UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNITED STATES DISTIUCT COURI'
FOR THE DISTRICT OF COLlr:vIBIA
)
l'\ADIR OMAR ABDlJl.. LAJI BIN )
SA ',,(DOliN :\.LSA'AIO' (ISN 030). )
)
PelitiIHH'r, )
) Civil :'in. 09- i45 (l~CL)
v. )
I
BARACK H. OBAMA, et al., )
)
Respondents. )
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l'vlEM.ORA.NDUM OPINION
Petitioner is challenging the legality of his detention at the United States ;-.Javal Base in
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Guantanamo Bay. Cuba ("Guantanamo"). Before the Court is petitioner's J irst i\1otion 11096]
for Leave to Take Discovery, As explained herein. petitioner's motion shall be granted in pali
and denied in pan.
I. BACKGROUND
The Court is operating under the Case Jv1anagcment Order ("C1\.10") issued by Judge:
Hogan of this Court in the consolidated Guantanamo habeas cases (!'.Iisc. ND. 08-442) on
November 6, 2008. as a.mended on Decemher 16,2008. 1 Petitioner seeks discovery under
I'The l\.mended ('1\,10 was later amended further by Judge \\ralton of this Court Gherebi
v Bush, (iv. No. 04-1164, Order l797] ('O.D.C. Dec. 19,2008) (V/alton, J). Because that Order
was issued before petitioner's case was transferred from JUdge \Valton to the undersigned
member of the Court, it is binding on petitioner's case. However. Judge 'Walton's amendments
do not affect Amended eMO § I.E, which is the only section at issue for most of petitioner's
requests.
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Am',~mled C~lO S1.E.1, (tvlo!. at 3,) !vlast (\fpeI'ltioner's requests stem from stl1CI"llen!s made
by p:spondents in t.heir Factual ,Return ('·Return"). in \:vhich respondents set forth their
pcritiol,er"s detenli()\). Section LE.1 states that
[tlbe lv'lerits Judge nUIY, for good cause, permit the petitioner to obtain limited
discoverY beyond that described in [Section 1.E.I. which deab with dOCUl11cnts
thaI arc themselves cited in the Return and the petitioner" s o\\"n staIernen~sl,
Discover'y reguc:sts shall ... (1) he narrowly tailored. not open-ended: t,1) spc::ify
the discovery s()ught: (3) explain \vh) the request, if granted, is likely to lxoduce
evidence that demonstrates that petitioner's detention is unlawful: and (4) explain
,:vhy the requested discovery will enable the petitioner to rebut thcf~lctual b,~sis f"f
his deh:ntion without unfairly disrupting or unduly burdening the governrnem.
Amended CMO § I.E.2 (citations omitted). The Court will consider each of petitioner's requests
and wilt only grant those which comply with the Amended CMO,
Before moving on to petitioner' s individual discovery requests, the Court \v.il1 address the
,1.mended CivIO § 1.E.2 requirement that requests not be unfairly disruptive or unduly
burdensome to the government. Petitioner does not specify \vhere any of the discovery he is
seeking is located. In order to avoid undue burden on the government. the Court will (ml~i
consider petitioner's discovery requests insofar as they seek reasonably available' evidence. In
the context of this opinion, "reasonably available" evidence means evidence contained in any
information rcvie'wed by attorney's preparing factual returns for all detainees held at Ciuantanamo
Bay or any other United Stales military facility; it is not limited to the evidence discovered by
al.l()rneys preparing factual returns fl.)r this petitioner. See Gherebi 1'. Bush, C1\. No. (14-1164,
()rder (7971 (D.D.C. Dec, 19,2008) (Walton, l) (amending sl1ghtly :\mended CI"\'1.O § 1.D.1).
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II. PETlTlO:"iEJl'S DISCOVERY REQl.~ESTS
A. Circumstances Sunounding Pctitiollerls Statements Cited in Return (Pet'r Req. # 19)
Pelitlclner seeks "un~' and documents discussing Ih~ circmnstances sUrf(lunding"
pctltioncr\; statcnlcnls ci Lcd in the I\.ctllrn. including "the location of the in1cnogalion and any
reports of abuse. coercion[,J or inhmnan or degrading trcarmelll [petitioner] may have suffered,"
Respondel]!.." recognize tbat ill formation as to the circumstances of petitioner' 5 sUllements J~lJls
clearly within the discovery allowed by Amended CI'v10 § IT .1. Howcver. resp:Hldents argm~
that they have already conlp1ied \"lith their S I.E.] obligation by discIc\sing ".information about the
circumstances" surrounding all such statements. Petitioner offers no reason to believe that the
g()vernment has not fulfi lied its obligation here, nor does he allege abuse. coercilm. or inhuman
or degrading treatment. Accordingly. petitioner's request shall be denied as mon1.
