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FILED WITH THE COURT S~RITY OFFICER eso: ~~ UNITED STATES DISTRICT COURT DATE: ' z.- 'tJ;jr1i 7 I FOR THE DISTRICT OF COLUMBIA

) AHMAD MOHAMMAD AL DARBI, ) ) Petitioner, ) ) v. ) Civil No. 05-2371 (RCL) ) BARACK OBAMA, et aL, ) ) Respondents. )

)

MEMORANDUM OPINION

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

Guantanamo Bay, Cuba ("Guantanamo"). This matter comes before the Court on petitioner's

Motion [172] to Compel Production of Exculpatory Information and Automatic Discovery.

Upon consideration of the motion, the opposition and reply thereto, the applicable law, and the

entire record herein, the motion shall be GRANTED IN PART and DENIED IN PART for the

reasons set forth below,

I. BACKGROUND

This Court is operating under the Case Management Order ("CMO") [88] issued by Judge

Hogan on November 6, 2008, as amended [100] on December 16,2008. Pursuant to Amended

CMO § I.D.1, the government must "disclose to the petitioner all reasonably available evidence

in its possession that tends materially to undermine the information presented to support the

government's justification for holding the petitioner." Reasonably available evidence is defined

as "evidence contained in any information reviewed by attorneys preparing factual returns for all

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detainees; it is not limited to evidence discovered by the attorneys preparing factual returns for

the petitioner." Amended CMO § I.D.l. On May 8, 2009, respondents certified that they had

disclosed all reasonably available exculpatory evidence to petitioner. (Certification of Disclosure

of Exculpatory Evidence [148].)

In addition, Section I.E.! provides that, if requested by the petitioner, the government is

required to disclose:

(1) any documents and objects in the government's possession that the government relies on to justify detention; (2) all statements, in whatever form, made or adopted by the petitioner that the government relies on to justify detention; and (3) information about the circumstances in which such statements of the petitioner were made or adopted.

Amended CMO § I.E. I. On April 17, 2009, petitioner's counsel requested information pursuant

to Section I.E. I. On May 5, 2009, respondents informed petitioner that they already disclosed all

the information required under Section I.E. I. As a result, respondents did not produce any

additional documents.

Unsatisfied with respondents' production of exculpatory information under Section I.D.l

and additional information under Section I.E.l, petitioner now moves to compel the production

of exculpatory information and automatic discovery.

II. DISCUSSION

A. Reasonably A vai/able Exculpatory Evidence

When analyzing a petitioner's request for exculpatory evidence, the Court must

"scrutinize whether the petitioner has made specific requests for exculpatory information." Bin

Attash v. Obama,

(D.D.C. 2009). If the Court finds the request is specific

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and exculpatory on its face, the Court will grant petitioner's request.

Ifthe petitioner makes

a colorable claim that the requested infonnation is exculpatory, but the Court is unable to

ascertain the character of the evidence from the pleadings, the Court will conduct in camera

review of the evidence to determine whether it is exculpatory and should be disclosed to

petitioner.

(citing Pennsylvania v. Ritchie,

(1987». Finally, if the petitioner

fails ''to make a specific, colorable claim" that the requested infonnation is exculpatory, the

Court will deny the petitioner's request.

Petitioner asserts that there are ten categories of specific, exculpatory evidence that the

government failed to disclose. The Court will address each category in turn.

1. All Reasonably Available Evidence Showing That Petitioner Was Subject to Abuse, Torture, Coercion, or Duress

Petitioner seeks all reasonably available evidence showing that he was subject to abuse,

torture, coercion, or duress prior to or contemporaneous with the time he made statements

included in the factual return. Specifically, petitioner requests the following evidence showing

that he was subject to abuse, torture, coercion, or duress:

(i) any reports, notes or recordings reflecting the physical and psychological abuse of petitioner during the course of this transfer to U.S. custody;

(ii) any recorded allegations of abuse or mistreatment made by petitioner to U.S. agents;

(iii) any report of investigation or other writing relating to the investigation of allegations of abuse or mistreatment of petitioner prepared by the U.S. Anny's Criminal Investigation Division or any other agency of the U.S.;

(iv) any report of investigation or other writing relating to the investigation of the death of Dilawar and other detainees who died during the time that petitioner was detained in Bagram;

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(v) any records of the interrogation techniques used against petitioner by U.S. agents; and

(vi) all medical and psychiatric records for petitioner that reflect physical abuse or torture.

