Barre v. Obama

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Filed with Classified
) Information Security Orficcr
MOHAMMED SULAYMON BARRE
(ISN 567)
)
)
r·r~o 2b?f2 71/.
) J)<'!C 3/8""/f:S
Petitioner )
)
v. ) Civ. No. 08-1153 (RCL)
)
BARACK OBAMA, et al., )
)
Respondents. )

MEMORANDUM & ORDER

Now before the Court is respondents' Motion [186] to Deem Protected Information

Highlighted in the government's proposed public factual return for ISN 567 and petitioner's

Cross-Motion (188] to Compel. Upon consideration of the respondents' Motion [186], the

petitioner's Opposition and Cross-Motion [188], the respondents' Reply [194] in support of their

Motion to Deem Protected Information Highlighted and Opposition to the petitioner's Cross-

Motion, and petitioners' Reply (194] in support of their Cross-Motion, the Court will grant in

part and deny in part respondents' Motion [186], and will grant in part and deny in part
,/

__pet1.tt0r;r's Cross-Motion [ 188].
--- I. BACKGROUND

Respondents submitted a Motion to Deem Protected Information Highlighted in the

government's proposed public factual return for ISN 567 pursuant to paragraph 34 of the

Protective Order and Procedures for Counsel Access to Detainees at the United States Naval

Base in Guantanamo Bay, Cuba (Sept. 11, 2008) (08-mc-332, ECF. No 409) ("Protective

Order"), and Judge Hogan's June 1, 2009, January 14, 2010, and May 12, 2011, Orders in In re

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Guantanamo Bay Detainee Litig. (08-mc-442, ECF. Nos. 1781, 1896, 1980). See ECF No. 186.

Petitioner, whose case was dismissed in 2010 and who has been released from detention, opposes

the motion and has moved to compel compliance with the Protective Order regarding three of his

filings. See Pet'r's Notice of.Piling ofOpp'n and Cross-Motion, ECF No. 188.

Specifically, petitioner objects to deeming protected any language that was not redacted

in the public factual return filed with the Court on July 29, 2009, as that factual return remains

publically available. Petitioner also objects to redactions of certain documents in the proposed

public factual return that exceed the redactions contained in the same documents that were

reviewed by the petitioner in preparation for litigation. Petitioner also cross-moves for an order

requiring the government to "comply" with the Protective Order by publicly disclosing, within

thirty days, or alternatively, with the public filing of the reprocessed factual return, public

versions of three of his classified filings, namely, his Traverse, Motion to Admit Hearsay

Evidence, and Response to the Government's Motion to Admit Hearsay Evidence, which total

nearly 500 pages. Petitioner believes that it "would be highly misleading for the public to have

available to it only the government's selective version" of the facts surrounding petitioner's

capture and detention at Guantanamo.

II. DISCUSSION

A. The Government's Motion to Deem Protected Information Highlighted in the
Proposed Factual Return for ISN 567 is granted in part and denied in part.

With regard to the government's Motion to Deem Protected Information Highlighted in

the proposed public factual return for ISN 567, the Court is satisfied that the only remaining

issues to be resolved are whether the specific geographic coordinates of an al-Qaeda training

facility revealed in document IIR 227 0131 03 and a word that appeared in a March 1, 2002,

"Handnote" (both of which were unprotected in the publicly filed 2009 factual return and remain

2
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publicly available today) should be deemed protected, and whether information made available
1
to the petitioner and his counsel, but not to the public, must now be released.

1. Neither the geo-coordinates nor the single word appearing in the March
2002 Handnote will be deemed protected.

As an initial matter, litigants seeking to compel the disclosure of national security

information on the ground that it already lies in the public domain must show that the

information has been "officially acknowledged." Cf Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.

