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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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SHARGOWI LNU (ISN 1457), )
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Petitioner, )
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v. ) Civil No. 09-745 (RCL)
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BARACK OBAMA, et a/., )
)
Respondents. )
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MEMORANDUM OPINION
Petitioner is challenging the legality of his detention at the United States Naval Base in
Guantanamo Bay, Cuba ("Guantanamo"). Before the Court is petitioner's Motion [1217] for
Leave to Take Discovery. Upon consideration of the motion, respondents' opposition, and
petitioner's reply, 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") issued by Judge
Hogan of this Court in the consolidated Guantanamo habeas cases (Misc. No. 08-442) on
November 6, 2008, as amended on December 16,2008. 1 Section I.E of the Amended CMO
provides rules for discovery. Section I.E. 1. sets forth the discovery materials that the government
must provide to petitioner upon his request. See Amended CMO § I.E. 1. Section I.E.2. provides
a four part test that petitioner must satisfy in order to obtain additional discovery. Specifically,
I Judge Walton of this Court further amended the Amended CMO. Gherbi v. Bush, Civ.
No. 04-1164, Order [797] (D.D.C. Dec. 19,2008) (Walton, J.). After Judge Walton's Order,
petitioner's case was transferred to the undersigned member of the Court. As a result, that Order
is binding on petitioner's case, and any deviations from the Amended CMO will be noted.
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Section I.E.2. states that:
[t]he Merits Judge may, for good cause, permit the petitioner to obtain limited
discovery beyond that described in [Section I.E. 1.].... Discovery requests shall ..
. (1) be narrowly tailored, not open-ended; (2) specify the discovery sought; (3)
explain why the request, if granted, is likely to produce evidence that
demonstrates that petitioner's detention is unlawful ...; and (4) explain why the
requested discovery will enable the petitioner to rebut the factual basis for his
detention without unfairly disrupting or unduly burdening the government.
Amended CMO § I.E.2. (citations omitted).
Pursuant to Amended CMO § I.E.2., petitioner seeks this Court's approval often
additional discovery requests and authorization to conduct limited written discovery. (pet'r's
Mot. at 1, 6, Ex. A.). The Court will only grant those discovery requests that meet the standard
set forth in the Amended CMO. In addition, because petitioner does not specify where any of the
discovery he seeks is located, and because Section I.E.2. requires that requests must not unfairly
disrupt or unduly burden the government, "the Court will only consider petitioner's discovery
requests insofar as they seek reasonably available evidence." Alsa 'ary v. Obama, Civ. No. 09
745, Mem. Op. [1251] at 2 (D.D.C. June 22,2009) (Lamberth, C.J.). In the context of this
opinion and the accompanying order, '''reasonably available' evidence means evidence contained
in any information reviewed by attorneys preparing factual returns for all detainees held at
Guantanamo Bay or any other United States military facility; it is not limited to the evidence
discovered by attorneys preparing factual returns for this petitioner." Id
II. PETITIONER'S DISCOVERY REOUESTS
A. Records and Reports of Interrogations of Petitioner (pet'r's Reqs. Nos. 1 and 3)
In requests Nos. 1 and 3, petitioner seeks the records and reports pertaining to his
interrogation upon which respondents rely to support his detention. Specifically, request No. I
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seeks "[a]ll records or reports of interrogations ofPetitioner after his capture in Pakistan" (perr's
Mot. Ex. A at 1.), and request No.3 seeks "[a]ll records or reports pertaining to Petitioner in his
'hard file' after his capture in Pakistan." (Id. at 3.) Both requests are limited to include ''video
and/or audio of all interrogations upon which Respondents rely, any transcripts or original notes
of all interrogations upon which Respondents rely, any reports related to any interrogations upon
which Respondents rely other than the one who prepared the particular reports cited by
Respondents in the Amended Factual Return." (Id. at 1,3.) As a result, petitioner's requests are
narrowly tailored to include only the evidence upon which respondents' rely, and petitioner's
access to the evidence sought will likely demonstrate petitioner's detention is unlawful.
Accordingly, these requests satisfy the "good cause" requirement of Section I.E.2.
Moreover, even if these requests did not satisfy the" good cause" requirement of Section
I.E.2., respondents would have to produce all forms of petitioner's statements included in the
factual return pursuant to Amended CMO § I.E. I. See Amended CMO § I.E. 1. (stating that "the
government shall disclose ... (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"). Indeed, as this
Court recently held, "[i]fthe government wishes to use petitioner's statements against him, it
must produce all forms of that statement to the petitioner as well as the circumstances in which
the statements were made or adopted, which would include interrogation logs." Bin Attash v.
