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FILED WITH THE
COURT S~RITY OFFICER
eso: ~~
UNITED STATES DISTRICT COURT DATE: ' z.- 'tJ;jr1i
7 I
FOR THE DISTRICT OF COLUMBIA
)
AHMAD MOHAMMAD AL DARBI, )
)
Petitioner, )
)
v. ) Civil No. 05-2371 (RCL)
)
BARACK OBAMA, et aL, )
)
Respondents. )
)
MEMORANDUM OPINION
Petitioner is challenging the legality of his detention at the United States Naval Base in
Guantanamo Bay, Cuba ("Guantanamo"). This matter comes before the Court on petitioner's
Motion [172] to Compel Production of Exculpatory Information and Automatic Discovery.
Upon consideration of the motion, the opposition and reply thereto, the applicable law, and the
entire record herein, the motion shall be GRANTED IN PART and DENIED IN PART for the
reasons set forth below,
I. BACKGROUND
This Court is operating under the Case Management Order ("CMO") [88] issued by Judge
Hogan on November 6, 2008, as amended [100] on December 16,2008. Pursuant to Amended
CMO § I.D.1, the government must "disclose to the petitioner all reasonably available evidence
in its possession that tends materially to undermine the information presented to support the
government's justification for holding the petitioner." Reasonably available evidence is defined
as "evidence contained in any information reviewed by attorneys preparing factual returns for all
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detainees; it is not limited to evidence discovered by the attorneys preparing factual returns for
the petitioner." Amended CMO § I.D.l. On May 8, 2009, respondents certified that they had
disclosed all reasonably available exculpatory evidence to petitioner. (Certification of Disclosure
of Exculpatory Evidence [148].)
In addition, Section I.E.! provides that, if requested by the petitioner, the government is
required to disclose:
(1) any documents and objects in the government's possession that the
government relies on to justify detention; (2) all statements, in whatever form,
made or adopted by the petitioner that the government relies on to justify
detention; and (3) information about the circumstances in which such statements
of the petitioner were made or adopted.
Amended CMO § I.E. I. On April 17, 2009, petitioner's counsel requested information pursuant
to Section I.E. I. On May 5, 2009, respondents informed petitioner that they already disclosed all
the information required under Section I.E. I. As a result, respondents did not produce any
additional documents.
Unsatisfied with respondents' production of exculpatory information under Section I.D.l
and additional information under Section I.E.l, petitioner now moves to compel the production
of exculpatory information and automatic discovery.
II. DISCUSSION
A. Reasonably A vai/able Exculpatory Evidence
When analyzing a petitioner's request for exculpatory evidence, the Court must
"scrutinize whether the petitioner has made specific requests for exculpatory information." Bin
Attash v. Obama, 628 F. Supp. 2d 24, 31 (D.D.C. 2009). If the Court finds the request is specific
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and exculpatory on its face, the Court will grant petitioner's request. Id. Ifthe petitioner makes
a colorable claim that the requested infonnation is exculpatory, but the Court is unable to
ascertain the character of the evidence from the pleadings, the Court will conduct in camera
review of the evidence to determine whether it is exculpatory and should be disclosed to
petitioner. Id. (citing Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987». Finally, if the petitioner
fails ''to make a specific, colorable claim" that the requested infonnation is exculpatory, the
Court will deny the petitioner's request. Id.
Petitioner asserts that there are ten categories of specific, exculpatory evidence that the
government failed to disclose. The Court will address each category in turn.
1. All Reasonably Available Evidence Showing That Petitioner Was Subject to
Abuse, Torture, Coercion, or Duress
Petitioner seeks all reasonably available evidence showing that he was subject to abuse,
torture, coercion, or duress prior to or contemporaneous with the time he made statements
included in the factual return. Specifically, petitioner requests the following evidence showing
that he was subject to abuse, torture, coercion, or duress:
(i) any reports, notes or recordings reflecting the physical and psychological
abuse of petitioner during the course of this transfer to U.S. custody;
(ii) any recorded allegations of abuse or mistreatment made by petitioner to
U.S. agents;
(iii) any report of investigation or other writing relating to the investigation of
allegations of abuse or mistreatment of petitioner prepared by the U.S.
