UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ZAYN AL ABIDIN MUHAMMAD HUSAYN (ISN # 10016),

Petitioner,

v. Civil Action No. 08-1360 (EGS)

LLOYD J. AUSTIN, III, in his official capacity as Secretary of Defense,

Respondent.

MEMORANDUM OPINION AND ORDER

I. Introduction

Petitioner Zayn al Abidin Muhammad Husayn (“Petitioner”)

moves for sanctions against Respondent Lloyd J. Austin, III in

his official capacity as Secretary of Defense (“Respondent”)

based on allegations that in 2005, the Central Intelligence

Agency (“CIA” or “the Agency”) engaged in the intentional

spoliation of video evidence that would have supported

Petitioner’s position that his ongoing detention at the

Guantanamo Bay Naval Base is unjustified. See Pet’r’s

Superseding Mot. for Sanctions for Spoliation of Evidence

(“Pet’r’s Mot.”), ECF No. 661 at 1, 9. 1 Petitioner initially

1 When citing electronic filings throughout this Memorandum Opinion and Order, the Court cites to the ECF header page number, not the original page number of the filed document. 1 moved for sanctions against Respondent in 2009, but the Court

denied those motions without prejudice so that Petitioner could

file a “single, consolidated, superseding briefing on this

issue[.]” Min. Order (June 27, 2023). Accordingly, pending

before the Court is Petitioner’s Superseding Motion for

Sanctions for the Spoliation of Evidence, see Pet’r’s Mot., ECF

No. 661; which Respondent opposes, see Resp’t’s Opp’n, ECF No.

665. Respondent has also filed a sur-reply in opposition to

Petitioner’s pending motion. See Resp’t’s Sur-Reply in Opp’n to

Pet’r’s Mot. (“Resp’t’s Sur-Reply”), ECF No. 667-2.

Upon careful consideration of Petitioner’s pending motion,

Respondent’s opposition, and the reply thereto; Respondent’s

sur-reply and Petitioner’s response thereto; the applicable law;

and for the reasons discussed below, the Court GRANTS IN PART

AND DENIES IN PART Petitioner’s motion for sanctions.

II. Background

A. Factual Background

1. Petitioner’s Capture and His Early Cooperation

On September 17, 2001, following al-Qaeda’s 9/11 terrorist

attacks on the United States (“U.S.”), President George W. Bush

authorized the CIA to “undertake operations designed to capture

and detain persons who pose a continuing, serious threat of

violence or death to U.S. persons and interests or who are

planning terrorist activities.” Ex. A to Resp’t’s Opp’n, CIA

2 Office of Inspector General (“OIG”), Special Review:

Counterterrorism Detention and Interrogation Activities

September 2001 – October 2003 (May 7, 2004) [hereinafter “CIA

OIG Special Review Report”], ECF No. 665-1 at 9 ¶ 1. 2 Pursuant to

this directive, the CIA established a program in the

Counterterrorist Center to detain and interrogate terrorists at

sites abroad (the “CTC Program”). Id. ¶ 2. In March 2002,

Petitioner became the first person to be detained at a foreign

CIA site pursuant to the CTC Program following his capture in a

combined Pakistani authority and CIA raid of a safehouse in

Faisalabad, Pakistan, during which he sustained serious gunshot

wounds. Id. at 10 ¶ 4; Senate Select Committee on Intelligence

(“SSCI”), Committee Study of the CIA’s Detention and

Interrogation Program, S. Rep. No. 113-288 [hereinafter “SSCI

Report”], at 21 (2014). 3 News reports suggest that the covert CIA

2 Both Petitioner and Respondent have attached the CIA OIG Special Review Report as a partially redacted exhibit to their respective briefings. See Ex. A to Resp’t’s Opp’n, ECF No. 665- 1; Ex. 3 to Pet’r’s Mot., ECF No. 661-4. This 2004 report regarding the CIA’s “treatment and interrogation of all individuals detained by or on behalf of [the] CIA after 9/11” was based on the CIA OIG’s review of over 38,000 pages of documents, over 100 interviews with CIA officials, and site visits to CIA interrogation facilities. CIA OIG Special Review Report, ECF No. 665-1 at 119 ¶¶ 2-3. The review covered the period of September 2001 to mid-October 2003. Id. at 10 ¶ 2. 3 The SSCI Report’s findings and conclusions and a detailed 499-

page executive summary were the result of a “comprehensive review” of the CIA’s detention and interrogation program from its authorization on September 17, 2001 to its official end on January 22, 2009. SSCI Report at 8-9. The report was based 3 detention facility to which Petitioner was rendered was located

in Thailand, ACLU v. U.S. Dep’t of Def.,

(S.D.N.Y. 2011); but official reports only refer to this

facility as “Detention Site Green,” SSCI Report at 23. Upon his

arrival there and in response to questioning by agents from the

Federal Bureau of Investigation (“FBI”) who spoke Arabic,

Petitioner “confirmed his identity to the FBI officers, informed

[them] he wanted to cooperate, and provided background on his

activities.” Id. at 24-25.

However, on the evening of his arrival, Petitioner’s

medical condition rapidly deteriorated, causing him to require

immediate hospitalization. Id. at 25. Although largely unable to

communicate because of a breathing tube, Petitioner “continued

to provide information to FBI and CIA officials at the hospital

using an Arabic alphabet chart.” Id. On April 8, 2002,

Petitioner’s breathing tube was removed, following which he

“provided additional intelligence and reiterated his intention

to cooperate.” Id. Two days later, in the hospital’s intensive

care unit, Petitioner told FBI officers that an individual named

primarily on a review of more than six million pages of CIA documents, which included “CIA operational cables, reports, memoranda, intelligence products, and numerous interviews conducted of CIA personnel by various entities within the CIA, . . . , as well as internal email and other communications[,]” and it was published after declassification by the Executive Branch as Senate Report No. 113-288 in 2014. Id. at 9. 4 “Mukhtar” was the “mastermind” of al-Qaeda’s 9/11 attacks, and

he identified a picture of this man—Khalid Shaykh Mohammad

(“KSM”)—from the FBI’s Most Wanted list. Id. Petitioner told the

FBI officers that “Mukhtar” had trained the 9/11 hijackers and

provided additional information on KSM’s background—disclosures

which the CIA described as “important” and “vital.” Id.

While Petitioner was hospitalized, senior agency officials

at CIA Headquarters began discussing the possible use of

coercive interrogation techniques against him upon his transfer

back to Detention Site Green because they believed he “was

withholding information that could not be obtained through then-

authorized interrogation techniques” and that “a more robust

approach was necessary to elicit threat information from” him.

Id. at 25-26; CIA OIG Special Review Report, ECF No. 665-1 at 11

¶ 4. On April 15, 2002, Petitioner was returned to Detention

Site Green and placed in conditions which aimed to ensure that

he was “at his most vulnerable state.” SSCI Report at 28. He was

placed in handcuffs and leg shackles, locked in a white cell

typically “naked and sleep deprived,” and subjected to either

loud rock music or noise generators. Id. at 28-29. The focus of

the CIA’s questioning at this time was on “impending future

terrorist plans against the [U.S.],” but Petitioner “denied any

knowledge related to specific targets for a pending attack.” Id.

Instead, he provided generalized background information on al-

5 Qaeda, his past travel to the U.S., and extremists in Pakistan,

including KSM. Id. at 29.

Petitioner continued to provide interrogators with

information throughout April 2002 “but not information on

pending attacks against the [U.S.]” Id. He provided information

on al-Qaeda’s “activities, plans, capabilities, and

relationships, in addition to information on its leadership

structure, including personalities, decision-making processes,

training, and tactics.” Id. at 31. However, his inability to

provide information on any next attack on the U.S. or the

locations of al-Qaeda operatives there “served as the basis for

CIA representations that [he] was ‘uncooperative,’ as well as

for the CIA’s determination that [he] required the use of what

would later be known as the CIA’s ‘enhanced interrogation

techniques [(“EITs”)]’ to . . . reveal the information the CIA

believed he was withholding.” Id. However, Petitioner “never

provided this information, and CIA officers later concluded this

was information [he] did not possess.” Id.

2. The Decision to Use Enhanced Interrogation Techniques Against Petitioner

Beginning on June 18, 2002, through August 4, 2002,

Petitioner “spent 47 days in isolation without being asked any

questions.” Id. at 30-31. During this period, on July 13, 2002,

the CIA’s then-acting general counsel, John Rizzo (“Mr. Rizzo”),

6 met with attorneys from the National Security Council and the

Department of Justice’s (“DOJ”) Office of Legal Counsel (“OLC”),

among others, to provide an overview of the CIA’s proposed EITs

to be used against Petitioner and to ask for a formal DOJ

opinion regarding the lawfulness of doing so. Id. at 33. In

response to this request, that same day OLC’s Deputy Assistant

Attorney General John Yoo wrote to Mr. Rizzo that “the criminal

prohibition on torture would not prohibit the methods proposed

by the interrogation team because of the absence of any specific

intent to inflict severe physical or mental pain or suffering.”

Id. at 34. On July 24, 2002, then-Attorney General John Ashcroft

verbally approved the use of ten interrogation techniques

against Petitioner, which included: (1) the attention grasp; (2)

walling; (3) the facial hold; (4) the facial/insult slap; (5)

cramped confinement; (6) wall standing; (7) stress positions;

(8) sleep deprivation; (9) use of diapers; and (10) use of

insects. Id. at 36. Two days later, he also verbally approved

the use of the waterboard. Id. at 36-37.

On August 1, 2002, OLC finalized its written legal opinion

in which it determined that these specific EITs would not

violate the torture prohibition pursuant to the Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment, as implemented in the U.S. criminal code,

-2340A.

; CIA OIG Special Review Report,

7 ECF No. 665-1 at 12 ¶ 6, 24 ¶ 36; see DOJ OLC, Memorandum for

John Rizzo Acting General Counsel of the CIA: Interrogation of

al Qaeda Operative (Aug. 1, 2002), available at

https://www.justice.gov/sites/default/files/olc/legacy/2010/08/0

5/memo-bybee2002.pdf [hereinafter “DOJ OLC Memorandum”]. “This

OLC opinion was based upon specific representations by [the] CIA

concerning the manner in which EITs would be applied in the

interrogation of [Petitioner].” CIA OIG Special Review Report,

ECF No. 665-1 at 28 ¶ 43. 4 OLC also relied on the CIA’s

representations “to support its conclusion that no physical harm

or prolonged mental harm would result from the use on

[Petitioner] of the EITs, including the waterboard.”

at 29 ¶

43. In addition, to gain approval for using the EITs, the CIA

represented that it believed that Petitioner “continue[d] to

withhold critical threat information[,]” and that therefore,

“the use of more aggressive techniques was required.” SSCI

Report at 37. However, cables from that time indicate that “CIA

interrogators at the detention site had not determined that ‘the

4 The OLC opinion specifically stated: “Our advice is based upon the following facts, which [the CIA has] provided to us. We also understand that [the CIA does] not have any facts in [its] possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply.” DOJ OLC, Memorandum for John Rizzo Acting General Counsel of the CIA: Interrogation of al Qaeda Operative (Aug. 1, 2002), available at https://www.justice.gov/sites/default/files/olc/legacy/2010/08/0 5/memo-bybee2002.pdf. 8 use of more aggressive techniques was required’ to ‘persuade’

[Petitioner] to provide threat information.”

Instead, the

detention site interrogation team believed that the objective of

the use of the EITs was to confirm that Petitioner “did not have

additional information on threats to the [U.S.]” beyond that

which he had already provided.

CIA records furthermore

“indicate that [Petitioner] maintained that he always intended

to talk and never believed he could withhold information from

interrogators.”

.

3. Petitioner Is Subjected to Twenty Days of “Aggressive” Enhanced Interrogation Techniques

Beginning on August 4, 2002, and continuing for twenty days

through August 23, 2002, the CIA subjected Petitioner to its

“most aggressive interrogation phase.”

. During this

time period, Petitioner experienced “at least 83 applications of

the waterboard technique[,]” many of which “resulted in

immediate fluid intake and involuntary leg, chest and arm

spasms[;]” spent 266 hours (11 days, 2 hours) in a coffin-size

confinement box and 29 hours in a small confinement box (which

had a width of 21 inches, a depth of 2.5 feet, and a height of

2.5 feet); and was subjected to “walling, attention grasps,

slapping, facial hold, stress positions, cramped confinement,

white noise[,] and sleep deprivation”—all in varying

combinations—on a nearly 24-hour basis.

, 118

9 n.698. Whenever Petitioner was not being actively subjected to

EITs, he was left alone in a stress position, on a waterboard

with a cloth over his face, or locked in one of the two

confinement boxes.

. At times during the

interrogations, Petitioner was described as “hysterical” and

“distressed to the level that he was unable to effectively

communicate.”

. In at least one waterboarding session,

Petitioner “became completely unresponsive, with bubbles rising

through his open, full mouth[,]” and he remained unresponsive

until medical intervention.

. CIA personnel at the

detention site “reported being disturbed by the use of the CIA’s

[EITs] against [Petitioner].”

.

According to daily cables from Detention Site Green,

Petitioner frequently “cried,” “begged,” “pleaded,” and

“whimpered,” while continually denying “that he had any

additional information on current threats to, or operatives in,

the [U.S.]”

. By August 9, 2002, the sixth day of the

aggressive interrogation period, the interrogation team informed

CIA Headquarters that it was their “collective preliminary

assessment” that it was “unlikely” Petitioner “had actionable

new information about current threats to the [U.S.,]” and by the

next day, they raised this conclusion to “highly unlikely.”

They requested that personnel from CIA Headquarters travel to

the detention site to view the interrogations and stated their

10 concern that the application of the EITs against Petitioner was

“approach[ing] the legal limit.”

. Nonetheless, CIA

Headquarters responded with their continued belief that

Petitioner “was withholding threat information and instructed

the CIA interrogators to continue using the CIA’s [EITs].”

After the CIA ceased using EITs against Petitioner on August 30,

2002, “CIA personnel at the detention site concluded that [he]

had been truthful and that he did not possess any new terrorist

threat information.”

at 42 n.190, 45. Ultimately, Detention

Site Green, where these enhanced interrogations took place, was

closed in December 2002, and Petitioner was transferred to a

second detention site.

.

4. The CIA’s Decision to Videotape Petitioner’s Enhanced Interrogation Sessions

Between April and December 2002, the CIA recorded, on at

least ninety-two videotapes, interrogation sessions with two

detainees: Petitioner and Abd Al-Rabim Al-Nashiri (“Mr. Al-

Nashiri”). ACLU,

. Of these ninety-two

tapes, ninety were from the CIA’s interrogation sessions of

Petitioner, two were from similar sessions with Mr. Al-Nashiri,

and twelve included EIT applications. Id.; Ex. B to Resp’t’s

Opp’n, Inventory and Review of Interrogation Videotapes (Dec. 3,

2002), ECF No. 665-2 at 2. The CIA interrogation teams at

Detention Site Green initially decided to videotape their

11 sessions with Petitioner following his capture “to ensure a

record of [his] medical condition and treatment should he

succumb to his [gunshot] wounds and questions arise about the

medical care provided to him by [the] CIA.” CIA OIG Special

Review Report, ECF No. 665-1 at 44 ¶ 77. The videotapes were

also intended “to assist in the preparation of the debriefing

reports” about Petitioner’s interrogations, although they

“rarely, if ever, were used for that purpose.”

Furthermore, CIA Headquarters had “intense interest” in

ensuring that all aspects of Petitioner’s interrogations

complied “with the guidance provided to the [detention] site

relative to the use of EITs.”

Pursuant to this purpose, in

November and December 2002, an attorney in the CIA’s Office of

General Counsel reviewed the videotapes “to ascertain compliance

with the August 2002 DOJ opinion [regarding the use of EITs] and

compare what actually happened with what was reported to

Headquarters.”

