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                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA Filed with Classified

                                              )
                                                                      In forma .on Security Ofii ·cr
                                                                                          '
DJAM!i:I., AMEZIANE,                          )                  CISO _....(....,.,&UI:.....LL-~--L...:~\----
               I>ctitioner,
                                              )
                                              )                  Datc    !' 3\,f\'\ E"   WI   S
                                              )
               v.                             )       Civil Action No. 05-cv-392 (ESH)
                                              )
BARACK H. OBAMA, eta/.,                       )
                                              )
               Respondents.                   )


                                   MEMORANDUM OPINION

       Now before the Court is respondents' motion to deem protected infom1ation highlighted

in the proposed public factual return for ISN 310 and petitioner's cross-motion to compel

compliance with the protective order. Upon consideration of respondents' motion (May 9, 2012

[ECF No. 285] ("Mot.")), petitioner's opposition and cross-motion (June 15,2012 [ECF No.

289] ("Opp'n")), respondents' reply and opposition (Sept. 14, 2012 [ECF No. 294] ("Reply")),

petitioner's reply (Sept. 21, 2012 [ECF No. 295] ("Cross-Motion Reply")), and petitioner's

notice of supplemental authority (Apr. 17, 2013 [ECF No. 299] ("Supp.")), the Court will grant

in part and deny in part both motions.

I.     BACKGROUND

       The Protective Order governing the Guantanamo Bay habeas corpus cases provides that

the government mtt..'>t prepare redacted versions of all pleadings "appropriate for filing on the

public record." (Protective Order, No. 08-mc-442 (D.D.C. Sept. 11, 2008) [EC.F No. 409]

n 47(a), 48(a), 49(a).)   In addition to classified information, the government may withhold from

public disclosure information that is unclassified but nevertheless "protected," subject to the

approval of the Court. (Protective Order~ 34.)




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       A.      Respondents' Motion to Deem Protected Information

       The relevant law governing the standard for "protected" information was reviewed in

great detail in Judge Hogan's May 12, 2011 Opinion, In re Guantanamo Bay Detainee Litig.,

787 F. Supp. 2d 5, 9-13 (D.D.C. 20ll), so this Court will only briefly summarize it here to

provide the necessary background for deciding the instant motions.

       Because the public ordinarily has the right to inspect and copy judicial records, the

government must provide a valid basis for withholding non-classified information. Bismullah v.

Gates, 50 I F.3d 178, 188 (D.C. Cir. 2007), vacated on other grounds, Gates v. Bismullah, 554

U.S. 913 (2008). Such a basis requires, "at a minimum, a 'specitic,' 'tailored,' rationale for

protecting a general category of information, and a precise designation of each particular item of

information that purportedly 'falls within the categor[y] ... described.''' Ameziane v. Obama,

620 F.3d l, 6 (D.C. Cir. 201 0) (quoting Parhat v. Gates, 532 F.3d 834, 853 (D.C. Cir. 2008)).

This has been framed as a two-part test: "the government first must demonstrate what kind of

information requires protection and why, and then must show exactly what information in the

case at hand it seeks to protect." !d.

       On November 6, 2008, Judge Hogan ordered the govermnent to tile unclassified versions

of the factual returns in each of the Guantanamo Bay habeas cases. (Case Management Order,

No. 08-mc-442 (D.D.C. Nov. 6, 2008) [ECF No. 940], I. C.) The government initially

attempted to designate all of the unclassified factual returns as "protected" under the Protective

Order, but the Court denied that request. Instead, Judge Hogan required that the parties first

meet and confer regarding the government's proposed redactions, and if an agreement could not

be reached, "the government must tile with the appropriate Merits Judge a motion to designate as




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protected each highlighted portion of the return." (Memorandum Opinion, No. 08-mc-442

(D.D.C. June 1, 2009) [ECF No. 1780 J at 10.)

          On July 29, 2009, the government filed unclassified factual returns in over 150 cases,

including this case, in which it redacted not only classified but also protected information. (See

Reply at 4.) Judge Hogan later ruled that in so doing they had violated his June l, 2009 Order,

and gave them until April 14,2010 to come into compliance. (Order. No. 08-mc-442 (D.D.C.

Jan. 14, 2010) IECF No. 1896].)