Anny's Criminal Investigation Division or any other agency of the U.S.;
(iv) any report of investigation or other writing relating to the investigation of
the death of Dilawar and other detainees who died during the time that
petitioner was detained in Bagram;
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(v) any records of the interrogation techniques used against petitioner by U.S.
agents; and
(vi) all medical and psychiatric records for petitioner that reflect physical abuse
or torture.
(Mot. [172] to Compel at 9-10.)
This Court has repeatedly held-and respondents concede-that evidence showing that a
petitioner was subject to abuse, torture, coercion, or duress prior to or contemporaneous with the
time that the petitioner made statements included in the factual return is exculpatory and must be
produced under Amended CMO § I.D.l. See, e.g., LNU v. Obama, Civ. No. 09-745, 2009 WL
3030648, at *3-*4 (D.D.C. Sept. 23, 2009) (Lamberth, C.J.) (ordering the government to produce
all reasonably available evidence of abusive treatment prior to or contemporaneous with any
statements made by petitioner that were included in the factual return); Bin Attash, 628 F. Supp.
2d at 39 (agreeing with the other members of this Court and ordering the production of all
reasonably available evidence that the petitioner was subject to torture prior to or
contemporaneous with the time the petitioner made any statements that were included in the
factual return). Nevertheless, respondents challenge petitioner's request.
First, with respect to petitioner's requests (i)-(iii) and (vi), respondents argue that they
have produced all evidence of abuse with respect to petitioner. To date, however, respondents
have produced only one document relevant to petitioner's request. Petitioner has made a
showing that additional documents showing that petitioner was abused exist. In particular,
petitioner alleges that U.S. Army tortured or abused petitioner during
interrogations at Bagram. (Mot. Ex. A.) ~as later tried before an Army court-
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martial for these alleged abuses, and petitioner's testimony agains~as used at the trial.
Indeed, documents from court-martial are responsive to petitioner's request. In
addition, petitioner demonstrates that three unclassified investigative reports issued by the U.S.
Army's Criminal Investigative Task Force ("CITF") contain detailed accounts of petitioner's
reports of physical and psychological abuse at Bagram. Similarly, these reports are responsive to
petitioner's request. Moreover, petitioner's military commission case produced many
documents, both unclassified and classified, showing that petitioner was subject to abuse.
Petitioner's counsel has signed on to the protective order that applies to petitioner's military
commission case and has received documents from petitioner's counsel in that case which show
that petitioner was subject to abuse or torture. Accordingly, petitioner has identified additional
documents that show petitioner was subject to abuse or torture prior to or contemporaneous with
any statements made by petitioner that are relied upon in the factual return. Pursuant to
Amended CMO § J.D.!, such documents are exculpatory and must be produced to the extent they
are reasonably available.
Second, with respect to request (iv), respondents contend that infonnation relating to the
death ofDilawar and other detainees at Bagram is irrelevant to the alleged physical or
psychological abuse of petitioner. The Court agrees. Respondents do not rely on any statements
made by Dilawar prior to his death to justify the detention of petitioner. Thus, any information
relating to his death or the death of others at Bagram is not exculpatory. Petitioner's specific
request (iv) is therefore denied.
Last, respondents argue that petitioner's specific request (v), relating to any records of
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interrogation techniques used against petitioner, is overbroad. Interrogation techniques certainly
may show that petitioner was subject to abuse, torture, coercion, or duress prior to or
contemporaneous with the time that petitioner made any statements included in the factual return.
Accordingly, respondents must produce the interrogation techniques used against petitioner prior
to or contemporaneous with statements made by petitioner that are included in the factual return.
Respondents, however, do not have to produce interrogation techniques that do not evidence
abuse, torture, coercion, or duress.
In sum, respondents must produce all reasonably available evidence showing that
petitioner was subject to abuse, torture, coercion, or duress prior to or contemporaneous with the
time he made the statements included in the factual return. See Bin At/ash, 628 F. Supp. 2d at
39. Respondents' obligation under Section LD.1 of the Amended CMO includes producing
documents responsive to petitioner's specific requests (i)-(iii) and (v)-(vi), provided the
documents show that petitioner was subject to abuse, torture, coercion, or duress prior to or
contemporaneous with the time he made any statements which are included in the factual return.