This attorney “reviewed every minute of the

videotapes in either the ‘play’ or ‘play/fast forward’ mode” and

confirmed, in a memorandum dated January 9, 2003, “that the

cable traffic accurately describe[d] the interrogation methods

employed” against Petitioner. Ex. C to Resp’t’s Opp’n, Review of

Interrogation Videotapes (Jan. 9, 2003), ECF No. 665-3 at 2, 4,

6; see also CIA OIG Special Review Report, ECF No. 665-1 at 44 ¶

12 77 (stating that the attorney reported “no deviation [in the

videotapes] from the DOJ guidance or the written record”).

After receiving allegations that CIA personnel had used

“unauthorized interrogation techniques” with Mr. Al-Nashiri and

information that some CIA employees “were concerned that certain

covert Agency activities at an overseas detention and

interrogation site might involve violations of human rights[,]”

in January 2003, the CIA’s OIG initiated a special review of the

CIA’s CTC Program, which included the OIG conducting its own

review of the ninety-two videotapes in May 2003. CIA OIG Special

Review Report, ECF No. 665-1 at 9-10 ¶ 2, 44 ¶ 78. The OIG found

that eleven of the tapes were blank, two were blank except for

one or two minutes of recording, and two were broken and could

not be reviewed.

at 45 ¶ 78. The OIG also compared the

videotapes to written logs and cables “and identified a 21-hour

period of time, which included two waterboard sessions, that was

not captured on the videotapes.”

On May 7, 2004, the CIA’s

OIG published its findings regarding the Agency’s treatment and

interrogation of Petitioner, in addition to others detained by

or on behalf of the CIA after 9/11, in a report titled Special

Review: Counterterrorism Detention and Interrogation Activities

(September 2001 – October 2003). See generally CIA OIG Special

Review Report, ECF No. 665-1; see also supra note 2. The CIA OIG

concluded that the CIA had used “[u]nauthorized, improvised,

13 inhumane, and undocumented detention and interrogation

techniques” throughout the administration of its CTC Program,

and that the Agency could face resulting “long-term political

and legal challenges,” particularly related to “its use of

EITs.” CIA OIG Special Review Report, ECF No. 665-1 at 110 ¶

258, 113 ¶ 266.

Of note, the CIA OIG’s review of the videotapes identified

83 waterboard applications against Petitioner, most of which

lasted less than ten seconds, but were employed in a manner

“different from the technique as described in the DOJ opinion”

as to “the manner in which [Petitioner’s] breathing was

obstructed.” Id. at 44-45 ¶¶ 78-79. Instead of applying “a small

amount of water to the cloth [placed over Petitioner’s air

passages] in a controlled manner[,]” the videotapes showed that

Petitioner’s interrogators “continuously applied large volumes

of water to a cloth that covered [his] mouth and nose.” Id. at

45 ¶ 79. In addition, the OIG discovered one instance in which

“a psychologist/interrogator verbally threatened [Petitioner] by

stating, ‘If one child dies in America, and I found out you knew

something about it, I will personally cut your mother’s

throat.’” Id. at 44-45 ¶ 78. Similarly, in the SSCI’s later

Committee Study of the CIA’s CTC Program, published in

declassified form in 2014, see supra note 3; the SSCI also

concluded that the manner in which the CIA applied the EITs to

14 Petitioner “was quite different from the [description] presented

in 2002” in the DOJ OLC’s memorandum, which summarized how the

CIA had represented to the OLC that the techniques would be

applied, see SSCI Report at 411-12 (stating that “the CIA used

the waterboarding technique against [Petitioner] . . . in a

manner inconsistent with CIA representations to the OLC, as well

as the OCL’s description of the technique in the August 1, 2002,

memorandum); compare DOJ OLC Memorandum at 2 (stating that

during the “walling” technique, the head and neck are to be

supported with a rolled hood or towel to prevent whiplash, and

the individual is pulled forward and then quickly pushed into

the wall such that the shoulder blades hit the wall and the

person is allowed to rebound from the wall to prevent injury),

with SSCI Report at 40-41 (reporting that interrogators placed a

rolled towel around Petitioner’s neck as a collar, backed him up

into the cell wall, and used the collar “to slam [him] against a

concrete wall”). The SSCI concluded that Petitioner’s

interrogations “were brutal and far worse than the CIA

represented to policymakers and others.” SSCI Report at xii.

During the period of the creation of the videotapes, there

was a videoconference in August 2002 between Detention Site

Green and CIA Headquarters, in which the interrogation team

described one of Petitioner’s interrogation videos “as ‘quite

graphic’ and possibly ‘disturbing to some viewers.’” Id. at 43

15 n.197. After this meeting, CIA Headquarters sent two officers to

the detention site to observe the use of EITs, including

waterboarding, against Petitioner first-hand. Id. Ultimately,

the “aggressive phase” of Petitioner’s interrogations “ended

days after the arrival of the officers from CIA Headquarters.”

Id. CIA records indicate that on August 11, 2002, personnel

stated that “[v]iewing the pressures on [Petitioner] on video

‘has produced strong feelings of futility (and legality) of

escalating or even maintaining the pressure.’ Per viewing the

tapes, ‘prepare for something not seen previously.’” Id. at 45.

5. The CIA’s Destruction of the Videotapes Depicting Petitioner’s Enhanced Interrogation Sessions

In 2003, various organizations, including the American

Civil Liberties Union (“ACLU”), filed suit in the Southern

District of New York under the Freedom of Information Act

(“FOIA”) seeking to compel federal agencies, including the CIA,

to produce records concerning the treatment of detainees

pursuant to the CTC Program at overseas detention facilities.

ACLU,

. Despite the ninety-two videotapes

being “plainly [ ] responsive to [the] plaintiffs’ requests[,]”

the CIA failed to identify or produce the tapes.

.

Instead, records indicate that there was internal discussion at

the Agency about destroying the tapes as early as 2002, the same

year of their creation,

; and in the fall of 2005,

16 there was “renewed interest at the CIA to destroy the

videotapes” due to a congressional proposal “to establish an

independent commission to investigate U.S. detention policies

and allegations of detainee abuse,” SSCI Report at 443. In

addition, that same year, then-White House counsel Harriet Miers

had directed Mr. Rizzo to notify her of the status of the

videotapes before any action was taken with them. Ex. 4 to

Pet’r’s Mot., ECF No. 661-5 at 2. Although the proposal to

establish the independent commission failed on November 8, 2005,

SSCI Report at 444; that same day, Jose Rodriguez (“Mr.

Rodriguez”), the CIA’s then-Deputy Director for Operations

(“DDO”), authorized officials in the field to destroy the tapes,

stating in his cable that there was “no legal or OIG requirement

to continue to retain the tapes[,]” Ex. 5 to Pet’r’s Mot., ECF

No. 661-6 at 2. Pursuant to this authorization, the next day—on

November 9, 2005—all ninety-two interrogation videotapes were

destroyed. Ex. 6 to Pet’r’s Mot., ECF No. 661-7 at 2.

At 5:48 p.m. the next day—on November 10, 2005—an email

from an individual whose identity has been redacted was sent to

Kyle Dustin “Dusty” Foggo (“Mr. Foggo”), the CIA’s then-

Executive Director, to recount an agency “update” meeting with

the Directorate of Operations (“DO”) and internal CIA

discussions regarding the destruction of the videotapes. See Ex.

2 to Pet’r’s Mot., ECF No. 661-3 at 2. The email stated:

17 “Current [redacted] not wanting—smartly—to continue to be

custodian of these [videotapes] was advised to send in a cable

asking for guidance. He did so. Guidance just sent—cleared by

[Inspector General (“IG”)], DDO and [redacted]—told him to

destroy. He did so.”

The email then suggests that the CIA’s

then-acting General Counsel, Mr. Rizzo, was not notified prior

to the destruction of the videotapes: “Rizzo found out today

this had occurred as [sic] was upset—apparently because he had

not been consulted—not sure if there was another reason. He

raised at DO update but was ‘calmed’ (only slightly) when told

[redacted] had approved.”

The email further explains that

Mr. Rodriguez allegedly told then-CIA Director Porter Goss, the

email’s sender, and another redacted individual that he “felt it

was extremely important to destroy the tapes and that if there

was any heat, he would take it” because “the heat from

destroying is nothing compared to what it would be if the tapes

ever got into public domain.”

Mr. Rodriguez then allegedly

said that the videotapes “out of context . . . would make [the

CIA] look terrible; it would be ‘devastating’ to us[,]” a view

with which “[a]ll in the room agreed.”

Less than two hours later, at 7:25 p.m., the same person

sent another email to Mr. Foggo, stating that “on [Petitioner’s]

tapes—I am no longer feeling comfortable.” Ex. 4 to Pet’r’s

Mot., ECF No. 661-5 at 2. The unidentified sender wrote:

18 While I understand Jose’s ‘decision’ (and believe the tapes were bad news) I was just told by Rizzo that [redacted] DID NOT concur on the cable—It was never discussed with him (this is perhaps worse news, in that we may have ‘improperly’ destroyed something). In fact, it is unclear now whether the IG did as well. Cable was apparently drafted by [redacted] and released by Jose; they are the only two names on it, so I am told by Rizzo. Either [redacted] lied to Jose about ‘clearing’ with [redacted] and IG (my bet) or Jose misstated the facts. (It is not without relevance that [redacted] figured prominently in the tapes, as [redacted] was in charge of [redacted] at the time and clearly would want the tapes destroyed.) Rizzo is clearly upset, because he was on the hook to notify Harriet Miers of the status of the tapes because it was she who had asked to be advised before any action was taken[.] Apparently Rizzo called Harriet this afternoon and she was livid, which he said was actually unusual for her. Rizzo does not think this is likely to just go away.

The CIA conducted a disciplinary review of Mr. Rodriguez’s

decision to authorize destruction of the interrogation tapes.

See Ex. F to Resp’t’s Opp’n, ECF No. 665-6 at 2-9. The Agency

“found fault with the performance of Mr. Rodriguez” and

“issue[d] to him a letter of reprimand to remain in his official

personnel file for two years.” Id. at 4. The disciplinary review

determined that Mr. Rodriguez was told “that the written record

fully and accurately recorded the events depicted on the tapes”

and that he was motivated not by personal gain or interest but

rather by “his view that the [leak or official release of the]

19 tapes represented a threat to” the security of his officers and

“the domestic and international standing of the CIA[.]” Id. at

5. Furthermore, Mr. Rodriguez “never denied making the decision

to destroy the tapes nor did he ever attempt to cover up his

decision in any way.” Id. Nonetheless, the disciplinary review

found fault with Mr. Rodriguez’s decision because he “was aware

that two White House Counsels, the counsel to the Vice

President, the [Director of National Intelligence], the

[Director of the CIA], and the [House Permanent Select Committee

on Intelligence] ranking member had either expressed opposition

to or reservations about the destruction of the tapes.” Id. at

4, 7-8. The review concluded with an emphasis that CIA employees

cannot “disregard the views of those above them” “because they

think their view is the right one—even if it is.” Id. at 7-8.

More than two years passed before the CIA publicly

acknowledged, due to involvement from the press, “that it had

both created and destroyed videotapes of detainee interrogation

sessions[,]” including those involving Petitioner. ACLU,

. On December 6, 2007, then-CIA Director Michael

Hayden issued a press release to the Agency’s employees stating:

The press has learned that back in 2002, during the initial stage of our terrorist detention program, [the] CIA videotaped interrogations, and destroyed the tapes in 2005. I understand that the Agency did so only after it was determined they were no longer of intelligence value and not relevant to any

20 internal, legislative, or judicial inquiries . . . . The decision to destroy the tapes was made within [the] CIA itself.

Ex. H to Resp’t’s Opp’n, ECF No. 665-8 at 2. The press release

specifically mentioned Petitioner, stating that the CTC Program

began after his capture and that when Petitioner became “defiant

and evasive” in response to “normal questioning,” it became

“imperative” to use “other [interrogation] means to obtain the

information—means that were lawful, safe, and effective” and

that “were reviewed and approved by the [DOJ] and by other

elements of the Executive Branch[,]” thereby leading the CIA to

“beg[i]n to videotape interrogations.”

Director Hayden

explained that the decision to destroy the tapes “was done in

line with the law” because “[b]eyond their lack of intelligence

value—as the interrogation sessions had already been

exhaustively detailed in written channels—and the absence of any

legal or internal reason to keep them, the tapes posed a serious

security risk” to CIA personnel who had “served in the [CTC]

program[.]”

He claimed that “[i]f the story of the[] tapes

is told fairly, it will underscore those facts.”

Ultimately, the CIA’s CTC Program and the Agency’s

disclosure of the destruction of the interrogation tapes “set

off a series of [reports, inquiries, and] investigations [by all

three branches of the government] and litigation that lasted

21 years” and continues to date, including with Petitioner’s habeas

case and instant motion. Resp’t’s Opp’n, ECF No. 665 at 18.

6. Response to the CIA’s Destruction of the Videotapes Depicting Petitioner’s Enhanced Interrogation Sessions

Days after the CIA announced the destruction of the

videotapes, the plaintiff organizations in the then-pending

above-referenced FOIA litigation in the Southern District of New

York moved to hold the CIA in civil contempt for disregarding

the presiding judge’s 2004 order to “produce or identify all

responsive documents” in the matter, and they “sought, as part

of their remedy, discovery related to the contents and

destruction of the videotapes.” ACLU,

. The district court judge determined that the videotapes

should have been produced in response to the plaintiffs’ FOIA

requests, but he deferred the CIA’s obligation to comply with

the court’s order and his ruling on the contempt motion due to

the initiation of a formal criminal investigation on January 2,

2008 into the destruction of the videotapes, led by John H.

Durham (“Mr. Durham”), then-Deputy U.S. Attorney for the

District of Connecticut (who was appointed to lead the

investigation by then-Attorney General Michael Mukasey). See

(abiding by Mr. Durham’s “concern that holding

civil contempt proceedings simultaneously with the criminal

investigation would compromise the integrity of the

22 investigation”); Ex. G to Resp’t’s Opp’n, ECF No. 665-7 at 5.

Mr. Durham’s investigation focused on “reviewing whether any

federal criminal laws were violated in relation to the

destruction of the videotapes” and “included a review of whether

any person or persons obstructed justice, knowingly made

materially false statements, committed or suborned perjury, or

acted in contempt of court of Congress.” Ex. 2 to Resp’t’s Opp’n

to Pet’r’s Mot. for Discovery & Mot. for Sanctions, Ex Parte

Decl. of John H. Durham, ECF No. 406 at 118 ¶ 6.

In November 2010, Mr. Durham publicly announced that he had

concluded his investigation and would not pursue criminal

charges for the destruction of the interrogation tapes. ACLU,

. Following this determination, although

stating that the lapses of individuals at the Agency could not

excuse the CIA “in its dereliction,” the Southern District of

New York judge denied the plaintiffs’ motion for civil contempt

because he found that the “CIA’s failure to identify or produce

the videotapes in response to [the] plaintiffs’ FOIA requests

and [his] repeated orders” had already “been remedied” and that

therefore, “a finding of civil contempt at th[at] point would

serve no beneficial purpose.”

. Specifically, the

district court judge concluded that the CIA had remedied its

failure by identifying and processing, in response to his April

2009 order, 580 documents “relating to the content of the

23 videotapes” for the entire period of their creation—April

through December 2002.

. In addition, the CIA

identified and processed 220 documents “relating to the

videotapes’ destruction,” “in particular, the persons and

reasons behind the destruction, corresponding in time to both

the videotapes’ creation and destruction”—the periods April 1,

2002 through June 30, 2003 and June 1, 2005 through January 31,

2006.

