UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WALEED SAID BN SAID ZAID,
Petitioner,
Civil Action No. 05-1646 (JDB)
v.
BARACK H. OBAMA, et al.,
Respondents.
ORDER
Before the Court are petitioner's motions to compel compliance with § I.D of the Case
Management Order in this case and for an order requiring respondents to show cause regarding
the use of information designated as "protected." The motions are fully briefed and were
addressed at a status conference before the Court on May 7, 2009.
I. Motion to Compel Compliance with § I.D of the CMO
Section I.D of the CMO requires respondents to produce exculpatory evidence as follows:
The government shall disclose to the petitioner all reasonably
available evidence in its possession that tends materially to
undermine the information presented to support the government's
justification for detaining the petitioner. In this context, the term
"reasonably available evidence" means evidence contained in any
information reviewed by any attorney preparing factual returns for
any detainee; it is not limited to evidence discovered by the
attorneys preparing the factual return for the petitioner. The term
also includes any other evidence the government discovers while
litigating habeas corpus petitions filed by detainees at Guantanamo
Bay.
Petitioner argues that "reasonably available evidence" should be interpreted to include materials
gathered pursuant to Executive Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 27, 2009), which
required the Attorney General to assemble "all information in the possession of the Federal
Government that pertains to any individual currently detained at Guantanamo and that is relevant
to determining the proper disposition of any such individual." Petitioner also contends that
"reasonably available evidence" should be interpreted to include certain evidence available to
counsel representing detainees at military commission proceedings. Finally, petitioner seeks to
compel the production of "negative responses to interrogators' efforts to place [petitioner] at Tora
Bora." Pet'r's Am. Mot. to Compel at 5.1
The Court will not, at this time, construe "reasonably available evidence" to include
information gathered pursuant to Executive Order 13,492. Respondents have filed a separate
motion seeking to establish how information gathered pursuant to the Executive Order may be
used in these Guantanamo habeas proceedings. See Resps.' Mot. for Order Regarding Task
Force Discovery, May 12, 2009 (dkt. ent. # 221). Briefing and argument on this motion have
been consolidated before Judge Hogan and a hearing is currently scheduled for June 8, 2009. A
ruling by this Court on this issue would be premature. Accordingly, the Court will defer ruling
on this aspect of petitioner's motion.
The next question is whether "reasonably available evidence" under § I.D should be
construed to include information accessible through use of a tool known as "IntelLink."
Petitioner avers that IntelLink is available to counsel representing Guantanamo detainees in
military commission proceedings. See Pet'r's Am. Mot. to Compel at 3-4. According to
1
Petitioner also seeks production of exculpatory evidence that has been withheld on the
basis that it is cumulative. Respondents recognize that the CMO does not contain an exception
for "cumulativeness" and represent that they are producing exculpatory evidence even if it is
cumulative. Resps.' Opp. to Pet'r's Am. Mot. to Compel at 11 n.10. The parties appear to have
resolved this dispute, and hence the Court will not address this issue further here.
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petitioner, searches using IntelLink have yielded exculpatory evidence that cannot be obtained
through searches of OARDEC or JTF-GTMO materials.2 Respondents explain that IntelLink is a
tool used to search the Secret Internet Protocol Router Network ("SIPRNET"). Resps.' Opp. to
Pet'r's Am. Mot. to Compel at 7-8. SIPRNET hosts several intelligence databases, one of which
(the Joint Detainee Information Management System) was searched to compile JTF-GTMO
materials. Although SIPRNET and IntelLink have a web-based interface, respondents maintain
that SIPRNET cannot be searched like a conventional internet search engine. Rather, access has
to be granted to search each database within SIPRNET and hence "[i]n many instances . . .
several separate searches would be necessary." See Declaration of James C. King II, Mar. 12,
2009, at 2. Thus, respondents conclude, SIPRNET (as made available through IntelLink) is not
"reasonably available" for purposes of § I.D of the CMO.
Respondents' interpretation of § I.D is too narrow. That respondents would be required to
conduct "several" IntelLink searches to plumb SIPRNET for exculpatory evidence does not mean
that such evidence is not "reasonably available." Respondents appear to misinterpret § I.D to
require the production of "easily available," not "reasonably available," exculpatory evidence.
Moreover, respondents do not provide any rationale why military commission defense counsel
should receive access to resources -- and, correspondingly, exculpatory evidence -- to which
habeas counsel do not have access. Accordingly, to the extent petitioner's motion seeks to
require respondents to search SIPRNET for exculpatory evidence pursuant to § I.D, petitioner's
2
The Court previously interpreted the "automatic discovery" provisions of the CMO (i.e.,
discovery available under § I.E.1) to require searches of only the "consolidated assemblages of
information" created by the Joint Intelligence Group ("JIG") of the Joint Task Force-Guantanamo
("JTF-GTMO") and the Office for the Administrative Review of the Detention of Enemy
Combatants ("OARDEC"). See Feb. 9, 2009 Order at 3-4 (dkt. ent. # 146).
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motion is GRANTED.
Finally, petitioner requests that respondents produce "records of any negative responses to
interrogators' efforts to place [petitioner] at Tora Bora." Pet'r's Am. Mot. to Compel at 5.
Respondents argue that "[t]he information Petitioner requests is simply not exculpatory, and
Petitioner has made no attempt to explain how or why any responsive evidence would be."
Resps.' Opp. to Pet'r's Am. Mot. to Compel at 10. But several kinds of "negative responses"
would plainly fall within the scope of § I.D because respondents justify petitioner's detention, in
part, on the assertion that he was present in the Tora Bora region of Afghanistan before his
capture. For example, if other detainees were asked whether petitioner was present at Tora Bora
and responded that he was not, and if records of such negative responses are reasonably available
to respondents, then such records "tend[] materially to undermine the information presented to
support the government's justification for detaining the petitioner." See CMO § I.D. Similarly, if
other detainees were shown photograph arrays that included petitioner and were asked to identify
which individuals were at Tora Bora, and if petitioner then was not positively identified, the
records of such a response (if reasonably available) would fall within the scope of § I.D.
But to the extent petitioner seeks to use § I.D to compel production of evidence unlike the
examples above,3 or to the extent petitioner seeks to require searches beyond what the Court has
construed as "reasonably available," his request falls outside of the scope of § I.D. Requests for
additional discovery are governed by the four-part standard set forth in § I.E.2 -- a standard
petitioner does not attempt to meet here -- and in any event the date for discovery requests under
3
The Court, of course, is unaware of what records respondents have in their possession.
These examples are intended to be illustrative only.
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§ I.E.2 has long since passed.
II. Motion for Order Concerning Use of "Protected" Information
Petitioner seeks an order requiring respondents to show cause why a certain methodology
discussing declassified information with non-resident third parties is not workable. Pet'r's Mot.
for Order at 5-6. In their opposition, respondents note that they intended to "produce declassified
public versions [of petitioner's statements] on or before May 14, 2009, that will be available to
petitioner to use with third-party and expert witnesses who are outside the United States."
Resps.' Opp. to Pet'r's Mot. for Order at 8. Thus, it appears that the parties have resolved this
issue. Accordingly, it is hereby ORDERED that the parties submit a joint status report -- by not
later than June 3, 2009 -- informing the Court whether this motion may be denied as moot.
SO ORDERED.
/s/
JOHN D. BATES
United States District Judge
Date: May 27, 2009
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