Respondents, however, do not have to produce documents pertaining to petitioner's specific
request (iv). Should respondents fail to either produce evidence of coercion or deny petitioner's
allegations of abuse, respondents will not be allowed to use any of petitioner's statements in the
merits of this litigation. Id. at 40.
2. All Reasonably Available Statements Made by Abd Al Rahim Al Nashiri and
Other Individuals Involved in the Tanker Plot that Deny, Undermine or
Contradict Respondents' Allegations
Respondents agree to search for and produce "reasonably available statements in which
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participants in the tanker plot, including al-Nashiri, otherwise deny or contradict the
Government's allegations." (Opp'n at 17.) Respondents' obligation, however, does not include
producing statements that did not mention petitioner's name. See Bin Attash, 628 F. Supp. 2d at
32 (explaining that statements that do not mention petitioner are "merely neutral, and not
exculpatory"). In addition, respondents are not required to produce infonnation regarding the
circumstances under which any statements by Al Nashiri were made because the government
does not rely on Al Nashiri's statements in the factual return. See id. at 40. Accordingly,
petitioner's request is denied.
3. All Reasonably Available Evidence Showing that U.S. Agents Have Asked,
Requested, or Pressured Petitioner to Testify Against Other Individuals
Petitioner argues any reasonable available evidence showing that respondents pressured
him to testify against other individuals is exculpatory and must be produced under Amended
CMO § I.D.1. Petitioner has failed to make a colorable claim that such evidence would be
exculpatory. As respondents correctly state, the issue in this case is whether the allegations in the
factual return demonstrate that petitioner may be lawfully detained under the Authorization for
the Use of Military Force ("AUMF"), Pub. L. 107-40, 115 Stat. 224 (2001). (Opp'n at 18.) A
petitioner may be detained under the AUMF if the allegations in the factual return support the
conclusion that the petitioner was a part of the Taliban, al Qaeda, or associated enemy forces.
Mattan v. Obama, 618 F. Supp. 2d 24, 26 (D.D.C. 2009) (Lamberth, C,J.). Whether petitioner
was approached about testifying against other individuals does not undennine the government's
claim that petitioner may be lawfully detained under the AUMF. Accordingly, petitioner's
request is denied.
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4. All Reasonably Available Intelligence Reports or Information about Petitioner,
Including Information from Foreign Intelligence or Law Enforcement
Agencies, That Were Provided to U.S. Agents Who Interrogated Petitioner at
Bagram
Petitioner seeks all reasonably available intelligence reports or information, including
information from foreign intelligence or law enforcement, provided to respondents about
petitioner. Petitioner maintains that this information is exculpatory because it shows why certain
interrogation techniques were used on petitioner. The Court disagrees. Why certain
interrogation techniques were used on petitioner is unrelated to the credibility and reliability of
any statements made by petitioner. As discussed above, respondents must produce all reasonably
available evidence showing that petitioner was subject to abuse, torture, coercion, or duress
contemporaneous with or prior to any of petitioner's statements upon which respondents rely.
From that evidence, the Court will be able to determine the credibility and reliability of
petitioner's statements. Accordingly, petitioner's request is denied.
5. All Reasonably A vailable Evidence Showing that the Witnesses on Whom the
Government Relies Were Physically andlor Psychologically coerced Prior to
Giving Statements
Respondents agree to search for and produce all reasonably available evidence showing
that the witnesses on whom they rely were physicalfy and/or psychologically coerced prior to
giving their statements. (Opp'n at 20.) Therefore, the Court will deny petitioner's request.
6. All Reasonably Available Evidence Showing that Petitioner Has Denied
Involvement in the Allegations Contained in Respondents' Narrative and
Exhibits
It is undisputed that "any denials of petitioner's involvement in the allegations detailed in
the factual return are exculpatory because they tend to undermine any other statements in which
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"."
the petitioner does admit involvement" in terrorist activities. Bin Attash, 628 F. Supp. 2d at 33
(citing United States v. Bagley, 473 U.S. 667, 676 (1985». Nevertheless, respondents argue that
they do not have to search for or produce such information because petitioner does not state that
he denied any facts relied upon in the factual return during his interrogations. (Opp'n at 21.)
