Alsawam v. Bush
Opinion
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SECMYf II NOf'ORN UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Filed with Classified TARIQ MAHMOUD ALSA WAM, Infonnation Security Officer elso ~. \-\p.fVtl)2~ Petitioner, Date o'"iLtQj;~o\O& v. Civil Action No. 05-01244 (CKK) BARACK H. OBAMA, President of the United States, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER (April 10,2012)
Before the Court is the [250/255] Motion to Compel Discovery filed by Petitioner Tariq
Mahmoud Al Sawall (ISN 535). See Pet'r's Mot. to Compel Disc. ("Pet'r's Mem."), ECF No.
[250]; Pet'r's Supplement to Mot. to Compel Disc. ("Pet'r's Suppl. Mem."), ECF No. [255].
The Government has filed an Opposition and Petitioner has filed a Reply. See Gov't's Mem. in
Opp'n to Pet'r's Mot. to Compel Disc. ("Gov't's Opp'n"), ECF No. [256J; Gov't's Resp. to
Pet'r's Supplement to Mot. to Compel Disc. ("Gov't's Suppl. Opp'n"), ECF No. [260); Pet'r's
Reply to Gov't's Mem. in Opp'n to Mot. to Compel Disc. ("Pet'r's Reply"), ECF No. [261]. The
motion is therefore fuUy briefed and ripe for a decision. In an exercise of its discretion, the Court
finds that hearing oral argument would not be ofassistance. See LCvR 7(f). Upon careful
consideration of the parties' submissions, I the relevant authorities, and the record as a whole,
Petitioner's Motion to Compel shall be GRANTED IN PART and DENIED IN PART.
I The Court's consideration has been confmed to the specific arguments tendered by the parties in their briefing. The Court has not, and shall not, sift through the record in an attempt to identify arguments, or locate evidence, in support of the parties' respective positions.
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I. LEGAL STANDARD
Petitioner's Motion to Compel is governed by the [68] Case Management Order entered
by Judge Thomas F. Hogan on November 6, 2008, as amended by Judge Hogan's [86J Order
dated December 16, 2008 (the "CMO"), and as supplemented by this Court's [149J Order
Regarding Petitioner's Requests for Additional Discovery dated April 6, 2009 ("April 6, 2009
Order~'). For purposes of Petitioner's Motion to Compel, the Government's relevant disclosure
obligations under this regime are three-fold.
First, Section J.D.! ofthe CMO delineates the scope of the Government's ongoing
obligation to disclose "exculpatory evidence" to Petitioner even in the absence of a specific
request. Specifically, the Govemment 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 detaining the petitioner." CMO § lD.1. The term
"exculpatory evidence" includes, but is not limited to, "any evidence or information that
undercuts the reliability and/or credibility ofthe Govemment's evidence," such as "evidence that
casts doubt on a speaker's credibility, evidence that undermines the reliability of a witness's
identification of Petitioner, evidence that indicates a statement is unreliable because it is the
product of abuse, torture, or physical incapacity, or evidence that demonstrates material
inconsistencies between statements." Apr. 6, 2009 Order at 2. "[TJhe term 'reasonably available
evidence' means evidence contaiped in any information reviewed by attorneys preparing factual
returns for all detainees/' and "also includes any other evidence the government discovers while
litigating habeas corpus petitions filed by detainees at Guantanamo Bay." CMO § I.D.1.
Therefore, the universe of "reasonably available evidence" includes, but is not limited to,
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traverses filed by other detainees.
Second, Section I.E. I ofthe CMO requires the Government to disclose the following to
Petitioner upon his request: "(I) any documents and objects in the government's possession that
the government relies on to justifY detention; (2) all statements, in whatever fonn, made or
adopted by the petitioner that the government relies on to justifY detention; and (3) infonnation
about the circumstances in which such statements ofthe petitioner were made or adopted."