          On that date, respondents filed a motion seeking a ruling that information falling within

six discrete categories could be designated as "protected information" under the Protective

Order. (See Motion to Amend and for Clarification of the Court's January 14, 2010 Order
                                                                                         1
Regarding Public Returns, No. 08-mc-442 (D.D.C. Apr. 14, 2010) [ECF No. 1942].) Judge




1
    The six categories were:

      l. Names and/or other infom1ation that would tend to identify certain U.S. government
         employees, FBI Joint Terrorism Task Force members, or contractors-specitically, law
         enforcement officers, agents, translators, intelligence analysts, or interrogators, all below
         the Senior Executive Service or General Officer level-[ or] the family members of
         detainees.
      2. Information that would reveal the existence, focus, or scope oflaw enforcement or
         intelligence operations, including the sources, witnesses, or methods used and the identity
         of persons of interest.
      3. Tnfommtion indicating the names or locations, including gee-coordinates, oflocations of
         interest as they pertain to counter-terrorism intelligence gathering, law enforcement, or
         military operations, where the Government has not previously acknowledged publically
         its knowledge of those names or locations.
      4. Information that would reveal the Government's knowledge of telephone numbers,
         websites, passwords, passcodes, and e-mail addresses used by known or suspected
         terrorists, or discussions of the manner in which known or suspected terrorists use these
         methods for communications with one another.
      5. Information regarding the use, effectiveness, or details regarding the implementation of
         certain interrogation approaches and techniques approved by Executive Order 13491 and
         described in the Army Field Manual No. 2-22.3.
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Hogan agreed that the government had sufficiently demonstrated the need to protect the type of

information contained in each of the six categories and thus had satisfied Step One ofthe

Parhat/Ameziane test. In re Guantanamo Bay Detainee Litig., 787 F. Supp. 2d at 25 ("[Tlhe

government has satisfied the first step of Parhat by demonstrating, with respect to each protiered

category, what kind of information requires protection and why."). However, he noted that "the

question of whether information the respondents actually designate for protection satisfies step

two of Parhat will have to be determined by the merits judges presiding over the cases in which

the government has or will f1lc a proposed public factual return that contains such designated

information." !d. at 26.

       On June 25, 20 l 0, respondents served petitioner's counsel with a copy of their proposed

public factual return, in which they indicated the information that they sought to deem protected.

(Reply at 6.) After a meet-and-confer process in which respondents made some changes to

address petitioner's concerns, respondents f1led their proposed factual return with this Court on

May 9, 2012. (Mot. Ex. 3.) In their motion, respondents claimed that "[t]he six categories that

have been approved by Judge Hogan cover all of the inforn1ation highlighted within the factual

return for ISN 310 that Respondents seek to deem protected" with one exception; the

government also seeks to protect the category consisting of "detainee health-related

information." (Mot. at 4-5.) Petitioner has objected to several of the government's proposed

redactions. (Opp'n at 3-11.)




    6. Certain administrative data, operational 'nicknames,' code words, dates of acquisition,
       including dates of interrogations, and FBI case names and file numbers, contained in the
       intelligence documents included in the factual returns.

In re Guantanamo Bay Detainee Litig, 787 F. Supp. 2d at 8.
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        B.      Petitioner's Motion to Compel Compliance with Protective Order

        As mentioned above, the Protective Order requires that when petitioner files a document

that may contain classified or protected information, the government must prepare a redacted

version of the document "appropriate for filing on the public record." (Protective Order~~ 4 7(a),

49(a).) This classification review must be done "[a]s soon as practicable following the original

filing date." (ld. ,[49(a).)

        In order to deal with the large number of filings in need of such a classification review,

the government instituted a "prioritized review process" in August 2011. (See Reply at29.) As

part of that process, respondents contacted counsel for all petitioners in the Guantanamo habeas

cases, ;md requested that they submit a prioritized list of filings that they wanted to have

reviewed. (See id.) The government then proposed to review all of the first-listed filings in the

order they were received before moving on to any of the second-listed filings. (See id.)