. Furthermore, that judge was satisfied by

“the remedial relief put in place by the CIA [following the

tapes’ destruction]—improved protocols for the retention of

records potentially relevant to an investigation or a judicial,

congressional, or administrative proceeding[,]” new document

preservation and destruction protocols, and training for the

Agency’s attorneys on these new protocols.

.

In addition to these contempt proceedings, following the

public announcement of the CIA’s destruction of the videotapes,

many Guantanamo Bay detainees with then-pending habeas corpus

cases filed emergency motions related to the destruction of the

tapes. See, e.g., Abdullah v. Bush,

(D.D.C. 2008). Several years earlier, the Supreme Court had

determined that Guantanamo Bay detainees have habeas corpus

rights of judicial review regarding the legality of their

detention. Rasul v. Bush,

,

,

(2004). On February 13, 2008, in response to

24 court orders issued after the tapes’ destruction, Respondent

filed a report in all Guantanamo Bay habeas cases pending in

this district court that detailed the steps taken to ensure the

preservation of material relating to all detainees detained at

the Guantanamo Bay Naval Base. See, e.g., Resp’t’s Report Filed

in Connection with Order of Jan. 24, 2008 (Feb. 13, 2008), Rasul

v. Bush, No. 02-299 (CKK), ECF No. 231.

Apart from litigation-based responses to the destruction of

the videotapes, in 2009, the SSCI initiated its Committee Study

of the CIA’s detention and interrogation program to “document[]

the abuses and countless mistakes made between late 2001 and

early 2009.” SSCI Report at v; see supra note 3. On April 3,

2014, the SSCI voted to send the Committee’s resulting report,

which included twenty specific findings and conclusions and a

nearly 500-page executive summary, to then-President Barack

Obama for declassification and subsequent public release. SSCI

Report at iv. Notably, the report was heavily critical of the

CIA’s use of EITs against detainees, concluding that the use of

EITs “was not an effective means of acquiring intelligence,”

rested on the CIA’s “inaccurate claims of their effectiveness,”

and resulted in interrogations that “were brutal and far worse

than the CIA [outwardly] represented.” Id. at xi-xiii (Findings

and Conclusions #1, #2, and #3). The Committee additionally

concluded that CIA detainees were subjected to EITs that had not

25 been approved by the DOJ or authorized by CIA Headquarters and

that the CIA had “repeatedly provided inaccurate information to

the [DOJ], [thereby] impeding a proper legal analysis of the

[CTC Program].” Id. at xiii-xiv, xxi (Findings and Conclusions

#5 and #14). For example, the Committee determined that “[m]uch

of the information provided by the CIA to the OLC [to support

its legal analysis in the DOJ OLC’s August 1, 2002 memorandum]

was unsupported by CIA records[,]” and as noted above, that the

CIA’s representations to the OLC about the EIT techniques to be

used in interrogations were “inconsistent with how the

techniques would later be applied.” Id. at xiv, 410. A large

portion of the SSCI Report also discusses Petitioner, the

videotapes of his CIA interrogation sessions, and “inaccurate

CIA representations” given to the OLC regarding Petitioner and

his alleged status and role in al-Qaeda. See id. at xiv, 410-11. 5

In sum, “[t]he decision to authorize destruction of the

videotapes led to intense public, congressional, Executive

Branch, and judicial scrutiny in the ensuing years[,]” Resp’t’s

Opp’n, ECF No. 665 at 8; as it was a decision that contravened

5 In addition, Appendix 3 to the SSCI Report is a chart titled “Example of Inaccurate CIA Testimony to the Committee.” See SSCI Report at 462-99. It compares excerpts of testimony from then- CIA Director Michael Hayden before the SSCI on April 12, 2007 to a sampling of information from CIA records to highlight the inaccuracies in his testimony. Much of the highlighted testimony concerns Petitioner and his interrogations. See id. 26 various requests between 2003 and 2005 encompassing the

identification, production, and/or preservation of the

videotapes, including from the White House, the 9/11 Commission,

members of Congress, federal judges, and private litigants, see

Pet’r’s Mot., ECF No. 661 at 9, 24-25. As a result, Respondent

claims that the CIA and its former DDO “have been held to

account by every branch of government for the destruction of the

videotapes” depicting Petitioner’s interrogation sessions and

that the Agency “has committed to and remains committed to never

again operating such a program of [EITs].” Resp’t’s Opp’n, ECF

No. 665 at 8.

B. Procedural Background

Petitioner filed the instant habeas corpus case on August

6, 2008, nearly three years after the destruction of the

interrogation tapes on November 9, 2005. See Pet. for Writ of

Habeas Corpus, ECF No. 1. On April 3, 2009, Respondent filed the

initial factual return outlining the legal justification for

Petitioner’s detention at Guantanamo Bay, see ECF Nos. 136, 369;

and on March 29, 2017, Respondent filed an updated public

version of the factual return disclosing additional material

regarding Petitioner’s detention, see ECF No. 474. The factual

return states:

[Petitioner] was a part of and substantially supported al-Qaida and associated forces, including based on evidence that he

27 facilitated travel for and provided other assistance to recruits so they could receive terrorist training; facilitated at least one large financial transaction for terrorism activities; maintained a close relationship with and actively supported Usama Bin Laden [ ]; actively associated with enemy forces and directly aided enemy forces engaged in hostilities in Afghanistan after the [U.S.] invasion; facilitated the retreat and escape of enemy forces out of Afghanistan after the [U.S.] invasion; was captured harboring several terrorists; and plotted future terrorist operations. Consequently, for these and other reasons, [Petitioner] is lawfully subject to detention pursuant to the Authorization for the Use of Military Force and the laws of war.

Factual Return for Abu Zubaydah (ISN 10016), ECF No. 474-1 at

24-25 ¶ 1. Respondent alleges that this factual return “does not

rely on any post-capture custodial statements from Petitioner,

whether from his time in CIA or in [Department of Defense

[(“DoD”)] custody” but rather “on statements and documents

Petitioner made prior to his capture (e.g., diaries and videos)

and evidence from persons or sources other than Petitioner.”

Resp’t’s Opp’n, ECF No. 665 at 12-13 (citing Factual Return for

Abu Zubaydah (ISN 10016), ECF No. 474-1 at 30 ¶ 20 n.2).

Throughout this litigation, Petitioner has contested

Respondent’s justifications for his detention and argues that he

has been detained for more than twenty years, without any

charge, “on the basis of an overstated and ill-informed

assessment that he poses a threat to the [U.S.,]” a contention

28 he claims would have been supported by the now-destroyed

interrogation tapes. Pet’r’s Mot., ECF No. 661 at 9-10.

Petitioner initially moved for sanctions against Respondent

alleging the CIA’s intentional spoliation of the video evidence

on September 21, 2009, see ECF Nos. 217-18, 355-56; and on

November 20, 2009, he filed an unopposed motion for leave to

file a corrected memorandum of law in support of this motion,

see ECF Nos. 401-02 (Parts 1 and 2 of this motion). Then, on

June 28, 2010, Petitioner moved to supplement his motion for

sanctions for the spoliation of evidence. See ECF Nos. 250, 359.

In one of Respondent’s opposition briefings in response to

Petitioner’s motions for sanctions—dated October 27, 2009—

Respondent asked the Court to stay any “evidentiary proceedings

into the grounds for Petitioner’s motion[s] because such

proceedings could interfere with [Mr. Durham’s] ongoing criminal

investigation into the destruction of the interrogation tapes at

issue.” See ECF No. 406 at 2-3, 115-21 (Mr. Durham’s ex parte

declaration, dated October 26, 2009).

On May 31, 2023, “[i]n view of [ ] changes to Petitioner’s

legal team,” the Court ordered Petitioner to file “a status

report informing the Court whether [he] seeks to replace Motion

for Sanctions for the Spoliation of Evidence, ECF No. 401;

and/or Motion to Supplement Motion for Sanctions for the

Spoliation of Evidence, ECF No. 359.” Min. Order (May 31, 2023).

29 The Court further ordered Respondent to file “a status report

regarding the results of [Mr. Durham’s] criminal investigation

into the destruction of the videotapes.” Id. In response to the

Court’s order, on June 23, 2023, the parties filed a joint

status report, in which Respondent informed the Court that Mr.

Durham had concluded in November 2010 that he would not pursue

criminal charges for the CIA’s destruction of the videotapes,

and Petitioner “request[ed] leave to amend his motions for

sanctions related to the spoliation of evidence to the limited

extent that he seeks an adverse inference as to the content of

the spoliated evidence” because the “[t]he motions as currently

formulated seek only additional discovery” from Respondent.

Joint Status Report, ECF No. 644 at 1-2. As a result, on June

27, 2023, the Court denied without prejudice Petitioner’s

earlier motions for sanctions for the spoliation of evidence,

see ECF Nos. 359, 401; so that Petitioner could file a “single,

consolidated, superseding briefing on this issue[,]” Min. Order

(June 27, 2023).

On September 29, 2023, Petitioner filed his superseding

motion for sanctions for the spoliation of evidence, see Pet’r’s

Mot., ECF No. 661; along with supporting exhibits, including

internal CIA documents and Petitioner’s handwritten declaration

detailing his detention and interrogation by the CIA, see Ex. 1

to Pet’r’s Mot., Decl. of Zayn al Abidin Muhammed Husayn

30 [hereinafter “Pet’r’s Decl.”], ECF No. 661-2. 6 In his motion,

Petitioner asks the Court to impose sanctions for the CIA’s

deliberate spoliation of the interrogation tapes by making

various adverse inferential findings regarding the content of

the tapes and by compelling the government to produce additional

discovery. Pet’r’s Mot., ECF No. 661 at 10. On November 17,

2023, Respondent filed his opposition to Petitioner’s

superseding motion, accompanied by supporting exhibits. See

Resp’t’s Opp’n, ECF No. 665. Respondent asks the Court to deny

Petitioner’s “overbroad and unduly burdensome” proposed

sanctions and to instead adopt Respondent’s proposed evidentiary

alternatives, which include producing contemporaneous documents

about the interrogations depicted on the tapes and proposing

that he be precluded from opposing or rebutting Petitioner’s

evidence about the content of the tapes. See id. at 8-11, 27-34.

Petitioner filed his reply (and two exhibits) to Respondent’s

opposition on December 1, 2023. See Pet’r’s Reply, ECF No. 666.

On December 8, 2023, Respondent filed a motion for leave to

file a sur-reply in response “to the new relief requested by

Petitioner in his Reply in Support of Petitioner’s Superseding

Motion for Sanctions.” Resp’t’s Mot. for Leave to File Sur-

6 Petitioner’s handwritten declaration, in addition to a typed version of it, was initially appended as an exhibit to his original motion for sanctions for the spoliation of evidence filed on September 21, 2009. See ECF No. 356 at 23-44. 31 Reply, ECF No. 667 at 1. Respondent argued that a sur-reply

“would be helpful to the Court’s resolution of Petitioner’s

[sanctions] motion” since “Petitioner’s reply significantly

modifies the discovery relief that Petitioner seeks for the

destruction of the CIA videotapes.” Id. at 2-3. On December 11,

2023, the Court granted, over objection for good cause shown,

Respondent’s motion for leave to file a sur-reply, Min. Order

(Dec. 11, 2023); thereby deeming as filed Respondent’s sur-reply

in opposition to Petitioner’s superseding motion for sanctions,

see Resp’t’s Sur-Reply, ECF No. 667-2 (appended as an exhibit to

Respondent’s motion for leave to file a sur-reply). Petitioner

filed a response to Respondent’s sur-reply on December 26, 2023.

See Pet’r’s Resp. in Further Support of Mot. for Sanctions

(“Pet’r’s Resp.”), ECF No. 669.

Accordingly, Petitioner’s superseding motion for sanctions

alleging the CIA’s intentional spoliation of evidence is now

ripe and ready for the Court’s adjudication.

III. Legal Standard

“Once a party anticipates that it will be subject to

litigation, the party has a duty to preserve any evidence that

may be potentially relevant.” Clarke v. Wash. Metro. Area

Transit Auth.,

(D.D.C. 2012), aff’d,

(D.C. Cir. 2013); see also Shepherd v. Am. Broad.

Cos., Inc.,

(D.C. Cir. 1995) (explaining that

32 a litigant has an obligation to preserve documents “it knew or

reasonably should have known were relevant to the [ ] litigation

if it knew the destruction . . . of those documents would

prejudice the [opposing party]”). If a party fails to preserve

relevant evidence, it “‘runs the risk of being justly accused of

spoliation’—defined as ‘the destruction or material alteration

of evidence or the failure to preserve property for another’s

use as evidence in pending or reasonably foreseeable

litigation’—and find itself the subject of sanctions.” Clarke,

(quoting D’Onofrio v. SFX Sports Grp.,

Inc., No. 06-687,

, at *5 & n.5 (D.D.C. Aug. 24,

2010)). The Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”) has recognized the “inherent power” of

federal courts “to sanction attorney or party misconduct,”

including “where [a] defendant has destroyed potentially

relevant evidence[,]” so as “to achieve the orderly and

expeditious disposition of cases” and enforce “our judicial

system’s strong presumption in favor of adjudications on the

merits[.]” Shepherd,

(citations and internal

quotation marks omitted); Gerlich v. U.S. Dep’t of Just.,

(D.C. Cir. 2013).

Courts have a wide variety of tools at their disposal to

employ as sanctions, which can be divided into two categories:

(1) punitive or penal sanctions; and (2) issue-related

33 sanctions. Clarke,

. The former penal

category includes dismissals, default judgments, contempt

orders, awards of attorneys’ fees, and the imposition of fines—

all of which must be proven by “clear and convincing evidence of

the predicate misconduct[,]” Shepherd,

; while

the latter issue-related sanctions “are targeted to remedy the

precise evidentiary issue; for example, a party who fails to

retain evidence may be precluded from introducing types of

evidence, or the jury may draw an adverse inference from the

missing evidence[,]” Clarke,

. “Because

issue-related sanctions are fundamentally remedial rather than

punitive and do not preclude a trial on the merits, . . . a

district court may impose [them] whenever a preponderance of the

evidence establishes that a party’s misconduct has tainted the

evidentiary resolution of the issue.” Shepherd,

.

Courts in the D.C. Circuit employ a three-part test to

determine whether “[a]n issue-related sanction, such as an

adverse inference, is warranted” for the destruction of

evidence:

(1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a culpable state of mind; and (3) the evidence that was destroyed or altered was relevant to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could

34 conclude that the lost evidence would have supported the claims or defense of the party that sought it.

Clarke,

(quoting Mazloum v. Dist. of

Columbia Metro. Police Dep’t,

(D.D.C.

2008)).

Once the moving party has proven that: (1) the party who

destroyed the evidence had a “duty to preserve” it and (2) a

“culpable state of mind” in doing so; and (3) the destroyed

evidence was “relevant to the contested issue[,]” Gerlich,

; Mazloum,

; the court must

then “select[] the appropriate sanction”—ensuring that the

“‘gravity’” of the chosen sanction “‘corresponds to the

misconduct[,]’” Davis v. Dist. of Columbia Child & Fam. Servs.

Agency,

(D.D.C. 2014) (quoting Shepherd,

). “‘[T]he choice of an appropriate sanction is

necessarily a highly fact-based determination,’” Shealayno’sun

v. McCarthy, No. 18-0746,

, at *5 (D.D.C. Jan. 5,

2021) (quoting Bonds v. Dist. of Columbia,

(D.C. Cir. 1996)), cert. denied,

,

,

(1997); and is focused on “plac[ing] the

innocent party in the same position he would have been in had

the evidence not been destroyed by the offending party[,]”

Kronisch v. United States,

(2d Cir. 1998).