CMO § I.E. I. The phrase "in whatever fonn" means "all forms (including audio or video),
whether cumulative or not." Apr. 6,2009 Order at 3. The phrase "circumstances in which such
statements ofthe petitioner were made or adopted" encompasses "all surrounding
circumstances," including, but not limited to, "the use of coercive tactics as well as inducements
and promises." ld
Third, Section LE.2 of the CMO confers upon the Court the discretion to authorize
additional limited discovery beyond what is required by Sections I.D.1 and I.E.l upon a showing
of"good cause," Requests for additional discovery must "(1) be narrowly tailored, not open
ended; (2) specify the discovery sought; (3) explain why the request, ifgranted, is likely to
produce evidence that demonstrates that the petitioner's detention is unlawful; and (4) explain
why the requested discovery win enable the petitioner to rebut the factual basis for his detention
without unfairly disrupting or unduly burdening the government." CMO § lE.2 (internal
citations and quotations omitted).
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II. DISCUSSION
Through his [2501255J Motion to Compel, Petitioner seeks infonnation relating to nine
overarching categories. The Court shall address each of those nine categories in tum below.
Preliminarily, however, the Court must address the Government's arguments that Petitioner'S
pending discovery requests are either untimely or barred by the doctrine ofjudicial estoppel.
Neither argument need detain the Court long. Over the years, Petitioner's focus in this Htigation
has undergone a marked shift. Earlier in this case, Petitioner's attention was focused, albeit not
exclusively, on obtaining infonnation relating to his cooperation with the Government in order to
demonstrate that he has served as a valuable source of intelligence. In fact, this action remained
at a standstill for quite some time while the parties attempted to reach an agreement resolving the
issues surrounding Petitioner's detention. Unsurprisingly, when negotiations failed to yield an
agreement, Petitioner's focus changed, such that today Petitioner's challenge to his continued
detention depends in large part on his efforts to undennine the credibility or reliability of his
many alleged inculpatory statements to interrogators. His pending discovery requests are part of
those efforts.
Considering the record as a whole, the Court is unpersuaded by the Government's
arguments that Petitioner's pending discovery requests are either untimely or barred by the
doctrine ofjudicial estoppel. Beginning with the Government's timeliness argument, the Court
recognizes that Petitioner couId and should have made some of his pending discovery requests
earlier, but the Court also acknowledges that the factual and legal landscape of this case has been
under continual development with the Government's ongoing disclosures and with each
successive opinion from the United States Court of Appeals for the District of Columbia Circuit.
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Even though this action has been pending for some time, the Court is ultimately left unconvinced
that Petitioner should now be precluded from pursuing limited discovery requests that could
potentially lead to evidence that would undermine the basis for his continued detention. That is
particularly so because the Government has failed to identify any material and undue prejudice
that it would suffer ifit were required to respond to Petitioner's requests at this time. Although
the Government claims that "additional discovery threatens to disrupt the schedule contemplated
by the Court for resolving the merits of this case," Gov't's Opp'n at 24, the Court has not set
dates for the merits hearing or even for the briefing of pre-hearing motions. While requiring the
Government to respond to limited discovery requests might delay a final resolution of this case,
any delay would be minimal in the grand scheme ofthings and would not significantly disrupt
the schedule contemplated by the Court. Meanwhile, to the extent the Government intended to
suggest that it would be burdened merely by being required to respond to Petitioner's discovery
requests, any such burden would not be undue so long as the requests fall within the scope of
permissible discovery under the CMO. In the final analysis, the Court concludes that timeliness
does not present a bar to the Court's consideration of Petitioner's Motion to Compel.
