UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ZAYN AL ABIDIN MUHAMMAD HUSAYN (ISN #10016),

Petitioner, v. No 08-cv-1360 (EGS) Mark T. Esper

Respondent.

MEMORANDUM OPINION AND ORDER

Pending before the Court are: (1) Respondent’s Notice

Regarding Production of Medical Records and other Documents and

Motion for Clarification and Partial Reconsideration of Orders

Requiring Production of Medical Records and Other Documents, ECF

No. 389; (2) Petitioner’s Emergency Motion to Produce CIA

Medical Records and Allow In-Person Medical Evaluation, ECF No.

400; and (2) Petitioner’s Motion for Prompt Disclosure of

Petitioner’s Medical Records, ECF No. 409.

A. Respondent’s Notice Regarding Production of Medical Records and Other Documents and Motion for Clarification and Partial Reconsideration of Orders Requiring Production of Medical Records and Other Documents

Respondent seeks clarification and partial reconsideration

of Orders in this case dated November 28, 2008 and March 5,

2009. 1 The November 28, 2008 Order requires the Respondent to

1The Court agrees with Respondent that the two orders cannot be reasonably read to require the Government to give a provide Petitioner’s “counsel with copies of petitioner’s

medical records since his arrival at Guantanamo in September

2006, all copies of all guard and staff reports, logs, and notes

regarding petitioner’s seizures and seizure-related episodes”

because access to those records “is a legitimate and important

effort to provide effective representation and present the court

with appropriate information affecting the lawfulness of his

detention.” Mem. Op. & Order, ECF No. 53 at 7, 9-10. The Court

also required the Respondent to file a memorandum and proposed

order addressing potential redactions to the records.

In its March 5, 2009 Order, the Court agreed that redacting

identifying information about treatment providers was

appropriate. However, the Court disagreed that it would be

appropriate to redact “certain limited information based on a

determination that Petitioner’s counsel does not have the

requisite need to know the information,” Gov’t’s Mem., ECF No.

74-1 at 3; on the grounds that “petitioner’s counsel has a

security clearance and is presumed to have a need to know the

information that he is requesting” in the medical records and

“guard and staff reports, logs, and notes.” Order, ECF No. 113

security clearance to Petitioner’s medical expert. Such an issue would need to be briefed, and Petitioner has not provided no legal authority pursuant to which the Court would base such an order.

2 at 1-2.

In the motion pending before the Court, Respondent first

requests that the Court clarify “that classified information

contained in documents produced under the orders is not to be

shared with an uncleared independent physician; that the

government may produce a separate redacted, unclassified but

protected version of the records for sharing with an independent

physician; and that the redacted, unclassified records produced

by the Government may be shared with an independent physician

only after that physician has signed the Acknowledgment that is

attached as Exhibit B of the TS/SCI Protective Order entered in

this case.” Gov’t’s Mot., ECF No. 389 at 2. Petitioner agrees

that classified information can only be shared with someone who

has an appropriate security clearance, and that “protected

information can only be shared with someone who has signed the

Acknowledgment.” Pet’r’s Opp’n, ECF No. 479 at 2. However,

Petitioner objects to Respondent’s request for clarification to

the extent that Respondent understands the Court’s Order to

require the production of a redacted copy of the records

because, according to Petitioner, “the Court has not ordered a

redacted copy of the records for sharing with an independent

physician of Petitioner’s selection.” Id. at 2. Petitioner is

mistaken, however, as in the March 5, 2009 Order the Court

agreed that it would be appropriate to redact certain

3 information, but not other information. And to the extent

Petitioner seeks any change to the TS/SCI Protective Order

governing the disclosure of unclassified but protected

information in this case, the avenue for seeking such a change

is in a separate motion, not an opposition brief. Accordingly,

the Court will GRANT Respondent’s motion to clarify.

Second, Respondent seeks reconsideration of the Court’s

denial of its request to redact “certain limited information

based on a determination that Petitioner’s counsel does not have

the requisite need to know the information,” Gov’t’s Mem., ECF

No. 74-1 at 3; on the grounds that “petitioner’s counsel has a

security clearance and is presumed to have a need to know the

information that he is requesting” in the medical records and

“guard and staff reports, logs, and notes.” Order, ECF No. 113

at 1-2.