35 IV. Analysis

Petitioner’s superseding motion for sanctions for the

spoliation of evidence—which “consolidat[es] his prior

applications and add[s] additional requests for relief”—seeks

issue-related sanctions (as opposed to penal sanctions) in the

form of adverse inferential findings and compelled discovery,

Pet’r’s Mot., ECF No. 661 at 10; the specifics of which are

discussed in further detail below, see infra section IV.B.

The Court addresses Petitioner’s motion in two parts.

First, the Court analyzes each of the three elements of the D.C.

Circuit’s test for determining whether an issue-related sanction

is warranted based on the CIA’s destruction of the ninety

videotapes depicting Petitioner’s interrogation sessions,

specifically whether: (1) the CIA had an obligation to preserve

the tapes; (2) the CIA intentionally destroyed the tapes with a

culpable state of mind; and (3) the tapes’ destruction deprived

Petitioner of relevant evidence to the claims advanced in his

habeas corpus case. See Clarke,

. Second,

the Court assesses the parties’ differing proposed evidentiary

remedies for the destruction of the interrogation tapes and

their supportiing arguments before ultimately selecting the

appropriate sanctions to impose for the CIA’s spoliation of the

video evidence. See Shealayno’sun,

, at *5.

36 A. The Parties Agree That the Court May Impose Appropriate Sanctions for the CIA’s Intentional Spoliation of Petitioner’s Interrogation Videotapes

The Court’s first inquiry—whether an issue-related sanction

is warranted for the CIA’s destruction of Petitioner’s

interrogation videotapes—is straightforward because Respondent

has stated that he “does not dispute that the Court may impose

an appropriate evidentiary remedy for [the] destruction of the

interrogation videotapes.” Resp’t’s Opp’n, ECF No. 665 at 20.

Respondent either “acknowledges” or has expressed an intent not

to “relitigate” all three elements of this circuit’s test for

assessing the appropriateness of an issue-related sanction for

the destruction of evidence. See

.

1. The CIA Had an Obligation to Preserve Petitioner’s Interrogation Videotapes

First, Respondent has stated his desire not to “relitigate

the determination in the [above referenced] ACLU FOIA case [in

the Southern District of New York] of the CIA’s duty to preserve

the interrogation videotapes.”

. As discussed, in that

case, the district court judge concluded that the CIA “had the

obligation to identify or produce the videotapes” in response to

his “repeated orders that the CIA search for, review, and either

identify or produce responsive records” to the plaintiffs’ 2003

and 2004 FOIA requests regarding the treatment of detainees at

overseas detention facilities following 9/11. ACLU,

2d at 225, 231. That judge further explained that the ninety-two

videotapes, including those depicting the use of EITs against

Petitioner, “plainly were responsive to [the] plaintiffs’

requests” and were subject to FOIA disclosure since they fell

within the scope of the investigation exception to the CIA

Information Act—

(c)(3)—because the tapes

concerned “the specific subject matter of an investigation by

the [OIG] into any impropriety or illegality in the conduct of

an intelligence activity.”

(citation and internal

quotation marks omitted). Based on these conclusions “in

connection with the FOIA litigation in the Southern District of

New York[,]” Respondent concedes that the Court may find in this

case, too, that the CIA had a duty to preserve the videotapes.

Resp’t’s Opp’n, ECF No. 665 at 23. 7 Accordingly, the Court

7 As Respondent notes, Petitioner raises “other disputed theories about the source of the [CIA’s] preservation obligation[,]” Resp’t’s Opp’n, ECF No. 665 at 23; including that “[l]itigation involving the Video Evidence was reasonably anticipated following” the Supreme Court’s 2004 decision in Rasul v. Bush,

,

,

(2004); the entry of preservation orders between March 7 and July 18, 2005 in other Guantanamo Bay habeas cases in this district court; the OIG’s review of the CTC Program resulting in its 2004 Special Review Report; and other “preservation instructions from Congress, the 9/11 Commission, and the White House Counsel’s Office,” see Pet’r’s Mot., ECF No. 661 at 9, 32-33; Pet’r’s Reply, ECF No. 666 at 4-5. Respondent raises compelling arguments for negating these arguments, notably that: (1) Petitioner was not a detainee at Guantanamo Bay in 2004 when the Supreme Court decided Rasul or in 2005 when preservation orders were entered in other Guantanamo Bay habeas cases; and (2) the destruction of the videotapes “did not violate any order or 38 concludes that the Agency, having had control over Petitioner’s

interrogation tapes in 2005, had an existing obligation to

preserve them when they were destroyed, and that the first

element of the issue-related sanctions test is therefore met.

2. The CIA Intentionally Destroyed Petitioner’s Interrogation Videotapes with a Culpable State of Mind

Second, Respondent “acknowledges” and “does not dispute”

that Petitioner’s interrogation videotapes were intentionally

destroyed with the requisite “culpable state of mind.” Resp’t’s

Opp’n, ECF No. 665 at 23-24. Courts in this district “have found

that ‘bad faith’ destruction or concealment of evidence” is one

such culpable state of mind for the imposition of issue-related

sanctions, which “encompasses both ‘deliberate’ destruction or

concealment, and destruction or concealment with ‘reckless

disregard’ for the relevance of the evidence.” More v. Snow,

(D.D.C. 2007) (citations omitted). Even

“negligent spoliation suffices” as a culpable state of mind,

i.e., when the destruction was not “purposeful.” Mahaffey v.

Marriot Int’l, Inc.,

(D.D.C. 2012).

preservation obligation in this case”—which was filed three years after the CIA destroyed the tapes. See Resp’t’s Opp’n, ECF No. 665 at 21-22. Regardless, the Court agrees with Respondent that there is no need to address Petitioner’s other arguments regarding the source of the CIA’s preservation obligation since “the issue can be resolved on more narrow grounds for purposes of this case” using the conclusions from the FOIA litigation in the Southern District of New York. See id. at 22-23. 39 Here, rather than make “excuses,” Pet’r’s Mot., ECF No. 661

at 35; the CIA has conceded “that the tapes were not destroyed

because of an inadvertent routine or automatic document

retention process” but because “Mr. Rodriguez intentionally

authorized destruction of the videotapes with awareness that

senior government officials had expressed opposition to or

reservations about the destruction[,]” Resp’t’s Opp’n, ECF No.

665 at 24; see, e.g., Ex. 5 to Pet’r’s Mot., ECF No. 661-6 at 2

(CIA cable from Mr. Rodriguez authorizing destruction of the

videotapes); Ex. 2 to Pet’r’s Mot., ECF No. 661-3 at 2 (CIA

cable recounting Mr. Rodriguez’s statement that he would take

“any heat” for destroying the tapes since it would be “nothing

compared to what it would be if the tapes ever got into public

domain”); Ex. 4 to Pet’r’s Mot., ECF No. 661-5 at 2 (CIA cable

expressing concern that the destruction was ordered through

deception: “Either [redacted] lied to Jose about ‘clearing’ with

[redacted] and IG (my bet) or Jose misstated the facts.”); Ex. F

to Resp’t’s Opp’n, ECF No. 665-6 at 4, 7-8 (CIA’s disciplinary

review finding fault with Mr. Rodriguez’s decision to authorize

destruction of the tapes because he did so despite awareness of

opposition or concern from “two White House Counsels, the

counsel to the Vice President, the [Director of National

Intelligence], the [Director of the CIA], and the [House

Permanent Select Committee on Intelligence] ranking member”).

40 Accordingly, the Court concludes that the CIA deliberately

destroyed Petitioner’s interrogation tapes in 2005 with the

requisite culpable state of mind, and that the second element of

the issue-related sanctions test is therefore met.

3. The CIA’s Destruction of Petitioner’s Interrogation Videotapes Deprived Him of Relevant Evidence to the Claims Advanced in His Habeas Corpus Case

Third, the final element required for a court to impose an

issue-related sanction “is a showing that the destroyed evidence

was relevant to the moving party’s claims or defenses[,]” which

in this context, “encompasses not only the ordinary meaning of

the term [‘relevance’], but also that the destroyed evidence

would have been favorable to the movant.” Zhi Chen v. Dist. of

Columbia,

(D.D.C. 2011) (citation and some

internal quotation marks omitted). Although Respondent contends

that the “[t]he relevance of the videotapes to this habeas case

must be considered within the evidentiary context of

Respondent’s basis for Petitioner’s detention”—which, as set out

in the factual return, “does not rely on any statements

Petitioner made while in CIA or DoD custody” but rather on

statements he made prior to his detention (e.g., his handwritten

diaries and a video recording before his capture) and “evidence

from persons or sources other than Petitioner”—Respondent

nonetheless “concedes for the purposes of this case” the

41 relevance of the destroyed interrogation tapes. See Resp’t’s

Opp’n, ECF No. 665 at 24-27.

Specifically, “Respondent acknowledges [that] the

videotapes depicted relevant information, as interpreted by this

Court’s [May 24, 2021] discovery order[,]”

; which

ordered Respondent to produce Petitioner’s “exculpatory

statements to the government, including evidence revealing the

method and manner of the ‘[EITs]’ employed on Petitioner when

such statements were made[,]” see Husayn v. Austin, No. 08-1360

(EGS),

, at *6-7 (D.D.C. May 24, 2021) (stating

that “the circumstances under which Petitioner made these

statements are part and parcel of [the] statements themselves”

and that “it is clear that Petitioner is entitled to this

information”). 8 In accordance with the Court’s order, in

September 2021, Respondent began producing on a rolling basis

agency documents memorializing Petitioner’s exculpatory

statements “addressing myriad topics while in CIA custody

following his capture in March 2002 until his transfer to DoD

custody in September 2006.” See, e.g., Joint Status Report, ECF

No. 604 at 1-2 (reporting production of 650 such documents

totaling 2,700 pages); Resp’t’s Unopposed Mot. for Extension of

Time to Complete Production of Certain Classified Docs., ECF No.

8 This Memorandum Opinion and Order is docketed at ECF No. 573. 42 659 at 1-2 (reporting production of over 3,000 pages of such

documents). Therefore, since the Court previously concluded in

its discovery order that Petitioner’s exculpatory statements and

the circumstances under which they were made are “discoverable

information in this case, Respondent acknowledges that the

‘relevance’ element is satisfied[,]”—namely because “the

videotapes would have depicted at least some relevant statements

Petitioner made during recorded interrogation sessions,

including any denials he made about his connection to terrorist

activities” and his knowledge regarding “‘[al Qaeda] operatives

in, or future attacks against, the [U.S.]’” Resp’t’s Opp’n, ECF

No. 665 at 25-27 (quoting SSCI Report at 46-47); see also

Pet’r’s Mot., ECF No. 661 at 37-39 (arguing that the content of

the tapes would have relevantly “shown the exact circumstances

of Petitioner’s detention and torture,” during which he

“repeatedly den[ied] allegations that he was an al Qaeda

operative or . . . that he played a role in unlawful acts

against the [U.S.]”).

Accordingly, the Court concludes that the CIA’s destruction

of Petitioner’s interrogation tapes in 2005 deprived him of

relevant evidence to the claims advanced in his habeas corpus

case, and that the third and final element of the issue-related

43 sanctions test is therefore met. 9 Because both the parties and

the Court agree that all three elements of this test “are

satisfied in this case[,]” Resp’t’s Opp’n, ECF No. 665 at 27;

Pet’r’s Reply, ECF No. 666 at 3; the Court concludes that it may

impose appropriate issue-related sanctions for the CIA’s

intentional destruction and spoliation of the ninety videotapes

depicting Petitioner’s interrogation sessions by the Agency.

B. The Court Imposes Appropriate Issue-Related Sanctions for the CIA’s Intentional Spoliation of Petitioner’s Interrogation Videotape Evidence

Given that issue-related sanctions are warranted, the only

remaining issue is the appropriate remedy for the CIA’s

deliberate misconduct in destroying the videotapes of

Petitioner’s interrogation sessions, including those which

depicted the Agency’s use of EITs against him.

9 As Respondent notes, Petitioner raises other broader theories for “why the videotapes are relevant to the legality of Petitioner’s detention,” Resp’t’s Opp’n, ECF No. 665 at 26; including that “statements given under duress of torture and the threat of future torture are relevant in determining the exculpatory nature of statements made by the torture subject[,]” Pet’r’s Mot., ECF No. 661 at 38. The parties seemingly continue to disagree on “[w]hether the circumstances [of Petitioner’s interrogations] make the statements more or less reliable,” Husayn v. Austin, No. 08-1360 (EGS),

, at *7 (D.D.C. May 24, 2021); compare Pet’r’s Mot., ECF No. 661 at 38- 39 & n.38, with Resp’t’s Opp’n, ECF No. 665 at 26-27 n.7; but regardless, the Court maintains its earlier position that this “is something the parties can argue about at a later time,” Husayn,

, at *7. Despite the parties’ disagreement on that issue, they both agree that the relevance element of the issue-related sanctions test is met here. 44 A “primary aspect” of a court’s inherent power to impose

sanctions “is the ability to fashion an appropriate sanction for

conduct which abuses the judicial process.” Chambers v. NASCO,

Inc.,

,

,

(1991). This potent judicial authority “must be exercised with

restraint and discretion[,]”

; such that “the district

court must properly ‘calibrate the scales’ to ensure that the

gravity of an inherent power sanction corresponds to the

misconduct[,]” Shepherd, 62 F.2d at 1479; see also Bonds,

(emphasizing that “[t]he choice of sanction should

be guided by the ‘concept of proportionality’ between offense

and sanction”). “The graver the sanction under consideration,

the more precision this calibration requires[,]” and in so

“calibrating the scales,” the district court “should carefully

balance the policy favoring adjudication on the merits with

competing policies such as the need to maintain institutional

integrity and the desirability of deterring future misconduct.”

Shepherd, 62 F.2d at 1478-79 (citation and internal quotation

marks omitted).

As a result, the court’s election of an appropriate

sanction “is necessarily a highly fact-based determination,”

Bonds,

; and should include consideration of “the

degree of negligence or bad faith involved, the importance of

the evidence involved, the importance of the evidence lost to

45 the issues at hand, and the availability of other proof enabling

the party deprived of the evidence to make the same point[,]”

More,

(citation and internal quotation

marks omitted). The goal in selecting “an appropriate response

to the particular misconduct,” Shepherd,

; is “to

restore the accuracy of the original trial[,]” Jamie S. Gorelick

et al., DESTRUCTION OF EVIDENCE § 3.15, at 114 (1989); and to

“restor[e] the prejudiced party to the same position he would

have been in absent the wrongful destruction of evidence by the

opposing party[,]” Kronisch,

.

Here, for the CIA’s intentional spoliation of the

videotapes, Petitioner seeks “issue-related inherent power

sanction[s],” Shepherd,

; in the form of adverse

inferences and a court order requiring Respondent to respond to

and produce Petitioner’s specific, additional discovery requests

as enumerated in his “original spoliation motions,” see Pet’r’s

Mot., ECF No. 661 at 10, 39-40; Pet’r’s [Proposed] Order, ECF

No. 661-8 at 1-2. Respondent “disagrees with Petitioner’s

proposed adverse inferences and discovery sanctions as

overbroad, unduly burdensome, and contrary to accepted remedial

measures[,]” and instead proposes two sanctions that he claims

are “tailored evidentiary measures[ that] attempt to reconstruct

the information on the videotapes in the light most favorable to

Petitioner.” Resp’t’s Opp’n, ECF No. 665 at 27. These sanctions

46 would entail Respondent producing contemporaneous documents

reflecting the content of the tapes and agreeing to be precluded

from the admission of evidence rebutting Petitioner’s evidence

and testimony about the interrogations depicted on the tapes.

See id. at 9-10, 28-34. Accordingly, the Court addresses the

parties’ proposed evidentiary remedial measures in turn below

before arriving at the properly calibrated sanctions for the

CIA’s deliberate spoliation of the videotape evidence.

