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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA Filed with Classified
)
In forma .on Security Ofii ·cr
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DJAM!i:I., AMEZIANE, ) CISO _....(....,.,&UI:.....LL-~--L...:~\----
I>ctitioner,
)
) Datc !' 3\,f\'\ E" WI S
)
v. ) Civil Action No. 05-cv-392 (ESH)
)
BARACK H. OBAMA, eta/., )
)
Respondents. )
MEMORANDUM OPINION
Now before the Court is respondents' motion to deem protected infom1ation highlighted
in the proposed public factual return for ISN 310 and petitioner's cross-motion to compel
compliance with the protective order. Upon consideration of respondents' motion (May 9, 2012
[ECF No. 285] ("Mot.")), petitioner's opposition and cross-motion (June 15,2012 [ECF No.
289] ("Opp'n")), respondents' reply and opposition (Sept. 14, 2012 [ECF No. 294] ("Reply")),
petitioner's reply (Sept. 21, 2012 [ECF No. 295] ("Cross-Motion Reply")), and petitioner's
notice of supplemental authority (Apr. 17, 2013 [ECF No. 299] ("Supp.")), the Court will grant
in part and deny in part both motions.
I. BACKGROUND
The Protective Order governing the Guantanamo Bay habeas corpus cases provides that
the government mtt..'>t prepare redacted versions of all pleadings "appropriate for filing on the
public record." (Protective Order, No. 08-mc-442 (D.D.C. Sept. 11, 2008) [EC.F No. 409]
n 47(a), 48(a), 49(a).) In addition to classified information, the government may withhold from
public disclosure information that is unclassified but nevertheless "protected," subject to the
approval of the Court. (Protective Order~ 34.)
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A. Respondents' Motion to Deem Protected Information
The relevant law governing the standard for "protected" information was reviewed in
great detail in Judge Hogan's May 12, 2011 Opinion, In re Guantanamo Bay Detainee Litig.,
787 F. Supp. 2d 5, 9-13 (D.D.C. 20ll), so this Court will only briefly summarize it here to
provide the necessary background for deciding the instant motions.
Because the public ordinarily has the right to inspect and copy judicial records, the
government must provide a valid basis for withholding non-classified information. Bismullah v.
Gates, 50 I F.3d 178, 188 (D.C. Cir. 2007), vacated on other grounds, Gates v. Bismullah, 554
U.S. 913 (2008). Such a basis requires, "at a minimum, a 'specitic,' 'tailored,' rationale for
protecting a general category of information, and a precise designation of each particular item of
information that purportedly 'falls within the categor[y] ... described.''' Ameziane v. Obama,
620 F.3d l, 6 (D.C. Cir. 201 0) (quoting Parhat v. Gates, 532 F.3d 834, 853 (D.C. Cir. 2008)).
This has been framed as a two-part test: "the government first must demonstrate what kind of
information requires protection and why, and then must show exactly what information in the
case at hand it seeks to protect." !d.
On November 6, 2008, Judge Hogan ordered the govermnent to tile unclassified versions
of the factual returns in each of the Guantanamo Bay habeas cases. (Case Management Order,
No. 08-mc-442 (D.D.C. Nov. 6, 2008) [ECF No. 940], I. C.) The government initially
attempted to designate all of the unclassified factual returns as "protected" under the Protective
Order, but the Court denied that request. Instead, Judge Hogan required that the parties first
meet and confer regarding the government's proposed redactions, and if an agreement could not
be reached, "the government must tile with the appropriate Merits Judge a motion to designate as
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protected each highlighted portion of the return." (Memorandum Opinion, No. 08-mc-442
(D.D.C. June 1, 2009) [ECF No. 1780 J at 10.)
On July 29, 2009, the government filed unclassified factual returns in over 150 cases,
including this case, in which it redacted not only classified but also protected information. (See
Reply at 4.) Judge Hogan later ruled that in so doing they had violated his June l, 2009 Order,
and gave them until April 14,2010 to come into compliance. (Order. No. 08-mc-442 (D.D.C.
Jan. 14, 2010) IECF No. 1896].)
