Zemiri v. Bush

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

IN RE: Misc. No. 08-0442 (TFH)

GUANTANAMO BAY Civil Action Nos.
DETAINEE LITIGATION
02-cv-0828, 04-cv-1136, 04-cv-1164, 04-cv-1194, 04-cv-1254,
04-cv-1937, 04-cv-2022, 04-cv-2046, 04-cv-2215, 05-cv-0023,
05-cv-0247, 05-cv-0270, 05-cv-0280, 05-cv-0329, 05-cv-0359,
05-cv-0392, 05-cv-0492, 05-cv-0520, 05-cv-0526, 05-cv-0569,
05-cv-0634, 05-cv-0748, 05-cv-0763, 05-cv-0764, 05-cv-0877,
05-cv-0883, 05-cv-0889, 05-cv-0892, 05-cv-0993, 05-cv-0994,
05-cv-0999, 05-cv-1048, 05-cv-1124, 05-cv-1189, 05-cv-1220,
05-cv-1244, 05-cv-1347, 05-cv-1353, 05-cv-1429, 05-cv-1457,
05-cv-1490, 05-cv-1497, 05-cv-1504, 05-cv-1506, 05-cv-1555,
05-cv-1592, 05-cv-1601, 05-cv-1607, 05-cv-1623, 05-cv-1638,
05-cv-1645, 05-cv-1646, 05-cv-1678, 05-cv-1971, 05-cv-1983,
05-cv-2088, 05-cv-2104, 05-cv-2185, 05-cv-2186, 05-cv-2199,
05-cv-2249, 05-cv-2349, 05-cv-2367, 05-cv-2371, 05-cv-2378,
05-cv-2379, 05-cv-2380, 05-cv-2384, 05-cv-2385, 05-cv-2386,
05-cv-2387, 05-cv-2479, 06-cv-1668, 06-cv-1684, 06-cv-1690,
06-cv-1761, 06-cv-1765, 06-cv-1766, 06-cv-1767, 07-cv-1710,
07-cv-2337, 07-cv-2338, 08-cv-0987, 08-cv-1101, 08-cv-1153,
08-cv-1207, 08-cv-1221, 08-cv-1224, 08-cv-1228, 08-cv-1232,
08-cv-1233, 08-cv-1235, 08-cv-1236, 08-cv-1237, 08-cv-1238,
08-cv-1360, 08-cv-1440, 08-cv-1789, 08-cv-1805, 08-cv-1828,
08-cv-1923, 08-cv-2019, 08-cv-2083, 09-cv-0745

MEMORANDUM OPINION

Pending before the Court is the government’s Motion to Amend the September 11,

2008 Protective Order and Counsel Access Procedures and the January 9, 2009 Amended

TS/SCI Protective Order and Counsel Access Procedures (“Motion to Amend”) (Dkt. No.

1684, 08-mc-0442). The government asks the Court to amend the protective orders entered in

the above-captioned cases in order to prevent petitioners from viewing their own statements, if

those statements have been designated as classified or protected. Upon consideration of the

motion, petitioners’ opposition, and the government’s reply, the Court will deny in part and

grant in part the motion.
 BACKGROUND

The impetus for the government’s motion is two January orders that permitted a

particular petitioner to view a document containing portions of his statements that were

included in his classified factual return. In those orders, the Court interpreted one of the

protective orders entered in the habeas cases for the detainees at the United States Naval Base

in Guantanamo Bay, Cuba (“Guantanamo Bay”) to allow petitioners to view documents

containing their own statements, even if those statements are classified.