The Government's argument based on the doctrine ofjudicial estoppel is even less
persuasive. The Government sets forth its argument in a single footnote in its Opposition, a
footnote that does not even appear in the argument section. See Gov't's Opp'n at 6 n.2. This
Court "need not consider cursory arguments made only in a footnote," Hutchins v. District of
Columbia,
188 F.3d 531, 539 n.3 (D.C. Cir. 1999) (en bane), and it declines to do so here.
Regardless, although the Court recognizes that Petitioner's current litigation stance stands in
tension with his prior theory ofthe case, the Court is not convinced that Petitioner's earlier
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efforts to emphasize his cooperation with the Government ever crystallized into a concrete
litigation position that could be said to be "clearly inconsistent" with his current efforts to
undennine the credibility or reliabiJity ofhis alleged inculpatory statements. New Hampshire v.
Maine,
532 U.S. 742, 750(2001). Furthennore, for reasons already discussed, the Government
has not shown to this Court's satisfaction that Petitioner "would derive an unfair advantage or
impose an unfair detriment" on the Government if allowed to pursue his present theory ofthe
case. ld at 751. Accordingly, the doctrine of judicial estoppel likewise presents no bar to the
Court's consideration of Petitioner's Motion to Compel.
With those preliminary matters aside, the Court now turns to addressing the nine
categories of infonnation sought by Petitioner through his Motion to Compel.
A. Petitioner's Requests/or Photographs (Request No.1)
Petitioner's first request seeks a series ofphotographs. It can be divided into two basic
sub-parts. The Court addresses each sub-part in tum.
First, Petitioner seeks a copy of a single photograph shown to David Hicks (ISN 002)
("Hicks") and identified as Petitioner during an inteITOgatio~ See Pet'r's
Mem. at 8. Petitioner avers, and the Government does not deny, that the Government intends to
rely on Hicks' identification of Petitioner in support of its allegation that Petitioner worked for
al-Qaida as an explosives instructor, albeit in conjunction with other evidence. As a result,
pennitting Petitioner to obtain a copy ofthe photograph shown to Hicks will allow him to
challenge the accuracy and reliability of the identification. In this respect, Petitioner's first
request satisfies the requirements of Section I.E.2 of the CMO. Accordingly, it shall be
GRANTED.
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Second, Petitioner seeks (I) copies of photographs of Hamza Zubair C'Zubair") taken
following certain raids that took place in Karachi, Pakistan in September 2002 and (2) two
photographs alleged to be of Petitioner that were shown to Lufti A1 Ambi A1 Gharise (ISN 1209)
("AI Gharlse") during an interrogation See Pet'r's Mem. at 2; Pet'r's Reply at
2. In this case, Petitioner intends to proceed in part under the theory that he "strongly resembles"
Zubair, relying in large part on his contention that he has on at least one occasion been
mistakenly identified by Government agents as Zubair. See Pet'r's Reply at 3. From this
premise, Petitioner intends to argue that "government interrogators came to mistakenly believe
that Petitioner was an aI Qaida explosives trainer and, as a result, led Petitioner into make [sic] a
{sic] false confessions that he was an al Qaida explosives trainer." PeCr's Mem. at 8. For its
part, the Government concedes that there was "initial confusion" by Government agents that led
to the mistaken identification referred to by Petitioner, but otherwise paints Petitioner's theory as
a "whimsical fantasy." Gov't's Opp'n at 12-13. Regardless of whether the Government intends
to rely upon "photo identifications by individuals who might have mistaken Petitioner for
Zubair," id at 14, the Court finds that Petitioner is entitled to pursue limited discovery in
connection with his present theory, whatever its ultimate merits. In this respect, Petitioner's first
'2 Petitioner originally sought "copies of photographs ofHamza Zubair that are within the possession of the government," Pet'r's Mem. at 2, but he has since narrowed his request to those specific "photographs ofHamza Zubair taken following [the] raids that took place in Pakistan on September 10,2002," Pet'r's Reply at 2. Had Petitioner pursued his request as originally framed, the Court would have found that the request is not narrowly tailored, does not specify with sufficient particularity the discovery sought, or explain why the requested information would enable Petitioner to rebut the factual basis for his detention without unfairly disrupting or unduly burdening the Government.
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request satisfies the requirements of Section I.E.2 of the CMO. Accordingly, it shall be
GRANTED.