1. The Court Rejects Petitioner’s Nine Proposed Adverse Inferences as Inappropriate Findings of Fact and Conclusions of Law

Petitioner’s first proposed sanction is “an evidentiary

sanction—namely, that the factfinder should draw certain adverse

inferences.” Ashraf-Hassan v. Embassy of Fr. in the U.S.,

(D.D.C. 2015) (emphasis in original). He

proposes nine “adverse inferential findings concerning the

content of the destroyed Video Evidence, as set forth in the

[attached] Proposed Order.” Pet’r’s Mot., ECF No. 661 at 10.

Petitioner’s nine proposed “inferential findings” that he

contends the Court should grant “for the purpose of this case

and any other related proceeding” are quoted in full below:

(a) During the course of his interrogations, [Petitioner] provided no information that would support the view that he was a high-ranking member of al Qaeda, had ever been involved with any attacks on the U.S., or had any plans to attack the U.S.

47 (b) At no time while his interrogation was being videotaped did [Petitioner] withhold intelligence regarding the identities of al Qaeda personnel in the U.S. and/or planned al Qaeda attacks on the U.S. and/or to its interests.

(c) [Petitioner] was never a member of al Qaeda.

(d) [Petitioner] never supported al Qaeda’s operations against the U.S. or Americans.

(e) [Petitioner] had no knowledge of any post-9/11 attack planned against the U.S.

(f) Information provided by [Petitioner] to U.S. interrogators regarding al Qaeda was limited to information then commonly known to many people in Afghanistan, and is not evidence of any link or affiliation with terrorism.

(g) [Petitioner] willingly spoke to U.S. Government interrogators, and never attempted to withhold information from them.

(h) The Video Evidence depicted that the interrogation team used unauthorized, improvised, inhumane, and undocumented detention and interrogation techniques against [Petitioner].

(i) The Video Evidence depicted interrogations that were so physically and psychologically brutal that it was difficult to watch.

Pet’r’s [Proposed] Order, ECF No. 661-8 at 1-2 ¶¶ (a)-(i).

Petitioner urges the Court to adopt these inferences because he

claims they are supported by his “own first-person account,” as

detailed in his declaration, see Pet’r’s Decl., ECF No. 661-2;

48 which “[i]n the absence of the Video Evidence,” “provides the

best indicator of the content” of the tapes and what occurred

during his interrogations, Pet’r’s Mot., ECF No. 661 at 27.

The D.C. Circuit “has recognized that a negative inference

may be justified where the defendant has destroyed potentially

relevant evidence.” Gerlich,

(citing Talavera v.

Shah,

(D.C. Cir. 2011); Webb v. Dist. of

Columbia,

(D.C. Cir. 1998); Shepherd,

). In such circumstances, an adverse inference is an

“evidentiary presumption that the destroyed documents contained

favorable evidence for the party prejudiced by their

destruction.” Talavera,

; see also D’Onofrio,

, at *6 (stating that an adverse inference means

“to infer from evidence that was not produced that its

production would have been harmful to the non-producing party”).

Thus, here, were the Court to draw an adverse inference as a

sanction for the CIA’s intentional spoliation of evidence, it

would mean presuming that the destroyed videotapes contained

favorable evidence for Petitioner, as the prejudiced party, and

unfavorable evidence for Respondent, as the spoliating party.

Contrary to this traditional definition of an adverse

inference, the Court agrees with Respondent that Petitioner’s

Proposed Order asks the Court “to issue nine sweeping

categorical ‘find[ings]’” that are “tantamount” to the Court

49 making “overbroad factual and legal findings before [it] has

received evidence or argument for purposes of resolving the

merits of this case.” Resp’t’s Opp’n, ECF No. 665 at 35-36.

First, Petitioner’s Proposed Order states that the adverse

inferential findings would be binding “for the purpose of this

case and any other related proceeding[.]” Pet’r’s [Proposed]

Order, ECF No. 661-8 at 1. As Respondent correctly notes,

Petitioner has provided no authority to support his claim that

the Court can “bind non-parties or courts in this or other

jurisdictions through an adverse inference in this habeas case.”

Resp’t’s Opp’n, ECF No. 665 at 39; see In re Exec. Off. of the

President,

(D.C. Cir. 2000) (“District Court

decisions do not establish the law of the circuit, nor, indeed,

do they even establish the law of the district[.]” (internal

citations and quotation marks omitted)).

Second, several of Petitioner’s proposed adverse inferences

ask the Court to presume matters both beyond information that

could have been found on the destroyed videotapes and beyond the

time frame of Petitioner’s interrogation sessions that were

recorded—April to December 2002. For example, one of the

proposed inferences asks the Court to presume that the

information Petitioner provided to CIA interrogators regarding

al-Qaeda was “limited to information then commonly known to many

people in Afghanistan, and is not evidence of any link or

50 affiliation with terrorism.” Pet’r’s [Proposed] Order, ECF No.

661-8 at 2 ¶ (f). Respondent argues, and the Court agrees, that

“[t]he videotapes could not have said anything about what the

average Afghan citizen knew of Al-Qaida and its operational

activities in the late 1990s and early 2000s.” Resp’t’s Opp’n,

ECF No. 665 at 40. Next, other proposed inferences ask the Court

to presume that, Petitioner has always “willingly spoke[n] to

U.S. Government interrogators, and [has] never attempted to

withhold information from them[,]” and that he has never, during

the entire “course of his interrogations,” provided “information

that would support the view that he was a high-ranking member of

al-Qaeda . . . [or] involved with any attacks on the U.S.”

Pet’r’s [Proposed] Order, ECF No. 661-8 at 1-2 ¶¶ (a), (g).

However, the phrasing of these inferences aim to extend their

conclusory effect beyond “the limited dates when [Petitioner’s]

interrogations were recorded on the video[tapes].” Resp’t’s

Opp’n, ECF No. 665 at 41.

Third, two of Petitioner’s proposed inferences ask the

Court to make conclusions that are irrelevant to its instant

sanctions determinations. Specifically, one of the proposed

inferences asks the Court to presume that the videotapes

depicted “unauthorized, improvised, inhumane, and undocumented

detention and interrogation techniques.” Pet’r’s [Proposed]

Order, ECF No. 661-8 at 2 ¶ (h). The Court views this inference

51 as a request for a legal determination regarding the Agency’s

use of EITs against Petitioner, but as Respondent correctly

argues, “[t]he legality of the CIA’s [EITs] is not before the

Court in this case because Respondent is not relying on any of

Petitioner’s custodial statements to support his detention” and

therefore, the legality of his detention “does not turn on any

legal determinations about the lawfulness of the circumstances

of Petitioner’s interrogations” or his treatment by the CIA.

Resp’t’s Opp’n, ECF No. 665 at 25, 41. Relatedly, Petitioner’s

last proposed inference asks the Court to presume subjective

feelings and emotions regarding the content of the destroyed

tapes, namely that they “depicted interrogations that were so

physically and psychologically brutal that it was difficult to

watch.” Pet’r’s [Proposed] Order, ECF No. 661-8 at 2 ¶ (i). Such

a determination, apart from being subjective to an individual

viewer, is also irrelevant to the legality of Petitioner’s

detention as stated in Respondent’s factual return, which again,

“relies exclusively on statements Petitioner made prior to his

detention . . . and evidence from persons or sources other than

Petitioner.” Resp’t’s Opp’n, ECF No. 665 at 25.

Fourth, and most importantly, several of Petitioner’s

remaining proposed inferences are directed at resolving the

ultimate merits issue in this case—whether Petitioner is

lawfully detained because the government has proven by a

52 preponderance of the evidence that he is a “‘person who was part

of or substantially supported al-Qaeda, the Taliban, or

associated forces that are engaged in hostilities against the

[U.S.]’” Ali v. Obama,

, 544 & n.1 (D.C. Cir. 2013)

(quoting National Defense Authorization Act for Fiscal Year

2012,

,

, 1562 (2011),

and setting forth the standard for legality of detention); see

also Bensayah v. Obama,

(D.C. Cir. 2010)

(stating that the Authorization for Use of Military Force,

(a),

(2001), authorizes the

government “to detain, at the least, any individual who is

functionally part of al Qaeda”).

Specifically, Petitioner proposes that from Respondent’s

destruction of the interrogation tapes, the Court should infer,

prior to any evidentiary hearing in this case, that Petitioner:

(1) “was never a member of al Qaeda[;]” (2) “never supported al

Qaeda’s operations against the U.S. or Americans[;]” and (3)

“had no knowledge of any post-9/11 attack planned against the

U.S.” Pet’r’s [Proposed] Order, ECF No. 661-8 at 2 ¶¶ (c)-(e).

Although characterized as “adverse inferences,” the Court agrees

with Respondent that these are actually proposed findings of

fact and conclusions of law that would act “as the functional

equivalent of judgment in Petitioner’s favor by conclusively

resolving Petitioner’s connection to Al-Qaida and prohibiting

53 Respondent from offering any evidence to the contrary.” Resp’t’s

Opp’n, ECF No. 665 at 39. The Court views Petitioner’s

“backdoor” attempt at final judgment, id.; as entirely

inappropriate at this stage in the litigation, especially since

Respondent does not, as noted above, rely on Petitioner’s

custodial statements in the factual return, and because the

Court has yet to hold a merits hearing regarding the legality of

Petitioner’s detention. And as Respondent points out, Petitioner

has proffered no caselaw to suggest that the Court may “take the

extraordinary step of making ex ante findings of fact and law

prior to a merits hearing, particularly when Petitioner has

never filed a Traverse setting forth his reasons for habeas

relief.”

; see Al Bihani v. Bush,

(D.D.C. 2008) (explaining that “[t]he petitioner shall

file a traverse in response to the Government’s return[,]” which

should “include, at a minimum, the relevant facts in support of

the petition [for writ of habeas corpus] and a succinct rebuttal

of the Government’s legal justification for detention”).

Instead, Petitioner claims that his proposed adverse

inferences are “appropriate here” because they are “a measure

intended to be [limited and] remedial in nature.” Pet’r’s Mot.,

ECF No. 661 at 39; Pet’r’s Reply, ECF No. 666 at 6. Contrary to

his claims, however, Petitioner’s broad proposed adverse

inferences are more punitive than “remedial in nature” because

54 they ask the Court to make conclusive findings on key disputed

issues prior to an evidentiary hearing that, as discussed above,

“sweep far beyond” the probable timeline of and content depicted

on the destroyed interrogation tapes. Resp’t’s Opp’n, ECF No.

665 at 41. In addition, as Respondent notes and the Court

agrees, many of the proposed inferential findings touch on

“Petitioner’s mental state and subjective motivations,” for

example his “knowledge” of attacks planned against the U.S. and

his “willing[ness]” to speak with interrogators—matters which

are better suited to the Court’s review of the totality of the

evidence, which would include Petitioner’s own handwritten

diaries and video recordings.

(citing Pet’r’s [Proposed]

Order, ECF No. 661-8 at 2 ¶¶ (e), (g)). Petitioner’s approach is

therefore contrary to the D.C. Circuit’s instruction to district

courts that they must “consider all of the evidence taken as a

whole” in deciding the legality of a prisoner’s detention in

Guantanamo Bay habeas cases. See Awad v. Obama,

(D.C. Cir. 2010) (asking “whether the district court, in light

of all of the evidence, made an erroneous finding that [the

petitioner] was ‘part of’ al Qaeda”); Al-Adahi v. Obama,

(D.C. Cir. 2010) (“When the evidence is properly

considered, it becomes clear that [the petitioner] was—at the

very least-more likely than not a part of al-Qaida.”); Bensayah,

(evaluating all the “raw evidence” “together”

55 to determine “with the requisite degree of certainty” whether

the petitioner was functionally “part of al Qaeda”).

The parties dispute whether the Court’s conclusion should

change depending on whether the adverse inference instruction is

given to a jury or by a judge in a bench trial. Compare Resp’t’s

Opp’n, ECF No. 665 at 36 (“Petitioner’s request for an adverse

inference instruction makes little sense in a habeas case where

this Court, not the jury, will be the finder of fact and decide

the legality of Petitioner’s detention.”), with Pet’r’s Reply,

ECF No. 666 at 5 (“Contrary to [R]espondent’s argument, there is

no requirement that the judge be able to give an adverse

inference instruction to the jury.”). While the Court agrees

with Petitioner that adverse inferences can be given in jury and

bench trials alike, see Ashraf-Hassan,

(“In a bench trial, . . . the question is not about how a jury

should be instructed, but whether the Court itself should draw

particular adverse inferences.”); the Court notes that the

drawing of such inferences in a bench trial is “a serious step

for the Court to take” and therefore rare and disfavored, since

“courts must remain circumspect in their drawing of inferences

before the actual evidence is presented[,]”

; see,

e.g., Thompson v. U.S. Dep’t of Hous. & Urb. Dev.,

(D. Md. 2003) (“An adverse inference instruction . . .

was not appropriate for the simple fact that this is a bench

56 trial, and [the trial judge] will be aware of these proceedings

and certainly will be able to draw reasonable inferences from

the [ ] Defendants’ failure to preserve and produce e-mail

records as ordered.”); Devs. Diversified of Tenn., Inc. v. Tokio

Marine & Fire Ins. Co., No. 3:04-0015,

, at *5

n.1 (M.D. Tenn. Nov. 3, 2015) (“[T]his Court does not understand

how a permissive negative inference instruction could be given

in a bench trial, nor does this Court understand how a judge in

a bench trial could properly give himself or herself such an

instruction.”). This is because the drawing of such adverse

inferences could, as is the case here in certain respects,

improperly result in premature judgment in the movant’s favor.

The Court declines to impose issue-related sanctions that “would

be the functional equivalent of a dismissal” or default

judgment. See 3E Mobile, LLC v. Glob. Cellular, Inc.,

(D.D.C. 2016) (rejecting the defendant’s

proposed factual findings because adopting them “would, for all

intents and purposes, amount to summary judgment in [its]

favor”); Webb,

(stating that an adverse

inference, “even if accepted by the trier of fact, [cannot]

effectively dispose of the merits” (citation and internal

quotation marks omitted)); Shepherd,

(emphasizing that appropriate sanctions should “reflect our

57 judicial system’s strong presumption in favor of adjudications

on the merits”).

Accordingly, the Court declines to adopt any of

Petitioner’s proposed adverse inferences because they would

factually and legally resolve key issues before the Court has

had the opportunity to conduct an evidentiary hearing and would

furthermore preclude Respondent from presenting evidence outside

of the destroyed interrogation tapes about Petitioner’s ties to

and support of al-Qaeda or other terrorist organizations. In

other words, Petitioner’s desired sanction “simply casts too

wide a net.” United States v. Philip Morris USA, Inc.,

(D.D.C. 2004).

2. The Court Adopts Respondent’s Two Proposed “Reasonable Evidentiary Alternatives” as Appropriate Issue-Related Sanctions

Having rejected “the full scope of relief requested by

Petitioner” in his proposed adverse inferences, Pet’r’s Reply,

ECF No. 666 at 4; the Court next turns to Respondent’s two

proposed “reasonable evidentiary alternative[s] that [he alleges

can] serve as an adequate substitute for the loss of the

videotapes for purposes of this case[,]” Resp’t’s Opp’n, ECF No.

665 at 8. Petitioner was “clear” in his reply brief that were

the Court not to accept his proposed inferential findings, then

he would “welcome[] the relief offered by Respondent[.]” Pet’r’s

Reply, ECF No. 666 at 4. Accordingly, for the reasons discussed

58 below, the Court addresses and then adopts both of Respondent’s

proposed issue-related sanctions.

a. The Court Orders Respondent to Produce Contemporaneous Documents Reflecting the Content Depicted on Petitioner’s Destroyed Interrogation Tapes

First, “Respondent agrees to produce contemporaneous

documents about the interrogations depicted on the videotapes.”

