UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ABDUL HAMID AL-GHIZZAWI,
Petitioner,
v. Civil Action No. 05-2378 (JDB)
BARACK OBAMA, et al.,
Respondents.
ORDER
Currently before the Court is [257] petitioner's motion for an order1 to show cause against
respondents for violating the Court's Order of June 1, 2009.2 That Order required the
government
to either (i) publicly file a declassified or unclassified factual return or (ii) file
under seal with the 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. Respondents were required to comply by July 29, 2009. They have
purported to do so in this case. See Docket Entry No. 251, July 29, 2009.
Petitioner contends, however, that respondents' factual return did not comply with the
Court's Order. Specifically, according to petitioner, respondents "continue[d] to unilaterally
redact information it seeks to protect with absolutely no attempt to highlight those materials, to
1
The Court notes that petitioner's motion seeks a "rule to show cause." The motion more
properly seeks an "order to show cause."
2
That Order was issued by Senior Judge Hogan in his capacity as coordinating judge for
the Guantanamo Bay detainee cases. This Court consulted with Judge Hogan and concluded that
it will address petitioner's motion.
meet and confer, or to explain to the Court (and counsel) why the material (most of which is
already in the public domain) should be protected." Pet'r's Mot. for Rule to Show Cause ("Pet'r's
Mot.") at 6. Accordingly, "the Government [] disregard[ed] the procedures set out in this Courts
[sic] Order . . . ." Id. at 4.
In response, respondents maintain that they have in fact abided by the Court's Order. See
Resp't's Opp'n to Pet'r's Mot. for Rule to Show Cause ("Resp't's Opp.") at n.2. They assert that
the "declassified returns redact any properly classified information, as well as information
designated as 'protected', which while not classified, implicates significant security or other
interests." Id. at 4. As a result, "the declassified versions of the unclassified returns were
suitable for public release." Id. For his part, petitioner concludes that redacting protected
information from the public factual returns violates the Court's June 1, 2009 Order. See Reply to
Pet'r's Mot. for Rule to Show Cause ("Pet'r's Reply") at 4.
Petitioner is correct.3 Respondents admit they filed public factual returns that redacted
not only classified information, but also information designated as protected. See Resp't's Opp.
at 4 & n.2. But the only procedure for redacting protected information in a public factual return
was pursuant to option (ii) of the Court's June 1, 2009 Order. Yet respondents did not avail
themselves of this procedure: they neither "highlight[ed] . . . the exact words or lines" deemed
protected, nor filed a "memorandum explaining why each word or line should be protected."
June 1, 2009 Order at 1-2.
3
Petitioner and Respondents debate whether publicly-available information could ever be
properly redacted from the public factual returns. Compare Pet'r's Mot. at 7-8, with Resp't's Opp.
at 6-11. The Court need not reach this issue because respondents have failed to comply with the
Court's Order.
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Respondents' factual return is improper under option (i) as well. Filing pursuant to option
(i) is available where a public factual return redacts only classified information. Respondents,
however, suggest otherwise. They question whether the Court would invite "highlighted returns
to be filed under seal in each of over 150 cases and the likely rounds of litigation over specific
redactions that would have followed such submissions . . . ." Resp't's Opp. at n.2. But this
reading of the June 1, 2009 Order is incorrect. If option (i) governed the filing of public factual
returns that redacted protected information, option (ii) would be unnecessary -- there would be no
reason for the cumbersome procedures detailed in option (ii). Therefore, it is hereby
ORDERED that petitioner's motion for an order to show cause is GRANTED; it is
further
ORDERED that respondents must file a factual return in compliance with the Court's
June 1, 2009 Order. If respondents wish to redact any information that is not classified, they
must do so according to the procedures set forth in option (ii) of the Order; it is further
ORDERED that respondents shall have until October 16, 2009, to comply with this
Order.
SO ORDERED.
/s/
JOHN D. BATES
United States District Judge
Dated: September 24, 2009
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