilI only grant discovery as to "reasonably available" evidence. In this context, "reasonably available" evidence means evidence contained in any information reviewed by attorneys preparing factual returns for all detainees held at Guantanamo Bay or any other tinited Stales military facility; it .is notlimited to the evidence discovered by attorneys preparing htcrual returns for this petitioner. See GJrerebi v. Bush, Civ. No. 04-1164, Order [797] (D.D.C. Dec. 19,2008) (\\'alton, J.) (amending slightly Amended CMO § LD.1).

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(referenced in Return Paragraph 25 IDutJ.101e 3.1

In accordance with the above \IenHlfandun1, it is

ORDER}]) thai if, using reasonably anliJable inJe)fJ11J.l10n, respondents can determine

_ ' a"o';, .~L. I ~ r t ll· L.. '­ 1" .. ; l . '!l/>l'

ORDERED rhm h all other rt:spects petitioner's !\/101il)l1 [1 186] is DE1\TED; and il is

Ji.lrthcr

ORDERED that all disclosures ordered in this Order shall occur within 30 days of thi:.~

date of this Order.

so ORDERI::D.

~c~ ROY . C. LAMBERTII CHIEF JUDGE

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