B. Statemt~nts hy Otbt'r Detainees RcHed Upon in the Return (Pet'r Reqs, # 2, 6,8, 10, 13,
15, 17)
Respondents' Return relies upon statements by other Guantanamo detainees in setting
fonh its legal basis /()r petitioner's detention. Respondents have disclosed those statements (or
smnlllaries thereof) but only in the forms in which the RetuIl1 relied upon them. Petitioner now
seek s "any audi (lOr video tapes, transcripts [.] or original repOlis of interrogations" for seven of
these other detainees::-·tha.t is, all other forms of the relied-:"lpOl1 statements. In support of these
requests petitioner citcs an opinion by another judge of this Court ordering production of
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statements, in various f"lmns, relied upon in a factual retum, Zaid v, ()bamo. Civ, "\;0. 1646,
Order [I 16J (Jan, 14,2009) (Bates, 1). But Judge Bates' Order dealt 'with additional f()nns of
no,ftll,t'.IU,"· 's st3temeJl!~, relied upon on the Return, a maHer add:essed by Amended ('\10 ~ LE.l ,
IIere petitioner 5e,::1';:5 additional forIns of statements made not by him but by other detainees,
which would fall under .\melKled C:-"IO 1.1:.2. Petitioner's request fails 1.1 [nee! the
requirements of § I.E.2 in at kasl one imp(}l·l.ant respect: petitioner docs not explain "the
, ,;
L'Tanted, is like/r to produce evidence that demonstrates that petitioner' s dett~ntion is
recues!., if "".' . ..
unlawfuL" Amended CvtO § LE.2 (emphasis added). Petitioner speculates that the statements
may have been recorded or translated incorrectly. Such speculation. though possible. does not
indicate a likelihood that additional l;:mns (lfthe statements will sho'\' that petitioner's detention
is unlawful. Acc()rcling.ly, petitioner's requests fCll' additional forms of detainee stalements shall
h-: denied.
C. Circumstances of Stah:~.ments by Various Other Detainees
Petitioner also requests the circumstances surrounding tbe detainee statements discussed
in the previous subsection. Again, these requests will be evaluated under Amended CvlO §
J.E.2,
1. C'lrcumslaJlces ((lSratemctlls by DeTainee (l'ct'rReq. i; 1)
Petitiol1<1:!1' requests the circumstances surrounding statements by
_ Petitioner supports this request with evidence o l _ h a r s h treatment.
Jpetitioner's motion requests ;'all documents discussing the circumstances surrounding
the statements aggressive and harsh treatment [sic] at Guantan~mo through A.pril 14,2003" of'.
_ Although petitioner's requc.~st appears to be missing severa.! \vords, the Court shall
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Petition:.:r draws extensively from a report by tbe Department of Justicc's ()ffice of InspectOJ
Genera! (hereinafter "OIG report") provided by respondents in discovery. (PetYs :'-.101. lati em.
other tactics thaI could reasonably be ex!)ecte(! to result in coercion. Petitioner did not allach
relevam portions of' the Ole; reporlto his filings, but respondents did not contradict his SUlllmary.
The OTG report suppons plaintiff's claim that it is likely Ihm documents exist that w(luJd coniiTm
or expand upon rhe harsh treatment_has endured. I f _ h a s endured harsh
treaunen: that \veakens the credibility of his statements, respondents' case that petitioner is being
legally detained is \veakened. Accordingly, any reasonably available evidence of abuse,
coercion, or inhuman or degrading treatment suffered b y _ a f t e r his c,:pllU'C but before
any statement llf his relie~d upon in the Return must be disclosed to petitioner.
_was In addition l0 evidence harsh treatment. petitioner also requests the locations in \vhich
held since his tra.nsfer and generalized information as
w.hich he \'las held during that period." (:-1ot. at 9.) But petitioner has not claimed that the
to "the conditions under
locntlons in \vhjc~\vas held would negatively affect_credibility or otherwise
5ho.. \ that petitioner is being unlawfuJly detained. Nor has petitioner made such a claim as to the
generalized conditions in which petitioner was held. Petitioner has rhus failed to meet the
requirement that the sought discovery be likely to prove his detention is unlawful.
pelitioner's request must be denied in these two regards.
construe the request as seeking t.he circumstances surrounding _ statements, as well as
evidence Dfaggressive and harsh treatment through April 14, 2003.