Respondent requests that the Court authorize the redaction

of two additional categories of information that it did not

specifically describe in the prior proposed order: (1)

“statements purporting to identify the geographical locations of

former detention sites,” and (2) “the name of a person who is

described in the records as a private citizen who sent letters

to petitioner during his detention.” Gov’t’s Mem., ECF No. 389

4 at 3.

Although the Federal Rules of Criminal Procedure do not

provide for motions for reconsideration, judges in this district

have assumed, without deciding, that they may consider such

motions. United States v. Bagcho,

(D.D.C.

2017) (citing United States v. Hong Vo,

(D.D.C. 2013); United States v. Cabrera,

(D.D.C. 2010); United States v. Cooper,

(D.D.C. 2013)). The Court will do the same.

Various standards of review have been used when considering

such motions in this context:

In some cases, judges have adopted the “as justice requires” standard of Rule 54(b) of the Federal Rules of Civil Procedure, which permits reconsideration when a court has “patently misunderstood the parties, made a decision beyond the adversarial issues presented, [or] made an error in failing to consider controlling decisions or data, or [where] a controlling or significant change in the law has occurred.” Hong Vo, 978 F.Supp.2d at 47–48 (quotation marks and citations omitted). In other cases, judges have adopted the standard from Rule 59(e) of the Federal Rules of Civil Procedure, under which a motion for reconsideration need not be granted unless there is an “intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Cabrera, 699 F.Supp.2d at 40–41 (quotation marks and citations omitted). Rule 59(e) motions must be filed within 28 days after the entry of judgment. Fed. R. Civ. P. 59(e). Finally, some judges have denied motions for reconsideration after considering the issues de novo, without deciding on a

5 standard of review. E.g., Cooper,

; United States v. Thompson, No. 07–153–08,

(D.D.C. July 5, 2007).

Bagcho,

.

Because this Court can consider and grant movant’s “motion

for reconsideration based on a de novo review, it is unnecessary

to decide on the proper standard of review or the deadline for

filing a motion for reconsideration.”

A de novo review is

appropriate here because, as the Respondent explained, the

“motion was made necessary by, and pertained to, newly

discovered documents that, while encompassed by the terms of the

Court’s November 2008 and March 2009 orders, were not

specifically considered or addressed by the [Respondent’s]

December 23, 2008 memorandum regarding redactions or the Court’s

March 4, 2009 [Order].” Reply, ECF No. 485 at 9.

As to the first category—“statements purporting to identify

the geographical locations of former detention sites”—Respondent

argues that “access to that information would not improve

Petitioner’s communications with counsel and because such

information implicates vital national security interests.” Id.

at 7-8. Respondent notes that the Court granted Petitioner’s

request for medical and related records “for the narrow purpose

of enabling Petitioner’s counsel to evaluate Petitioner’s

medical condition” and that “[s]tatements that purport to

6 identify the geographic locations of former detention sites are

not likely to advance this narrow interest” as it is “not likely

to help Petitioner’s counsel assess Petitioner’s medical

condition or facilitate communications between Petitioner and

his counsel.” Id. at 8. Petitioner responds that “the location

where Petitioner received medical treatment is essential to

understanding his medical history. Knowing this information

allows Petitioner’s counsel to contextualize Petitioner’s

medical records by cross-referencing the treatment he received

to a growing cache of publicly-available information concerning

Petitioner’s black site imprisonment, most of which is location-

specific. To put it simply, proper understanding and use of the

medical records is necessarily informed by where and when they

were created.” Pet’r’s Opp’n, ECF No. 479 at 4. Petitioner’s

argument is beside the point, however, as the records at issue

in this motion are records created since Petitioner’s arrival at

Guantanamo; not records created during his detention by the

Central Intelligence Agency (“CIA”).

Respondent also argues that the redactions of “statements

purporting to identify the geographical locations of former

detention sites” are appropriate because “(e)xposure of such

information could damage foreign relations, lead to retribution

against foreign governments and officials who have cooperated

with U.S. intelligence activities, and affect foreign

7 governments’ and officials’ future cooperation with the United

States.” Gov’t’s Mem., ECF No. 389 at 8. Petitioner does not

respond to Respondent’s argument regarding the national security

interests implicated by disclosure of the location of the sites.