Obama, Case No. 05-1592, Mem. [215] at 14 (D.D.C. June 12,2009) (Lamberth, C.J.). The
third-party reports provided to petitioner thus far are insufficient (Pet'r's Mot. Ex. A at 1.), and
respondents must disclose all forms of the statements included in the factual return, not just
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summaries of his statements.
Accordingly, to the extent that petitioner's requests Nos. 1 and 3 seek "reasonably
available" records and reports of interrogations in which petitioner made or adopted statements
upon which respondents rely to justify his detention, petitioners' request shall be granted.
Respondents' obligation includes producing any video, audio, transcripts, notes, and/or reports of
all petitioner's statements upon which respondents rely.
B. Circumstances oflnterrogations (Pet'r's Req. No.2)
Petitioner seeks "[a]ny documents, including but not limited to any interrogation logs or
interrogation plans that list or describe the date, time, place, or circumstances of interrogations of
Petitioner." (Pet'r's Mot. Ex. A at 2.) In his reply, petitioner limits this request "to information
related to the circumstances of interrogations that produced the statement upon which
Respondents rely to justify Petitioner's detention." (pet'r's Reply at 3.) Respondents claim that
they produced all reasonably available information about the circumstances in which petitioner
made or adopted the statements that respondents rely upon to justify his detention on February
13,2009. As stated above, however, if the government wishes to use statements made or
adopted by petitioner against him, the government must also produce not only the circumstances
in which the statements were made or adopted, but also the interrogation logs. Bin Attash, 05
1592, Mem. [215] at 14. Accordingly, respondents must produce the circumstances in which
petitioner's statements were made or adopted, including any interrogation logs or plans, which
were not produced on February 13,2009.
C. Documents Related to Extraordinary Rendition of Petitioner (Pet'r's Req. No.4)
Petitioner requests all documents related to his extraordinary rendition "prior to his
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detention in Baghram [sic] and Guantanamo, including all statements made or adopted by
petitioner during this process." (Pet'r's Mot. Ex. A at 4.) Petitioner fails to show that these
documents would likely show that his detention is unlawful. Moreover, to the extent that
respondents rely upon any statements made during extraordinary rendition to justify petitioner's
detention, information regarding such statements are covered by the Court's order of this date
requiring respondents to produce all reasonably available records and reports of interrogations in
which petitioner made or adopted statements upon which respondents rely to justify his
detention. Accordingly, this request shall be denied.
D. Information Regarding Other Individuals Associated With Guest Houses in Pakistan
Who Were Not Enemy Combatants (Pet'r's Req. No.5)
Petitioner seeks "information showing that there were individuals associated with the
guest house where Petitioner was captured who were not enemy combatants." (Pet'r's Reply at
7.) This request does not satisfy the "good cause" requirements of Amended CMO § J.E.2. The
request is narrowly tailored, but it will not likely produce evidence that demonstrates petitioner's
detention is unlawful. The fact that others may not have been detained at petitioner's guest house
does not show that petitioner's detention is unlawful. Accordingly, this request shall be denied.
Nevertheless, this Court agrees with petitioner's assertion that such information tends to
materially undermine respondents' position that petitioner was captured at an al-Qaida associated
guest house. If this evidence is reasonably available, it should have been turned over to
petitioner pursuant to Amended CMO § J.D. I. See Amended CMO § LD.1, as amended by
Gherbi v. Bush, Civ. No. 04-1164, Order [797] (DD.C. Dec. 19,2008) (Walton, 1.) (requiring
the government to "disclose to the petitioner all reasonably available evidence in its possession
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that tends materially to undermine the information presented to support the government's
justification for detaining the petitioner").
E. Information Relating to the Use of Bounties (Pet'r's Req. No.6)
Petitioner requests all information pertaining to the United States' use of bounties to
capture individuals in Pakistan after September 11,2001. (Pet'r's Mot. Ex. A at 5.) Petitioner
fails to explain how this request satisfies any of the requirements of Section I.E.2. Whether
bounties were used is irrelevant to petitioner's detention. Accordingly, this request shall be
denied.
F. Information Relating to Evidence of Torture and Abuse (pet'r's Req. No.7)
Petitioner seeks all information about his treatment from the date he was captured until he
was transferred to Guantanamo, "including information regarding the circumstances surrounding
any statement upon which Respondents rely, such as evidence of abusive treatment, torture,
mental or physical incapacity which could affect the credibility and/or reliability of evidence
being offered." (Pet'r's Mot. Ex. A at 5.) Through a declaration of his attorney as to petitioner's
recollection of his experiences, petitioner alleges he was subject to physical and psychological
coercion in Jordan, in a secret prison in Afghanistan, and in Bagram prior to his transfer to
Guantanamo Bay in _2004. (Id Ex. B.) These allegations and those contained in the
exhibits of petitioner's reply have enough specificity, which respondents do not deny, that the
Court finds that petitioner has made a sufficient claim that he was subject to these conditions
from his capture in 2002 until he was rendered to Guantanamo in 2004.