This argument is without merit. Petitioner demonstrates that he denied the allegations contained
in the factual return on at least two occasions. In addition, petitioner's counsel has obtained
evidence showing petitioner denied the allegations in the factual return from the prosecution in
the military commission proceeding against petitioner. Last, this Court in Bin Attash did not
require that petitioner show that any denials were made during interrogation. Rather, the Court
only required that the denials were made during petitioner's detention. See Bin Attash, 628 F.
Supp. 2d at 32 (noting that petitioner argued that he made statements of denial "over the course
of his detention"). Accordingly, the Court will grant petitioner's request for all reasonably
available evidence that petitioner has denied involvement in the allegations contained in the
factual return.
7. All Exculpatory Information Compiled by the Guantanamo Detainee Review
Task Force "
Respondents agree to conduct a reasonably targeted search of the materials made
available to the Guantanamo Review Task Force for exculpatory evidence and other
automatically discoverable information under the Amended CMO. (Opp'n at 22.) Accordingly,
petitioner's request is denied.
8. All Exculpatory Information Produced by the Government in the Pending
Military Commission Proceeding Against Petitioner
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Petitioner seeks all exculpatory information produced by the government in the pending
military commission proceeding against petitioner. The documents from petitioner's military
commission proceeding are in the database of the Guantanamo Review Task Force. Respondents
have already agreed to confer with petitioner's counsel to define the terms and scope oftheir
search of the Task Force database for exculpatory information. When the parties confer,
respondents can ensure that the search includes exculpatory information from petitioner's
military commission proceeding. As a result, a separate search of the materials produced by the
government in the pending military commission proceeding is not necessary, nor is it necessary
for respondents to produce all the materials to petitioner's counsel for petitioner's counsel to sort
through for exculpatory information. Accordingly, petitioner's request is denied.
9. All Exculpatory Information Compiled by Respondents in Petitioner's CSRT
and/or Administrative Review Board Proceedings
It is undisputed that petitioner is entitled to all exculpatory information compiled by the
government during petitioner's CSRT and Administrative Review Board ("ARB") Proceedings.
Bin Attash, 628 F. Supp. 2d at 35-36. On May 8, 2009, Respondents certified that they produced
all exculpatory information pursuant to Amended CMO § J.D.I, including information from
petitioner's CSRT proceedings (petitioner has not had an ARB proceeding). Petitioner argues
that respondents cannot rely on that certification because respondents have acknowledged that it
was insufficient in several areas. (Reply at 21-22.) Petitioner, however, has failed to
demonstrate that additional exculpatory documents exist from petitioner's CSRT proceedings.
Thus, requiring respondents to search the documents from petitioner's CSRT proceedings again,
without identifying specific information that was not produced, would be unduly burdensome
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and duplicative. Accordingly, the Court shall deny petitioner's request.
10. Unredacted Copies ofClassified Documents Produced by the Government
Pursuant to Section /.D.1 ofthe Amended CMO
Petitioner's final request under Section I.D.l is for unredacted copies of classified
documents produced pursuant to Section I.D.l of the Amended CMO. Section I.F of the
Amended CMO requires respondents to provide petitioner's counsel with any classified
information disclosed under Sections I.D or I.E of the Amended CMO. Amended CMO § I.F. If,
however, respondents "object to providing petitioner's counsel with the classified information,"
respondents may file a motion before the merits judge for an exception to disclosure. Id.
Under Section I.D.l, respondents only have to disclose exculpatory information to
petitioner. Here, respondents contend that they have not redacted any exculpatory information
because respondents have only redacted "source-identifying and internal administrative
information that is not exculpatory in nature." (Opp'n at 27.) The Court agrees. Respondents
may redact portions of documents that are disclosed pursuant to Section I.D.l that are not
exculpatory in nature, such as source-identifying and internal administrative information.
Petitioner has failed to show that respondents redacted information other than source-identifying
or internal administrative infonnation. Accordingly, petitioner's request is denied.
B. Discovery under Section /.E.1 ofthe Amended CMO
Petitioner asserts that respondents must produce three categories of infonnation under
Section I.E. I of the Amended CMO. The Court will address each category in tum.