In sum, Petitioner's first request. as narrowed by Petitioner, shall be GRANTED in its
entirety. By no later than May 1, 2012, the Government shall produce (1) the single photograph
shown to Hicks and identified as Petitioner during an Itel1rogatlcm UJ' (2)
copies of any photographs ofZubair that were taken following the raids that took place in
Karachi, Pakistan in September 2002, and (3) the two photographs alleged to be ofPetitioner that
were shown to Al Gharise during an intc~rrofgatton
B. Petitioner's Request for lriformationfrom the Detainee Log and the lNFREP Activity Log (Request No.2)
Petitioner's second request is for "all log entries from the 'Detainee Log' and the
'INTREP Activity' log which relate to [him] for the period between May 2002 and December
2003."3 Pet'r's Mem. at 2. Petitioner concedes that the Government has already disclosed
entries from both ofthese logs, and he contends that those entries demonstrate his "mental
deterioration during this time period." Id at 9. Nonetheless, Petitioner claims that unidentified
former-detainees informed his counsel that Petitioner's aberrant behavior "lasted much longer
3 Originally, Petitioner's second request also encompassed "reports or documents within the . subjected to frequent cell movements, while detained at Guantanamo Bay." Pet'r's Mem. at 2. Petitioner has since withdrawn that aspect of his request based on the revllewof certain by the Government's declarant_ Pet'r's Reply at 8. AccoIdingly, there appears to be no need for the Court to resolve the request. However, if Petitioner's assumption about the scope of the declarant's review is incorrect, the Government must promptly notifY Petitioner'S counsel and bring the matter to the Court's attention.
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than the limited entries disclosed by the government indicate." Id at 10. On this basis alone,
Petitioner argues that he is now entitled to all log entries relating to him during this time period,
without further limitation.
Id.Framed in such broad tenns, Petitioner's request is not narrowly
tailored and does not explain why the request is likely to produce evidence that Petitioner's
detention is unlawful. Accordingly, Petitioner's second request for discovery shall be DENIED.
Nonetheless, the Court pauses to observe that the Government represents that the entries
that it has produced to Petitioner to date include "all potentially eXCUlpatory entries" from both
logs. Gov't's Opp'n at 17. The tenn "exculpatory evidence" includes "any evidence or
infonnation that undercuts the reliability and/or credibility ofthe Government's evidence." Apr.
6,2009 Order at 2. From the Government's [262] Witness and Exhibit Lists, it is clear that the
Government intends to rely on numerous statements that Petitioner made to interrogators during
the time period covered by Petitioner's second request, including statements made
Given the Government's reliance on statements spread
throughout this period, any entries contained in the Detainee Log and the INTREP Activity log
pertaining to Petitioner's mental deterioration during this time period would fall within the ambit
ofthe exculpatory evidence that must be disclosed under Section I.D.I of the CMO because they
would tend to undercut the reliability and/or credibility of Petitioner's statements. Similarly, the
Government must produce "information about the circumstances in which such statements of
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[Petitioner] were made or adopted" under Section I.E.l ofthe CMO. Because this encompasses
information about "all surrounding circumstances," Apr. 6, 2009 Order at 3, any entries in the
Detainee Log and the INTREP Activity log pertaining to Petitioner's mental condition or
deterioration due to the conditions of his detention would fall within the ambit ofthe
Government's disclosure obligations under Section I.E. I of the CMO. Based on the
Government's representation that the entries that it has produced to date include ~'a11 potentially
exculpatory entries" from both logs, Gov't's Opp'n at 17, the Court understands the Government
to be representing that it has complied with the foregoing requirements. However, to dispel any
doubt, by no later than May 1,2012, the Government shall (a) certify to the Court that it has
produced all entries from the Detainee Log and the INlREP Activity log (or portions thereof)
that pertain to Petitioner's mental condition or deterioration in the period extending from May
2002 through December 2003, (b) produce such entries, or (c) justify its failure to produce such
entries.