The government’s motion is the latest salvo in an ongoing dispute between the

government and petitioners over what information the Court intended to allow counsel for a

petitioner to share with that petitioner. On September 11, 2008, the Court entered the

Protective Order and Procedures for Counsel Access to the Detainees at Guantanamo Bay

(Dkt. No. 409, 08-mc-0442) (“Protective Order” and “Counsel Access Procedures,”

respectively). The parties disagree whether, under the Protective Order and Counsel Access

Procedures, statements made by a petitioner to someone other than counsel are “provided by”

the petitioner, and therefore may be shared with the petitioner. The relevant portion of the

Protective Order reads, “Petitioners’ counsel shall not disclose to a petitioner-detainee

classified information not provided by that petitioner-detainee.” Protective Order ¶ 29

(emphasis added). The Counsel Access Procedures are similarly ambiguous, instructing that

“[c]ounsel may not divulge classified information not learned from the detainee to the

detainee.” Counsel Access Procedures ¶ 31.

On January 15, 2009, pursuant to a motion filed by a single petitioner, the Court

entered an order interpreting the above provisions to permit the petitioner to view the

statements he made to United States government agents that were included in his classified

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factual return. See Order (Dkt. No. 109, 05-cv-1244) (Jan. 15, 2009). Counsel was permitted

to share with the petitioner a document containing portions of such statements. 1

Two weeks after the Court’s order, the government filed a Motion to Vacate the

January 15, 2009 Order. The government indicated that the declassification review of the

petitioner’s classified statements was now complete. The Court’s order was moot, the

government argued, because petitioner’s counsel could review the declassified version of the

statements with the petitioner. Alternatively, the government recommended that the Privilege

Review Team review the document created by counsel against the declassified material and

redact any information that remained classified. Noting that the government’s motion was filed

only four days (two business days) before counsel was scheduled to visit the petitioner, and

therefore there was insufficient time for the Court to identify and review the redacted

information, the Court denied the motion. See Order (Dkt. No. 122, 05-cv-1244) (Jan. 30,

2009).

In the Order of January 30, 2009, the Court also clarified the government’s obligation

under the Protective Order and Counsel Access Procedures in cases where counsel compiles a

petitioner’s classified statements into a new document and seeks to share that document with

the petitioner. In such cases, any classified statements in the document must be redacted if the

government completes a declassification review of the classified statements before the

petitioner’s counsel is scheduled to visit the petitioner and there is sufficient time for the

appropriate Merits Judge to review the redactions. Therefore, if the government failed to

1
Each petitioner’s classified factual return includes exhibits, many of which detail
statements made by the petitioner to government agents. Counsel was only permitted to extract
from those exhibits the petitioner’s statements and the dates the statements were made. See
Order (Dkt. No. 109, 05-cv-1244).

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declassify the petitioner’s classified statements in a timely manner, his counsel could review

those still-classified statements with him. This compromise balanced the government’s interest

in protecting classified information with petitioners’ right to “a prompt habeas corpus hearing,”

Boumediene v. Bush, 128 S.Ct. 2229, 2275 (2008).

The aforementioned January orders prompted the government to file the Motion to

Amend at issue here, on March 11, 2009. With few new arguments and little additional

substance, the government asks the Court to vacate the January orders because, hypothetically,

they will allow other petitioners to review classified information. Specifically, it now asks the

Court to amend the Protective Order and Counsel Access Procedures to ensure that petitioners do

not view their own classified statements. Its proposed amendments would permit counsel “to

share with a detainee only classified information counsel learn from the detainee during the

course of communications with the detainee via legal mail or legal visits.” Mot. to Amend 4. A

petitioner would not be allowed to view his statements cited in his classified factual return.

Rather, “the proposed amendments would allow disclosure of such statements only if they were

taken from declassified materials or if the appropriate national security agencies approved the

disclosure.” Id. at 3-4. Though not at issue in the January decisions, the government also seeks

to amend the Amended Protective Order and Counsel Access Procedures for cases involving Top

Secret/Sensitive Compartmented Information (“TS/SCI”) (Dkt. No. 1496, 08-mc-0442) (Jan. 9,

2009) (“TS/SCI Protective Order” and “TS/SCI Counsel Access Procedures,” respectively),

since they too contain the disputed provisions. See TS/SCI Protective Order ¶ 30; TS/SCI

Counsel Access Procedures ¶ 34. As for a deadline by when a declassified review of petitioners’

statements would be completed, and therefore available for disclosure to petitioners, the

government requests that the Court “allow the Government’s declassification process to run its

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course.” Mot. to Amend 6.