Resp’t’s Opp’n, ECF No. 665 at 28. Specifically, Respondent has

offered to search for the same 580 documents that the CIA

“identified and processed” in the Southern District of New York

FOIA litigation and contempt proceedings in connection with that

court’s order to “produce records relating to the content of the

tapes . . . from the entire period of the tapes that were

destroyed,” ACLU,

; i.e., from April

through December 2002 when Petitioner’s interrogation sessions

were recorded, Resp’t’s Opp’n, ECF No. 665 at 9, 28. Respondent

states that the Agency “has initiated a process to locate those

documents,” id. at 28; and proposes to “produce to Petitioner’s

security-cleared counsel the classified documents retrieved from

this collection that pertain to Petitioner, subject to

appropriate redactions for sensitive national security and

privileged information in accordance with the Protective Order

entered in this case[,]” Resp’t’s [Proposed] Order, ECF No. 665-

11 at 1 ¶ 1. Respondent reports that the CIA has already

59 produced approximately 510 of the 580 documents to Petitioner’s

counsel in classified form in prior discovery productions in

this case, and that some of the 580 documents pertain to another

detainee, Mr. Al-Nashiri, whose interrogations were also

recorded on two of the destroyed videotapes. Resp’t’s Opp’n, ECF

No. 665 at 29 & n.8. Respondent agrees to prioritize production

of the remaining documents from the 580-document collection that

pertain to Petitioner after finishing production of the next

batch of Petitioner’s statements appearing in disseminated

intelligence reports and classified communications sent to CIA

Headquarters from overseas facilities between March 2002 and

September 2006 “that the Court has ordered completed by May 31,

2024.” Id. at 29 (citing Min. Order (July 12, 2022)).

While Petitioner argues that Respondent’s proffer of

documents in relation to “another case in 2011” “is too limited

and distant in time to satisfy the proportionality standard” of

a suitable issue-related sanction, see Pet’r’s Reply, ECF No.

666 at 8-9; the Court concludes that this is an appropriate

remedy in Petitioner’s favor for the CIA’s spoliation of the

video evidence. In denying the plaintiffs’ civil contempt

motion, the Southern District of New York found, in relation to

“this universe of 580 documents” (including ex parte and in

camera review of a sixty-five document sub-sample), that

although the interrogation tapes “cannot now be produced[,]” the

60 CIA “ha[d] remedied that failure by [this] massive production

of” documents containing agency “records that describe the

contents of the videotapes, corresponding in time to their

creation[.]” ACLU,

. This Court

therefore similarly concludes that the 580-document collection—

made up of classified communications sent to CIA Headquarters

from the covert overseas facility where Petitioner was being

detained and relaying in concurrent time Petitioner’s recorded

interrogations, including descriptions of the EITs applied to

him; his treatment and medical care; and statements he made

during those sessions, represent “the most complete and

contemporaneous [existing] records of Petitioner’s

interrogations during the time the videos were recorded.”

Resp’t’s Opp’n, ECF No. 665 at 9, 29-30 (citing Ex. I to

Resp’t’s Opp’n, Decl. of Leon E. Panetta, Director, CIA (June 8,

2009), ECF No. 665-9 at 4 ¶ 5 (originally filed in the Southern

District of New York FOIA litigation)). These documents

additionally include the notes of CIA employees who reviewed the

ninety-two videotapes before they were destroyed and logbooks

containing details of the interrogations, all of which “were

drafted either contemporaneously with the interrogations or with

a viewing of the now-destroyed videotapes.” Ex. I to Resp’t’s

Opp’n, Decl. of Leon E. Panetta, Director, CIA (June 8, 2009),

ECF No. 665-9 at 4 ¶ 5.

61 Petitioner takes issue with the “useful[ness]” of these

documents because he claims they will be heavily redacted and

will primarily consist of reports to CIA Headquarters about the

interrogation methods used and therefore do “not reflect the

statements or body language of Petitioner, or the reactions of

the interrogators.” Pet’r’s Reply, ECF No. 666 at 8. As a

result, Petitioner claims that these documents do not suffice as

a sanction because they do not match the “central evidentiary

feature” of what the videotapes could have offered Petitioner in

this habeas case—namely the ability to assess Petitioner’s body

language, tone of voice, facial expressions, and other

indicators of credibility from the tapes and apply it to

assessing his credibility in other key pieces of evidence. Id.

at 8-9. While the Court agrees with Petitioner that “a picture

is [often] worth a thousand words,” id. at 3; given that the

video “picture” no longer exists, the Court is persuaded that

the contemporaneous agency records are a properly tailored

option—combined with the additional remedy detailed below

precluding Respondent from rebutting Petitioner’s own testimony

about what was depicted on the tapes—for providing Petitioner

with “documentary evidence” to present to the Court “about the

content of the tapes,” see Resp’t’s Opp’n, ECF No. 665 at 9, 28,

32 (“Petitioner’s inability to use the videotapes in this

litigation will not hinder him from presenting the CIA documents

62 and his own evidence about his interrogations[.]”). Furthermore,

should Petitioner continue to advance concerns regarding the

documents’ redactions following their production to his counsel,

he is free to seek the Court’s ex parte, in camera review of a

sub-sample of the documents as to the “appropriate[ness]” of the

CIA’s redactions, see Pet’r’s Resp., ECF No. 669 at 2; as was

done in the Southern District of New York FOIA litigation, see

ACLU,

.

Finally, Petitioner has not shown that Respondent’s

proffered document collection lacks credibility as “an adequate

substitute” for the videotapes, and he inaccurately claims that

the judge in the Southern District of New York FOIA case “called

out [these materials] as contradictory[,]” Pet’r’s Mot., ECF No.

661 at 40; when in fact that court heavily relied on those

documents to conclude that a finding of civil contempt “would

serve no beneficial purpose” since the destruction of the tapes

“ha[d] been remedied[,]” ACLU,

; see also

Ex. C to Resp’t’s Opp’n, Review of Interrogation Videotapes

(Jan. 9, 2003), ECF No. 665-3 at 6 (confirming “that the cable

traffic accurately describes the interrogation methods employed”

on the videotapes). Accordingly, the Court ORDERS Respondent to

search for and produce to Petitioner’s counsel any of the

remaining documents from the 580-document collection identified

63 in the Southern District of New York litigation that reflect the

content of Petitioner’s destroyed interrogation tapes.

b. The Court Orders Respondent to Be Precluded from Introducing Evidence to Rebut Petitioner's Evidence or Testimony About the Interrogations Depicted on the Destroyed Videotapes

Second, in the merits hearing in this case, “Respondent

agrees the Court may preclude [the government] from introducing

evidence to rebut Petitioner’s evidence about the [circumstances

or content of the] interrogations depicted on the destroyed

videotapes.” Resp’t’s Opp’n, ECF No. 665 at 32. As a result,

Respondent states that Petitioner could then present evidence—

without any opposition—through his own testimony, by written

declaration, or through other documents, such as the

contemporaneous CIA records described above and his drawings

depicting his interrogations by the CIA (which have been

publicly released in response to FOIA requests).

at 9 & n.1.

Respondent argues that this remedy would “restore Petitioner to

the position he would have been in” absent the destruction of

the interrogation tapes because he will be free to present to

the Court evidence supporting “his version of how the

interrogations depicted on the videotapes relate to the basis

for [his] detention[,]” including how the interrogations were

conducted, how Petitioner was treated, and what statements

Petitioner made during the recorded sessions. Id. at 9-10, 32-

64 33. So long as Petitioner’s “version of events” has “a reliable

factual basis” and is not “inconceivable or fanciful,” 10

Respondent agrees to be precluded from “presenting any rebuttal

to Petitioner’s evidentiary presentation about what occurred

during the recorded interrogations with contrary evidence.” Id.

at 33.

The D.C. Circuit has recognized that appropriate issue-

related sanctions for the destruction of evidence can include

precluding the spoliator from admitting evidence in support of

its claims or defenses. See Shepherd,

.

Preclusion can either be “affirmative (a party is precluded from

proving a fact) or negative (a party is precluded from

disproving what the other party’s evidence establishes).”

D’Onofrio,

, at *7. Negative preclusion is at

issue here, as Respondent agrees to “be prohibited from

presenting [rebuttal] evidence” regarding what Petitioner’s

evidence establishes about his treatment or his statements made

during the recorded interrogations because the CIA’s “behavior

10Respondent contends that this caveat “protects against the unlikely situation in which Petitioner asserts an implausible allegation about his treatment that has no connection to reality[,]” for example if he alleges that the use of EITs against him continued past August 30, 2002—the date which all CIA records and the SSCI Report indicate that the use of EITs against him ceased. Resp’t’s Opp’n, ECF No. 665 at 33 n.10. As a result, Respondent indicates the government’s intention to reserve the right to present “appropriate rebuttal evidence” to only factually implausible allegations by Petitioner.

65 caused the loss of” the video evidence.

. Because

“any litigation sanction [must] be calibrated as carefully as

possible to the prejudice suffered and the harm done[,]”

; the Court agrees, for the reasons stated below, that in a

forthcoming merits hearing, Respondent’s proposed preclusion

remedy, in conjunction with the above document production

sanction, are together appropriately tailored to focus on

remedying the prejudice to Petitioner that has resulted from the

CIA’s intentional destruction of the videotapes, while also

furthering the judicial system’s policy “in favor of

adjudications on the merits,” Shepherd,

.

To start, the Court agrees with Petitioner that his first-

person declaration provides one of the best, if not “the best

indicator of the content of the video evidence.” Pet’r’s Mot.,

ECF No. 661 at 27. This declaration “describes some of what

[Petitioner] said [and experienced] during [the recorded]

interrogations,” during which he states that he “repeatedly

explained that [he] was not a member of or affiliated with al

Qaeda and that [he] never supported or engaged in any

hostilities against the [U.S.]” Pet’r’s Decl., ECF No. 661-2 at

2 ¶ 2. In this declaration, Petitioner explicitly states that

“[a]ny videotapes of such interrogations would have recorded

these repeated statements of [his] innocence.”

For example,

Petitioner writes that during his early interrogations, he told

66 his interrogators that he “was not a member [of al Qaeda] and

opposed violence against civilians[,]” and that he could not

answer any of their questions “because [he] was not involved

with al Qaeda or any of its operations.’”

at 3-4 ¶¶ 6, 8. He

also provides details regarding his “most painful and cruel

period of torture,” during which interrogators used EITs on him.

See

at 4-7 ¶¶ 11-21. Accordingly, by introducing his

declaration as unopposed evidence at a merits hearing in this

habeas case, Petitioner is able to present “virtually one-sided”

evidence to support his account of what happened on the dates of

the destroyed tapes, which the Court can credit in ultimately

determining whether his detention is lawful. Resp’t’s Opp’n, ECF

No. 665 at 34. Such a remedy is thus anything but “of limited

value”—as Petitioner claims. Pet’r’s Reply, ECF No. 666 at 10.

Next, the Court concludes that allowing Petitioner to

present this declaration, his drawings of his interrogation

sessions involving the use of EITs, live testimony at the

evidentiary hearing, and any other favorable piece of evidence

regarding the content of what would have been depicted on the

destroyed tapes—without any contradiction from Respondent—should

address Petitioner’s concern that the Court must have sufficient

alternatives to the video evidence to make “credibility

assessments . . . about the statements Petitioner made—not just

whether he made the statements.” Id. at 10. For example, this

67 unrebutted evidence can assist in establishing Petitioner’s

credibility in regard to his alleged “willingness [during the

recorded interrogations] to answer questions and [his] claims

that he never attempted to withhold information, had no

foreknowledge of attacks against the [U.S.], did not support al

Qaida and other terrorist activity, and harbored no animosity

toward the [U.S.,]”—the “central evidentiary feature” which

Petitioner claims is lacking in Respondent’s proffered

contemporaneous documents production. See id. at 9.

Petitioner also takes issue with Respondent’s proposal to

be precluded from offering rebuttal evidence because he claims

it is “insufficient” in proportionately matching “the

evidentiary value” of seeing “the reactions of interrogators to

the statements made by Petitioner[,]” which he claims “go to the

assessment of the lawfulness of Petitioner’s detention[.]” Id.

at 10. If the Court agrees that the reactions of Petitioner’s

interrogators speak directly to the legality of his continued

detention, Petitioner can testify to his recollection of those

reactions that would have been viewable on the videotapes in a

sworn declaration or live at the merits hearing.

Finally, the Court is persuaded that preclusion is a more

appropriately calibrated sanction to the harm Petitioner has

suffered from the interrogation tapes’ destruction than adopting

his nine proposed adverse inferences. Although it may be true

68 that Petitioner’s proposed inferences “are drawn principally

from [his] own accounts,” id. at 10; Pet’r’s Resp., ECF No. 669

at 3; it is one thing to accept Petitioner’s sworn declaration

as unrebutted evidence and quite another to accept the factual

and legal conclusions presented in Petitioner’s proposed

inferences that effectively seek to dispose of the central

issues in this case, see supra section IV.B.1. For example, in a

similar case involving the destruction of relevant evidence, the

District Court for the Eastern District of New York rejected as

“too severe” requested sanctions that would “effectively

preclude the [ ] defendants from opposing the [third-party

plaintiffs’] central factual allegations and would be tantamount

to granting judgement in [the third-party plaintiffs’] favor,”

especially since the requested sanctions “cover[ed] matters

going far beyond the information contained in the destroyed or

missing documents.” M & T Mortg. Corp. v. Miller, No. 2002-5410,

, at *12 (E.D.N.Y. Aug. 17, 2007). Instead, that

court precluded the defendants from offering any documentary

evidence related to matters that the spoliated evidence would

have addressed, concluding that this was “a more restricted [ ]

sanction [that would] adequately serve to protect the [third-

party plaintiffs], remedy the prejudice to them caused by the

destruction of the documents[,] and deter future improper

conduct.”

So too here does the Court conclude that

69 preclusion, as opposed to conclusory adverse inferences, is an

appropriate issue-related sanction for the CIA’s destruction of

Petitioner’s interrogation tapes.

Accordingly, the Court ORDERS Respondent to be precluded

during the merits hearing in this case from offering any

objection or rebuttal to Petitioner’s proffered evidence or

testimony about the content of the interrogations that would

have been depicted on the dates of the destroyed CIA videotapes.

Respondent is only permitted to object to Petitioner’s evidence

regarding the circumstances or content of the tapes to the

extent that it is factually implausible, and Respondent remains

able to present other evidence to establish the legality of

Petitioner’s detention.

In sum, the Court concludes that Respondent’s two proposed

evidentiary alternatives are appropriate issue-related sanctions

for the CIA’s intentional spoliation of Petitioner’s

interrogation videotape evidence. In crafting these remedies,

the Court has “ke[pt] in mind the practical effect of its

sanction[s] when determining” their appropriateness, Johnson v.

BAE Sys., Inc.,

(D.D.C. 2013); and the fact

that the destroyed videos would have been “only one of several

available forms of evidence about Petitioner’s interrogations,

interrogations which Respondent does not [even] rely upon to

justify the legality of Petitioner’s detention[,]” Resp’t’s

70 Opp’n, ECF No. 665 at 10. As a result, the Court’s calibrated

sanctions approach here enables it to adhere to this circuit’s

teachings that it must consider the totality of the evidence

when determining the legality of Petitioner’s ongoing detention.

See, e.g., Awad,

; Al-Adahi,

;

Bensayah,

.

