UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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ABDAL RAZAK ALI (ISN 685), )
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Petitioner, )
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v. ) Civil Action No. 09-745 (RCL)
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BARACK OBAMA, et al., )
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Respondents. )
____________________________________)
MEMORANDUM OPINION
This matter comes before the Court on petitioner’s Motion [1292] for an Order to Show
Cause.1 Petitioner alleges that respondents violated the Court’s Order [1169] of June 1, 2009,
issued by Judge Hogan in the consolidated Guantanamo habeas cases (Misc. No. 08-442). The
Court agrees with petitioner and will therefore grant petitioner’s motion.
DISCUSSION
Late last year, respondents moved to seal the unclassified factual returns that the Court
required respondents to file for each Guantanamo habeas petitioner. On June 1, 2009, Judge
Hogan denied respondents’s motion. In the accompanying Memorandum [1195], Judge Hogan
noted that the September 11, 2008 Protective Order provided that “the ultimate decision to deem
information protected is left to the Court.” (Mem. at 2.) Accordingly, Judge Hogan ordered
respondents
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The Court agrees with Judge Bates that although petitioner’s motion seeks a “‘rule to
show cause[,]’ . . . [t]he motion more properly seeks an ‘order to show cause.’” Abdul Hamid Al-
Ghizzawi, 05-2378, Order [266] (D.D.C. Sept. 24, 2009) (Bates, J.).
to either (i) publicly file a declassified or unclassified factual return or (ii) file
under seal with petitioner’s counsel and the appropriate Merits Judge an
unclassified factual return highlighting with a colored marker the exact words or
lines the government seeks to be deemed protected, as well as a memorandum
explaining why each word or line should be protected.
(June 1, 2009 Order at 1-2.) Pursuant to the Order, respondents publicly filed a declassified
factual return on July 29, 2009. (Notice of Public Filing of Factual Return [1282].)
Petitioner’s publicly filed factual return was heavily redacted. In reviewing the
redactions, petitioner’s counsel found that some of the redacted information was not classified.
Petitioner’s counsel then contacted respondents about the non-classified redacted information.
Respondents replied that both classified and unclassified, but protected, information was
redacted from the publicly filed factual return. As a result, petitioner filed this motion alleging
that respondents improperly withheld non-classified information from the public factual return in
violation of the June 1, 2009 Order.
This Court agrees with Judge Bates and finds that respondents withheld information as
protected without following the procedures set forth in the June 1 Order. See Abdul Hamid Al-
Ghizzawi, 05-2378, Order [266] at 2 (D.D.C. Sept. 24, 2009) (Bates, J.). To withhold
information as protected, respondents must “file under seal . . . an unclassified factual return
highlighting . . . the exact words or lines the government seeks to be deemed protected, as well as
a memorandum explaining why each word or line should be protected.” (June 1, 2009 Order at
2.) Respondents have not fulfilled either of these requirements. They did not file a factual return
under seal with the portions highlighted that they sought to protect, and they did not file a
memorandum explaining why the information should be protected. Rather, respondents filed a
declassified factual return that redacted “any properly classified information, as well as
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information designated as ‘protected’ which, while not classified, implicates significant security
or other interest.” (Opp’n at 4.) Such withholding of information as protected without Court
approval is directly contrary to the June 1, 2009 Order.
In addition, respondents’ argument that the public factual return is proper under option (i)
the June 1, 2009 Order is without merit. As Judge Bates stated, “[f]iling pursuant to option (i) is
available where a public factual return redacts only classified information.” Abdul Hamid Al-
Ghizzawi, 05-2378, Order [266] at 3. Indeed, “[i]f option (i) governed the filing of public factual
returns that redacted protected information, option (ii) would be unnecessary.” Id.
Accordingly, the Court shall grant petitioner’s motion. Petitioner’s counsel shall file
under seal a proposed factual return for public filing that includes the publicly available
information that respondents have redacted. Respondents shall show cause in a memorandum in
response to petitioner’s proposed return within seven days. The memorandum shall provide the
specific reasons why respondents seek to withhold information from the public factual return as
protected. Any reply by petitioner shall be filed within five days thereafter.
The Court will defer to Judge Hogan as to whether other relief is warranted for violation
of his June 1, 2009 Order. This order grant’s this petitioner all the relief he seeks in this case. A
separate order shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on November 9, 2009.
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