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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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JAWAD KARBAR SADKHAN, )
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Petitioner, )
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v. ) Civil Action No. 05·1487 (RMC)
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BARACK H. OBAMA, et al., )
)
Respondents )
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MEMORANDUM OPINION
Jawad Kabbar SadkhanAl-Sahlani, a detainee ~t Guantanamo Bay, seeks additional
discovery from the United States beyond what is required by the Case Management Order, as
amended, issued by Judge Thomas F. Hogan (the "CMO"). Counsel state that Mr. Sadkhan is a
Shi'ite Iraqi who has been detained for over seven years because other detainees told interrogators
that he served as a Tal1ban leader in Northern Afghanistan. Mr. Sadkhan himself has repeatedly
denied the allegations against him on all but one occasion. His discovery requests will be addressed
in tum.
I. LEGAL STANDARDS
Discovery requests in these Guantanamo Bay Detainee Litigation proceedings are
governed principally by Sections LD.l, I.E.l and LE.2 of the CMO. Section I.D.l of the CMO
states:
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
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reviewed by attorneys preparulg factual returns for all detaulees; 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 fJ.led by detainees at Guantanamo Bay.... [D]isclosure [of
such exculpatory evidence] shall occur within 14 days of the date on
which the government files the factual return. By the date on which
disclosure is to occur under this paragraph, the govenunent shall fJ.le
a notice certifying either that it has disclosed the exculpatory evidence
or t4at it does not possess any exculpatory evidence.]
Section I.E. 1 states:
If requested by the petitioner, the goveinment shall disclose to the
petitioner (1) any documents and objects in the government's
possession that the government relies on to justify detention; (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.... [R]equested disclosure shall occur within
14 days of the date on which the government fIles the factual return
or within 14 days of the date on which the petitioner requests
disclosure, whichever is later.
Section I.E.2 states:
The Merits Judge may, for good cause shown, permit the petitioner
to obtain limited discovery beyond that described in [Section I.E.I].
. . . Discovery requests shall be presented by written motion to the
Merits ~udge and (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 the 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. ...
The Merits Judge will set the date by which all discovery must be
completed.
IThe Government filed a motion for extension of tUne, from December 30, 2008 to January
.30, 2008 to produ'ce exculpatory evidence and to file its certification of compliance with Section
I.D.I. To date, the Government has not yet filed a certifIcation regarding exculpatory evidence.
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III. ANALYSIS
Mr. Sndkhan' s counsel argue that the Government has nol completed the mandatory
production of exculpatory evidence required under Section I.D.I or the production of evidence they
requested under Section I.E. 1. Mr. Sadldlan, through counsel, therefore moves the Court to compel
the Govermllent to comply with Sections l.D.l and I.E. I of the CMO, or in the alternative, seeks
pennission to obtain this discovery pursuant to Section l.E.2. Counsel also seek production ofMr.
Sadkhan's Medical Records pursuant to Section I,E.2 of the CMO.
A. Discovery Requests pursuant to Section LD.! and/or LE.2 of the CMO
1.
The Goverrnnent has produced the questions, answers and test result but objects to
producing the technical examiner's report on the basis that "it is very difficult to understand how a
technical report will help Petitioner materially undermine the basis for his detention" and, thus, it is
irrelevant. Resp'ts' Opp'n at 9-10. The Court disagrees. The full report may well assist :Mr.
Sad1 to a fishing expedition that is entirely inconsistent with these
proceedings and the CMO. The Government need not respond.
C. DiscoverJ' Requests for Production ofMr. Sadkhan 's Medical Records pursuant
to Section I.E.2
Other jurists handling Guantanamo cases have, on occasion, ordered the Govermnenl
to produce medical records for a detainee. Building on these, counsel here ask for copies of Mr.
Sadkhan's medical records, as "important to an evaluation ofhis mental state and [to Jprovide context
for any statements" he made to interrogators. Pet'r's Mem. at 22. It may be that Mr. Sadkhan has
had a medical condition that could conceivably affect how he answered questions. It may not be.
Counsel provide no basis to know, one way or the other. Without some sort of comlection, this
request is merely a fishing expedition to which the Govemment need not respond.
A memorializing order accompanies this Memorandum Opinion.
Date: April 1, 2009 /s/
ROSEMARY M. COLLYER
United States District Judge
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