See generally Pet’r’s Opp’n, ECF No. 479.

The Court is persuaded that the information pertaining to

the location of former detention sites is not relevant to the

reason Petitioner is being provided with copies of the records—

to ensure “effective representation and present the court with

appropriate information affecting the lawfulness of

[Petitioner’s] detention.” Mem. Op. & Order, ECF No. 53 at 7.

Additionally, the national security interests implicated by the

disclosure of such information militate in favor of redacting

the information. See Afshar v. Dep’t of State,

(D.C. Cir. 1983) (observing that official acknowledgment

of a foreign government’s cooperation with the CIA “may force a

government to retaliate”). Accordingly, the Court will GRANT

Respondent’s request to redact this category of information.

As to the second category—"the name of a person who is

described in the records as a private citizen who sent letters

to petitioner during his detention,” Gov’t’s Mem., ECF No. 389

at 3; Respondent argues that “the individual’s name is not

relevant to Petitioner’s ability to communicate with his

counsel, and personal privacy interests justify redaction of

8 this information, id. at 10. Petitioner’s counsel initially

informed Respondent that they did not object to the redaction of

this information, id.; but in their opposition state that they

do because “[t]o the extent this information was included in

Petitioner’s medical records, it ought to be assumed that

medical professional(s) thought this information was relevant.

Otherwise they would not have included the information.” Pet’r’s

Opp’n, ECF No. 479 at 6. Respondent responds that the name of

the individual does not appear in Petitioner’s medical records,

but rather in the “guard and staff reports, logs, and notes

regarding petitioner’s seizures and seizure-related episodes at

Guantanamo.” Reply, ECF No. 485 at 9 (citing Mem. Op. & Order,

ECF No. 53 at 10.) Petitioner’s objection to the redaction of

this information is not relevant to the records containing this

information. Furthermore, the Court agrees with Respondent that

the name of the individual is irrelevant to the reason

Petitioner has access to this information and that personal

privacy interests justify the redaction of the information.

Accordingly, the Court will GRANT Respondent’s request to redact

these two limited categories of information.

B. Petitioner’s Emergency Motion to Produce CIA Medical Records and Allow In-Person Medical Evaluation

Petitioner seeks: (1) copies of the “records created by

medical and mental health professionals” during his over four

9 years in CIA custody because “one simply cannot understand

Petitioner’s present profile without accounting for the

treatment he endured”; and (2) an in-person evaluation of

Petitioner because “it is impossible to glean from the

Guantanamo records any understanding of the impact of his CIA

detention on his current psychological and medical profile,”

Pet’r’s Mem., ECF No. 400 at 3.

1. CIA Medical Records

Petitioner’s counsel states in an affidavit attached to the

motion that the reason he seeks the records is so counsel can

determine the extent to which Petitioner’s memory of his CIA

detention is accurate. Pet’r’s Ex. B, ECF No. 400 at 38 ¶ 4.

Counsel is concerned that Petitioner has created a false memory

of what took place during his detention and that if he did so,

he may also have created false memories of other aspects of his

history. Id. at 39 ¶ 6. Counsel states that ascertaining the

extent to which Petitioner has created false memories is “an

essential part of his representation.” Id. Counsel also states

that he needs to ascertain why Petitioner has created false

memories—whether “it is simply a product of [Petitioner’s]

deteriorating mental health, or whether the psychologists who

engineered [Petitioner’s] interrogations helped create these

10 false memories. Id. at 39 ¶ 7.

Petitioner’s expert, Dr. Keller, is an expert in evaluating

and treating torture victims. Pet’r’s Mem. of Law (“Pet’r’s

Mem.”), ECF No. 400 at 2. Petitioner argues that Dr. Keller has

determined that he needs to review

the records created by medical and mental health professionals while Petitioner was in CIA custody [because they] will contain information regarding clinically significant events that Petitioner suffered during interrogations (e.g. loss of consciousness, seizures, or near-drowning), and otherwise reveal the ways Petitioner responded to the substantial stresses to which he was subjected during his detention. Given the nature and duration of his treatment in CIA custody, such information is an essential part of any evaluation of Petitioner’s current condition; in short, Dr. Keller has concluded that one simply cannot understand Petitioner’s present profile without accounting for the treatment he endured.