(Mot. [172] to Compel at 9-10.)

This Court has repeatedly held-and respondents concede-that evidence showing that a

petitioner was subject to abuse, torture, coercion, or duress prior to or contemporaneous with the

time that the petitioner made statements included in the factual return is exculpatory and must be

produced under Amended CMO § I.D.l. See, e.g., LNU v. Obama, Civ. No. 09-745,

, at *3-*4 (D.D.C. Sept. 23, 2009) (Lamberth, C.J.) (ordering the government to produce

all reasonably available evidence of abusive treatment prior to or contemporaneous with any

statements made by petitioner that were included in the factual return); Bin Attash,

(agreeing with the other members of this Court and ordering the production of all

reasonably available evidence that the petitioner was subject to torture prior to or

contemporaneous with the time the petitioner made any statements that were included in the

factual return). Nevertheless, respondents challenge petitioner's request.

First, with respect to petitioner's requests (i)-(iii) and (vi), respondents argue that they

have produced all evidence of abuse with respect to petitioner. To date, however, respondents

have produced only one document relevant to petitioner's request. Petitioner has made a

showing that additional documents showing that petitioner was abused exist. In particular,

petitioner alleges that U.S. Army tortured or abused petitioner during

interrogations at Bagram. (Mot. Ex. A.) ~as later tried before an Army court-

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martial for these alleged abuses, and petitioner's testimony agains~as used at the trial.

Indeed, documents from court-martial are responsive to petitioner's request. In

addition, petitioner demonstrates that three unclassified investigative reports issued by the U.S.

Army's Criminal Investigative Task Force ("CITF") contain detailed accounts of petitioner's

reports of physical and psychological abuse at Bagram. Similarly, these reports are responsive to

petitioner's request. Moreover, petitioner's military commission case produced many

documents, both unclassified and classified, showing that petitioner was subject to abuse.

Petitioner's counsel has signed on to the protective order that applies to petitioner's military

commission case and has received documents from petitioner's counsel in that case which show

that petitioner was subject to abuse or torture. Accordingly, petitioner has identified additional

documents that show petitioner was subject to abuse or torture prior to or contemporaneous with

any statements made by petitioner that are relied upon in the factual return. Pursuant to

Amended CMO § J.D.!, such documents are exculpatory and must be produced to the extent they

are reasonably available.

Second, with respect to request (iv), respondents contend that infonnation relating to the

death ofDilawar and other detainees at Bagram is irrelevant to the alleged physical or

psychological abuse of petitioner. The Court agrees. Respondents do not rely on any statements

made by Dilawar prior to his death to justify the detention of petitioner. Thus, any information

relating to his death or the death of others at Bagram is not exculpatory. Petitioner's specific

request (iv) is therefore denied.

Last, respondents argue that petitioner's specific request (v), relating to any records of

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interrogation techniques used against petitioner, is overbroad. Interrogation techniques certainly

may show that petitioner was subject to abuse, torture, coercion, or duress prior to or

contemporaneous with the time that petitioner made any statements included in the factual return.

Accordingly, respondents must produce the interrogation techniques used against petitioner prior

to or contemporaneous with statements made by petitioner that are included in the factual return.

Respondents, however, do not have to produce interrogation techniques that do not evidence

abuse, torture, coercion, or duress.

In sum, respondents must produce all reasonably available evidence showing that

petitioner was subject to abuse, torture, coercion, or duress prior to or contemporaneous with the

time he made the statements included in the factual return. See Bin At/ash,

. Respondents' obligation under Section LD.1 of the Amended CMO includes producing

documents responsive to petitioner's specific requests (i)-(iii) and (v)-(vi), provided the

documents show that petitioner was subject to abuse, torture, coercion, or duress prior to or

contemporaneous with the time he made any statements which are included in the factual return.