Cir. 1990).2 In the Freedom of Information Act (FOIA) context, information is deemed officially

acknowledged when (1) the information requested is as specific as the information previously

released; (2) the information requested matches the information disclosed; and (3) the

information requested has already been made public through an official and documented

disclosure. !d. The information cannot merely be overlapping; it must be identical. Wolfv. CIA,

473 F.3d 370, 378 (D.C. Cir. 2007) (citations omitted). Importantly, an "official disclosure" can

only be made by the agency from which the information is being sought; information released by

Congress, other executive agencies, or former employees does not qualify. Frugone v. CIA, 169

F.3d 772, 774-75 (D.C. Cir. 1999) (citations omitted); see also Military Audit Project v. Casey,

656 F.2d 724 (D.C. Cir. 1981) (CIA could invoke privilege against disclosure even after the

National Science Foundation had disclosed the existence and content of classified information).

The information at issue here-six geo-coordinates and a single word in the March 2002

Handnote, which the government claims is classified-was made public in the 2009 Factual

Return, which is still publically accessible via the Court's ECF/PACER system. See Public

Factual Return Exhibit 4 at 35, ECF No. 142-5, July 29, 2009 (geo-coordinates), and Exhibit 4 at

1
Petitioner provided no briefmg to support his arguments that the Protective Order is either unconstitutional or that
it violates the D.C. Circuit's decisions in Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008) and Ameziane v. Obama,
620 F.3d 1 (D.C. Cir. 2010). Therefore, the Court need not decide these issues.
2
The most analogous law on disclosure has been developed in the Freedom oflnformation Act (FOIA) context.

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48 (Handnote). Although an "official disclosure" can only be made by the agency from which

the information is sought, see Frugone, 169 F.3d at 774-75, the Court is satisfied that the

specific disclosures in the 2009 public factual return meet this test. The creation of a public

factual return is a process involving agency-owners of confidential and classified information.

As detailed at length in the government's submission and supporting exhibits, the process for

identifying, redacting, or marking as protected sensitive and classified information in the public

factual return is complex and thorough, providing multiple layers of overlapping agency review

by each stakeholder in the process. Therefore, any disclosures of such information in a public

factual return can rightfully be attributed to the individual agencies that participated in the

process. Thus, the Court is satisfied that the information in question here has been "officially

acknowledged" by the government. Cf Fitzgibbon, 911 F.2d at 765.

However, the government argues that its disclosure was inadvertent and, therefore, that it

may still protect the information regardless whether it was previously disclosed. To support its

"inadvertent disclosure is not disclosure" argument, the government cites Al-Haramain Islamic

Foundation, Inc. v. Bush, 507 F.3d 1190, 1202 (9th Cir. 2007). However, the facts of AI-

Haramain are inapposite. In Al-Haramain, the government inadvertently disclosed a sealed

document classified TOP SECRET to counsel for Al-Haramain, a Muslim charity involved in a

Treasury Department proceeding related to Al-Haramain's possible ties to al-Qaeda. !d. at

1194. Eight months later, after realizing that the document had inadvertently been disclosed, the

FBI retrieved copies of the document provided to Al-Haramain's counsel. !d. at 1194-95. After

The New York Times reported on the government's Terrorist Surveillance Program ("TSP,"

popularly known as the NSA's warrantless wiretapping program), Al-Haramain surmised, based

partly on the inadvertently disclosed classified document, that they were a target of the TSP and

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filed suit claiming that the Government had violated the organization's constitutional rights. Id

at 1195. The government invoked the state secrets doctrine as to both the existence of the TSP

and the inadvertently released classified document, and moved to dismiss the lawsuit. Id The

Ninth Circuit determined that the government could not deny the existence of the TSP because

senior executive officials, including the President, had publicly acknowledged that the program

existed. See id at 1199-1200. However, the Court determined that despite its disclosure, the

classified document at issue was covered by the state secrets privilege. ld. at 1203.

Here, the government has not invoked the state secrets privilege. The disclosure of both

the geo-coordinates and the single word in the March 2002 Handnote were not made under seal

to the opposing party but, instead, were publicly released and placed on the Court's docket,

where they remain. Unlike in Al-Haramain, where the FBI attempted to collect the inadvertently

released document, the government has made no attempt to remove and replace the 2009 factual

return currently available to the public with a document containing the specific redactions.