Id. at 3.

Dr. Keller avers that “in order to offer an informed

opinion regarding [Petitioner’s] physical and mental health,

including potentially harmful health consequences of alleged

torture and mistreatment that [Petitioner] experienced, it is

necessary to have access to and to review all relevant medical

records and conduct and in-person clinical evaluation. This is

consistent with international clinical standards and my

professional obligations.” Keller Aff., ECF No. 400 ¶ 38.

Respondent opposes the request, contending that it “does

11 not relate to [Petitioner’s] ability to prosecute his habeas

claim and instead seeks relief to obtain evidence related to

[P]etitioner’s treatment and conditions of confinement, which

this Court has already held falls outside this Court’s habeas

corpus jurisdiction.” Resp’t’s Opp’n ECF No. 181 at 8.

Respondent also argues that the reason for needing the records

articulated by Petitioner’s counsel is inconsistent with Dr.

Keller’s affidavit, which Respondent contends “makes clear that

his principal aim is to obtain evidence of torture.” Resp’t’s

Opp’n ECF No. 181 at 2.

Petitioner responds that based on the Court’s November 28,

2008 and March 5, 2009 Opinion and Orders, he is entitled to the

relief sought because “his present condition is in part a

product of his past history,” Pet’r’s Reply, ECF No. 428 at 2;

and because the medical records created at Guantanamo are devoid

of any reference to his treatment during his CIA detention or

its effect, id. Petitioner points out that Respondent does not

dispute Petitioner’s account of his CIA detention, “challenge

the possible connection between Petitioner’s past treatment and

his current condition,” “deny Dr. Keller’s assertions about the

professional obligations of a competent expert to review

contemporaneous records to ascertain such a connection,” nor

“presented [a] competing expert opinion.” Id. at 3. Petitioner

also disputes that the purpose for requesting the records is to

12 seek evidence of torture because “it is already a matter of

public record” that Petitioner was tortured. Id. at 4.

Petitioner points out that in view of the medical records that

were created and maintained throughout his CIA detention, “the

government can hardly now claim that such information is not

relevant to understanding the medical and mental health

consequences of such treatment.” Id. at 5.

As stated in the Court’s November 28, 2008 Order,

The Supreme Court has stated that “where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.” Harris, 394 U.S. at 292. “[I]n order to properly represent [habeas] Petitioners, their counsel must have access to them, must be able to communicate with them, and must be made aware if their clients are in such fragile physical condition that their future ability to communicate is in imminent danger.” Al-Joudi v. Bush,

(D.D.C. 2005). “Unless Petitioners’ counsel can have access to their clients, and know their true medical conditions, . . . it is obvious that their ability to present their claims to the Court will be irreparably compromised.”

. [Petitioner’s] counsel asserted that access to [Petitioner’s] medical information is necessary to make strategic determinations that are essential to legal representation, such as whether petitioner has the mental capacity necessary to assist in preparing and presenting his defense. (See Pet’r’s Mot. for Recons. at 6.) [Petitioner’s] counsel sought access to [Petitioner’s] medical records “in order to assess whether and to what extent Petitioner’s

13 medical condition” affects his right to habeas, and to determine whether to challenge the legitimacy of [Petitioner’s] CSRT hearing in March 2007. (See Pet’r’s Emergency Mot. at 7-9; Pet’r’s Mot. for Recons. at 2-4.)

If [Petitioner’s] right to present his case with the assistance of counsel is to have any meaning, his counsel must be able to make the very assessments he seeks to make. Requesting copies of [Petitioner’s] medical records and staff records regarding [Petitioner’s] seizure-related episodes and being able to secure independent expert assessments of the data in the records is a legitimate and important effort to provide effective representation and present the court with appropriate information affecting the lawfulness of his detention.