The government further moves to amend the Protective Order and Counsel Access

Procedures, and their TS/SCI counterparts, to limit petitioners from viewing protected

information. “Protected” information is unclassified information that may nevertheless pose a

threat to national security if publicly disclosed. See Protective Order 1-2. Under the

government’s proposed amendments, counsel could only share a petitioner’s protected statements

with the petitioner if counsel learned the information during the course of communications with

the petitioner or if the appropriate national security agencies approved the disclosure. Mot. to

Amend 4.

Pursuant to a minute order, petitioners filed a consolidated opposition on May 11, 2009.

All but two petitioners2 oppose the motion. The government filed a reply on May 22, 2009.

DISCUSSION

The government seeks to withhold statements from petitioners that have been designated

as either classified or protected. These two classification categories present disparate security

concerns and are governed by disparate case law. Therefore, the Court will separately assess the

government’s motion with respect to classified statements and protected statements.

A. Classified Statements

With respect to petitioners’ statements that have been designated as classified, the

government’s motion is premised on two arguments: (i) the Court misinterpreted the Protective

Order and Counsel Access Procedures, and (ii) the government has the discretion to withhold

classified material from petitioners. The Court rejects the first argument, but accepts the second.

2
According to the government, counsel for Petitioner Alkhadr Abdullah Al Yafie
(ISN 34) and Petitioner Tofiq Nasser Awad Al Bihani (ISN 893) “indicated that their clients
would consent to the motion.” Mot. to Amend 3 n.3.

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Therefore, the Court will decline to amend the Protective Order and Counsel Access Procedures,

but will clarify the options available to the government if it objects to a court order to provide a

petitioner’s classified statements to that petitioner.

i. A petitioner may review his classified statements

The Court, for the third time, declares that a petitioner may view his own classified

statements. The government submits that the “language of the Protective Order and Counsel

Access Procedures did not suggest that petitioners’ counsel would be permitted to share with

petitioners classified information not learned from their respective clients.” Mot. to Amend 12.

The government is mistaken.

In accord with Boumediene, the Protective Order and Counsel Access Procedures permit

a petitioner to view his statements, even if they are classified. Discussing the deficiencies of the

Combatant Status Review Tribunals (“CSRT”), the Supreme Court in Boumediene isolated one

for particular rebuke: “the constraints upon the detainee’s ability to rebut the factual basis for the

Government’s assertion that he is an enemy combatant.” Boumediene, 128 S.Ct. at 2269. For

example, the Supreme Court continued, during the CSRT proceedings the detainee only has

access to the “unclassified portion” of the information on which the government relies, and

therefore he “may not be aware of the most critical allegations that the Government relied upon

to order his detention.” Id. (citations omitted). In these habeas proceedings, a petitioner’s

classified factual return – “the factual basis upon which [the government] is detaining the

petitioner”3 – is based, in part, on that petitioner’s classified statements. The government thus

again seeks to deny petitioners access to critical classified information. The Court heeds the

Supreme Court’s directive that in order be aware of “the most critical allegations” relied upon by

3
Case Management Order (Dkt. No. 940, 08-mc-0442) (Nov. 6, 2008) 1.

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the government, petitioners may be permitted to view classified information. Without access to

their statements, the Court fails to see how petitioners can effectively rebut the allegations in the

factual returns. No one is better positioned to challenge the government’s reliance on a

petitioner’s statements than the petitioner himself. The Court was not, and is not, inclined to

adopt the government’s narrow interpretation of the Protective Order and Counsel Access

Procedures, which would effectively spurn one the few procedural requirements enumerated in

Boumediene.