On that date, respondents filed a motion seeking a ruling that information falling within
six discrete categories could be designated as "protected information" under the Protective
Order. (See Motion to Amend and for Clarification of the Court's January 14, 2010 Order
1
Regarding Public Returns, No. 08-mc-442 (D.D.C. Apr. 14, 2010) [ECF No. 1942].) Judge
1
The six categories were:
l. Names and/or other infom1ation that would tend to identify certain U.S. government
employees, FBI Joint Terrorism Task Force members, or contractors-specitically, law
enforcement officers, agents, translators, intelligence analysts, or interrogators, all below
the Senior Executive Service or General Officer level-[ or] the family members of
detainees.
2. Information that would reveal the existence, focus, or scope oflaw enforcement or
intelligence operations, including the sources, witnesses, or methods used and the identity
of persons of interest.
3. Tnfommtion indicating the names or locations, including gee-coordinates, oflocations of
interest as they pertain to counter-terrorism intelligence gathering, law enforcement, or
military operations, where the Government has not previously acknowledged publically
its knowledge of those names or locations.
4. Information that would reveal the Government's knowledge of telephone numbers,
websites, passwords, passcodes, and e-mail addresses used by known or suspected
terrorists, or discussions of the manner in which known or suspected terrorists use these
methods for communications with one another.
5. Information regarding the use, effectiveness, or details regarding the implementation of
certain interrogation approaches and techniques approved by Executive Order 13491 and
described in the Army Field Manual No. 2-22.3.
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Hogan agreed that the government had sufficiently demonstrated the need to protect the type of
information contained in each of the six categories and thus had satisfied Step One ofthe
Parhat/Ameziane test. In re Guantanamo Bay Detainee Litig., 787 F. Supp. 2d at 25 ("[Tlhe
government has satisfied the first step of Parhat by demonstrating, with respect to each protiered
category, what kind of information requires protection and why."). However, he noted that "the
question of whether information the respondents actually designate for protection satisfies step
two of Parhat will have to be determined by the merits judges presiding over the cases in which
the government has or will f1lc a proposed public factual return that contains such designated
information." !d. at 26.
On June 25, 20 l 0, respondents served petitioner's counsel with a copy of their proposed
public factual return, in which they indicated the information that they sought to deem protected.
(Reply at 6.) After a meet-and-confer process in which respondents made some changes to
address petitioner's concerns, respondents f1led their proposed factual return with this Court on
May 9, 2012. (Mot. Ex. 3.) In their motion, respondents claimed that "[t]he six categories that
have been approved by Judge Hogan cover all of the inforn1ation highlighted within the factual
return for ISN 310 that Respondents seek to deem protected" with one exception; the
government also seeks to protect the category consisting of "detainee health-related
information." (Mot. at 4-5.) Petitioner has objected to several of the government's proposed
redactions. (Opp'n at 3-11.)
6. Certain administrative data, operational 'nicknames,' code words, dates of acquisition,
including dates of interrogations, and FBI case names and file numbers, contained in the
intelligence documents included in the factual returns.
In re Guantanamo Bay Detainee Litig, 787 F. Supp. 2d at 8.
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B. Petitioner's Motion to Compel Compliance with Protective Order
As mentioned above, the Protective Order requires that when petitioner files a document
that may contain classified or protected information, the government must prepare a redacted
version of the document "appropriate for filing on the public record." (Protective Order~~ 4 7(a),
49(a).) This classification review must be done "[a]s soon as practicable following the original
filing date." (ld. ,[49(a).)
In order to deal with the large number of filings in need of such a classification review,
the government instituted a "prioritized review process" in August 2011. (See Reply at29.) As
part of that process, respondents contacted counsel for all petitioners in the Guantanamo habeas
cases, ;md requested that they submit a prioritized list of filings that they wanted to have
reviewed. (See id.) The government then proposed to review all of the first-listed filings in the
order they were received before moving on to any of the second-listed filings. (See id.)
Although fifty-four petitioners had submitted priority lists as ofthe date of respondents' Reply,
petitioner was not one of them. (See id.) Petitioner admits that he has not participated in the
government's priority review process, arguing that he requested review of several filings in April
2011, before any such procedure was instituted, and does not want his request to move to the
back of a very slow-moving line. (See Opp'n at 15-17.) Indeed, respondents acknowledged that
as of September 14, 2012, the date of respondents' Reply, the classifi~ation review team had
finalized only nineteen case tilings through the priority review process. (Reply at 29.)