Mem. Op. & Order, ECF No. 53 at 8-9. Accordingly, the Court

ordered Petitioner’s counsel be provided “with copies of

[Petitioner’s] medical records since his arrival at Guantanamo

in September 2006, all copies of all guard and staff reports,

logs, and notes regarding petitioner’s seizures and seizure-

related episodes.” Id. at 9-10.

Respondent does not rebut Dr. Keller’s proffered reasons

for needing to review the records with its own expert opinion,

but takes issue with the fact that Dr. Keller is not a

psychiatrist and suggests that the purpose of Dr. Keller’s

analysis of the records and in-person examination “is not to

assist counsel in reconstructing petitioner’s memory but to

determine whether petitioner’s account regarding his treatment

while in U.S. custody or his attorneys’ surmises about

14 petitioner’s treatment can be substantiated.” Resp’t’s Opp’n,

ECF No. 181 at 9 (citing Keller Aff. ¶ 28 (referring to

“assessing . . . allegations” of “torture and mistreatment while

in U.S. custody”). Respondent also contends that Dr. Keller’s

affidavit “never makes any suggestion that it is likely that

access to the additional requested records and in-person

examination will produce any insights that will lead to any

improvement in petitioner’s counsel’s ability to work with their

client, or even that there is a significant possibility that Dr.

Keller’s review will lead to such an improvement. Indeed, the

closest the affidavit comes is to suggest that the requested

relief could “potentially” produce information bearing on

petitioner’s present medical condition, e.g., Keller Aff. ¶ 37,

with no explanation of how this might potentially or actually

help petitioner advance his habeas corpus case.” Id. at 9.

The Court finds Respondent’s arguments unpersuasive. First,

the Court rejects Respondent’s argument that the records

Petitioner seeks fall outside of this Court’s habeas

jurisdiction because the Court has already ruled that access to

his medical records “is a legitimate and important effort to

provide effective representation and present the court with

appropriate information affecting the lawfulness of his

detention.” Mem. Op. & Order, ECF No. 53 at 8-9. Respondent does

not dispute that the medical records created at Guantanamo,

15 however, are devoid of any reference to his treatment during his

CIA detention or its effect.

Furthermore, Respondent has failed to provide an expert

opinion to rebut Dr. Keller’s reasons for needing the medical

records. Accordingly, Doctor Keller’s conclusion that—“in order

to offer an informed opinion regarding [Petitioner’s] physical

and mental health, including potentially harmful health

consequences of alleged torture and mistreatment that

[Petitioner] experienced, it is necessary to have access to and

to review all relevant medical records and conduct and in-person

clinical evaluation. This is consistent with international

clinical standards and my professional obligations”—is

unrebutted. Keller Aff., ECF No. 400 ¶ 38. The fact that Dr.

Keller is not a psychiatrist is beside the point as any

psychiatric evaluation would be conducted by a psychiatrist

rather than by Dr. Keller. And Respondent’s complaints about

other statements made, or not made, in the affidavit are also

beside the point given that the Court has already determined

that Petitioner’s counsel’s need to know his “true medical

condition,” Al-Joudi,

; is necessary to

ensure “effective representation and present the court with

appropriate information affecting the lawfulness of

[Petitioner’s] detention.” Mem. Op. & Order, ECF No. 53 at 7;

see also Al-Kazimi v. Obama, Civil Action No. 05-2386 (RBW), ECF

16 No. 1452 at 2 (noting the Court’s oral ruling directing

Respondent to produce Petitioner’s medical records, to the

extent they exist, for the period of detention prior to his

detention by the Department of Defense).

Finally, Respondent argues that it would be extremely

burdensome to provide the records Petitioner requests, Resp’t’s

Suppl., ECF No. 390 at 2; and that that burden is unjustified

because “petitioner does not explain how access to the requested

records would or even could lead [to] any material improvement

in petitioner’s communications with his counsel,” id. at 3. The

Court, supra, has already rejected Respondent’s latter argument.

Following the classification review ordered by this Court, a

public version of Petitioner’s Memorandum of Law in Support of

the Motion was filed on the docket. See Mem. of Law, ECF No.