Indeed, Paragraph 50 of the Protective Order requires the government, upon discovery of the

disclosure of classified or protected information on the public record, to notify a Court Security

Officer, who will then work with the Clerk of Court to remove the filing from the public docket.

In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 143, 155 (D.D.C. Sept. 11, 2008).

Respondents submitted no evidence indicating that they followed the procedures outlined in

Paragraph 50. Such actions on the part of the government would provide strong evidence that

the government's disclosure was, indeed, inadvertent, and would support the government's

assertion that the public availability of the information, compounded by any other release, has

caused or is expected to cause serious damage to national security.

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The government also failed to argue why the instant information falls into one of the six

categories of information Judge Hogan designated as protected. 3 The D.C. Circuit has been very

clear: the government does not have the unilateral authority to designate information as

protected. Ameziane v. Obama, 620 F.3d 1, 6 (D.C. Cir. 2010) (discussing Bismullah v. Gates,

501 F.3d 178, 188 (D.C. Cir. 2007)). For the Court to deem protected unclassified but sensitive

information in public factual returns, the "government must first 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." Id (citing Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008)). It

must provide the Court with a rationale "tailored to the specific information at issue," Parhat,

532 FJd at 853, and a "precise designation of each particular item of information that

purportedly 'falls within the categor[y] ... described,"' Ameziane, 620 F.3d at 6 (quoting

Parhat, 532 F.3d at 853). That is, the government must (1) identify the specific information it

3
Judge Hogan's May 31, 20 II, Order allowed the government to designate as protected information falling into six
categories:
I. Names and/or other information that would tend to identify certain U.S. government employees,
FBI Joint Terrorism Task Force members, or contractors-specifically, Jaw enforcement officers,
agents, translators, intelligence analysts, or interrogators, all below the Senior Executive Service
or General Officer Jevel-ofthe family members of detainees.
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.
3. Information indicating the names or locations, including geo-coordinates, of locations 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.
6. Certain administrative data, operational 'nicknames,' code words, dates of acquisition,
including dates of interrogations, and FB 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 5, 8 (D.D.C. 2011).

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wishes to protect, (2) identify the protected category of information into which that information

falls, and (3) convince the Court that the information should be protected. See id at 6-7.

Here, the government in its initial pleading simply stated that that the "six categories that

have been approved by Judge Hogan cover all of the information highlighted within the factual

return for ISN 567."4 Neither the government's original motion nor its reply to petitioner's

specific objections specified what information fell into which category. Indeed, it appears to the

Court that neither the geo-coordinates nor the word in the March 2002 Handnote would fall into

any of the categories. Although it might fall into Category 3-which explicitly allows for the

protection of geo-coordinates of locations of interest that pertain to counter-terrorism

intelligence-information which has been "previously acknowledged publicly" is exempted from

protection. See In re Guantanamo Bay Detainee Litig., 787 F. Supp. 2d at 8.

Based on the pleadings here, if the Court granted the government's motion, the Court

would be ceding back to the government the unilateral authority to designate information as

protected. Because the government has failed to meet its burden as to the geo-coordinates and

single word in the March 2002 Handnote, and because those pieces of information have been

officially acknowledged and remain publicly available, the government's motion will be denied.

All highlighted information ·in the proposed public factual return will be deemed protected

except for these two pieces of information.

2. Documents prepared for petitioner's review but not otherwise released to the
public were not "officially acknowledged" by the government and wiU be
deemed protected.

During petitioner's detention and in preparation for litigation, the government allowed

petitioner's counsel to show and discuss a number of documents with petitioner. These same

4
The government also seeks to redact certain medical information not falling into one of the six categories approved
by Judge Hogan. That request is unopposed and the Court will deem that information protected.