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], Circul1Istances of'Swfemcnls by Delainc'e i: 51
Petiti(Hler seeks the \..IJLl'UL""'''.''''.:l of stutenl(~nts detainee
cited in the Return (including the location of his interrogation), To support his
claim ()f_'s questJ:,:lnahlc credibility petitioner submits l\VO independent news accounts
focusing on the harsh trealment alleged visited upon _since his capturc,C (See ]\[01. at
16-] 7 (citing "F'rum German) to Guanta:lamo: the Career of ]lrisoncr No, . ' . Spiegel (()ct. 9,
2008,; "The Conscience of ColoneL" St, J. (i\lar. 31. 2007)).) Two !l('\VS stories are not
a.\together consistent with each other, but they both specifically allege harsh treatment against
_ . The two independen.t news accounts from m,\jor periodicals specifically alleging harsh
lreatmt~nt agains1_ is i.n this case enough to meet the likelihood requir.::menl of the
and accordingly respondents are ordered to disclose any reasonably available c\'idence of abuse.
coercion. or inhuman or degrading trean:nenl suffered by_after capture bef;:Jre
made any the statements relied upon in the Return.
tImvever, petitioner has not claimed that the Iocation(sl in \l,'hich _was interrogated
negatively affected credibility or \>,'ould demonstrate that petitioner's detention is unlawful.
Petitioner's request shall be denied in that respect.
3. C'ircumS£a17Ct'~S (~f S'lafemenlS bJ' ()ther Delainees (Pct 'r Reqs, i' 7 9. )' 2, 1,J.
Petitioner seeks the circumstances of statements by other detainees:_
"Although media reports cannot, of course, be considered as evidence, tbey can be
considered here the Court in determining whether to grant petitioner's discovery request under
the A.mended C~10,
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P(~titjoner ilnplies that these detainees may have been subjected to harsh
treatment thal would negatively arrec; their credibility. Bm petitioner offers l1Dthiug that WCILlid
nise his iInplicarions above mere speculation to the likelihood required by Amended Ch·l(l §
.:2. Accordingly, petitioner does not meet the requirements of the Amended ClvIO. and his
requests for the circumstances surrounding the statements these fj Vt: other dc:ainees III US! be
denied.
D. ()thcr Information Rehlted to the Credibility of Othcr Dct~lirll~es
1. "Al1y mul./lll Documents" Related 10 fhe Credibility of ond
('Pel ',. Reqs. #- 3, 4)
Petiti oner seeks "any and all documents" related to the creeli bi Iity of two detainees \\lhose
statements arc relied upon in the Return: _(discussed aboy;:1 and
. . F o r _ petitioner also seeks "sp::cifically any assessments related to his credibility
by the Oft1ce of Adnlinistrative R.eview for the Detention of Enemy Combatants." Again. these
requests \:vill be evaluated according to /\mended CMO § 1.E.2.
As au initial matler, the request for "any and all" documents "related" to !hc credibility of
either detainee is not namnvly tailored as requin:d by § 1.E.2. Considering that § I.E.2 applies by
its terms only to e\'id'~:nce that is likely to prove that petitioner is unlawfully detained, the Court
will consider these requests only insoflu as they seek any documents that reflect '·""",.·,I,u,", ,I" upon
the credihility of either detainee.
Even after that limitation, petitioner 5ti11111u5t establish that it is in fact likely that the
discovery request will yield evidence that will sho'>\' that petitioner is unlawfully detained: in
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.~.. .,. ..
(Ither woros. thJl such negative assessments of the dellliIH::es' eredibiE!\' arc likeh'
Peliti,Hler bas met hi" burdell as t(_ _ with the ()Ie; rep()rt ddailing_barsh
lre,urnent Given the lreaHnent described in th,~ ()IG rqxl1"t, it is likely that negative assessment,:
or_credibilttyexist As f b r _ petilioner attclches as Appendix i'!, 11 classined
nn'111lP"m by another judge oft111s (ShIi v, Bush, Cis, 05-429 (D,D.C Jan 30,2(09)
(Ll",J!L .1.») concluding that_lacked credibility, 'That opinion cited a June 2007 v.:arning
the Office: Admi.l1istrative Review and Detention of Enemy (\'mbatants ((}\RI)EC) at
(iuantananlO Bay stating thal_"t'irst-hand knowledge in reporting has come into
question since 2005," (Mot App, /\. at 5,) The finding ofanolherjudge of this Court supported
by a government st