Respondents, however, do not have to produce documents pertaining to petitioner's specific

request (iv). Should respondents fail to either produce evidence of coercion or deny petitioner's

allegations of abuse, respondents will not be allowed to use any of petitioner's statements in the

merits of this litigation.

.

2. All Reasonably Available Statements Made by Abd Al Rahim Al Nashiri and Other Individuals Involved in the Tanker Plot that Deny, Undermine or Contradict Respondents' Allegations

Respondents agree to search for and produce "reasonably available statements in which

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participants in the tanker plot, including al-Nashiri, otherwise deny or contradict the

Government's allegations." (Opp'n at 17.) Respondents' obligation, however, does not include

producing statements that did not mention petitioner's name. See Bin Attash,

(explaining that statements that do not mention petitioner are "merely neutral, and not

exculpatory"). In addition, respondents are not required to produce infonnation regarding the

circumstances under which any statements by Al Nashiri were made because the government

does not rely on Al Nashiri's statements in the factual return. See

. Accordingly,

petitioner's request is denied.

3. All Reasonably Available Evidence Showing that U.S. Agents Have Asked, Requested, or Pressured Petitioner to Testify Against Other Individuals

Petitioner argues any reasonable available evidence showing that respondents pressured

him to testify against other individuals is exculpatory and must be produced under Amended

CMO § I.D.1. Petitioner has failed to make a colorable claim that such evidence would be

exculpatory. As respondents correctly state, the issue in this case is whether the allegations in the

factual return demonstrate that petitioner may be lawfully detained under the Authorization for

the Use of Military Force ("AUMF"),

Stat. 224 (2001). (Opp'n at 18.) A

petitioner may be detained under the AUMF if the allegations in the factual return support the

conclusion that the petitioner was a part of the Taliban, al Qaeda, or associated enemy forces.

Mattan v. Obama,

(D.D.C. 2009) (Lamberth, C,J.). Whether petitioner

was approached about testifying against other individuals does not undennine the government's

claim that petitioner may be lawfully detained under the AUMF. Accordingly, petitioner's

request is denied.

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4. All Reasonably Available Intelligence Reports or Information about Petitioner, Including Information from Foreign Intelligence or Law Enforcement Agencies, That Were Provided to U.S. Agents Who Interrogated Petitioner at Bagram

Petitioner seeks all reasonably available intelligence reports or information, including

information from foreign intelligence or law enforcement, provided to respondents about

petitioner. Petitioner maintains that this information is exculpatory because it shows why certain

interrogation techniques were used on petitioner. The Court disagrees. Why certain

interrogation techniques were used on petitioner is unrelated to the credibility and reliability of

any statements made by petitioner. As discussed above, respondents must produce all reasonably

available evidence showing that petitioner was subject to abuse, torture, coercion, or duress

contemporaneous with or prior to any of petitioner's statements upon which respondents rely.

From that evidence, the Court will be able to determine the credibility and reliability of

petitioner's statements. Accordingly, petitioner's request is denied.

5. All Reasonably A vailable Evidence Showing that the Witnesses on Whom the Government Relies Were Physically andlor Psychologically coerced Prior to Giving Statements

Respondents agree to search for and produce all reasonably available evidence showing

that the witnesses on whom they rely were physicalfy and/or psychologically coerced prior to

giving their statements. (Opp'n at 20.) Therefore, the Court will deny petitioner's request.

6. All Reasonably Available Evidence Showing that Petitioner Has Denied Involvement in the Allegations Contained in Respondents' Narrative and Exhibits

It is undisputed that "any denials of petitioner's involvement in the allegations detailed in

the factual return are exculpatory because they tend to undermine any other statements in which

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the petitioner does admit involvement" in terrorist activities. Bin Attash,

(citing United States v. Bagley,

(1985». Nevertheless, respondents argue that

they do not have to search for or produce such information because petitioner does not state that

he denied any facts relied upon in the factual return during his interrogations. (Opp'n at 21.)

