UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

SAIFULLAH PARACHA,

Petitioner,
Vv. Civil Action No. 04-2022 (PLF)
DONALD J. TRUMP, et al.,

Respondents.

 

MEMORANDUM OPINION AND ORDER

This Memorandum Opinion and Order resolves the outstanding discovery
requests in the above-captioned matter. Section I.E.2 of the Case Management Order, as
amended, allows petitioners to seek additional discovery beyond what respondents are obligated
to provide under Sections I.D.1 and LE.1. See Dkt. Nos. 204, 219, 308.' Requests for additional
discovery must (1) be narrowly tailored, (2) specify the discovery sought, (3) explain why the
request, if granted, would likely produce evidence that the petitioner’s detention is unlawful, and
(4) explain why the requested discovery will enable petitioner to rebut the basis for detention
without unduly disrupting or burdening the government. See Dkt. No. 204 at 3-4. Importantly,
this Court has ordered that, if petitioner satisfies the first three prongs, he is presumed to have
satisfied the fourth prong, absent rebuttal from respondents. See Dkt. No. 308. Both of the

outstanding requests satisfy these conditions.

 

| Judge Hogan issued a Case Management Order governing certain aspects of all

Guantanamo habeas cases in this District on November 6, 2008 [Dkt. No. 204], and amended the
Order on December 16, 2008 [Dkt. No. 219]. The undersigned amended certain definitions in
the CMO for cases in this Court, including the instant case, on July 16, 2009 [Dkt. No. 308].
First, Mr. Paracha’s unclassified motion for additional discovery [Dkt. No. 429]
asks the Court to order respondents to grant appropriately cleared counsel for Mr. Paracha access
to the “complete and unredacted text of footnote 2008 of the Senate Report on Torture” for
review in a secure facility. Dkt. No. 429 at 1. The Court has considered the arguments
contained in respondents’ classified combined opposition to the petitioner’s discovery motions.
See Dkt. No. 455. Respondents confirm that they possess the unredacted text in question, but
that they received it from Congress with instructions that limit their authority to distribute the
document. Mr. Paracha’s request appears to refer to a footnote contained in the executive
summary of the committee report, a document that has been released publicly in redacted form
under separate cover from the full report (which has not been released publicly). Our court of
appeals has determined that the full committee report is not subject to compelled disclosure by
an executive branch agency under the Freedom of Information Act because it remains a
congressional record. ACLU v. CIA, 823 F.3d 655, 667-68 (D.C. Cir. 2016).

But Petitioners are not seeking disclosure under FOIA. They are seeking
information, directly relevant to civil habeas litigation, that is contained in a single footnote of a
document within the possession and control of the Executive Branch of the United States
Government. Even assuming that the court of appeals’ decision applies to the executive
summary at issue here, the government has produced no authority establishing that this Court
cannot order production of a document because of how that document came to be in the custody
of the government. As such, the law governing habeas discovery, as supplemented by the rules
negotiated by the parties, applies to this document dispute. And this request clearly satisfies the
Amended Case Management Order’s requirements for additional discovery under Section I.E.2.

First, the request is specific — it identifies a particular portion of a named document. Second, the
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request is as narrow and tailored as the Court can imagine: it asks for a single footnote from a
document that exceeds 500 pages. Third, the request clearly goes to the lawfulness of the
petitioner’s detention: the publicly available portions of the footnote in question discuss
petitioner by name and appear to show the government considering whether and how he can be
detained. Because these three factors are met, it is presumed that the requested discovery is not
unfairly disruptive or unduly burdensome to respondents, unless the government rebuts that
presumption. See Dkt. 308. And it is hard to imagine how respondents could do so here. Mr.
Paracha has not asked for the document to be declassified for his review. He has not even asked
for the document to be produced to appropriately cleared counsel. He has merely asked for the
respondents to allow petitioner’s counsel to read one footnote — a footnote about the decision to
detain petitioner — at a place and under conditions of respondents’ choosing. Respondents have
now detained Mr. Paracha for more than a decade. Whatever burden may be imposed by
granting this access, it is not undue.