Petitioner now seeks an Order from this Court compelling the government to produce
publi.c versions of three of his pleadings in this case: his preliminary traverse and motion for
summary judgment, filed on February 14, 2009; his reply memorandum, filed on March 3, 2009;
and his closing memorandum, filed on April 2, 2009. ([ECF Nos. 165, 174, 193].) Petitioner
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requests an order that production be made within 30 days, or, at a minimum, concurrently with
the public factual return, so that the public can evaluate both the government's and petitioner's
versions of the underlying facts at the same time. (See Opp' nat 1-2, 12.) He further requests
that the Court order the government to process his requests for declassification of certain
materials in his factual return and in various hearing transcripts. (See Opp'n at 13.)
II. ANALYSIS
A. Motion to Deem Protected Information
Petitioner initially raised eight objections to respondents' proposed public factual returns.
However, several of those grounds are now moot or need not be addressed. For example,
petitioner's first objection serves solely to "preserve the record of (petitioner's] objections" to
the six categories of protected in formation approved by Judge Hogan in his May 12, 20 Ll Order.
(See Opp'n at 3; Reply at 9 n.l.) The Court will not revisit Judge Hogan's well-reasoned
opinion, and therefore it declines petitioner's request for reconsideration of that opinion.
Additionally, respondents have agreed to lift the redactions addressed by petitioner's objections
2, 4, and 5, thereby rendering those objections moot. (See Reply at 9-1 0.) And finally, in
petitioner's eighth objection, he complains that because he opposes certain of the proposed
designations, ''the government is obligated to file a memorandum justifying each designation,"
but "has not done so." (Opp'n at 10.) However, in their Reply, respondents have done that; they
have addressed each of petitioner's objections and justified their requested designation for each
disputed piece of information. Thus, petitioner's request that the government "be required to file
a proper memorandum explaining its designations" is now moot.
The Court also notes that petitioner did not object to the government's redaction of
certain medical information that does not fall into any of the six pre-approved categories of
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information, and thus, the Court will deem that information protected. See Barre v. Obama,
2013 WL 1180300, at *3 & n.4 (D.D.C. Mar. 8, 20 13) (deeming certain medical information
protected because the government's request to do so was unopposed).
The Court will now address the remaining objections:
1. Objection 3
Petitioner's objection 3 challenges the redaction of names such a'>- "Mustafa,"
IIIII "Mohammed," and "Hassan," which petitioner claims are "facially so generic as not to
warrant any redactions.'' (See Opp'n at 4.) Respondents have agreed to lift the redactions on the
names "Mohammed" and "Hassan," so those objections are now moot. (See Reply at 13.)
However, with respect t o - and IIIII respondents insist that, although the names
themselves may be generic, the surrounding contextual information makes those individuals
"readily identifiable'' as petitioner's former roommate and co-worker, respectively, and so
redaction is necessary to protect their safety and well-being. (/d.) Respondents offer no
response with respect to the name "Mustafa." (See id.)
The Court notes that, despite respondents' assertion that all of the highlighted
information in the proposed factual return falls within the six categories of information approved
by Judge Hogan, that does not appear to be true with respect to the n a m e s - and IIIII
Certainly, the government does not point to any one of those categories as justifying the
redaction of this information. Thus, the Court must undertake the two-step Parhat analysis to
determine whether this information is properly deemed "protected." 2
2
The only one of the six categories that could even plausibly relate to this type of information is
Category 2: "Information that would reveal the existence, focus, or scope of law enforcement or
intelligence operations, including the sources, witnesses, or methods used and the identity of
persons of interest." in re Guantanamo Bay Detainee Litig., 787 F. Supp. 2d at 8. However,
"during step two of the Parhat analysis the determination of whether designated information
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With respect to ?arhat Step One, the Court must first determine whether there is a
sufficient rationale for protecting this type of information. The government effectively seeks to
protect a category of information consisting of the names of "first-person contacts," or "those
individuals who the FBI has reason to believe have been in direct contact with the subject of an
FBI investigation." (See Reply Ex. 13, First Abbate Declaration ("Abbate Dccl.") ,15.) The
government's rationale for protecting that information is that "revealing innocent individuals'
associations with suspected terrorists can impose a severe stigma on these individuals, and
expose them to social and economic discrimination, harassment or retaliation, physical harm,
and/or unwanted scrutiny by the general public and media." (ld. at 13-14, citing Ex. 13, Abbate
Dec!.~ 5.) Cognizant that "[i]t is not within the role of the courts to second-guess executive
judgments made in furtherance of that branch's proper role," Ameziane, 620 F.3d at 5, the Court
concludes that this category satisfies Parhat's Step One requirement.