This argument is without merit. Petitioner demonstrates that he denied the allegations contained

in the factual return on at least two occasions. In addition, petitioner's counsel has obtained

evidence showing petitioner denied the allegations in the factual return from the prosecution in

the military commission proceeding against petitioner. Last, this Court in Bin Attash did not

require that petitioner show that any denials were made during interrogation. Rather, the Court

only required that the denials were made during petitioner's detention. See Bin Attash,

(noting that petitioner argued that he made statements of denial "over the course

of his detention"). Accordingly, the Court will grant petitioner's request for all reasonably

available evidence that petitioner has denied involvement in the allegations contained in the

factual return.

7. All Exculpatory Information Compiled by the Guantanamo Detainee Review Task Force "

Respondents agree to conduct a reasonably targeted search of the materials made

available to the Guantanamo Review Task Force for exculpatory evidence and other

automatically discoverable information under the Amended CMO. (Opp'n at 22.) Accordingly,

petitioner's request is denied.

8. All Exculpatory Information Produced by the Government in the Pending Military Commission Proceeding Against Petitioner

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Petitioner seeks all exculpatory information produced by the government in the pending

military commission proceeding against petitioner. The documents from petitioner's military

commission proceeding are in the database of the Guantanamo Review Task Force. Respondents

have already agreed to confer with petitioner's counsel to define the terms and scope oftheir

search of the Task Force database for exculpatory information. When the parties confer,

respondents can ensure that the search includes exculpatory information from petitioner's

military commission proceeding. As a result, a separate search of the materials produced by the

government in the pending military commission proceeding is not necessary, nor is it necessary

for respondents to produce all the materials to petitioner's counsel for petitioner's counsel to sort

through for exculpatory information. Accordingly, petitioner's request is denied.

9. All Exculpatory Information Compiled by Respondents in Petitioner's CSRT and/or Administrative Review Board Proceedings

It is undisputed that petitioner is entitled to all exculpatory information compiled by the

government during petitioner's CSRT and Administrative Review Board ("ARB") Proceedings.

Bin Attash,

. On May 8, 2009, Respondents certified that they produced

all exculpatory information pursuant to Amended CMO § J.D.I, including information from

petitioner's CSRT proceedings (petitioner has not had an ARB proceeding). Petitioner argues

that respondents cannot rely on that certification because respondents have acknowledged that it

was insufficient in several areas. (Reply at 21-22.) Petitioner, however, has failed to

demonstrate that additional exculpatory documents exist from petitioner's CSRT proceedings.

Thus, requiring respondents to search the documents from petitioner's CSRT proceedings again,

without identifying specific information that was not produced, would be unduly burdensome

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and duplicative. Accordingly, the Court shall deny petitioner's request.

10. Unredacted Copies ofClassified Documents Produced by the Government Pursuant to Section /.D.1 ofthe Amended CMO

Petitioner's final request under Section I.D.l is for unredacted copies of classified

documents produced pursuant to Section I.D.l of the Amended CMO. Section I.F of the

Amended CMO requires respondents to provide petitioner's counsel with any classified

information disclosed under Sections I.D or I.E of the Amended CMO. Amended CMO § I.F. If,

however, respondents "object to providing petitioner's counsel with the classified information,"

respondents may file a motion before the merits judge for an exception to disclosure. Id.

Under Section I.D.l, respondents only have to disclose exculpatory information to

petitioner. Here, respondents contend that they have not redacted any exculpatory information

because respondents have only redacted "source-identifying and internal administrative

information that is not exculpatory in nature." (Opp'n at 27.) The Court agrees. Respondents

may redact portions of documents that are disclosed pursuant to Section I.D.l that are not

exculpatory in nature, such as source-identifying and internal administrative information.

Petitioner has failed to show that respondents redacted information other than source-identifying

or internal administrative infonnation. Accordingly, petitioner's request is denied.

B. Discovery under Section /.E.1 ofthe Amended CMO

Petitioner asserts that respondents must produce three categories of infonnation under

Section I.E. I of the Amended CMO. The Court will address each category in tum.