C. Petitioner's Request for Access to His Original Medical Records (Request No.3)
Petitioner's third request is for access to his "original" medical records. Pet'r's Mem. at
3. Because Petitioner has since withdrawn this request, see Pet'r's Reply at 8, it need not be
resolved by the Court and it shall be DENIED WITHOUT PREJUDICE.
D. Petitioner's Request _ _is Forcible Removalfrom His Cell at Guantanamo Bay (Request No.4)
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Reply at 9. Petitioner also relies upon an entry from the INTREP Activity log produced by the
Government that reflects that. on at least one occasion (specifically, on December 2. 2002),
Pet'r's Mem., Attach. G at 2.
The Government's response is two-fold. First, the Government claims that Petitioner has
failed to explain why the request is likely to produce evidence that demonstrates that his
detention is unlawfu1. Specifically, the Government argues that Petitioner has not articulated
s Opp'n at 20. The Court disagrees. To the extent there are
was "forcibly removed" from his cell and suffered
"psychological distress" relatively close in time to making inculpatory statements to
interrogators, then they might be probative of Petitioner's mental condition at the time he made
such statements or otherwise reflect on the "surrounding circumstances" in which those
inculpatory statements were made. Second, the Government claims that Petitioner's request is
not narrowly tailored and does not specify with sufficient particularity the discovery sought. See
id.On this score, the Court agrees in part. As presently framed, Petitioner fourth request seeks
evidence the "psychological distress" he
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allegedly suffered. However, when Petitioner has sought other evidence potentially bearing on
his mental condition, he has confined his requests to the time period extending from May 2002
through December 2003. In connection with this request, Petitioner has not attempted to explain
why the time period should extend further back in time to cover January 2002 through April
2002. In that respect, the Court finds that Petitioner's fourth request is not narrowly tailored and
that Petitioner has failed to explain why the request is likely to produce evidence that
demonstrates that his detention is unlawful. Nonetheless, as previously noted, the Government
intends to rely upon numerous statements made by Petitioner from May 2002 through December
2003. Given the Government's reliance on statements spread throughout this period, Petitioner's
request his forcible removal from his cell in this specific time
period satisfies the requirements of Section I.E.2 ofthe CMO.
Accordingly, Petitioner's fourth request for discovery shall be GRANTED IN PART and
DENIED WITHOUT PREJUDICE IN PART. Specifically, the request shall be GRANTED
insofar as Petitioner retlcxtiJlg his forcible removal from his cell by
Guantanamo Bay personnel in the time period extending from May 2002 through December
2003; and the request shall be DENIED WITHOUT PREJUDICE insofar as Petitioner seeks
reflecting his forcible removal from his cell by Guantanamo Bay personnel in
the time period extending from January 2002 through April 2002.
E. Petitioner's Request for Evidence ofNoncombatants in Tora Bora (Request No.5)
Petitioner'S fifth request was originally brought under Section I.E.2 of the CMO and
sought "all documentary evidence that is within the government's possession which tends to
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SI§@DI!l'f' J/ N8P8:A:N show that noncombatants were present at Tora Bora during the time period the government
maintains Petitioner was at Tora Bora, including any documents that tend to show that some
noncombatants were detained and subsequently released." Pet'r's Mem. at 3. In his Reply,
Petitioner narrows the scope ofthe request, indicating that he now "asks only that the Court
specifically require the Government" to "disclose such evidence pursuant to Section I.D.1 of the
CMO which requires the government to disclose 'all reasonably available evidence in its
possession that tends to materially undennine the infonnation presented to support the
govenunent'sjustification for detaining the petitioner."'" Pet'r's Reply at 10 (quoting CMO §
I.D.1). So framed, Petitioner's request is substantially narrowed, reaching only "reasonably
available evidence"-that is, "evidence contained in any information reviewed by attorneys
preparing factual returns for all detainees" and "any other evidence the government discovers
while litigating habeas corpus petitions filed by detainees at Guantanamo Bay." CMO § 1.0.1.