1. All Forms ofPetitioner's Statements on which Respondents Rely
Respondents agree to produce "all forms of [petitioner's] statements cited in the factual
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return." As stated previously by this Court, "respondents' obligation includes producing any
video, audio, transcripts, notes, and/or reports of all petitioner's statements upon which
respondents rely." LNU, 2009 WL 3030648 at *2. Because respondents agree to produce all
forms ofpetitioner's statements relied upon in the factual return, petitioner's request is denied.
2. Circumstances in which Petitioner Made or Adopted the Statements on which
Respondents Rely
Respondents claim that they produced all reasonably available evidence about the
circumstances in which petitioner made the statements upon which respondents' rely on May 5,
2009. (Pet'r's Mot. Ex. F.) After May 5, 2009, however, this Court held that respondents have
an obligation to produce information about the circumstances in which petitioner's statements
were made, including interrogation logs, for all statements on which respondents rely. See LNU,
2009 WL 3030648 at *2; Bin Attash, 628 F. Supp. 2d at 37. Accordingly, respondents must
produce the circumstances in which petitioner's statements were made or adopted, including any
interrogation logs or plans, which were not provided on May 5, 2009.
3. Unredacted Copies ofAll Classified Documents Included in the Factual Return
Section I.E.! of the Amended CMO "requires the government to disclose any documents
that the government relies on to justify detention, not merely portions of those documents." Bin
Attash, 628 F. Supp. 2d at 36. If, however, respondents have "compelling reasons to withhold
disclosure ... , [they] may move for an exception" under Section I.F of the Amended CMO. Id.
Here, respondents assert that they will file a motion pursuant to Section I.F of the
Amended CMO, along with unredactedcopies of the documents, submitted ex parte, for in
camera review. Accordingly, the Court will deny petitioner's request for unredacted copies of all
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classified documents included in the factual return at this time, and respondents are instructed to
file a motion pursuant to Section 1.F of the Amended CMO to justify withholding the redacted
information from petitioner.
III. CONCLUSION
For the reasons set forth above, petitioner's motion shall be gran.ted in part and denied in
part. A separate Order shall issue this date.
rHnh1
DATE
~c·f--u~
RO E C. LAMBERTH
CHIEF JUDGE
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FILED WITH THE
COURT SE "N OFFICER
CSO: J<-
DATE: -L-~o/-&:J~'f-=1--
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
AHMAD MOHAMMAD AL DARBI, )
)
Petitioner, )
)
v. ) Civil No. 05-2371 (RCL)
)
BARACK OBAMA, et al., )
)
Respondents. )
)
ORDER
Upon consideration of petitioner's Motion [172] to Compel Production of Exculpatory
Infonnation and Automatic Discovery, the opposition and reply thereto, the applicable law, and
the entire record herein, it is hereby
ORDERED that petitioner's motion is GRANTED IN PART and DENIED IN PART.
Specifically, it is
ORDERED that respondents must produce all reasonably available evidence showing that
petitioner was subject to abuse, torture, coercion, or duress prior to or contemporaneous with the
time he made statements included in the factual return, including:
any reports, notes or recordings reflecting the physical and psychological
abuse of Mr. Al Darbi during the course of his transfer to U.S. custody;
any recorded allegations of abuse or mistreatment made by Mr. Al Darbi
to U.S. agents;
any report of investigation or other writing relating to the investigation of
allegations of abuse or mistreatment of Mr. Al Darbi prepared by the U.S.
Anny's Criminal Investigation Division or any other agency of the U.S.;
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any records of the interrogation techniques used against Mr. Al Darbi by
U.S. agents; and
all medical and psychiatric records for Mr. Al Darbi that reflect physical
abuse or torture.
It is further ORDERED that respondents are required to produce all reasonably available
evidence that petitioner has denied involvement in the allegations contained in the factual return;
it is further
ORDERED that respondents must produce the circwnstances in which petitioner's
statements were made or adopted, including any interrogation logs or plans, which were not
provided on May 5, 2009; and it is further
ORDERED that petitioner's motion is DENIED in all other respects.
SO ORDERED.
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DATE
~JC'~
RO E C. L MBERTH
CHIEF JUDGE
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