The Court does recognize that, under the government’s proposal, a petitioner’s counsel

would still have access to that petitioner’s statements. Counsel, however, cannot be expected to

rebut allegations stemming from those statements without the assistance of the petitioner himself.

The government itself concedes that “petitioners should have access to their own statements to

the extent respondents rely upon such statements to justify detention.” Reply in Support of Mot.

to Amend (Dkt. No. 1771, 08-mc-0442) 4. Moreover, the security risk from providing

petitioners access to their own statements is not comparable to the risk from disclosing other

classified information.4 Presumably, petitioners are familiar with their own statements. With

minimal security risk and maximum litigation benefit to petitioners, the Court intended to

provide petitioners access to their own statements, even if they are classified.

Therefore, the Court declines to amend the Protective Order and Counsel Access

Procedures, or its January interpretation of them. Petitioners are permitted to review their own

4
The Court does not trivialize the government’s concern that providing a petitioner
access to his own statements could alert him to the significance of details that he previously
thought inconsequential. See Mot. to Amend 16. The government’s concern, however, appears
to be the context, not the content, of the petitioner’s words. Such concerns can be addressed by
providing a petitioner with alternatives to the actual documents that contain the petitioner’s
statements. See infra.

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statements included in their respective classified factual returns.

ii. The government has the discretion to withhold a petitioner’s classified statements
from that petitioner

The government’s second argument is that disclosure of classified information is left to

the Executive’s discretion. Though the Court holds that the Protective Order and Counsel

Access Procedures permit petitioners to view their classified statements, it acknowledges that the

decision to disclose classified information is an Executive function. “[I]t is the responsibility of

[the Executive], not that of the judiciary, to weigh the variety of complex and subtle factors in

determining whether disclosure of information may lead to an unacceptable risk.” CIA v. Sims,

471 U.S. 159, 180 (1985). The government has designated petitioners’ statements in the

classified factual returns as “secret.” The unauthorized disclosure of “secret” information “could

be expected to cause serious damage to the national security.” Exec. Order No. 13,292, §

1.2(a)(2), 68 Fed. Reg. 15,315, 15,315-16 (Mar. 25, 2003). Therefore, the Court may not force

the Executive to disclose a petitioner’s statements contained in his classified factual return. To

the extent the Court’s interpretation of the Protective Order and Counsel Access Procedures

requires the disclosure of a petitioner’s classified statements over the government’s objection, it

must be clarified.

iii. If a court determines that a petitioner’s classified statements are material, the
government must provide the petitioner with the statements or a sufficient
alternative

Drawing from recent case law and relevant criminal statutes, the Court finds that a district

court may order the disclosure of classified information over the government’s objection, if

certain conditions are met. The district court would first determine if the information is material

and would help facilitate meaningful habeas review. If the answer is affirmative to both

questions, the court may order the disclosure of the classified information. If the government

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still objects to the disclosure of the classified information, it must provide a sufficient alternative

to the information. If the government fails to provide such an alternative, the court may order an

assortment of remedies.

The question of what determinations must be made before a court may order the

government to disclose classified information to the petitioners in these habeas proceedings was

not answered in Boumediene and is one of first impression in this Circuit. As the Supreme Court

left any remaining questions to “the expertise and competence of the District Court,”

Boumediene, 128 S.Ct. at 2276, the Court will rely, by analogy, on the Classified Information

Procedures Act (“CIPA”), which governs the procedures for handling classified information in

criminal proceedings. The D.C. Circuit, in Al Odah v. United States, 559 F.3d 539, 544-47 (D.C.

Cir. 2009), similarly relied on CIPA “by analogy” in a case concerning procedures for ordering

the disclosure of classified material to petitioners’ counsel in these habeas proceedings.

In Al Odah, the government filed complete versions of the classified factual returns with

the district court, but redacted some information in the copies provided to petitioners’ counsel.