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documents appear in the government's proposed public factual return with significantly more

information marked for protection. Petitioner argues that because he has been released and can

publicly disclosure the content of these documents, the information the government asks the

court to deem protected has been "officially acknowledged." In essence, petitioner makes the

rather novel argument that his release has somehow transformed this limited disclosure into an

official acknowledgement, and this should preclude the government from further redacting these

documents before their public release.

Petitioner's argument is meritless. The documents were clearly marked "FOR

OFFICIAL USE ONLY" and "Not releasable to the public." They were shared with petitioner in

furtherance of his litigation. The mere fact that he has now been released and is a member of the

public does transform the government's limited disclosure into an official acknowledgment.

Indeed, to be officially acknowledged or officially disclosed, documents must have been made

available to the public through an official and documented disclosure. See Fitzgibbon, 911 F.2d

at 765. Second-hand disclosure by a person or entity familiar with, or in actual possession of,

classified documents simply does not meet the standard. See, e.g., Frugone, 169 F.3d at 774-75

(citations omitted).

B. Petitioner's Cross-Motion to Compel Production of Public Versions of Three
Filings within 30 Days is granted in part and denied in part.

Petitioner cross-moves for an order requiring the government to produce unclassified

public versions of his Traverse, Motion to Admit Hearsay Evidence, and Response to the

Government's Motion to Admit Hearsay Evidence within thirty days, or alternatively, to release

them concurrently with the public filing of the reprocessed factual return. (These documents

were originally filed on July 31, 2009). See Notice of Filing, ECF No. 143.

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In its Opposition and attached exhibits, the government spills a great deal of ink

discussing the general quantity of information that it must review for public release. The

government describes in detail the Byzantine classification review process and provides

affidavits from representatives of the - FBI, Defense Intelligence Agency, and from the

Undersecretary of Defense for Intelligence, to underscore the competing demands under which

the classification review teams work. These include the production of a "tremendous amount of

evidence" and documents in connection with ongoing habeas and FOIA litigation, Military

Commissions prosecutions (some of which require a fifteen day

The government also' maintains that petitioner has refused to participate in its global

priority based process for declassification review of habeas case filings, which the government

initiated at the end of August 2011. This system allows individual petitioners to designate

certain filings as higher priority than others. These filings are then placed in a queue for priority

review and are reviewed based on their chronological order of filing. The government argues

that a court order requiring an expedited review of petitioner's filings would "force[]" the

classification review teams to "neglect the many other Court-ordered and litigation-driven

deadlines," and would be unfair to those detainees who have chosen to participate in the

government's prioritized review process because ordering petitioner's filings to be reviewed

would effectively allow him to jump the line. The government warns that this could also cause a

cascade of other filings from petitioners wishing to have their documents reviewed

expeditiously.

The government's arguments are unavailing and boil down to this: "Declassification is

complicated and time consuming and we already have a lot of work-please don't pile on." The

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government's pleading is filled with overbroad generalizations regarding the process, and does
5
not specify why it has been unable to review petitioner's documents. While the Court is

sympathetic to the government's position, the Protective Order mandates that classified filings

should be made available to the public, with appropriate redactions. 6 Indeed, allowing the

Government to indefinitely withhold documents would not only violate the Protective Order, it

would provide a backdoor for the Government to effectively "seal a judicial record that t~e

public has the right to inspect and copy," which is exclusively the prerogative of the Court. See

Bismullah, 501 F.3d at 188 (citations omitted).

The Court understands that the government has created a voluntary collaborative process

for prioritized review of petitioner filings ("Prioritized Review Process''). The government

justifiably points out that the Prioritized Review Process was shunned by the petitioner and a

ruling in this case for the petitioner will allow him to jump ahead of other petitioners who chose

to participate. However, the government's Prioritized Review Process is not a mandatory feature

of the Protective Order's public release regime; rather the Protective Order makes plain that

declassification of filings in habeas cases is automatic. See Protective Order ~ 47; TS/SCI

Protective Order~ 48. The Prioritized Review Process is simply an internal executive process to

facilitate the release of materials mandated by the Protective Order. While the participation in

the scheme may assist the government in determining what filings particular detainees wish to