With respect to the second step of the Parhat analysis, the Court concludes that this
requirement is met as well. First, respondents clearly explained how the information
surrounding these names would make them identifiable. (See Reply Ex. 13, Abbate Dec1. ~!4.)
Second, the government asserted that these particular individuals are currently unaware that the
FBI has information about them, and so they "have no opportunity to consent or object to its
falls within a protected category requires evaluating whether the rationale for protection asserted
in step one is implicated by the information." ld at 17. Here, the government's rationale for
protecting the infonnation in Category 2 was that it "could provide current or potential subjects
of investigation, including international terrorists and terrorist organizations, with significant
insight into the U.S. Government's counterterrorism and law enforcement efforts, enabling
persons suspected of terrorism-related activities to avoid detection and evade prosecution,
dramatically reducing the effectiveness of current and future ... efforts, and thereby
compromi_sing national security and law enfo:cement missions." !d. at 18~ quotation
marks om1tted). Respondents here do not claim that release of the names~n
would reduce the effectiveness of security and law enforcement effot1s. (See Reply Ex. 13, First
Abbate Declaration.) Thus, even if these names fall within Category 2, the Parhat Step Two
analysis would not justify their redaction on that ground.
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public release.'' (See id. ~[ 5.) This fact also suggests that it has not previously been publicly-
acknowledged that these individuals were associated with petitioner. Finally, the government
has explained how an individual being connected to a suspected terrorist can raise serious
concerns for the safety and well-being of that individual. (,)'ee id.) Thus, the Court concludes
that the government has met its burden of demonstrating why the n a m e - and IIIII arc
"not suitable for public filing'' and should therefore be designated "protected information" under
the Protective Order and redacted from the public versions of petitioner's factual return. (See
Protective Order ~,11 0, 34, 49(a).)
With respect to the name "Mustafa," however, the Court cannot reach the same
conclusion. The government has offered no response whatsoever to petitioner's challenge to the
redaction of that name. In fact, in response to petitioner's objection 2, which also challenges
redaction of the name "Mustafa,'' the government claims that it is willing to lift the redactions on
that name. (Reply at 9-1 0.) Nevertheless, it continues to redact the word "Mustafa" in the
amended factual return attached to its Reply. (See, e.g., Reply Ex. 3, Amended Factual Return
~ 29, ISN 310 FD-302 (April I, 2002).) In the absence of any showing of exactly why this
pmticular name requires protection, the Court concludes that respondents must lift the redactions
on the name "Mustafa" from the amended factual return.
2. Objection 7
Petitioner's only remaining substantive objection is his challenge to the government's
redaction of certain words and phrases that were unredacted in the 2009 public factual return and
therefore are "currently available in the public domain and otlicially acknowledged by the
govemment." (Opp'n at 8-9.) Respondents have agreed to lift the redactions on four ofthe five
challenged pieces of information. (Reply at 11.) Thus, the only proposed redaction still at issue
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is the word "Algerian" in an excerpt from the factual return for ISN 533. (Opp'n at 8-9; Reply at
11-12.) Respondents have redacted this word from the proposed factual return not because it is
"protected," but because it is confidential and was only disclosed in the 2009 factual return
inadvertently. (Reply at 12.) They insist that "inadvertent disclosures of national security
information do not constitute onicial acknowledgment so as to justify compelling still further
disclosures that could compound the risk to national security." (!d.)
Chief Judge Lamberth of this Court recently considered--and rejected--this exact
argument in Barre v. Obama, 2013 WL 1180300, at *2-4 (D.D.C. Mar. 8, 2013). There, the
Court determined that the disclosure of classified infonuation in a 2009 public factual return did
constitute an "official acknowledgement" of that information. ld. at *2 (citing Fitzgibbon v.
