UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

_ _ _ )
ABDULSALAM ALI ABDUL-RAHMAN )
AI_J-HELA, )
Petiti0ner, )
)

v. . ) Civil Action No. 05-1048 (RCL)
)
BARACK OBAMA, et al., )
Respondents. )
'-'2.'i\-¢1_ 11 a _ .. )

_MEMQRANDUM OPINIO 

Petitioner Abdulsalam Ali Abdul-Rahman Al-Hela ("petitioner"), a detainee at the United
States Naval Base in Guantanamo Bay, Cuba ("Guantanamo") whose habeas petition is pending
before this Court, asks that the government be ordered to show petitioner "the allegations made by
the Government against him as well as the purported factual bases for the allegations." Upon
consideration of petitioner’s Motion [353] to that effect, respondents’ Opposition and supplement
to that Opp0sition, petitioner’s Reply thereto, the entire record in this case, and the applicable law,
the Court will DENY Petitioner’s Motion [353].

I. BACKGROUND

The government has submitted a "Factual Return" to justify petitioner’s detention. The
bulk of the Factual Return is devoted to its narrative section, which is supported by 63 exhibits.
Though portions of the Factual Return are unclassified, most of it is classified, as are most of the
exhibits to it. Petitioner’s counsel may see the Factual Retum and its exhibits, but asked the
government to provide a less-redacted version of the retum that petitioner would be allowed to
see. The government decided that it could not provide a less-redacted version suitable for petitioner

and instead provided a two-page document, titled "Summary of Basis for Detention," that gives a

broad overview of many (but not all) of the facts and allegations offered in support of petitioner’s
detention. The government said the Summary may be "discuss[ed]" with petitioner.

II. ANALYSIS

Petitioner argues that the Summary is not an adequate substitute for his personal access to
the F actual Retum and its exhibits, and that without such access or an adequate substitute therefor,
he will be deprived of the "meaningful opportunity to demonstrate that he is being heldipursuant
to the erroneous application or interpretation of relevant law" to which he is entitled. Boumediene
v. Bush, 553 U.S. 723, 779 (2008) (citation omitted) (intemal quotation marks omitted).

One of petitioner’s chief arguments in support of this proposition is that some habeas courts
dealing with Guantanamo detainees have cited the Classifred Information Procedures Act
("CIPA"), 18 U.S.C. App. III §§ l-l 6, as a model. Under CIPA, "the fundamental purpose of a
substitution [is] to place the defendant, as nearly as possible, in the position he would be in if the
classified infonnation . . . were available to him." United States v. Moussaoui, 382 F.3d 453, 477
(4th Cir. 2004). But while courts have sometimes opted to use CIPA as a model for habeas cases,
petitioner has offered no evidence that CIPA’s substitution method should, must, or may be
imported wholesale to detainee habeas cases. The D.C. Circuit has in fact disavowed this notion,
stating that

in the shadow of Boumediene, courts are neither bound by the
procedural limits created for other detention contexts nor obliged to
use them as baselines from which any departures must be justified.
Detention of aliens outside the sovereign territory of the United
States during wartime is a different and peculiar circumstance, and

the appropriate habeas procedures cannot be conceived of as mere
extensions of an existing doctrine.

Al-Bihani v. Obama, 590 F.3d 866, 877 (D.C. Cir. 20l0). The Circuit has even said with respect
to habeas that "where the source of classified information is ‘highly sensitive, . . . it can be shown

to the court . . . alone." Khan v. Obama, 655 F.3d 20, 31 (D.C. Cir. 201 l) (quoting Parhat v. Gates,

532 F.3d 834, 849 (D.C. Cir. 2008)). In other words, CIPA is a potential source of guidance for
habeas courts, not a rigid requirement.

Numerous cases confirm the lack of support for petitioner’s argument that personal access
is essential to a meaningful opportunity to contest detention. In Mousovi v. Obama, the court
concluded that the government "[may] rely on Top Secret source-identifying information for
which there is no adequate substitute and that cannot be released to Petitioner's counsel, even if it
might assist his petition." 916 F. Supp. 2d 67, 68-69 (D.D.C. 20l3). In In re Guam‘anamo Bay
Detainee Litig., the court concluded that petitioners would be permitted to review their own
statements if such were included "in their respective classified factual retums," but noted that "the
security risk from providing petitioners access to their own statements is not comparable to the
risk from disclosing other classified information." 634 F. Supp. 2d l7, 23 (D.D.C. 2009) (footnote
omitted). In this case, however, petitioner seeks access to information derived from other sources,
and not merely to his own statements. In Khan, the petitioner’s motion for unredacted access to
some of the intelligence reports justifying his detention was denied "on the ground that the
combination of the govemment’s declaration and the in camera submission constitutes an
‘effectiv[e] substitute for unredacted access’ that ensures Khan the ‘meaningful review of both the
cause for detention and the Executive's power to detain’ required by Boumediene." 655 F.3d at 3l
(citing Al Odah v. United States, 559 F.3d 539, 547-48 (D.C. Cir. 2009)) (quoting Boumediene,
553 U.S. at 783). Indeed, the government provided no more disclosure, and possibly less, in
Khan_where it "submitted to both the court and counsel a classified declaration explaining, to