400. That filing does not, however, include Petitioner’s

original motion nor any proposed order that may have been filed

with it. See id. Respondent states, and Petitioner does not

dispute, that “Petitioner’s original motion additionally sought

other Government-created documents pertaining to Petitioner’s

medical condition while he was in CIA custody.” Proposed Order,

ECF No. 484-1 at 3. However, in Petitioner’s Proposed Order he

seeks only “medical and mental health records.” Proposed Order,

ECF No. 482 at 1. Specifically, Petitioner seeks, within 30 days

of the Court’s Order,

17 the complete and unexpurgated medical and mental health records, including all radiographic films, relating to Petitioner’s condition and care during the period he was held captive by the CIA, from his capture in or around March 2002 until his custody was transferred by the CIA to the Department of Defense (“DOD”) in or around September 2006.

Id.

Respondent also opposes this more narrow request, however,

stating that “Petitioner’s request would impose significant

burdens on the Government because the documents containing the

information sought by Petitioner’s motion contain extremely

sensitive information that cannot be shared with Petitioner’s

counsel, or with Petitioner’s expert, such as information about

the location of detention facilities and the cooperation of

foreign governments, and creating appropriately redacted

versions of the documents or substitutes for the documents would

be extremely burdensome.” Proposed Order, ECF No. 484-1 at 1-2

(citing ECF Nos. 186, 390). The Court notes that these include

the same categories of redactions that the Court, supra, has

agreed may be made to the records produced pursuant to the

Court’s November 28, 2008 and March 5, 2009 orders.

Pursuant to the Case Management Order entered in this case,

access to the records Petitioner seeks must, among other things,

“be narrowly tailored, not open-ended” and must not “unduly

burden the government.” Case Management Order, ECF No. 48 at 3 §

18 E.2(1), (4). Here, the medical and mental health records sought

are narrowly tailored to ensure that Petitioner is “provide[d]

effective representation and present the court with appropriate

information affecting the lawfulness of his detention,” Mem. Op.

& Order, ECF No. 53 at 8-9; because for his independent medical

expert “to offer an informed opinion regarding [Petitioner’s]

physical and mental health, including potentially harmful health

consequences of alleged torture and mistreatment that

[Petitioner] experienced, it is necessary to have access to and

to review all relevant medical records,” Keller Aff., ECF No.

400 ¶ 38. And the request for medical records is not open-ended:

it is limited to “medical and mental health records, including

all radiographic films, relating to Petitioner’s condition and

care during the period he was held captive by the CIA, from his

capture in or around March 2002 until his custody was

transferred by the CIA to the Department of Defense (“DOD”) in

or around September 2006.” Proposed Order, ECF No. 482 at 1.

Access to classified information requires both a security

clearance and a “need to know” the relevant classified

information. U.S. v. Libby,

(D.D.C. 2006)

(citing Executive Order No. 12,958, § 4.2(a)(3),

(Apr. 17, 1995), as amended by Exec. Order No. 13,292,

(March 25, 2003) (“A person may have access to

classified information provided that ... the person has a need-

19 to-know the information.”). The Court recognizes that the records

will need to be located, undergo classification review, and a

“need-to-know” determination will need to be made. The Court has

already determined that going through this same procedure with

the records being provided pursuant to the Court’s November 28,

2008 and March 5, 2009 orders does not constitute an undue

burden. So here too. As with those records, this information is

needed to ensure that Petitioner is “provide[d with] effective

representation and present[s] the court with appropriate

information affecting the lawfulness of his detention.” Mem. Op.

& Order, ECF No. 53 at 8-9.

Accordingly, the Court will GRANT Petitioner’s request for

Petitioner’s medical and mental health records, including all

radiographic films, relating to Petitioner’s condition and care

during the period he was held captive by the CIA, from his

capture in or around March 2002 until his custody was

transferred by the CIA to the DOD in or around September 2006.