The government redacted information pertaining to individuals other than the petitioner at issue

or information that was “especially sensitive source-identifying information.” Id. at 543.

Finding that the redacted material was relevant, the district court granted petitioners’ counsel

access to the unredacted classified factual returns. The D.C. Circuit, applying CIPA “by

analogy,” vacated the court’s order. Classified information is not discoverable, the Circuit stated,

“on a mere showing of theoretical relevance in the face of the government’s classified

information privilege.” Id. at 544 (quoting United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir.

1989)). The Circuit ordered the government to provide the district court with an assessment of

whether the redacted information was material and whether counsel’s access to it was necessary

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for the court to conduct a meaningful review of the petitioner’s detention. See Al Odah, 559 F.3d

at 544-45. If the court determined that the information was material and necessary for

meaningful review, and therefore discoverable, it must then determine whether “alternatives to

access would suffice to provide the detainee with the meaningful opportunity [to challenge his

detention as] required by Boumediene.” Id. at 548.

The Court finds that the Al Odah framework, with its reliance on CIPA, is applicable

here. Al Odah represents one of the few cases where the D.C. Circuit has discussed handling

classified material for the Guantanamo Bay detainees. Moreover, the issue in that case is

analogous to the issue here: the framework for ordering the dissemination of classified

information over the government’s objection. If anything, the redactions at issue here are less

tenable than the redactions in Al Odah. There, the government redacted information pertaining

to other individuals, whereas here the government is denying petitioners’ access to their own

statements.

In applying Al Odah, the Court notes that many statements from a given petitioner will be

material. A petitioner’s factual return, which forms the basis of the government’s detention

decision, is based, in part, on that petitioner’s statements. The Court questions whether the

government can deny the materiality of statements that it has chosen to rely upon to justify a

petitioner’s detention. Nevertheless, such materiality determinations should be made by the

Merits Judges on an individual basis.

As for alternatives, the government submits that it intends to declassify some of the

petitioners’ statements. Mot. to Amend 25. For those statements that the government plans to

declassify, declassification alone may not suffice. Timing is of the essence. As the Supreme

Court admonished, “[w]hile some delay in fashioning new procedures is unavoidable, the costs

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of delay can no longer be borne by those who are held in custody.” Boumediene, 128 S.Ct. at

2275. Petitioners, it continued, “are entitled to a prompt habeas corpus hearing.” Id. If the

government cannot produce declassified statements in a timely manner, petitioners should not

bear the “costs” in the form of delayed merits hearings. As for those statements that the

government does not declassify, the Merits Judges would determine if alternatives to disclosure

would effectively substitute for unredacted access to the statements. See Al Odah, 559 F.3d at

547. For example, under CIPA, the government may move to admit relevant facts that the

specific classified information would tend to prove or provide a summary of the information.

See 18 U.S.C. App. III, § 6(c)(1). These or other alternatives are available in these habeas cases

if the Merits Judges determine they “would suffice to provide the detainee with ‘a meaningful

opportunity to demonstrate that he is being held pursuant to the erroneous application or

interpretation of relevant law.’” Al Odah, 559 F.3d at 547 (quoting Boumediene, 128 S.Ct. at

2266). If the government fails to provide a sufficient alternative, and continues to object to the

disclosure of a petitioner’s material classified statements, then the Court may order an

appropriate remedy.

Though Al Odah is silent on the consequences if the government fails to provide a

sufficient alternative to material classified information, CIPA enumerates a number of remedies.

Under CIPA, if the government objects to the disclosure of material classified information and

fails to provide a sufficient alternative, the district court may dismiss counts in the indictment,

make findings against the government on any issues as to which the excluded classified

information relates, or preclude part of a witness’s testimony. See 18 U.S.C. App. III, § 6(e)(2).

These remedies are likewise available to the Merits Judges in these proceedings. At a minimum,

the government cannot rely on a petitioner’s statement if it does not timely provide that petitioner

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with a sufficient alternative to that statement.