Although fifty-four petitioners had submitted priority lists as ofthe date of respondents' Reply,

petitioner was not one of them. (See id.) Petitioner admits that he has not participated in the

government's priority review process, arguing that he requested review of several filings in April

2011, before any such procedure was instituted, and does not want his request to move to the

back of a very slow-moving line. (See Opp'n at 15-17.) Indeed, respondents acknowledged that

as of September 14, 2012, the date of respondents' Reply, the classifi~ation review team had

finalized only nineteen case tilings through the priority review process. (Reply at 29.)

        Petitioner now seeks an Order from this Court compelling the government to produce

publi.c versions of three of his pleadings in this case: his preliminary traverse and motion for

summary judgment, filed on February 14, 2009; his reply memorandum, filed on March 3, 2009;

and his closing memorandum, filed on April 2, 2009. ([ECF Nos. 165, 174, 193].) Petitioner


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requests an order that production be made within 30 days, or, at a minimum, concurrently with

the public factual return, so that the public can evaluate both the government's and petitioner's

versions of the underlying facts at the same time. (See Opp' nat 1-2, 12.) He further requests

that the Court order the government to process his requests for declassification of certain

materials in his factual return and in various hearing transcripts. (See Opp'n at 13.)

II.    ANALYSIS

       A.      Motion to Deem Protected Information

        Petitioner initially raised eight objections to respondents' proposed public factual returns.

However, several of those grounds are now moot or need not be addressed. For example,

petitioner's first objection serves solely to "preserve the record of (petitioner's] objections" to

the six categories of protected in formation approved by Judge Hogan in his May 12, 20 Ll Order.

(See Opp'n at 3; Reply at 9 n.l.) The Court will not revisit Judge Hogan's well-reasoned

opinion, and therefore it declines petitioner's request for reconsideration of that opinion.

Additionally, respondents have agreed to lift the redactions addressed by petitioner's objections

2, 4, and 5, thereby rendering those objections moot. (See Reply at 9-1 0.) And finally, in

petitioner's eighth objection, he complains that because he opposes certain of the proposed

designations, ''the government is obligated to file a memorandum justifying each designation,"

but "has not done so." (Opp'n at 10.) However, in their Reply, respondents have done that; they

have addressed each of petitioner's objections and justified their requested designation for each

disputed piece of information. Thus, petitioner's request that the government "be required to file

a proper memorandum explaining its designations" is now moot.

       The Court also notes that petitioner did not object to the government's redaction of

certain medical information that does not fall into any of the six pre-approved categories of


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information, and thus, the Court will deem that information protected. See Barre v. Obama,

2013 WL 1180300, at *3 & n.4 (D.D.C. Mar. 8, 20 13) (deeming certain medical information

protected because the government's request to do so was unopposed).

       The Court will now address the remaining objections:

               1.      Objection 3

       Petitioner's objection 3 challenges the redaction of names such   a'>-         "Mustafa,"

IIIII "Mohammed," and "Hassan," which petitioner claims are "facially so generic as not to
warrant any redactions.'' (See Opp'n at 4.) Respondents have agreed to lift the redactions on the

names "Mohammed" and "Hassan," so those objections are now moot. (See Reply at 13.)

However, with respect t o - and        IIIII respondents insist that, although the names
themselves may be generic, the surrounding contextual information makes those individuals

"readily identifiable'' as petitioner's former roommate and co-worker, respectively, and so

redaction is necessary to protect their safety and well-being. (/d.) Respondents offer no

response with respect to the name "Mustafa." (See id.)

       The Court notes that, despite respondents' assertion that all of the highlighted

information in the proposed factual return falls within the six categories of information approved

by Judge Hogan, that does not appear to be true with respect to the n a m e s - and       IIIII
Certainly, the government does not point to any one of those categories as justifying the

redaction of this information. Thus, the Court must undertake the two-step Parhat analysis to

determine whether this information is properly deemed "protected." 2


2
 The only one of the six categories that could even plausibly relate to this type of information is
Category 2: "Information that would reveal the existence, focus, or scope of law enforcement or
intelligence operations, including the sources, witnesses, or methods used and the identity of
persons of interest." in re Guantanamo Bay Detainee Litig., 787 F. Supp. 2d at 8. However,
"during step two of the Parhat analysis the determination of whether designated information
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         With respect to ?arhat Step One, the Court must first determine whether there is a

sufficient rationale for protecting this type of information. The government effectively seeks to

protect a category of information consisting of the names of "first-person contacts," or "those

individuals who the FBI has reason to believe have been in direct contact with the subject of an

