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UNITED SI'ATES DISTRICT corR'!.'·
FOR TIlE DJ:'\TRICT OF COL.C\lBIA
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MOHA\1.!\1ED i\H\l[J) SLA..1Vl )
AL-KHATEEB (ISl\ 689), ~
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Petit i.on cr, )
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) Ci"il l\o. 09-745 (ReL.)
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BAlt·:\CK OBA.MA, e! al., )
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Respondents. )
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MEl\'IORANDUM & ORDER
Petitioner is challenging the legality afhis detention at the United States Naval Base in
Gllantanamo Bay, C'llba CGuantanamo"}, Before the Court. is petitioner"st\lotion [J 186J tD
Com pel or, in the i\ Ilernative, for Leave to Seek Discovery. As described herein, the Court shall
grant petitioner leave tel seek certain discovery.
'fhe Court is operating under the Casei\1anagement Order ('"eMU') issued by Judge
IJogan of this Court in the consolidated Guantanamo habeas cases (T'v'fisc. No. 08-4..2) on
November 6, 2008, as amended on Decemher 16, 2008.! The subjects of petitioner's mOTion aloe
I'f'he Amended CMO was later amended fUlther by Judge Walton of this Court. Gherebi
Bush, Ci\'. "t\o. 04~1164, Order [797J (D.D.C. Dec. 19,2(08) (\Valton, J.).Because that Order
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was issued before petitioner's case ·was transfcn-cd from Judge Walton to the underslgned
member of the Court, it is binding on petitioner's case. Ho\!,rever, Judge Walton's amendmems
do not affect Amended CMO § I.E, which is the only section at issue for petitioner's requests.
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Petitioner's moti0D seeks to compel production, or, in the alternative, leave to seek
discovery of three categories of evidence:
A., Petitioner's l\lotioll to Compel
Petitioner'S motion first seeks to compel respondents' production oftlle
1Petitioncr originally included a fourth request for "a \\Titten descri )tion of how the
but that request was later withdra~'T1. (See Reply at 3 n.l.)
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under Amended C/\IO § I.E. 1. Section I.E. I requires the government tIl
disc.lose. if requested by the petitioner. "any documents or objects in the govenl:11eITl's
possession that the government relies (H110 JUSTify detention" lan1ong'ol,her thingsL P:::tili,mer
B. Petitioner's Motion, in the Alternative, for Leave to Seek Discovel1'
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In the altcmaliv.:. petitioner tnDVCS 1eave to seek ,I i ~:t"t\','l"I"\' under
J:,mended C\10; LE.2. Section I.E.2 Stlm~s that
It]he !vlerits .Judge may, for good cause. permit the petitioner to obtain limitcO
discovery beyond that described in [Section I.E.] I· Discovery requests shall ..
(1) be Dnrruwly tailored, not open-ended; (:2 spec if) the soughr: ::::
explain wh] the r"cquest, if gWI1I;:Q, is likely to pr()(!uce evidence that
demonstrates lhal petitioner's detention is unltl\\'ful; and (4 e.xplain why the
request..:d discovery \\ill enable the petitioner to rebut the factual basis [~~)," his
detention \"'ithout unfairly disrupTing or unduly burdening the government.
Amended C1\'IO § I.E.: Icitations omitted), Petitioner's discovery reques1 \vi 1I be evaluated
according to this standard.
Petitioner's request is certainly bOlh narrowly tniJoreJ and specitic. Petiti :mer is 'l.sking
a finite number llsed OJ: a sped fie Dccasion with a single detainee.
Petitioner's request alse appears not to be un lairly disruptive or unduly burdensome to the
government: tl1;;' Rerum's i~)otnote nOled that th~accounl was accessible as
as 2007, and respondents do not indicate that it is no longer accessible. The only remaining
issue. then, is whether petitioner has 5ho\\"n that it is likely that his request, if granted, would
produce evidence demonstrating that his detention is unl.awful. The Court concludes that. for a,
least some of his requests, petitioner has met that standard.
It is therefore likely that petitioner's request will
produce evidence that will weaken the govcmment's justificati':"I!i f0r his detemiotl,
However, not an of the specific requests made b~v petitioner are likely to show he is being
unlawfully detained.
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Such broad disclosure would go
beyond what is allovved by Amended CMO § I.E.2.
To bring petitioner's discover)' requests within the confines of Amended C!'vfO § I.E,2,
the Court will order the following: First.. if, using reasonably available4 information, respondents
41n accordance with the Court's other orders dealing \"lith discovery under Amel1ded
CMO § I.E, the Court \vilI only grant discovery as to "reasonably available" evidence. In this
context, "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
tinited Stales military facility; it .is notlimited to the evidence discovered by attorneys preparing
htcrual returns for this petitioner. See GJrerebi v. Bush, Civ. No. 04-1164, Order [797] (D.D.C.
Dec. 19,2008) (\\'alton, J.) (amending slightly Amended CMO § LD.1).
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(referenced in Return Paragraph 25 IDutJ.101e 3.1
In accordance with the above \IenHlfandun1, it is
ORDER}]) thai if, using reasonably anliJable inJe)fJ11J.l10n, respondents can determine
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ORDERED rhm h all other rt:spects petitioner's !\/101il)l1 [1 186] is DE1\TED; and il is
Ji.lrthcr
ORDERED that all disclosures ordered in this Order shall occur within 30 days of thi:.~
date of this Order.
so ORDERI::D.
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ROY . C. LAMBERTII
CHIEF JUDGE
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