Second, the petitioner’s classified motion for supplemental discovery [Dkt. No.
426] contains numerous requests under Sections [.E.1.1 and I.E.1.2 of the Amended Case
Management Order. In a July 2018 status report [Dkt. No. 496], the parties agree that some of
the items in the motion for supplemental discovery are now moot because they have been
produced. See also Dkt. Nos. 497, 498 (identifying the mooted items). And in the unclassified
joint status report filed on April 4, 2019, petitioner submits that “the majority of the discovery in
this case is complete,” and objects to any further delay of the merits hearing. See Dkt. No. 512
at 6. Similarly, at the unclassified status conference held by this Court on May 15, 2019, counsel

for petitioner stated that petitioner had already received all discovery requests contained in the
motion, or was otherwise prepared to waive the requests, with three exceptions: paragraphs
11-13.

Paragraph 11 seeks copies of paperwork on Mr. Paracha’s person at the time of
his arrest. Paragraph 12 seeks records or recordings of wiretaps on Mr. Paracha from before his
arrest. And Paragraph 13 seeks phone or email records possessed by respondents for any phone
number or email address associated with Mr. Paracha. In light of the parties’ representations,
these are the only requests from the motion for supplemental discovery [Dkt. No. 426] that the
Court now considers.

The requests in question are made pursuant to Section I.E.2 of the Case
Management Order issued by Judge Hogan in for all Guantanamo habeas cases in this District
[Dkt. No. 204], as amended by him in 2008 [Dkt. No. 219], and as amended by the undersigned
in 2009 [Dkt. No. 308]. Under the Amended Case Management Order, this Court may, for good
cause, order discovery beyond the government’s fixed obligations to produce exculpatory
information and other documents. Respondents’ obligations under Section I.D.1 (exculpatory
information) extend only to “all reasonably available evidence in its possession.” Dkt. No. 308
at 3. But the amended definitions promulgated by this Court confirm that “[t]he government’s
disclosure obligations under Section 1.E.2 of the CMO are not similarly limited and extend to all
evidence in the government’s possession whether it is reasonably available or not.” See id. As
described above, respondents must produce the information if the requests are specific, narrowly
tailored, explain the nexus to the lawfulness of detention, and are not unduly burdensome. See
Dkt. No. 204 at 3-4.

The requests in Paragraphs 11-13 meet each of these requirements. The requests

are specific because they identify particular kinds and sources of information; they are narrowly
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tailored because the information is requested for accounts or identifiers associated with only one
person (Mr. Paracha) and because, in the case of requests 11 and 12, the requests are time-
limited. And petitioner has established to the Court’s satisfaction that the requests are likely to
produce information relevant to determining the lawfulness of Mr. Paracha’s detention. To wit,
they are likely to contain information on the nature of Mr. Paracha’s business activities, which
lie at the core of respondents’ allegations. Finally, because these three conditions are
established, the Case Management Order allows the Court to presume (absent compelling
rebuttal) that the requested discovery will not unfairly disrupt or unduly burden the government.
See Dkt. No. 204, at 3. And, given the discrete and limited nature of the requests, that
presumption cannot easily be rebutted. If respondents possess this information at all, it will
surely lie at the heart of its case, and cannot be burdensome to locate. With respect to the
potential burden of granting these requests, the Court notes that none of these particular requests
contain subparts, contrary to the suggestion of respondents’ counsel at the status conference on
May 15, 2019. Accordingly, it is hereby

ORDERED that respondents shall provide appropriately cleared counsel for Mr.
Paracha the opportunity to review in a secure location the information identified in the motion
for additional discovery [Dkt. No. 429 ], and shall promptly communicate with petitioners’

counsel concerning the logistics of such review; and it is
FURTHER ORDERED that respondents shall promptly produce the documents,
records, recordings, and other information identified in paragraphs 11, 12, and 13 of petitioner’s
motion for supplemental discovery [Dkt. No. 426], to the extent these items are in respondents’

possession.

SO ORDERED.

PAUL L. FRIEDMAN
United States District Judge

DATE: t [vali q