FBI investigation." (See Reply Ex. 13, First Abbate Declaration ("Abbate Dccl.") ,15.) The

government's rationale for protecting that information is that "revealing innocent individuals'

associations with suspected terrorists can impose a severe stigma on these individuals, and

expose them to social and economic discrimination, harassment or retaliation, physical harm,

and/or unwanted scrutiny by the general public and media." (ld. at 13-14, citing Ex. 13, Abbate

Dec!.~   5.) Cognizant that "[i]t is not within the role of the courts to second-guess executive

judgments made in furtherance of that branch's proper role," Ameziane, 620 F.3d at 5, the Court

concludes that this category satisfies Parhat's Step One requirement.

         With respect to the second step of the Parhat analysis, the Court concludes that this

requirement is met as well. First, respondents clearly explained how the information

surrounding these names would make them identifiable. (See Reply Ex. 13, Abbate Dec1.         ~!4.)


Second, the government asserted that these particular individuals are currently unaware that the

FBI has information about them, and so they "have no opportunity to consent or object to its


falls within a protected category requires evaluating whether the rationale for protection asserted
in step one is implicated by the information." ld at 17. Here, the government's rationale for
protecting the infonnation in Category 2 was that it "could provide current or potential subjects
of investigation, including international terrorists and terrorist organizations, with significant
insight into the U.S. Government's counterterrorism and law enforcement efforts, enabling
persons suspected of terrorism-related activities to avoid detection and evade prosecution,
dramatically reducing the effectiveness of current and future ... efforts, and thereby
compromi_sing national security and law enfo:cement missions." !d. at 18~ quotation
marks om1tted). Respondents here do not claim that release of the names~n­
would reduce the effectiveness of security and law enforcement effot1s. (See Reply Ex. 13, First
Abbate Declaration.) Thus, even if these names fall within Category 2, the Parhat Step Two
analysis would not justify their redaction on that ground.
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public release.'' (See id. ~[ 5.) This fact also suggests that it has not previously been publicly-

acknowledged that these individuals were associated with petitioner. Finally, the government

has explained how an individual being connected to a suspected terrorist can raise serious

concerns for the safety and well-being of that individual. (,)'ee id.) Thus, the Court concludes

that the government has met its burden of demonstrating why the n a m e - and             IIIII arc
"not suitable for public filing'' and should therefore be designated "protected information" under

the Protective Order and redacted from the public versions of petitioner's factual return. (See

Protective Order ~,11 0, 34, 49(a).)

         With respect to the name "Mustafa," however, the Court cannot reach the same

conclusion. The government has offered no response whatsoever to petitioner's challenge to the

redaction of that name. In fact, in response to petitioner's objection 2, which also challenges

redaction of the name "Mustafa,'' the government claims that it is willing to lift the redactions on

that name. (Reply at 9-1 0.) Nevertheless, it continues to redact the word "Mustafa" in the

amended factual return attached to its Reply. (See, e.g., Reply Ex. 3, Amended Factual Return

~   29, ISN 310 FD-302 (April I, 2002).) In the absence of any showing of exactly why this

pmticular name requires protection, the Court concludes that respondents must lift the redactions

on the name "Mustafa" from the amended factual return.

                2.      Objection 7

         Petitioner's only remaining substantive objection is his challenge to the government's

redaction of certain words and phrases that were unredacted in the 2009 public factual return and

therefore are "currently available in the public domain and otlicially acknowledged by the

govemment." (Opp'n at 8-9.) Respondents have agreed to lift the redactions on four ofthe five

challenged pieces of information. (Reply at 11.) Thus, the only proposed redaction still at issue


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is the word "Algerian" in an excerpt from the factual return for ISN 533. (Opp'n at 8-9; Reply at

11-12.) Respondents have redacted this word from the proposed factual return not because it is

"protected," but because it is confidential and was only disclosed in the 2009 factual return

inadvertently. (Reply at 12.) They insist that "inadvertent disclosures of national security

information do not constitute onicial acknowledgment so as to justify compelling still further

disclosures that could compound the risk to national security." (!d.)