3. The Court Denies Petitioner’s Request for Additional Discovery as an Inappropriate Issue- Related Sanction

The remaining issue before the Court comes from the last

sentence of Petitioner’s Proposed Order, which vaguely asks the

Court to order the parties to “confer to identify reasonable

limitations on the discovery sought by Petitioner in the

original spoliation motions,” and then directs Respondent to

“produce the requested discovered within 90 days” of the Court’s

order, “subject to limitations reasonably agreed upon by the

[p]arties[.]” Pet’r’s [Proposed] Order, ECF No. 661-8 at 2. As

Respondent notes, Petitioner’s instant spoliation motion “does

not contain any argument or explanation for this relief, let

alone a ‘statement of the specific points of law and authority

that support’ the requested discovery, as required by the

Court’s Local Rules.” Resp’t’s Opp’n, ECF No. 665 at 42 (quoting

LCvR 7(a)). Instead, this request for discovery in Petitioner’s

Proposed Order is never mentioned in his memorandum in support

of his superseding motion for sanctions and is addressed for the

71 first time in his reply brief. See Pet’r’s Reply, ECF No. 666 at

3 (stating Petitioner’s request for “additional discovery to

supplement the loss of the Video Evidence”). Only in his reply

does Petitioner provide “additional definition” to his request

for further discovery, which is that he is seeking “depositions

of a limited number of government officials present during his

interrogations as the best alternative to the destroyed Video

Evidence.” Id. at 6. Petitioner contends that Respondent should

have been aware of the details of his discovery request due to

an October 2023 email his counsel sent to Respondent with a

request to confer about “certain [of Petitioner’s proposed]

discovery procedures and limitations[,]” Decl. of Solomon B.

Shinerock, ECF No. 666-1 at 1 ¶ 2; and he claims that Respondent

declined to confer or “engage with Petitioner’s proposal in his

[opposition] brief[,]” Pet’r’s Reply, ECF No. 666 at 6 (citing

Ex. B to Pet’r’s Reply, ECF No. 666-3 at 2).

To begin, the Court summarizes the contents of the email

Petitioner’s counsel, Solomon Shinerock (“Mr. Shinerock”), sent

to Respondent on October 6, 2023—seven days after Petitioner

filed his superseding motion for sanctions. Mr. Shinerock stated

that in this superseding motion, “we are seeking, among other

things, an order for the discovery sought by Petitioner in the

original spoliation motions, subject to reasonable limitations

agreed upon by the parties.” Ex. A to Pet’r’s Reply, ECF No.

72 666-2 at 2. He then summarized the sanctions sought for the

CIA’s destruction of the videotapes in Petitioner’s original

motion for sanctions filed in 2009, which asked the Court to

order the government to produce:

1. Any video, audio, written, or other documentation of [Petitioner’s] interrogations—including the CIA cables and emails transmitted to and from CIA Headquarters and notes taken during the interrogations which detail all of the events therein;

2. Depositions of all parties present during or otherwise observing Petitioner’s [i]interrogations; and

3. Depositions of all other persons detained or interrogated at any time at Guantanamo Bay or as part of the CIA program.

Id. Mr. Shinerock then proposed “reasonable limits on that

discovery,” specifically that: (1) “the first request be limited

to the time period during which [Petitioner] was undergoing

interrogation by the CIA or its contractors at Detention Site

Green[;]” (2) the second request be limited to depositions of

“one member of our choosing from each government component

present during or otherwise observing [Petitioner’s]

interrogations, including without limitation CIA-OTS, CIA-OMS,

CIA-CTC, CIA legal staff, CIA medical staff, FBI, and Defense

Department[,]” 11 as well as depositions of “Gina Haspel, Jose

11“CIA-OTS” refers to the CIA’s Office of Technical Service, “which provides technical support and tools as part of the CIA’s 73 Rodriguez, Scott Shumate[,] and Harriet Miers[;]” and (3) the

third request “for depositions of other detainees” be withdrawn

so as to take some “issue[s] off the table for the Court.” Id.

In Respondent’s email reply on October 10, 2023, the

government stated its “inten[t] to address both [Petitioner’s]

requests for adverse findings and discovery” in its response

brief and to “take this discovery proposal into account as [it]

develop[ed] [that] response.” Ex. B to Pet’r’s Reply, ECF No.

666-3 at 2. As such, the Court finds, contrary to Petitioner’s

claims, that in his opposition brief, Respondent does “engage

with” Petitioner’s request for additional discovery by

proffering various arguments against it “on the merits,” see

Resp’t’s Opp’n, ECF No. 665 at 43-50; and also by reserving the

right to seek leave to file a sur-reply “[i]n the event

Petitioner asks the Court to adopt any revised proposal for

depositions in his forthcoming reply brief” in line with his

counsel’s October 2023 email to Respondent, which was sent only

after Petitioner filed his superseding motion for sanctions on

September 29, 2023 that notably lacked any mention of his

request for depositions, id. at 44 n.12.

clandestine operations[,]” while “CIA-OMS” refers to the CIA’s Office of Medical Services, “which is responsible for the CIA’s medical programs.” Resp’t’s Sur-Reply, ECF No. 667-2 at 5 n.1. 74 Given that this is exactly what Petitioner did in his

reply, see Pet’r’s Reply, ECF No. 666 at 11 (asking the Court to

enter an order requiring Respondent to produce “his requested

[discovery] relief, as modified by the limitations proposed by

his counsel” in Mr. Shinerock’s email to Respondent); on

December 8, 2023, Respondent requested leave to file a sur-reply

“to respond to the new” and “significantly modifie[d] [ ]

discovery relief” requested by Petitioner in his reply for the

CIA’s destruction of the videotapes, Resp’t’s Mot. for Leave to

File Sur-Reply, ECF No. 667 at 1-2. Respondent argued that

Petitioner’s superseding sanctions motion never “provided any

indication that his [counsel’s then-forthcoming and ‘informal

post-filing’] email was a binding limitation on the relief he

was seeking from the Court[,]” and that it was not until

Petitioner’s reply that it became “clear” that Petitioner was

modifying his discovery request and asking the Court “to

incorporate the contents of [Mr. Shinerock’s] email into a Court

order.” Id. at 2-3. To provide Respondent with “a fair

opportunity to respond to Petitioner’s newly requested

relief[,]” id. at 3; on December 11, 2023, the Court granted,

over objection for good cause shown, Respondent’s motion for

leave to file a sur-reply, see Min. Order (Dec. 11, 2023)

(deeming as filed Respondent’s Sur-Reply in Opposition to

Petitioner’s Superseding Motion for Sanctions, ECF No. 667-2);

75 see also Lewis v. Rumsfeld,

(D.D.C. 2001)

(stating that “[t]he standard for granting a leave to file a

surreply is whether the party making the motion would be unable

to contest matters presented to the court for the first time in

the opposing party’s reply”). Petitioner filed a short response

on December 26, 2023, claiming that Respondent’s sur-reply

“largely tracks back across ground already covered in the moving

and opposition briefs.” Pet’r’s Resp., ECF No. 669 at 1.

As an initial matter and for a moment setting aside

Respondent’s sur-reply and Petitioner’s response thereto, the

Court agrees with Respondent’s argument that Petitioner’s

request for discovery can be denied on the grounds that he

failed “to reassert or modify his original request for discovery

[from his initial spoliation motions] in the renewed motion,”

instead only “tack[ing] [it] on at the end of a proposed order

without explanation.” Resp’t’s Opp’n, ECF No. 665 at 43. On

June 27, 2023, the Court denied without prejudice Petitioner’s

original motion for sanctions for the spoliation of evidence and

his supplement to that motion so that he could file a “single,

consolidated, superseding briefing on this issue[.]” See Min.

Order (June 27, 2023) (citing ECF Nos. 401 and 359). Therefore,

to the extent Petitioner’s Proposed Order and Mr. Shinerock’s

October 6, 2023 email to Respondent both seek an order for

discovery based on modifications to the discovery sought in

76 Petitioner’s “original spoliation motions,” Pet’r’s [Proposed]

Order, ECF No. 661-8 at 2; see also Ex. A to Pet’r’s Reply, ECF

No. 666-2 at 2 (proposing “reasonable limitations” to the

discovery requested “per ECF No. 401”); they are improperly

doing so in reference to motions that the Court denied.

Moreover, Petitioner has titled his present motion for sanctions

“superseding,” such that if he wished to request the discovery

relief asserted in his original spoliation motions, he should

have not simply mentioned it at the end of the Proposed Order

but rather should have provided a “legal or factual basis” for

this request in his accompanying memorandum of law in support of

his motion. Resp’t’s Opp’n, ECF No. 665 at 43; see also LCvR

7(a) (requiring that a motion include “a statement of the

specific points of law and authority that support the motion”).

Furthermore, Petitioner’s additional discovery request does

not comply with section I.E.2 of the Court’s Case Management

Order (“CMO”) in this case, which requires discovery requests to

not only be presented by written motion, but also must “(1) be

narrowly tailored, not open-ended; (2) specify the discovery

sought; (3) explain why the request, if granted, is likely to

produce evidence that demonstrates that [P]etitioner’s detention

is unlawful , . . . ; and (4) explain why the requested

discovery will enable [P]etitioner to rebut the factual basis

for his detention without unfairly disrupting or unduly

77 burdening the government[.]” See ECF No. 48; see, e.g., Husayn,

, at *21, *31-34 (denying other discovery

requests made by Petitioner because they did “not satisfy the

requirements of CMO § I.E.2”). To the contrary, Petitioner’s

discovery request is only stated in the last sentence of his

Proposed Order without any of the specifications or explanations

that are required by the components of CMO section I.E.2. See

Resp’t’s Opp’n, ECF No. 665 at 47-48 (citing CMO § I.E.2 to

argue that Petitioner’s depositions request “depart[s] from the

discovery standards in the [CMO,]” as he “has not carried his

burden to show that depositions are likely to produce

significant new information that would demonstrate that his

detention is unlawful”).

The Court next turns to the arguments advanced in

Respondent’s sur-reply and Petitioner’s response thereto (in

addition to the arguments as stated in Respondent’s opposition

and Petitioner’s reply), to determine whether, as an appropriate

additional issue-related sanction for the CIA’s destruction of

the videotapes, Respondent should be ordered to produce the

specific discovery requested in Mr. Shinerock’s October 6, 2023

email to Respondent, specifically the three “limitations” he

proposed on that discovery in relation to the sanctions sought

in Petitioner’s original spoliation motions, Ex. A to Pet’r’s

Reply, ECF No. 666-2 at 2; Pet’r’s Reply, ECF No. 666 at 11.

78 a. Petitioner’s Discovery Request for Depositions of Other Guantanamo Bay Detainees

At the outset, the Court finds it unnecessary to address

Petitioner’s third “limitations” proposal in detail, which is

Petitioner’s offer to withdraw his original sanctions request

for “[d]epositions of all other persons detained or interrogated

at any time at Guantanamo Bay or as part of the CIA program.”

Ex. A to Pet’r’s Reply, ECF No. 666-2 at 2. In his opposition

brief, Respondent proffers various arguments against

Petitioner’s “need” for deposing other Guantanamo Bay detainees,

see Resp’t’s Opp’n, ECF No. 665 at 44-46; but in Petitioner’s

reply, he calls these arguments futile because his “superseding

motion seeks no such depositions[,]” Pet’r’s Reply, ECF No. 666

at 6. Having clearly stated his intention to abandon this third

discovery request from his original spoliation motions, both in

Petitioner’s reply and as proposed in Mr. Shinerock’s email, the

Court concludes that it need not consider it any further.

b. Petitioner’s Discovery Request for CIA Documentation of Petitioner’s Interrogations at Detention Site Green

The Court next addresses Petitioner’s first discovery

request from his original spoliation motions, namely for “[a]ny

video, audio, written, or other documentation of [Petitioner’s]

interrogations—including the CIA cables and emails transmitted

to and from CIA Headquarters and notes taken during the

79 interrogations which detail all of the events therein[,]” see

ECF No. 401 at 21; which Mr. Shinerock has proposed to limit to

the time period during which Petitioner was undergoing CIA

interrogations at Detention Site Green, Ex. A to Pet’r’s Reply,

ECF No. 666-2 at 2. Respondent argues that the Court should

“deny [this] amended document discovery request as moot” “in

light of Respondent’s commitment to produce” the 580-document

collection identified in the Southern District of New York FOIA

litigation, which contemporaneously “reflect[s] the content of

the interrogations on the destroyed videotapes,” and is

therefore “materially indistinguishable” from Petitioner’s

instant document discovery request. Resp’t’s Sur-Reply, ECF No.

667-2 at 2-4.

Although Petitioner responds by claiming that Respondent

“inaccurately equates the 580 documents on offer with the

discovery that Petitioner seeks[,]” claiming instead that his

amended request seeks a “larger scope of records” than the 580

documents can provide, Pet’r’s Resp., ECF No. 669 at 2; the

Court disagrees. Mr. Shinerock’s email states that Petitioner

seeks any CIA documentation about Petitioner’s interrogations

from the time period that he was being interrogated by the

Agency “at Detention Site Green.” Ex. A to Pet’r’s Reply, ECF

No. 666-2 at 2. The SSCI Report indicates that Detention Site

Green is the pseudonym for the location of Petitioner’s “first

80 CIA detention site,” where he was detained from March 2002

following his capture until December 2002 when he was

transferred to another detention site after Detention Site Green

closed. SSCI Report at 23-24, 67. Additionally, the Court has

ordered Respondent—similar to the Southern District of New York

in the FOIA litigation—to produce all “records relating to the

content of the tapes . . . from the entire period of the tapes

that were destroyed,” i.e., between April and December 2002 when

Petitioner’s interrogations were recorded at Detention Site

Green. ACLU,

. The time period for the

documentation requested in Petitioner’s first amended document

discovery request therefore overlaps with the time period

covered by the Court’s document production sanctions

determination. “That is, records about Petitioner’s

interrogations between April and December 2002 are coextensive

with records about interrogations at Detention Site Green, where

Petitioner was detained for the same period of time.” Resp’t’s

Sur-Reply, ECF No. 667-2 at 4. The Court therefore agrees that

“[n]o further document discovery is required” beyond the

delineations of its earlier document production sanctions

determination, id.; see supra section IV.B.2.a.; especially

because that remedy requires the CIA to provide Petitioner with

“communications to CIA Headquarters from” Detention Site Green

(including cables and emails) “concerning interrogations of

81 [Petitioner,]”—“the most contemporaneous documents the CIA

possesses concerning these [recorded] interrogations[,]”—as well

as “notes of CIA employees who reviewed the 92 videotapes before

they were destroyed, logbooks containing details of the

interrogations, and a photograph[,]” Ex. I to Resp’t’s Opp’n,

Decl. of Leon E. Panetta, Director, CIA (June 8, 2009), ECF No.

665-9 at 4 ¶ 5; all of which matches Petitioner’s discovery

request as stated in Mr. Shinerock’s email to Respondent.

Accordingly, the Court DENIES Petitioner’s first discovery

request, even if subject to the limitations proffered to

Respondent in Mr. Shinerock’s email, as redundant of its earlier

crafted sanctions remedy requiring Respondent to produce

contemporaneous documents about the interrogations depicted on

the videotapes. To the extent that Petitioner’s request somehow

requires more beyond “‘records relating to the content of the

tapes[,]’” Pet’r’s Resp., ECF No. 669 at 2 (quoting ACLU,

); the Court rejects that request because it

is only concerned with making Petitioner whole as to the CIA’s

destruction of the videotapes depicting his interrogation

sessions, see Kronisch,

; see also ECF No. 401 at

19 (asking “this Court only to compel the government to

reconstruct the evidence that it destroyed”).