C.I.A., 911 F.2d 755, 765 (D.C. Cir. 1990)). The Court then considered whether the government
should nevertheless be permitted to redact that information based on its argument that the earlier
disclosure had been "inadvertent." It denied that request based on several factors, all of which
are equally applicable here. First, this case differs from Al-Haramainfslamic Foundation, Inc. v.
Bush, 507 F.3d 1190 (9th Cir. 2007), the case on which respondents rely, because the disclosure
here was "not made under seal to the opposing party but, instead, [was] publicly released and
placed on the Court's docket, where [it] remain[s]." Barre, 2013 WL 1180300, at *3. Second,
''the government has made no attempt to remove and replace the 2009 factual return currently
available to the public" despite the fact that the Protective Order provides a mechanism for
removing inadvertently-disclosed classified information. Id. .
Finally, respondents cannot simply fall back on an argument that the word "Algerian"
should be redacted as "protected" because, like the respondents in Barre, they have "failed to
argue why the instant infonnation falls into one of the six categories of information Judge Hogan
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designated as protected." !d. Although the govemment did claim that "all of the highlighted
information" in the proposed factual return is covered by those six categories, it has not specified
the category that the reference to "Algerian" interrogators would fall into. While this
information could arguably be considered part of Category 2, no explanation has been offered as
to whether the rationale for protecting Category 2 information is implicated here, and secondly,
this information has previously been publicly disclosed and officially acknowledged. Therefore,
the Court will deny respondents' request to deem this information "protected."
3. Objection 6
Petitioner's sixth objection does not relate to the government's refusal to disclose certain
information to the public, but rather its refusal to disclose infonnation to petitioner. (See Opp'n
at 6-8 ("there is no basis to designate much of the information as unsuitable for release to
Amcziane").) Specitically, petitioner complains that the government affixed the heading "NOT
Releasable to Detainee or Public" to every page of the proposed factual return despite the fact
that much of the protected inf()rmation has already been disclosed to Ameziane in other contexts.
(Jd. at 6-7.) Petitioner further requests that his counsel be pennitted to use his family members'
names and information on his behalf with their authorization. (!d. at 7.)
'I'he government argues that petitioner's complaint is meritless precisely because much of
the protected information "has been made available to Petitioner him~elf in detainee-eyes-only
versions of certain documents." (Reply at 17.) Furthermore, the government points out that the
Protective Order expressly precludes a petitioner's counsel from disclosing protected infonnation
to any other person-including the petitioner or his family-without authorization from the
government or the Court. (ld. (citing Protective Order ,[,135, 39).) Thus, respondents assert that
if petitioner seeks access to other specific pieces of protected information, "his counsel may
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request permission from the Government to share that information with him, and failing such
authorization, may seek leave from the Court." (!d.)
To the extent that protected information has already been disclosed to petitioner, the
Court agrees that it should not now be withheld from him. Any pages of the factual return that
contain only unclassified or previously-disclosed protected information should therefore be made
available to petitioner. However, the Court agrees with the government that it cannot grant
petitioner "unfettered access to all of the protected infornmtion in the return.'' (!d.) Nor can the
Court authorize petitioner's counsel to disclose protected information to petitioner's family
members based on the record before it. Without knowing exactly what information petitioner is
referring to and to what use he intends to put that information, the Court cannot evaluate his
request for release of that infonnation and must deny this request without prejudice.
B. Motion to Compel Compliance with Protective Order
1. Public Versions of Petitioner's Summary Judgment Filings
Petitioner has tiled a cross-motion to compel respondents to produce public versions of
three of his summary judgment filings consistent with their obligations under the Protective
Order. (See Opp'n at 12-17.) Petitioner seeks to have these documents released within 30 days,
or, at a minimum, simultaneously with t:elease of the public factual return. (Id. at 12.) This is
necessary, he contends, "to ensure that the public is afforded an accurate and balanced
understanding of Ameziane's habeas case." (ld. at 14.)
Repeating the same arguments that it unsuccessfully made to Chief Judge Lamberth, the
government again relies on the complexity of the classification review process and the numerous
burdens placed on its review teams. (See Reply at 19-27.) In Barre, Chief Judge Lamberth
addressed these same logistical problems but nonetheless ordered the government to produce the
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public versions of the petitio~er's f~C.!t1aJn~tu~ns_ ~ithin 90 qay~:.. 2013 WL 1180300, at *4-6.