       Chief Judge Lamberth of this Court recently considered--and rejected--this exact

argument in Barre v. Obama, 2013 WL 1180300, at *2-4 (D.D.C. Mar. 8, 2013). There, the

Court determined that the disclosure of classified infonuation in a 2009 public factual return did

constitute an "official acknowledgement" of that information. ld. at *2 (citing Fitzgibbon v.

C.I.A., 911 F.2d 755, 765 (D.C. Cir. 1990)). The Court then considered whether the government

should nevertheless be permitted to redact that information based on its argument that the earlier

disclosure had been "inadvertent." It denied that request based on several factors, all of which

are equally applicable here. First, this case differs from Al-Haramainfslamic Foundation, Inc. v.

Bush, 507 F.3d 1190 (9th Cir. 2007), the case on which respondents rely, because the disclosure

here was "not made under seal to the opposing party but, instead, [was] publicly released and

placed on the Court's docket, where [it] remain[s]." Barre, 2013 WL 1180300, at *3. Second,

''the government has made no attempt to remove and replace the 2009 factual return currently

available to the public" despite the fact that the Protective Order provides a mechanism for

removing inadvertently-disclosed classified information. Id. .

       Finally, respondents cannot simply fall back on an argument that the word "Algerian"

should be redacted as "protected" because, like the respondents in Barre, they have "failed to

argue why the instant infonnation falls into one of the six categories of information Judge Hogan


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designated as protected." !d. Although the govemment did claim that "all of the highlighted

information" in the proposed factual return is covered by those six categories, it has not specified

the category that the reference to "Algerian" interrogators would fall into. While this

information could arguably be considered part of Category 2, no explanation has been offered as

to whether the rationale for protecting Category 2 information is implicated here, and secondly,

this information has previously been publicly disclosed and officially acknowledged. Therefore,

the Court will deny respondents' request to deem this information "protected."

               3.      Objection 6

        Petitioner's sixth objection does not relate to the government's refusal to disclose certain

information to the public, but rather its refusal to disclose infonnation to petitioner. (See Opp'n

at 6-8 ("there is no basis to designate much of the information as unsuitable for release to

Amcziane").) Specitically, petitioner complains that the government affixed the heading "NOT

Releasable to Detainee or Public" to every page of the proposed factual return despite the fact

that much of the protected inf()rmation has already been disclosed to Ameziane in other contexts.

(Jd. at 6-7.) Petitioner further requests that his counsel be pennitted to use his family members'

names and information on his behalf with their authorization. (!d. at 7.)

       'I'he government argues that petitioner's complaint is meritless precisely because much of

the protected information "has been made available to Petitioner him~elf in detainee-eyes-only

versions of certain documents." (Reply at 17.) Furthermore, the government points out that the

Protective Order expressly precludes a petitioner's counsel from disclosing protected infonnation

to any other person-including the petitioner or his family-without authorization from the

government or the Court. (ld. (citing Protective Order ,[,135, 39).) Thus, respondents assert that

if petitioner seeks access to other specific pieces of protected information, "his counsel may


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request permission from the Government to share that information with him, and failing such

authorization, may seek leave from the Court." (!d.)

       To the extent that protected information has already been disclosed to petitioner, the

Court agrees that it should not now be withheld from him. Any pages of the factual return that

contain only unclassified or previously-disclosed protected information should therefore be made

available to petitioner. However, the Court agrees with the government that it cannot grant

petitioner "unfettered access to all of the protected infornmtion in the return.'' (!d.) Nor can the

Court authorize petitioner's counsel to disclose protected information to petitioner's family

members based on the record before it. Without knowing exactly what information petitioner is

referring to and to what use he intends to put that information, the Court cannot evaluate his

request for release of that infonnation and must deny this request without prejudice.

       B.      Motion to Compel Compliance with Protective Order

               1.      Public Versions of Petitioner's Summary Judgment Filings

       Petitioner has tiled a cross-motion to compel respondents to produce public versions of

three of his summary judgment filings consistent with their obligations under the Protective

Order. (See Opp'n at 12-17.) Petitioner seeks to have these documents released within 30 days,

or, at a minimum, simultaneously with t:elease of the public factual return. (Id. at 12.) This is

necessary, he contends, "to ensure that the public is afforded an accurate and balanced

understanding of Ameziane's habeas case." (ld. at 14.)