1. All Forms ofPetitioner's Statements on which Respondents Rely

Respondents agree to produce "all forms of [petitioner's] statements cited in the factual

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return." As stated previously by this Court, "respondents' obligation includes producing any

video, audio, transcripts, notes, and/or reports of all petitioner's statements upon which

respondents rely." LNU,

. Because respondents agree to produce all

forms ofpetitioner's statements relied upon in the factual return, petitioner's request is denied.

2. Circumstances in which Petitioner Made or Adopted the Statements on which Respondents Rely

Respondents claim that they produced all reasonably available evidence about the

circumstances in which petitioner made the statements upon which respondents' rely on May 5,

2009. (Pet'r's Mot. Ex. F.) After May 5, 2009, however, this Court held that respondents have

an obligation to produce information about the circumstances in which petitioner's statements

were made, including interrogation logs, for all statements on which respondents rely. See LNU,

; Bin Attash,

. Accordingly, respondents must

produce the circumstances in which petitioner's statements were made or adopted, including any

interrogation logs or plans, which were not provided on May 5, 2009.

3. Unredacted Copies ofAll Classified Documents Included in the Factual Return

Section I.E.! of the Amended CMO "requires the government to disclose any documents

that the government relies on to justify detention, not merely portions of those documents." Bin

Attash,

. If, however, respondents have "compelling reasons to withhold

disclosure ... , [they] may move for an exception" under Section I.F of the Amended CMO.

Here, respondents assert that they will file a motion pursuant to Section I.F of the

Amended CMO, along with unredactedcopies of the documents, submitted ex parte, for in

camera review. Accordingly, the Court will deny petitioner's request for unredacted copies of all

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classified documents included in the factual return at this time, and respondents are instructed to

file a motion pursuant to Section 1.F of the Amended CMO to justify withholding the redacted

information from petitioner.

III. CONCLUSION

For the reasons set forth above, petitioner's motion shall be gran.ted in part and denied in

part. A separate Order shall issue this date.

rHnh1 DATE ~c·f--u~ RO E C. LAMBERTH CHIEF JUDGE

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FILED WITH THE COURT SE "N OFFICER CSO: J<-­ DATE: -L-~o/-&:J~'f-=1--

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) AHMAD MOHAMMAD AL DARBI, ) ) Petitioner, ) ) v. ) Civil No. 05-2371 (RCL) ) BARACK OBAMA, et al., ) ) Respondents. )

)

ORDER

Upon consideration of petitioner's Motion [172] to Compel Production of Exculpatory

Infonnation and Automatic Discovery, the opposition and reply thereto, the applicable law, and

the entire record herein, it is hereby

ORDERED that petitioner's motion is GRANTED IN PART and DENIED IN PART.

Specifically, it is

ORDERED that respondents must produce all reasonably available evidence showing that

petitioner was subject to abuse, torture, coercion, or duress prior to or contemporaneous with the

time he made statements included in the factual return, including:

any reports, notes or recordings reflecting the physical and psychological abuse of Mr. Al Darbi during the course of his transfer to U.S. custody;

any recorded allegations of abuse or mistreatment made by Mr. Al Darbi to U.S. agents;

any report of investigation or other writing relating to the investigation of allegations of abuse or mistreatment of Mr. Al Darbi prepared by the U.S. Anny's Criminal Investigation Division or any other agency of the U.S.;

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any records of the interrogation techniques used against Mr. Al Darbi by U.S. agents; and

all medical and psychiatric records for Mr. Al Darbi that reflect physical abuse or torture.

It is further ORDERED that respondents are required to produce all reasonably available

evidence that petitioner has denied involvement in the allegations contained in the factual return;

it is further

ORDERED that respondents must produce the circwnstances in which petitioner's

statements were made or adopted, including any interrogation logs or plans, which were not

provided on May 5, 2009; and it is further

ORDERED that petitioner's motion is DENIED in all other respects.

SO ORDERED.

1:J-b-,.fA q DATE ~JC'~ RO E C. L MBERTH CHIEF JUDGE

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