B. Protected Statements

The Court will also not amend the protective orders and counsel access procedures to

prevent counsel from sharing a petitioner’s protected statements with that petitioner. The

government avers that “[p]rotected information . . . is not suitable for disclosure . . . to protect the

security of the United States and other significant interests.” Mot. to Amend 15 (quotation

omitted). The Court agrees, generally, that certain unclassified information may not be suitable

for disclosure. Such precautions, however, are not necessary with respect to providing a

petitioner access to his own statements. The government’s current position, that a petitioner’s

protected statements should not be disclosed to that petitioner, cannot be reconciled with its

earlier representation in a different motion that it would permit a petitioner to view those very

protected statements. See Resp’ts’ Mot. to Confirm Designation of Unclassified Factual

Returns as “Protected” (Dkt. No. 1416, 08-mc-0442) 2 (“the [unclassified factual returns] may

be disclosed to the individual Petitioners”). The Court previously ordered that a petitioner’s

protected statements in his unclassified factual return must be provided to that petitioner. See

Memorandum Opinion (Dkt. No. 1780, 08-mc-0442) (June 1, 2009). That decision remains

binding.

To the extent the government’s request is directed toward petitioners’ statements not

included in the unclassified factual returns, the Court again declines to amend the protective

orders and counsel access procedures. Petitioners are presumptively permitted access to their

unclassified statements. Pursuant to the Protective Order and TS/SCI Protective Order, the

government may move to protect a petitioner’s unclassified statements not included in his

unclassified factual return, thereby denying the petitioner access to those statements. See

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Protective Order ¶ 34; TS/SCI Protective Order ¶ 35. However, the government’s motion must

include an “explanation tailored to the specific information at issue,” Parhat v. Gates, 532 F.3d

834, 853 (D.C. Cir. 2008).

PROCEDURES

To clarify the implications of its analysis, the Court below sets forth the procedures that

the parties must follow if counsel for a petitioner seeks to disclose the petitioner’s classified

statements to that petitioner. If a petitioner’s counsel seeks to disclose such statements to the

petitioner, counsel must identify and list the classified statements he or she seeks to share with

the petitioner.5 Pursuant to Local Rule of Civil Procedure 7(m), counsel must share the list of

statements with the government and attempt to reach agreement on which statements can be

declassified and by what date. If the parties are unable to reach agreement, counsel for a

petitioner may file, with the appropriate Merits Judge, a Motion to Disclose Petitioner’s

Statements to the Petitioner, listing the petitioner’s statements that counsel wishes to disclose to

the petitioner and explaining why each statement is (i) material to the petitioner’s case and (ii)

necessary to facilitate meaningful habeas review. Within two weeks after the filing of such a

motion, the government shall file a response, specifically addressing issues (i) and (ii) for each

statement. In its response, the government must also submit an alternative for each statement.

See Al Odah, 559 F.3d at 548 (granting the district court discretion to resolve all CIPA-related

inquiries simultaneously). If the government proposes to provide a declassified version of a

statement, the government must further indicate by when the declassified version can be

provided.

5
The Court stresses that statements are just that, a petitioner’s words. Counsel may not
share information from classified documents containing a petitioner’s statements besides the
petitioner’s words and the date the statements were made.

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 CONCLUSION

For the reasons set forth in this opinion, the government’s motion will be denied in part

and granted in part. The government’s proposal to amend the Protective Order, the TS/SCI

Protective Order, the Counsel Access Procedures, and the TS/SCI Counsel Access Procedures

will be denied. The government’s request to modify the procedures for providing petitioners

access to their respective protected statements will also be denied. To the extent the

government’s motion seeks to modify the procedures for providing petitioners access to their

respective classified statements, it will be granted.

An order accompanies this memorandum opinion.

July 10, 2009 /s/
Thomas F. Hogan
United States District Judge

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