       Repeating the same arguments that it unsuccessfully made to Chief Judge Lamberth, the

government again relies on the complexity of the classification review process and the numerous

burdens placed on its review teams. (See Reply at 19-27.) In Barre, Chief Judge Lamberth

addressed these same logistical problems but nonetheless ordered the government to produce the


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public versions of the petitio~er's f~C.!t1aJn~tu~ns_ ~ithin 90 qay~:.. 2013 WL 1180300, at *4-6.

This Court will follow Chief Judge Lamberth's lead.

       First, the Protective Order mandates that the government release public versions of all

classified or protected filings. (Protective Order~~ 47-49.) Permitting the government to delay

review of these filings indefinitely "would not only violate the Protective Order, it would provide

a back door for the Government to effectively 'seal a judicial record that the public has the right

to inspect and copy,' which is exclusively the prerogative of the Court." Barre, 2013 WL

1180300, at *5 (quoting Bismuliah, 501 FJd at 188).

       Second, the fact that petitioner has refused to participate in the prioritized review process

does not defeat his claim. As Chief Judge Lamberth noted, that process "is not a mandatory

feature ofthe Protective Order's public release regime; rather the Protective Order makes plain

that declassification of filings in habeas cases is automatic." !d. at *5. Thus, "petitioners

certainly are not required to patticipate in the process." !d. And indeed, like the petitioner in

Barre, petitioner here put the government on notice of his request by seeking review of these

documents well before the expedited process was put into place.

       Third, this Court "is [also] troubled by the government's apparent lack of urgency in

issuing public versions of classified materials filed in Guantanamo proceedings." !d. at *6. The

delay here is even greater than in Barre; the tilings that petitioner now requests to have reviewed

were tiled on February 14, March 3, and April2, 2009. The government has offered no

explanation whatsoever for why it has taken over four years to review these particular

documents. Instt!ad, respondents offer boilerplate assertions that Guantanamo petitioners' filings

are often "thinly sourced" and cite to extensive ''exogenous material" (Reply at 21-22), with no

suggestion that such arguments apply to the filings here. Indeed, the government's only


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argument specific to this case is that because petitioner's habeas case has been stayed, there is no

urgent need to produce these documents. (Reply at 34.) The government attempted to rely on a

similar argument in Barre, where it pointed out that the petitioner's habeas petition had already

been dismissed and he had been released from Guantanamo Bay. 2013 WL 1180300, at *6. As

Chief Judge Lamberth noted, however, "this ignores the inherent public interest in Guantanamo

litigation," and the longstanding practice of publicly disclosing court documents so as to allow

citizens '"to keep a watchful eye on the workings of public agencies."' !d. (quoting Nixon v.

·warner Commc 'ns, 435 U.S. 589, 598 (1978)).

       The government should not be able to effectively keep petitioner's judicial records under

seal any longer than it has already done. However, cognizant of the fact that review of these

documents does take time and that the government has many competing demands for its

resources, this Court will follow Chief Judge Lamberth's lead and allow the government 90 days

(rather than the 30 days requested by petitioner) to produce public versions of these documents,

along with petitioner's factual return.

               2.      Declassification Review of Other Documents

       Petitioner also asks the Court to order respondents to conduct a declassification review of

several specific documents. (Opp'n at 13.) These include a specific sentence in the Narrative

portion of his factual return and three excerpts from classified hearing transcripts. (See id.)

        With respect to the footnote in the Narrative, because the Narrative is part of petitioner's

factual return, the Court has already ordered the government to conduct a thorough review of that

document and to release a public version of it within 90 days. (See supm Section IJ.B.l.)

However, the Com1 is not aware of, nor has petitioner cited, any authority permitting the Court

to review the Executive Branch's classification decisions in this context. Indeed, "the Executive


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Branch has 'authority to classify and control access to information bearing on national security."'

See Doe v. Doe Agency, 608 F. Supp. 2d 68,71 n.3 (D.D.C. 2009) (citing Dep't of the Navy v.

Egan, 484 U.S. 518, 527 (1988)). Thus, although the Court has ordered the government to

review the factual return and prepare a redacted version of it consistent with the Protective

Order, the Court will not order the government to publicly disclose the contents of footnote 4 if it

still believes that information to be classified.