This Court will follow Chief Judge Lamberth's lead.
First, the Protective Order mandates that the government release public versions of all
classified or protected filings. (Protective Order~~ 47-49.) Permitting the government to delay
review of these filings indefinitely "would not only violate the Protective Order, it would provide
a back door for the Government to effectively 'seal a judicial record that the public has the right
to inspect and copy,' which is exclusively the prerogative of the Court." Barre, 2013 WL
1180300, at *5 (quoting Bismuliah, 501 FJd at 188).
Second, the fact that petitioner has refused to participate in the prioritized review process
does not defeat his claim. As Chief Judge Lamberth noted, that process "is not a mandatory
feature ofthe Protective Order's public release regime; rather the Protective Order makes plain
that declassification of filings in habeas cases is automatic." !d. at *5. Thus, "petitioners
certainly are not required to patticipate in the process." !d. And indeed, like the petitioner in
Barre, petitioner here put the government on notice of his request by seeking review of these
documents well before the expedited process was put into place.
Third, this Court "is [also] troubled by the government's apparent lack of urgency in
issuing public versions of classified materials filed in Guantanamo proceedings." !d. at *6. The
delay here is even greater than in Barre; the tilings that petitioner now requests to have reviewed
were tiled on February 14, March 3, and April2, 2009. The government has offered no
explanation whatsoever for why it has taken over four years to review these particular
documents. Instt!ad, respondents offer boilerplate assertions that Guantanamo petitioners' filings
are often "thinly sourced" and cite to extensive ''exogenous material" (Reply at 21-22), with no
suggestion that such arguments apply to the filings here. Indeed, the government's only
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argument specific to this case is that because petitioner's habeas case has been stayed, there is no
urgent need to produce these documents. (Reply at 34.) The government attempted to rely on a
similar argument in Barre, where it pointed out that the petitioner's habeas petition had already
been dismissed and he had been released from Guantanamo Bay. 2013 WL 1180300, at *6. As
Chief Judge Lamberth noted, however, "this ignores the inherent public interest in Guantanamo
litigation," and the longstanding practice of publicly disclosing court documents so as to allow
citizens '"to keep a watchful eye on the workings of public agencies."' !d. (quoting Nixon v.
·warner Commc 'ns, 435 U.S. 589, 598 (1978)).
The government should not be able to effectively keep petitioner's judicial records under
seal any longer than it has already done. However, cognizant of the fact that review of these
documents does take time and that the government has many competing demands for its
resources, this Court will follow Chief Judge Lamberth's lead and allow the government 90 days
(rather than the 30 days requested by petitioner) to produce public versions of these documents,
along with petitioner's factual return.
2. Declassification Review of Other Documents
Petitioner also asks the Court to order respondents to conduct a declassification review of
several specific documents. (Opp'n at 13.) These include a specific sentence in the Narrative
portion of his factual return and three excerpts from classified hearing transcripts. (See id.)
With respect to the footnote in the Narrative, because the Narrative is part of petitioner's
factual return, the Court has already ordered the government to conduct a thorough review of that
document and to release a public version of it within 90 days. (See supm Section IJ.B.l.)
However, the Com1 is not aware of, nor has petitioner cited, any authority permitting the Court
to review the Executive Branch's classification decisions in this context. Indeed, "the Executive
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Branch has 'authority to classify and control access to information bearing on national security."'
See Doe v. Doe Agency, 608 F. Supp. 2d 68,71 n.3 (D.D.C. 2009) (citing Dep't of the Navy v.
Egan, 484 U.S. 518, 527 (1988)). Thus, although the Court has ordered the government to
review the factual return and prepare a redacted version of it consistent with the Protective
Order, the Court will not order the government to publicly disclose the contents of footnote 4 if it
still believes that information to be classified.
With respect to the hearing transcripts, the government insists that review of hearing
transcripts ''is not required under the Protective Order, which provides tor classification review
and release only of the parties' filings." (Reply at 2.) The government is correct; the Protective
Order provides that the government must release public versions of any pleading or other
documents "filed by" petitioners or respondents. (Protective Order~~ 47, 48, 49.) The
Protective Order does not provide a similar procedure for documents that are created during the
litigation but not filed by either party, such as hearing transcripts or court orders and opinions.