5
For example, the government asserts that "thinly sourced" filings, which might contain exogenous materials, delay
the review process as review team members must track down information in order to determine its classification
level. However, the government never addresses whether the documents at issue are themselves thinly sourced or
contain any exogenous material. The Court simply lacks the necessary evidence to determine whether the
fovemment's arguments are meritorious.
The Protective Orders governing Guantanamo proceedings require the government to review filings containing
classified information and file on the public docket redacted versions of those documents. See Protective Order 'If
47; Protective Order for Habeas Cases Involving Top Secret/Sensitive Compartmented Information, as amended, 08-
mc-442, EFC No. 1496 (Jan. 9, 2009) ("TS/SCI Protective Order") 'If 48. For classified documents filed by tne
respondents, the government is required to produce public versions for release "as soon as practicable." Protective
Order 'If 48(a). However, no such time frame is given for production of petitioner's classified filings. See Protective
Order 'If 47(a); TS/SCI Protective Order 'If 48(a).

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prioritize for review, petitioners certainly are not required to participate in the process. The

government's protestations would have more force if the petitioner had never, until now, asked

that these particular documents be reviewed for release. But, the petitioner has repeatedly asked

for their expedited declassification review to no avail. Even if he had leapt at the opportunity to

participate in the government's prioritization scheme, the government admits that as of the time

of its motion, petitioner's filings would have been ninth in queue; the government has given no

timetable for final production. 7

The government's argument-that it does not have the staff to complete the court-

mandated review of petitioner's documents in a reasonable amount of time-is suspect. Frankly

the government is selling itself short. The government has repeatedly proven that it can process

mass quantities of documents on short deadlines. The government's own pleadings cite three

specific examples: (1) in 2009 and 2010, the government produced 160 public factual returns for

habeas cases including petitioner's; (2) the government is generally required to process

documents used in connection with military commission proceedings within fifteen days of

filing, see Regulation for Trial by Military Commission § 19-4(c)(2) (20 11 ), available at

http://www.mc.mil/Portals/0/20ll%20Regulation.pdf; and (3) the government acknowledges

that classification review teams can process documents in as little as one day.

The Court is troubled by the government's apparent lack of urgency in issuing public

versions of classified materials filed in Guantanamo proceedings. In this case in particular, the

government has failed to produce public versions of the petitioner's traverse and hearsay briefs,

which were filed on July 31, 2009. The government argues that because petitioner's habeas

petition was dismissed and he has been released from the Guantanamo Bay Detention Facility,

there is no urgent need to produce these documents. However, this ignores the inherent public
7
As the government admits, between October 2011 and August 2012, only 19 filings had been processed.

11
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interest in Guantanamo litigation generally, and in the facts related to the release of this detainee

in particular. Moreover, the practice of publicly disclosing court documents is deeply rooted in

our system of government. See Nixon v. Warner Commc'ns, 435 U.S. 589, 598 (1978). The

public interest served by releasing court filings includes allowing "citizens ... to keep a watchful

eye on the workings of public agencies." Id (citations omitted). More importantly, it is the

judiciary and not the executive that determines whether the public can access and inspect court

records. See Bismullah, 501 F.3d at 188 (citations omitted). Here, petitioner's documents have

remained essentially under seal for approximately 42 months, and the Court sees no reason to

write the government a blank check and allow them to produce the documents at some unknown

point in the future.

III. CONCLUSION

Therefore, it is hereby

ORDERED that highlighted information contained in the proposed public factual return

for ISN 567 will be protected, except for the geo-coordinates contained in document IIR 227

0131 03 and a the word that appeared in the March 1, 2002, "Handnote;" it is

FURTHER ORDERED that the government will have ninety days to produce

unclassified public copies of the petitioner's Traverse, Motion to Admit Hearsay Evidence,

Response to the Government's Motion to Admit Hearsay Evidence, and the reprocessed factual

return.

SO ORDERED.

Signed by Chief Judge Royce C. Lamberth on March 8, 2013.

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