The Government claims that "any evidence regarding the presence ofnoncombatants in
Tora Bora would in no way undermine the Government's rationale for detaining Petitioner,"
4 Had Petitioner pursued his request as originally framed under Section I.E.2, the Court would have found that the request is not narrowly tailored, does not specify with sufficient particularity the discovery sought, or explain why the requested information would enable Petitioner to rebut the factual basis for his detention without unfairly disrupting or unduly burdening the Government. In particular, the Court credits the Govenunent's representation that "[d]uring the relevant time period, there were numerous military units operating in the Tora Bora region" and "anyone ofthose units may have been involved" in detaining noncombatants. Gov't's Opp'n at 23. A search for records responsive to Petitioner's expansive original request would unfairly disrupt and unduly burden the Government because "there is no centralized system of records" and the Government would have to contact "each of those military units and ask them to search for records which might or might not exist, and which were created over nine years ago." Id
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SECREl nI~OFORh emphasizing that it relies not only on Petitioner's mere presence in Tora Bora in the relevant time
period, but also evidence that "petitioner stayed in al-Qaida guesthouses, attended terrorist
training camps, worked for al-Qaida as an explosives instructor, and fought on the front lines on
behalf ofal-Qaida and the Taliban before retreating to Tora Bora." Gov't's Opp'n at 22. While
the Court agrees with the Government that at the merits stage it must consider the evidence "in
its entirety in determining whether the government has satisfied its burden of proof," Salahi v.
Obama,
625 F.3d 745. 753 (D.C. Cir. 2010), it also recognizes that the Court of Appeals has
suggested that the ratio of "combatants" to "noncombatants" in Tora Bora might be one relevant
consideration among many when determining the lawfulness ofa petitioner's detention. See
Uthman v. Obama,
637 F.3d 400, 404(D.C. Cir. 2011) ("Because few, ifany, non-combatants
were near Tora Bora, it follows that most, ifnot all, ofthose in the vicinity ofTora Bora ... were
combatants. "). As a result, it is at least conceivable that there is a universe of reasonably
available evidence relating to this subject that might "tend[J materially to undermine the
information presented to support the government's justification for detaining the petitioner" and
thus be discoverable under Section LD.• of the CMO. For example, that universe might include
evidence suggesting that certain Uighurs were apprehended in Tora Bora but were subsequently
found by the Department of Defense to no longer be enemy combatants, as such evidence was
apparently gathered and produced by the Government in a Guantanamo Bay habeas case before
Judge Emmet G. Sullivan. See Order, Batarfi v. Gates, Civil Action No. 05-00409 (EGS)
(D.D.C. Feb. 10,2009), ECF No. [162], at 2. Ultimately, however, Petitioner has framed his
request in such vague and unillurninating terms that the Court is left to guess as to what kind of
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information he has in mind.. let alone whether such information would fall within the scope of the
Government's disclosure obligations under Section 10.1. Nor is the Court convinced that the
Government would be able to fare any better. Most notably, Petitioner makes no attempt to
articulate how he would define "combatant" and "noncombatant" in the context of this request or
at what point in time the determination of whether an individual was a "combatant" or
"noncombatant" would govern (at detention, through a subsequent determination by the
Government, through a favorable court ruling, etc.). Accordingly, at this time, the Court declines
Petitioner'S invitation to "specifically require" the Government to produce reasonably available
evidence tending to show that noncombatants were present at Tora Bora during the time period
the Government maintains Petitioner was in the area under Section 1.0.1 of the CMO. Instead,
the Court shall require the parties to promptly meet and confer in an attempt to refine and narrow
the scope of Petitioner's request under Section LO.l of the CMO. By no later than May l, 20l2,
the parties shall file a Joint Status Report indicating the fruits of their efforts. In the meantime,
Petitioner's fifth request is DENIED WITHOUT PREJUDICE.