The Court will DENY the additional requests set forth in

Petitioner’s Proposed Order, see ECF No. 482; as those requests

have neither been briefed nor did Petitioner’s counsel consult

with Respondent on the additional relief sought as required by

Local Civil Rule 7(m). LCvR 7(m) (“Before filing any

nondispositive motion in a civil action, counsel shall discuss

the anticipated motion with opposing counsel in a good-faith

20 effort to determine whether there is any opposition to the

relief sought and, if there is, to narrow the areas of

disagreement. The duty to confer also applies to non-

incarcerated parties appearing pro se. A party shall include in

its motion a statement that the required discussion occurred,

and a statement as to whether the motion is opposed.”); see also

Dist. Hosp. Partners, L.P. v. Sebelius,

, 21-

22 (D.D.C. 2013) (holding that Local Civil Rule 7(m) requires

consultation on all forms of relief sought in a motion).

2. In-Person Evaluation

Petitioner also requests an in-person evaluation of

Petitioner because “it is impossible to glean from the

Guantanamo records any understanding of the impact of his CIA

detention on his current psychological and medical profile.”

Pet’r’s Mem., ECF No. 400 at 3. Respondent does not seriously

contest the request for an in-person evaluation, contesting the

request only insofar as the purpose of the evaluation is to

provide medical treatment to the Petitioner. Resp.’s Opp’n, ECF

No. 181 at 13. Persuasive authority is clear that Guantanamo

detainees do not have a constitutional right to choose their own

medical providers nor to obtain treatment of their own choosing.

See Roberts v. Spalding,

(9th Cir. 1986) (“A

prison inmate has no independent constitutional right to outside

medical care additional and supplemental to the medical care

21 provided by the prison staff within the institution.”); United

States v. Rovetuso,

(7th Cir. 1985) (“The

Eighth Amendment guarantees a prisoner treatment of his serious

medical needs, not a doctor of his own choosing.”); United

States ex rel. Hyde v. McGinnis,

(2d Cir.

1970) (“The prisoner's right is to medical care—not the type or

scope of medical care which he personally desires. A difference

of opinion between a physician and a patient does not give rise

to a constitutional right . . .”); Rabbani v. Trump, 05-cv-1607

(RCL), Mem. Op., ECF No. 379 at 19 (noting that Guantanamo

detainee is not entitled to the medical treatment of his

choice). However, here Petitioner is not requesting the in-

person evaluation for the purpose of providing medical care.

Rather, he seeks “a comprehensive, in-person clinical evaluation

. . . to provide a fully informed and independent opinion

regarding [Petitioner’s] condition.” Pet’r’s Mem., ECF No. 400

at 16. The Court agrees that he is entitled to such an

evaluation.

“[W]here specific allegations before a court show reason to

believe that the [habeas] petitioner may, if the facts are fully

developed, be able to demonstrate that he is . . . entitled to

relief, it is the duty of the court to provide the necessary

facilities and procedures for an adequate inquiry.” Harris v.

Nelson,

(1969). “The Supreme Court has

22 provided scant guidance on [what procedure is due to detainees

challenging their detention in habeas corpus proceedings],

consciously leaving the contours of the substantive and

procedural law of detention open for lower courts to shape in a

common law fashion.” Al-Binahni v. Obama,

, 870

(D.C. Cir. 2010). Pursuant to these principles, judges of this

Court have ordered physical and/or psychiatric examinations of

Guantanamo detainees. See, e.g., Zuhair v. Bush, 08-cv-0864

(EGS), ECF No. 111 at 2-3 (providing for the appointment of an

“independent medical expert to examine Petitioner and provide

the Court with a report on his medical and mental health

condition”); Al-Oshan et al., v. Obama, 05-520 (RMU), ECF No.

262 at 2 (granting “petitioner’s request for an independent

psychiatric and medical evaluation”). The Court will do the same

and will GRANT Petitioner’s request for an in-person medical

evaluation.

C. Petitioner’s Motion for Prompt Disclosure of Petitioner’s Medical Records

Petitioner also seeks unclassified copies of his medical

records. Pet’r’s Mot., ECF No. 409 at 3, Pet’r’s Reply, ECF No.

419 at 1. In subsequent briefings on the motion, Petitioner’s

counsel seek, inter alia, classified copies of the documents,

Pet’r’s Reply, ECF No. 419 at 1; do not object to Respondent’s

agreement to provide unclassified copies every ninety (90) days,

23 Pet’r’s Sur-Surreply, ECF No. 446 at 3; and requests that

classified copies be provided every thirty (30) days, id. at 4.