However, requiring the government to produce redacted versions of those documents is
consistent with the well-established principle that the press and the public have "a general right
of access to court proceedings and court documents unless there are compelling reasons
demonstrating why it cannot be observed." Wash. Post Co, v. Robinson, 935 F.2d 282, 287
(D.C. Cir. 1991 ). T'he Court is not persuaded that the government's explanation of the burdens
on its classification review team arc sufficiently "compelling" to justify denying petitioner-and
the public-access to these key parts of the factual record in this case. The mere fact that they
were verbal-rather than written-proceedings does not make them any less significant.
Furthermore, the Court is not concerned about the "burdensome" nature ofthis request because
the excerpts petitioner seeks to have publicly disclosed appear to consist of only 9 pages. (See
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Opp'n at 13 & n.l3.) However, as with the summary judgment pleadings and the factual return,
the Court cannot order the government to de-classify the particular hearing transcript excerpts in
question; all the Court can do is order the government to conduct a classification review of those
documents and release any unclassified and unprotected portions of the documents to the public.
CONCLUSION
For the foregoing reasons, the government's motion to deem protected information is
granted in part and denied in part, and petitioner's motion to compel compliance with the
protective order is granted in part and denied in part. A separate Order accompanies this
Memorandum Opinion.
Is!
ELLEN SEGAL HUVELLE
United States District Judge
DATE: June 5, 2013
16
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UNCLASSIFIED//FOR PUBLIC RELEASE
UNCLASSIFIED//FOR PUBLIC RELEASE
~EettiYf
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Filed with Classillcd
) Information Sccu.rily,O~
DJAMEL AMEZIANE, )
)
CISO GbVlAA ~
Petitioner, ) Date .$'" J"U N E Yo($
)
v. ) Civil Action No. 05-cv-392 (ESH)
)
BARACK H. OBAMA, et al., )
)
Respondents. )
ORI>ER
Upon consideration of respondents' motion to deem protected information (May
9, 2012[ECF No. 285]), petitioner's opposition and cross-motion to compel compliance
with the Protective Order (June.l5, 2012 [ECF No·. 289]), ·respondents' reply and
opposition (Sept. 14,2012 [ECF No. 294]), petitioner's reply (Sept. 21,2012 [ECF No.
295]), and petitioner's notice of supplemental authority (Apr. 17,2013 fECFNo. 299]),
and for the reasons set forth in the accompanying Memorandum Opinion, it is hereby
ORDERED that highlighted information contained in the proposed public factual
return f(x ISN 31 0 will be protected, with the following exceptions:
(l) the word "Algerian" as it appears in ISN 533 FD~302 (May 4, 2002)
may not be redacted; and
. .. .. ..
(2) the name "Mustafa" as it appears in ISN 310 Narrative ,1~ 29, 32, 35,
and ISN 310 FD-302 (April I, 2002) may not be redacted. It is further
ORDERED that petitioner shall have access to any pages of the proposed public
factual return for which the only protected infom1ation has previously been disclosed to
him. It is further
SECitErf
UNCLASSIFIED//FOR PUBLIC RELEASE
UNCLASSIFIED//FOR PUBLIC RELEASE
SF.JCRET
ORDERED that petitioner's family members shall not have access to the
protected information contained in the proposed public factual return. It is further
ORDERED that the government will have ninety days to produce public copies
of the following documents:
(1) petitioner's preliminary traverse and motion for summary judgment
[ECF No. 165];
(2) petitioner's reply memorandum [ECF No. 174];
(3) petitioner's dosing memorandum [ECF No. 193];
(4) pages 16-17 of the transcript from the February 24, 2009 hearing;
(5) page 4 of the transcript from the March 5, 2009 hearing; and
(6) pages 4-7 and 19-20 of the transcript from the April 29, 2009 hearing.
SO ORDERED.
Is!
ELLEN SEGAL HUVELLE
United States District Judge
DATE: June 5, 2013
2
SKCR>Fi'f
UNCLASSIFIED//FOR PUBLIC RELEASE