82 c. Petitioner’s Discovery Request for Depositions of Government Officials, Former and Current CIA Officers, and Other Agency Officials Who Were Present for or Otherwise Observed Petitioner’s Interrogations

Finally, the Court addresses Petitioner’s remaining

discovery request from his original spoliation motions, namely

for “[d]epositions of all parties present during or otherwise

observing Petitioner’s [i]nterrogations[,]” see ECF No. 401 at

21-22; but limited by Mr. Shinerock’s proposal to “one member of

[his] choosing from each government component present during or

otherwise observing [Petitioner’s] interrogations, including

without limitation CIA-OTS, CIA-OMS, CIA-CTC, CIA legal staff,

CIA medical staff, FBI, and Defense Department[,]” Ex. A to

Pet’r’s Reply, ECF No. 666-2 at 2. “In other words,” Petitioner

proposes “to review a list of all individuals present at

Detention Site Green, their dates present, and their government

affiliation, and from that list [his counsel] would select a

representative deponent for each component.”

Furthermore,

Petitioner asks, as part of this amended discovery request, to

depose four specific individuals: Gina Haspel (former CIA

Director), Jose Rodriguez, Scott Shumate, and Harriet Miers

(former White House Counsel).

Petitioner argues that the

requested depositions “are far more useful to [him] than the

[two] remedies offered by Respondent” because he claims that

“[s]peaking to people involved in the interrogations” will

83 provide both descriptions of “the circumstances [depicted on the

videotapes] and reactions of key decisionmakers” who were

assessing Petitioner’s “level of involvement with terrorism” and

therefore “the lawfulness of [his] detention[.]” Pet’r’s Reply,

ECF No. 666 at 9-10. Respondent, however, argues that

“Petitioner’s request for roughly a dozen depositions of high-

ranking former government officials, CIA intelligence officers,

FBI agents, and [DoD] military personnel . . . is overbroad,

unduly burdensome, and legally unfounded[,]” Resp’t’s Sur-Reply,

ECF No. 667-2 at 2; and bears no “relation, either in subject

matter or scale, to the destruction of the interrogation

videotapes[,]” Resp’t’s Opp’n, ECF No. 665 at 44.

The Court is not persuaded by Petitioner’s arguments for

his second discovery request as described in Mr. Shinerock’s

email and instead agrees with Respondent that such a remedy for

the CIA’s spoliation of the video evidence is not consistent

with the “‘restraint and discretion’” that courts must exercise

when calibrating appropriate issue-related sanctions.

at 50

(quoting Shepherd,

). Petitioner contends that

Respondent’s proposed evidentiary alternatives are insufficient

because: (1) “CIA documents tell only part of the story[,]” and

that “without the requested depositions, there will be no way to

test the veracity, comprehensiveness, or impact of” the

documents, Pet’r’s Resp., ECF No. 669 at 2; and (2) accepting

84 Petitioner’s evidence about his interrogations without rebuttal

“is of limited value without the requested depositions[,]”

Pet’r’s Reply, ECF No. 666 at 10. The Court rejects both of

these arguments, as it has concluded that Respondent’s two

proposed remedies provide a comprehensive way to tell “the

story” of the destroyed tapes in the light most favorable to

Petitioner, with Petitioner’s unopposed evidence and testimony—

or what Petitioner himself calls “the best indicator of the

content of the video evidence[,]” Pet’r’s Mot., ECF No. 661 at

27; providing a check on the “veracity” and “comprehensiveness”

of the CIA’s contemporaneous document production. Thus, “the

truth finding function” of the Court does not rely on the

documents alone, or on the imposition of just one sanction for

that matter, such that Petitioner’s requested depositions do not

play the vital role that he claims. Pet’r’s Resp., ECF No. 669

at 2.

In addition, the Court concludes that Petitioner’s amended

request for depositions is an inappropriate and unreasonably

tailored issue-related sanction to the gravity of the spoliation

at issue for the various reasons proffered by Respondent and

that go largely unanswered by Petitioner in his reply brief and

in his short response to Respondent’s sur-reply.

First, Respondent argues in his sur-reply that Petitioner’s

“sweeping request should be denied” because he fails to meet his

85 “heavy burden” in establishing “extraordinary” need for deposing

the current or former high-ranking government officials that

would be encompassed by Mr. Shinerock’s list in his email.

Resp’t’s Sur-Reply, ECF No. 667-2 at 5. Pursuant to the “apex

doctrine,” which is the governing “law of [this] Circuit, a

party attempting to depose a high-ranking government official

must demonstrate ‘extraordinary circumstances’ requiring such a

deposition.” United States v. Newman,

, 188

(D.D.C. 2021) (quoting Simplex Time Recorder Co. v. Sec’y of

Lab.,

(D.C. Cir. 1985) (citing United States

v. Morgan,

,

,

(1941))). Under the apex doctrine, which equally applies to both

former and current government officials, “there is a presumption

against deposing high-ranking government officials” so as to:

(1) “protect the integrity and independence of the government’s

decision-making processes[;]” (2) “permit high-ranking

government officials to perform their official tasks without

disruption or diversion[;]” and (3) “limit indiscriminate

depositions that would discourage individuals from accepting

positions as public servants[.]”

(citations and internal

quotation marks omitted). Consequently, “high ranking government

officials are generally not subject to depositions unless they

have some personal knowledge about the matter and the party

seeking the deposition makes a showing that the information

86 cannot be obtained elsewhere.” Alexander v. FBI,

(D.D.C. 1998) (emphasis in original).

As Respondent correctly notes, “Petitioner makes no effort

to satisfy this [apex doctrine] standard in his reply brief[,]”

or even mention its existence as governing law. Resp’t’s Sur-

Reply, ECF No. 667-2 at 5. Thus, although Petitioner seeks to

depose individuals “actually involved in [his] interrogations

and the subsequent destruction of the tapes[,]” Pet’r’s Resp.,

ECF No. 669 at 3; i.e., people with “some personal knowledge”

about the tapes, he has failed to adequately argue that such

information could not “be obtained elsewhere[,]” Alexander,

; i.e., via the Court’s above-mentioned remedies for

the CIA’s intentional destruction of the tapes. In fact, as

Respondent argues, the contemporaneous documents and notes that

the Court has ordered the CIA to produce as a remedial sanction

are more likely to be a “reliable” and accurate source of

evidence about what occurred on the videotapes than individual

deponents’ “recall in 2024” about the recorded interrogations

from 2002, see Resp’t’s Opp’n, ECF No. 665 at 47 (calling it “an

unprecedented fishing expedition” for the Court to ask “CIA

officers 21 years after the fact whether they remember tidbits

of information that may have been recorded on the tapes, but not

included in the contemporaneous documents”); even if the

interrogations were “a harrowing affair that [ ] left deep

87 impressions in the minds and memories of those involved,”

Pet’r’s Reply, ECF No. 666 at 6. The Court therefore concludes

that Petitioner’s amended depositions request fails pursuant to

the rigors of the apex doctrine. See In re Cheney,

(D.C. Cir. 2008) (“The duties of high-ranking executive

officers should not be interrupted by judicial demands for

information that could be obtained elsewhere.”).

Second, Respondent argues in his sur-reply that

“Petitioner’s request for Respondent to produce a list of names

and employment duties of CIA officers who observed Petitioner’s

interrogations conflicts with the statutory privilege that

prevents the disclosure of such information.” Resp’t’s Sur-

Reply, ECF No. 667-2 at 6. Specifically, Respondent points to

section 6 of the CIA Act, which provides that “[i]n the

interests of the security of the foreign intelligence activities

of the [U.S.,]” the CIA is “exempted” from “disclosure of the

organization or functions of the Agency, or of the names,

official titles, salaries, or numbers of personnel employed by

the Agency[.]” Id.;

; see also ACLU v. CIA, No.

16-1256 (EGS),

, at *5 (D.D.C. Nov. 24, 2021)

(concluding that “the names of [ ] CIA employees are protected

by Section 6 of the CIA Act”).

In addition to this statutory privilege, Respondent argues

that the “state secrets privilege” applies here to shield

88 discovery into the “national security information that

Petitioner appears to seek in this case.” Resp’t’s Sur-Reply,

ECF No. 667-2 at 7. The application of the state secrets

privilege, which “permits the Government to prevent disclosure

of information when that disclosure would harm national security

interests[,]” was recently upheld by the Supreme Court to quash

a subpoena matter initiated by Petitioner seeking information

about the Agency’s former CTC Program and depositions of two of

the former CIA contractors allegedly involved in his

interrogations. United States v. Zubaydah,

,

,

(2022). Although the

burden is on the government to formally assert a claim of the

state secrets privilege, courts are “reluctant to intrude upon

the authority of the Executive in military and national security

affairs[,]” Dep’t of Navy v. Egan,

,

,

(1988); such that “the party seeking

disclosure of the ostensibly privileged information” must make a

strong and sufficiently compelling showing of necessity,

Zubaydah,

; see also United States v. Reynolds,

,

,

(1953) (“[E]ven the

most compelling necessity cannot overcome the claim of privilege

if the court is ultimately satisfied that military secrets are

at stake.”). Accordingly, the Supreme Court determined that any

response to Petitioner’s subpoenas would “have the effect of”

89 confirming or denying the existence of a CIA detention facility

overseas, and it concluded that any such confirmation “could

significantly harm national security interests” and therefore

fell “within the scope of the state secrets privilege.”

Zubaydah,

.

Using the Supreme Court’s example and another lower court’s

decision to quash depositions of CIA officers who allegedly

participated in the CTC Program (including Gina Haspel, who

Petitioner names in his discovery request) pursuant to the state

secrets privilege and the CIA Act, see Order re: Third and

Fourth Mot. to Compel & Assertion of State Secrets Privilege,

Salim v. Mitchell, No. 15-cv-0286 (E.D. Wash. May 31, 2017), ECF

No. 188 at 1, 20-21; Respondent argues that Petitioner’s

depositions request must be prohibited by both the state secrets

privilege and the CIA Act because they “run headlong into [the

government’s] ‘compelling interest’ in preventing unauthorized

disclosure of information that would harm national security or

intelligence interests[,]” Resp’t’s Opp’n, ECF No. 665 at 49

(quoting Egan,

).

Akin to his failure to address Respondent’s arguments

regarding the apex doctrine, Petitioner also does not respond to

any of Respondent’s arguments regarding the state secrets

privilege or the Agency’s statutory privilege under the CIA Act

in his response to Respondent’s sur-reply. In his reply brief,

90 Petitioner only claims, without legal support, that he is “[o]f

course . . . entitled to a substantial amount of classified and

sensitive information” pursuant to his habeas rights and that

his requested depositions “present no national security or

secrecy issue not routinely presented (and properly handled) as

part of document discovery in this case.” Pet’r’s Reply, ECF No.

666 at 7. Petitioner contends that Respondent’s “‘high volume’

of privilege assertions and threat[s to] ‘national security’”

regarding his depositions request merely “evoke[] a parade of

horribles” that can be addressed by “prophylactic” measures,

including the CMO, related protective orders, his counsel’s

security clearance, and accommodations to ensure that deponents’

names are not made public.

As a result, Petitioner claims

that these combined measures plus the “additional limitations

set forth in [his] deposition proposal” will “minimize impact

and disruption to government agencies while balancing the need

to redress the willful destruction of the Video Evidence.”

Pet’r’s Resp., ECF No. 669 at 3.

The Court is not persuaded that Petitioner’s claims are a

sufficient response to Respondent’s arguments regarding “[t]he

complex privilege and burdensome logistical issues associated

with Petitioner’s proposed depositions,” especially given

Respondent’s indication that the government would move to quash

any such subpoenas by asserting “all appropriate privileges,”

91 thereby likely “enmesh[ing] the Court” in a “high volume of

collateral litigation.” Resp’t’s Opp’n, ECF No. 665 at 50 &

n.14; Resp’t’s Sur-Reply, ECF No. 667-2 at 9. As the Supreme

Court has stated, “the Government has a legitimate interest in

protecting sources and methods of intelligence gathering[,]” and

it expects district courts to use their “discretion to

accommodate this interest to the greatest extent possible.”

Boumediene v. Bush,

,

,

(2008). Therefore, the Court agrees with Respondent

that Petitioner’s failure to properly justify his request to

depose high-ranking government and agency officials and various

current and former CIA officers who may still be in “covert

status” or were never publicly acknowledged to have been a part

of the CTC Program demonstrates that his modified discovery

request, as stated in Mr. Shinerock’s email, is “overbroad,”

“unduly burdensome,” and not a properly calibrated sanction for

the CIA’s destruction of the videotapes. Resp’t’s Opp’n, ECF No.

665 at 48; Resp’t’s Sur-Reply, ECF No. 667-2 at 8.

Finally, Respondent advances four smaller arguments for why

Petitioner’s depositions request should be denied as an

inappropriate remedial sanction. First, Respondent argues that

Petitioner’s request exceeds “the presumptive limit [on

depositions] for entire cases under the Federal Rules of Civil

Procedure[,]” especially since discovery is “more confined” in

92 habeas corpus actions. Resp’t’s Sur-Reply, ECF No. 667-2 at 6-7

& n.2 (citing Fed. R. Civ. P. 30(a)(2), which requires leave of

court for “more than 10 depositions”). Second, Respondent argues

that the Court should follow the Southern District of New York’s

approach in the FOIA litigation in denying the plaintiffs’

request for additional discovery, which would have included

depositions of CIA officials involved in the destruction of the

videotapes. Resp’t’s Opp’n, ECF No. 665 at 46-47; Resp’t’s Sur-

Reply, ECF No. 667-2 at 9-10 (both citing ACLU,

). Lastly, Respondent argues that since the factual return

does not rely on any post-capture custodial statements from

Petitioner’s time in CIA or DoD custody, there is no “compelling

need” for the depositions of officials involved in his custodial

interrogations. Resp’t’s Sur-Reply, ECF No. 667-2 at 7.

Petitioner “offers no response” to any of these arguments, id.

at 7, 9; thereby further buttressing the Court’s conclusion that

his amended depositions request is not an appropriately tailored

evidentiary remedy for the CIA’s destruction of the videotapes.

For all the above reasons, the Court DENIES Petitioner’s

second discovery request for the various depositions as stated

in Mr. Shinerock’s email to Respondent. Accordingly, the Court

DENIES Petitioner’s overall request that it order Respondent to

produce any of the additional discovery sought by Petitioner in

the final paragraph of his Proposed Order or as limited by the

93 proposal in Mr. Shinerock’s email as an inappropriate issue-

related sanction.

V. Conclusion and Order

For the foregoing reasons stated in this Memorandum

Opinion, it is hereby

ORDERED that Petitioner’s Superseding Motion for Sanctions

for the Spoliation of Evidence, ECF No. 661, is GRANTED IN PART

AND DENIED IN PART. The Court will impose two appropriately

tailored sanctions for the CIA’s deliberate spoliation of the

video evidence of Petitioner’s interrogation sessions by the

Agency. It is further

ORDERED that Respondent shall search for the 580 documents

identified in ACLU v. Department of Defense,

(S.D.N.Y. 2011), relating to the content of the destroyed

videotapes. Respondent shall produce to Petitioner’s security-

cleared counsel the classified documents retrieved from this

collection that pertain to Petitioner, subject to appropriate

redactions for sensitive national security and privileged

information in accordance with the Protective Order entered in

this case. Respondent shall prioritize production of these

documents following the completion of its ongoing production of

documents containing Petitioner’s statements in disseminated

intelligence reports and classified CIA communications,

currently scheduled to be completed by May 31, 2024, see Min.

94 Order (July 12, 2022); and shall file a status report by no

later than 14 days of the issuance of this Memorandum Opinion

and Order with recommendations for a reasonable schedule for

this next production of documents. It is further

ORDERED that during the merits hearing in this case,

Respondent is precluded from offering any objection or rebuttal

to Petitioner’s evidence about the circumstances or content of

the interrogations that occurred on the dates of the destroyed

CIA videotapes. Respondent may assert an objection or rebuttal

to Petitioner’s evidence only to the extent Petitioner’s

evidence is factually implausible.

In view of the above, the Court concludes that a hearing on

Petitioner’s superseding motion for sanctions is unwarranted.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge October 8, 2024

95