F. Unredacted Copies ofPetitioner's
J.{eq.uesrNo. 6)
Petitioner's sixth request seeks "[uJnredacted copies of Petitioner's Exhibits
Peer's Suppl. Mem. at 2. Petitioner's sole argument in support of
disclosure is that the production ofunredacted copies of these exhibits is required by the terms of
this Court's April 6, 2009 Order. See id. at 2-3. But Petitioner's understanding of the scope of
this Court's April 6,2009 Order is mistaken. Pursuant to the Court's Order, the Government was
required to disclose reports of interrogations of Petitioner from November 2001 through May
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. 6, 2009 Order at 13. The Court neither contemplated nor
anticipated that the Government would produce unredacted copies of such interrogation reports
to the extent they include other information. Accordingly, Petitioner's sixth request is DENIED.
However, by no later than May 1, 2012, the Government shall (a) certify to the Court that it has
not redacted information
information, or (c) justify its fail ure to produce such information.
G. Petitioner '$ Request for an Unredacted Copy ofPetitioner
No.7).
Petitioner's seventh request seeks "[a]n unredacted copy of Petitioner's
response, the Government represents that it is "mak[ing] appropriate inquiries as to whether it
would be feasible to disclose a less redacted version of the report." Gov't's Suppl. Opp'n at 4.
Accordingly, there does not appear to be a need for the Court to resolve Petitioner's request at
this time. The parties shall promptly meet and confer and, by no later than May 1,2012, file a
Joint Status Report indicating whether they have resolved Petitioner's concerns. At this time,
Petitioner's seventh request is DENIED WITHOUT PREJUDICE.
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SiJCftfiIf 1/ N8P8RN H Petitioner's Request/or Reports 0/Interrogations BelWeen June 2002 and October 2002 (Request No.8)
Petitioner's eighth request is for "(a]ll reports of interrogations of Petitioner between JWle
and October 2002," Pet'r's Suppl. Mem, at 2. In support, Petitioner claims that "coercive
tactics" may have been used in connection with interrogations during this time period and alleges
that his "mental condition deteriorated as the interrogation process intensified." Id. at 4. Earlier
in this action, the Court required the Government to disclose to Petitioner those portions of
reports of interrogations from November 2001 through May 2002 that included "descriptions of
the surroWlding circumstances of Petitioner's interrogations" and "information concerning the
use ofcoercive tactics, ifany were employed." Apr. 6,2009 Order at 13. Having already
permitted the production of such records for an earlier time period, the Court sees no good reason
to depart from this logic now. Petitioner's eighth request shall be GRANTED IN PART and
DENIED IN PART. Specifically, the request shall be GRANTED insofar as Petitioner seeks
those portions of reports of interrogations of him between June 2002 and October 2002 that
relate to the "surrounding circumstances" ofthe interrogations. including the use of coercive
tactics, or that reflect upon Petitioner's mental condition or deterioration; the request shall
otherwise be DENIED because Petitioner's request for all reports of interrogations in this time
period, without further limitation, is not narrowly tailored and does not explain why it is likely to
produce evidence that demonstrates that his detention is unlawfuL
l Petitioner's Request/or AFGP 2002-800628 (Request No.9)
Petitioner's ninth request is for "(a] list ofall materials seized on December 15,2001 and
identified as AFGP #2002-800628." PeCr's Suppl. Mem. at 2. Petitioner's request is predicated
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SB€ U 'I't/ N9P8RN on his assumption that AFGP 2002·800628 "refers to materials seized at the time ofPetitioner's
arrest." Id at 5. The Government responds that Petitioner's "assumption is incorrect," Gov't's
Suppl. Opp'n at 5, and introduces documentation evidencing that AFGP 2002·800628 consists
not of materials that were seized at the time of Petitioner' s arrest, but rather military training
camp applications that were recovered during a raid of an office in Kandahar, Afghanistan that
have no relevance to the lawfulness of Petitioner's detention. Indeed, the Government represents
that the underlying report that references AFGP 2002-800628 "was disclosed to Petitioner's
counsel in error." Id at 6 n.4. These representations satisfY the Court that Petitioner's request is
not likely to produce evidence that demonstrates that Petitioner's detention is unlawful. Because
Petitioner has failed to offer any argument in rebuttal, his ninth request for discovery is DENIED.