        With respect to the hearing transcripts, the government insists that review of hearing

transcripts ''is not required under the Protective Order, which provides tor classification review

and release only of the parties' filings." (Reply at 2.) The government is correct; the Protective

Order provides that the government must release public versions of any pleading or other

documents "filed by" petitioners or respondents. (Protective Order~~ 47, 48, 49.) The

Protective Order does not provide a similar procedure for documents that are created during the

litigation but not filed by either party, such as hearing transcripts or court orders and opinions.

        However, requiring the government to produce redacted versions of those documents is

consistent with the well-established principle that the press and the public have "a general right

of access to court proceedings and court documents unless there are compelling reasons

demonstrating why it cannot be observed." Wash. Post Co, v. Robinson, 935 F.2d 282, 287

(D.C. Cir. 1991 ). T'he Court is not persuaded that the government's explanation of the burdens

on its classification review team arc sufficiently "compelling" to justify denying petitioner-and

the public-access to these key parts of the factual record in this case. The mere fact that they

were verbal-rather than written-proceedings does not make them any less significant.

Furthermore, the Court is not concerned about the "burdensome" nature ofthis request because

the excerpts petitioner seeks to have publicly disclosed appear to consist of only 9 pages. (See


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Opp'n at 13 & n.l3.) However, as with the summary judgment pleadings and the factual return,

the Court cannot order the government to de-classify the particular hearing transcript excerpts in

question; all the Court can do is order the government to conduct a classification review of those

documents and release any unclassified and unprotected portions of the documents to the public.

                                         CONCLUSION

       For the foregoing reasons, the government's motion to deem protected information is

granted in part and denied in part, and petitioner's motion to compel compliance with the

protective order is granted in part and denied in part. A separate Order accompanies this

Memorandum Opinion.


                                                                           Is!
                                                             ELLEN SEGAL HUVELLE
                                                             United States District Judge

DATE: June 5, 2013




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                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
                                                                         Filed with Classillcd
                                              )                      Information Sccu.rily,O~
DJAMEL AMEZIANE,                              )
                                              )
                                                                 CISO          GbVlAA        ~
                Petitioner,                   )                  Date     .$'" J"U N E Yo($
                                              )
               v.                             )           Civil Action No. 05-cv-392 (ESH)
                                              )
BARACK H. OBAMA, et al.,                      )
                                              )
                Respondents.                  )


                                           ORI>ER

       Upon consideration of respondents' motion to deem protected information (May

9, 2012[ECF No. 285]), petitioner's opposition and cross-motion to compel compliance

with the Protective Order (June.l5, 2012 [ECF No·. 289]), ·respondents' reply and

opposition (Sept. 14,2012 [ECF No. 294]), petitioner's reply (Sept. 21,2012 [ECF No.

295]), and petitioner's notice of supplemental authority (Apr. 17,2013 fECFNo. 299]),

and for the reasons set forth in the accompanying Memorandum Opinion, it is hereby

        ORDERED that highlighted information contained in the proposed public factual

return f(x ISN 31 0 will be protected, with the following exceptions:

                (l) the word "Algerian" as it appears in ISN 533    FD~302   (May 4, 2002)

                may not be redacted; and
                                 .   ..      ..      ..
                (2) the name "Mustafa" as it appears in ISN 310 Narrative ,1~ 29, 32, 35,

                and ISN 310 FD-302 (April I, 2002) may not be redacted. It is further

        ORDERED that petitioner shall have access to any pages of the proposed public

factual return for which the only protected infom1ation has previously been disclosed to

him. It is further



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       ORDERED that petitioner's family members shall not have access to the

protected information contained in the proposed public factual return. It is further

       ORDERED that the government will have ninety days to produce public copies

of the following documents:

               (1) petitioner's preliminary traverse and motion for summary judgment

               [ECF No. 165];

               (2) petitioner's reply memorandum [ECF No. 174];

               (3) petitioner's dosing memorandum [ECF No. 193];

               (4) pages 16-17 of the transcript from the February 24, 2009 hearing;

               (5) page 4 of the transcript from the March 5, 2009 hearing; and

               (6) pages 4-7 and 19-20 of the transcript from the April 29, 2009 hearing.

       SO ORDERED.

                                                                      Is!
                                                             ELLEN SEGAL HUVELLE
                                                             United States District Judge

DATE: June 5, 2013




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