Petitioner’s counsel states that “[w]hen we queried

opposing counsel for his position on this motion, he asked that

we not file because “Court intervention seems unnecessary.”

Pet’r’s Mot., ECF No. 409 at 3. Petitioner’s counsel fail to

respond to Respondent’s argument that Petitioner’s counsel

failed to comply with the duty to confer on nondispositive

motions as required by Local Civil Rule 7(m), see generally

Pet’r’s Sur-Surreply, ECF No. 446.

Respondent represents that it has been producing

unclassified copies medical records at intervals of

approximately every 90 days. See Proposed Order, ECF No. 484-3

at 1. Since the parties have agreed that unclassified copies of

the medical records may be provided approximately every 90 days,

and since Petitioner’s counsel did not consult with Respondent

on all the relief sought in the motion and subsequent briefings,

Petitioner’s Motion for Prompt Disclosure of Medical Records is

DENIED. See Local Civil Rule 7(m); see also Attikisson v.

Holder,

, 161 n.3 (D.D.C. 2015) (Sullivan,

J.) (“Plaintiffs' apparent belief that because the defendants

had previously expressed a position on the issue, they were

somehow exempt from Local Civil Rule 7(m) is simply incorrect.

The meet-and-confer requirement serves not only to obtain the

24 opposing party's potential consent to a motion, but also to

provide an opportunity for the parties to narrow or clarify the

scope of their dispute.”); Dist. Hosp. Partners, L.P.,

(holding that Local Civil Rule 7(m) requires

consultation on all forms of relief sought in a motion).

* * * * *

Accordingly, for the reasons set forth above, Respondent’s

Motion for Clarification and Partial Reconsideration of Orders

Requiring Production of Medical Records is GRANTED; and it is

ORDERED that the Court’s Memorandum Opinion and Order of

November 28, 2008, ECF No. 53, and Order of March 4, 2009, ECF

No. 113 is CLARIFIED as follows:

Classified information contained in documents produced

pursuant to the November 28, 2008 and March 4, 2009 Orders shall

not be shared with an independent physician lacking a security

clearance. Respondent may comply with the Orders by producing a

separate redacted, unclassified but protected set of the records

that Petitioner’s counsel may share with an independent

physician lacking a security clearance. The redacted,

unclassified records produced by Respondent may be shared with

an independent physician only after that physician has signed

the Acknowledgment that is attached as Exhibit B of the TS/SCI

Protective Order entered in this case; and it is further

ORDERED that the Court’s Memorandum Opinion and Order of

25 November 28, 2008, ECF No. 53, and Order of March 4, 2009, ECF

No. 113 is MODIFIED as follows:

In both the classified and unclassified sets of documents

produced under the November 28, 2008 and March 4, 2009 Orders,

Respondent may make redactions previously authorized by this

Court and may additionally redact: (1) statements purporting to

identify the geographic location of former detention sites; and

(2) the name of a person described in the records as a private

citizen who sent letters to Petitioner during his detention; and

it is further

ORDERED that Petitioner’s request for Petitioner’s “medical

and mental health records, including all radiographic films,

relating to Petitioner’s condition and care during the period he

was held captive by the CIA, from his capture in or around March

2002 until his custody was transferred by the CIA to the

Department of Defense (“DOD”) in or around September 2006” is

GRANTED; and it is further

ORDERED that the additional relief requested in the

Proposed Order, ECF No. 482 is DENIED; and it is further

ORDERED that Petitioner’s request for an in-person medical

evaluation is GRANTED; and it is further

ORDERED that Petitioner’s Motion for Prompt Disclosure of

Petitioner’s Medical Records is DENIED; and it is further

ORDERED that by no later than June 22, 2020, the parties

26 shall submit a Joint Status Report regarding the following

matters:

(1) A proposed schedule for the production of classified

and unclassified sets of Petitioner’s medical and mental health

records, including all radiographic films, relating to

Petitioner’s condition and care during the period he was held

captive by the CIA, from his capture in or around March 2002

until his custody was transferred by the CIA to the DOD in or

around September 2006; and

(2) A description of any categories of proposed redactions

to those records.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge June 6, 2020

27