Respondents' argument that petitioner is free to state his knowledge of the circumstances
.surrounding the statements he made in order to attack the reliability of the statements upon which
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respondents rely to justify his detention is unpersuasive. As this Court stated in Bin Attash,
"[a]ssuming that the physical or psychological coercion occurred prior to or simultaneously to the
time that the petitioner gave the ... statements that the government relies on in the factual return,
evidence of that coercion would be exculpatory." Civ. No. 05-1592, Mem. [215] at 17.
Respondents are required to produce such exculpatory evidence under Amended CMO § I.D.l.
Accordingly, consistent with previous orders of other members and the undersigned
member of this Court, the Court shall order the government to produce all reasonably available
evidence of abusive treatment, torture, or mental or physical incapacity prior to or
contemporaneous with the time that petitioner gave any statements that are included in the
factual return. See Bin Attash, Civ. No. 05-1592, Mem. [215] at 18 (ordering production of any
reasonably available evidence that "petitioner was subjected to abuse, torture, coercion, or
duress"); AI-Mithali v. Bush, Civ. No. 05-2186, Order [138] at 2 (D.D.C. Jan. 9, 2009) (Huvelle,
J.) (ordering production of any document indicating that petitioner was a victim of abuse, torture,
or coercion by either foreign or domestic government authorities); Al Odah v. United States, Civ.
No. 09-828, Order [474] at 2 (D.D.C. Feb. 12,2009) (Kollar-Kotelly, 1.) (ordering the
government to produce "evidence that indicates a statement is unreliable because it is the product
of abuse, torture, or mental or physical incapacity"). Respondents' failure to deny petitioner's
allegations or produce evidence of coercion will result in respondents' being precluded from
using any of petitioner's statements in the merits of this litigation. Bin Attash, Civ. No. 05-1592,
Mem. [215] at 19.
G. Information Showing Knowledge of Promises or Representations Made to Petitioner
That Resulted in His Confession (Pet'r's Req. No.8)
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This request seeks "[a]ll infonnation showing Respondents' knowledge of promises or
representations made to Petitioner that if Petitioner confessed he would be released." (Pet'r's
Mot. Ex. A at 5.) Petitioner has not provided any assertions that respondents promised his
release ifhe confessed. Accordingly, this request fails to fulfill the "good cause" requirements
and shall be denied.
H. Petitioner's Medical Records (Pet'r's Req. No.9)
Petitioner requests all documents concerning his "physical or mental condition since he
has been held in Guantanamo, including ... all medical records, or any other records describing
his treatment." (pet'r's Mot. Ex. A at 6.) Petitioner fails to demonstrate that the documents
would likely show that his detention was unlawful. Furthennore, to the extent that records detail
alleged "abusive treatment, torture, or mental or physical incapacity," the records will be
produced pursuant to the order accompanying this memorandum that requires the government to
produce all reasonably available evidence of abusive treatment, torture, or mental or physical
incapacity prior to or contemporaneous with the time that petitioner gave any statements that are
included in the factual return. Accordingly, the Court shall deny this request.
I. Documents Generated by Review of Petitioner's Detention Ordered by President Obama
(Pet'r's Req. No. 10)
Petitioner seeks all documents and facts generated by the Executive Task Force created
by President Obama's January 22, 2009 Executive Order. 2 (pet'r's Mot. Ex. A. at 6.)
Respondents' assertion that searching the Task Force's materials would be too burdensome is
unavailing. As this Court has previously stated, the Task Force's materials are readily available
2 Executive Order No. 13,492 at § 4(c)(l), 74 Fed. Reg. 4897 (Jan. 22,2009).
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and may produce new exculpatory information. Bin Attash, Civ. No. 05-1592, Mem. [215] at 16.
Only upon respondents' production of exculpatory Task Force materials will this Court be able to
give petitioner a "meaningful opportunity to demonstrate that he is being held pursuant to the
erroneous application of interpretation of relevant law." Boumediene v. Bush, 128 S. Ct. 2229,
2266 (2008). Accordingly, this Court shall order respondents to produce any exculpatory
materials assembled by the Executive Task Force.
J. Written Discovery Requests
Finally, petitioner seeks permission to issue a limited number of written discovery
requests. (pet'r's Mot. at 6.) Petitioner has not shown how these requests would likely show that
his detention is unlawful. Accordingly, the Court shall deny this request.
III. CONCLUSION
For the reasons stated above, petitioner's Motion for Discovery shall be granted in part
and denied in part. A separate Order shall issue this date.
~C#ruU?ta-
ROYCE C. LAMBERTH
CHIEF JUDGE
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