III. CONCLUSION AND ORDER
For the reasons set forth above, it is, this 10th day ofApril, 2012, hereby
ORDERED that Petitioner's [250/255J Motion to Compel is GRANTED IN PART and
DENIED IN PART, as follows:
(a) Petitioner's first request is GRANTED. By no later than May 1,2012, the
Government shall produce to Petitioner (i) the single photograph shown to Hicks and identified
as Petitioner during an interrogation on December I, 2002, (ii) copies of any photographs of
Zubair that were taken following the raids that took pJace in Karachi, Pakistan in September
2002, and (iii) the two photographs alleged to be of Petitioner that were shown to Al Gharise
during an interrogation
(b) Petitioner's second request for aU log entries from the Detainee Log and
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SECR£ff l/ NOPORN the INTREP Activity log which relate to him for the period between May 2002 and December
2003 is DENIED. However, by no later than May 1,2012, the Government shall (i) certify to the
Court that it has produced all entries from the Detainee Log and the INTREP Activity log (or
portions thereof) that pertain to Petitioner's mental condition or deterioration in the period
extending from May 2002 through December 2003, (ii) produce such entries, or (iii) justify its
failure to produce such entries.
(c) Petitioner's third request for access to his original medical records is
DENIED WITHOUT PREJUDICE.
(d) Petitioner's fourth request is GRANTED insofar as Petitioner seeks.
_reflecting his forcible removal from his cell by Guantanamo Bay personnel in the time
period extending from May 2002 through December 2003 and is DENIED WITHOUT
PREJUDICE insofar as Petitioner seeks retl.ecting his forcible removal from his
cell by Guantanamo Bay personnel in the time period extending from January 2002 through April
2002.
(e) Petitioner'S fifth request for an Order specifically requiring the
Government to produce reasonably available evidence tending to show that noncombatants were
present at Tora Bora during the time period the Goverrunent maintains Petitioner was in the area
under Section I.D.1 of the CMO is DENIED WITHOUT PREJUDICE. The parties shall
promptly meet and confer in an attempt to refine and narrow the scope of Petitioner'S request
under Section I.D. t of the CMO and, by no later than May 1,20 I2, file a Joint Status Report
indicating the fruits of their efforts.
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(f) Petitioner's sixth request for unredacted copies of Petitioner's Exhibits I,
2,4 through 8, 162, and 163 is DENIED. However, by no later than May I, 2012, the
Government shall (i) certifY to the Court that it has not redacted information about ·'all
surrounding circumstances" in which the statements of Petitioner were made from Petitioner's
Exhibits I, 2, 4 through 8, 162, and 163, (ii) produce such information, or (iii) justifY its failure
to produce such information.
(g) Petitioner's seventh request for an unredacted copy of Petitioner's Exhibit
9 is DENIED WITHOUT PREJUDICE. The parties shall promptly meet and confer and, by no
later than May 1,2012, fIle a Joint Status Report indicating whether they have resolved
Petitioner's concerns.
(h) Petitioner's eighth request is GRANTED insofar as Petitioner seeks those
portions of reports ofinterrogations of him between June 2002 and October 2002 that relate to
the "surrounding circumstances" of the interrogations, including the use of coercive tactics, or
that reflect upon Petitioner's mental condition or deterioration, and is otherwise DENIED.
(i) P eti tioner' s ninth request for a list of aJ 1materials identified as AFGP
2002-800628 is DENIED.
SO ORDERED. lsi COLLEEN KOLLAR-KOTELLY United States District Judge
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Reference
- Status
- Published