the extent possible without disclosing particularly sensitive classified information, how and by

whom the reports had been prepared"-than it has here, where petitioner’s counsel has actual

access to the information in question. 655 F.3d at 25. Finally, though Al Oa'ah clearly holds that a

court "may compel the disclosure of classified information" that is both relevant and material, it
did so in a far less sensitive case than this one, where the party receiving the information would be
cleared counsel rather than the petitioner himself 559 F.3d at 544. Petitioner offers no case
suggesting the D.C. Circuit has ever held that a habeas petitioner’s right to such information
includes personal access, and as stated previously, Al Oa'ah’s allusion to CIPA did not set a floor
for the government’s disclosure obligations.

Thus, while petitioner would undoubtedly be better able to defend himself with personal
access to the requested documents, the relevant question is not how best to equip petitioner, but
rather whether the government’s proposed disclosures and redactions are justified, and if so
whether they deprive him of the meaningful opportunity to contest his detention guaranteed by
Boumediene. The D.C. Circuit’s previous approval of the use of classified evidence in habeas
cases-even when no disclosure was made to defense counsel, let alone to the petitioner-
demonstrates that lack of personal access does not per se violate Boumediene’s guarantee
Petitioner attempts to distinguish cases like Khan and Mousovi on the grounds that they presented
the risk of disclosing intelligence sources and methods, whereas granting his request, he claims,
would entail disclosing nothing more than the allegations against him. But revealing an allegation
sometimes necessarily reveals the source or method from which it emerged.

Imagine two sailors and a captain adrift in a life raft with little food and water. The captain
murders the weaker sailor so that he and the stronger one may last longer on their meager rations,
dumps the body overboard, and swears the surviving sailor to secrecy. Several days later the pair
is saved by a merchant ship. Shortly after their rescue, however, the captain is arrested for the
murder of the weaker sailor. Will the captain suspect that the surviving sailor confessed, even if it

is theoretically possible that forensic evidence on the raft or their clothes betrayed him? Of course.

And this hypothetical is more instructive than it might seem: Terrorist networks, like the ~=
governments that hunt them, may silo information or otherwise restrict access to it to prevent
unapproved disclosure that could arise from human error, leaking, or capture. This feature of
terrorist conspiracies could make it particularly easy for petitioner to identify the sources of the
allegations against him, given that some of his alleged acts may have been known to only a few.
The same logic applies to the risk that disclosing the allegations would-also disclose intelligence
methods-if, for example, petitioner had conducted certain operations on a particular cell phone
and through no other medium, allegations regarding those operations would disclose that the U.S.
government or its allies had been able to intercept communications on that phone, which could in
tum suggest other communications they surreptitiously intercepted.

In addition to these general reasons for caution, respondents’ ex parte supplement to their
Opposition provides specific and persuasive reasons to believe that further disclosure of the
allegations against petitioner and the factual bases therefor would risk revealing U.S. intelligence
sources and methods. And though petitioner objects to the ex parte supplement, Judge Hogan
specifically stated in the Protective Order governing detainee cases that "[n]othing herein requires
the govemment to disclose classified information[,] . . . prohibits the govemment from submitting
classified information to the Court in camera or ex parte in these proceedings or entitles petitioners
or petitioners’ counsel access to such submissions or information." Prot. Order 11 48(b).

Petitioner also contends that denying him personal access to the allegations deprives him
of his right to "have the opportunity to present . . . evidence to a habeas court." Boumediene, 553
U.S. at 790. But the right to present evidence and the right to see it are different; if they were not,
the Khan court could not have ruled that sufficiently sensitive evidence may be withheld from a

habeas petitioner entirely and shown to the habeas court alone. 655 F.3d at 3 l. Without belittling

the challenge petitioner and peti_tioner’s counsel face in crafting a defense against allegations they
cannot discuss, his right to present evidence survives, and to the extent that right is diminished, it
is so in order to accommodate respondents’ "legitimate interest in protecting sources and methods
of intelligence gathering . . . to the greatest extent possible." Boumea'iene, 553 U.S. at 796. The
same is true with respect to petitioner’s claim that the disclosure restrictions impede his access to

his counsel and his ability to communicate with them.

CONCLUSION

As the Al-Bz'hani court said, "[t]he habeas judge is not asked, as he would be in a trial, to
administrate a complicated clash of adversarial viewpoints to synthesize a process-dependent form
of Hegelian legal truth." 590 F.3d at 880. The back-and-forth of a full dress adversarial proceeding
cannot be made completely available in habeas where, as here, the needs of national security
clearly preclude disclosure to the petitioner, and where counsel’s access to the allegations and
evidence against him provides the requisite opportunity to contest his detention. F or the foregoing
reasons, the Court will DENY petitioner’s Motion to Compel. A separate ORDER consistent with

this Memorandum Opinion shall issue this date, May l2, 2016.

    

 
 

 _  LXMBERTH

.Uinitd States District Judge

