                                  UNCLASSIFIEDIIFOR PUBLIC RELEASE




                               UNITED STATES DISTIUCT COURI'

                               FOR THE DISTRICT OF COLlr:vIBIA


                                               )
l'\ADIR OMAR ABDlJl.. LAJI BIN                 )
SA ',,(DOliN :\.LSA'AIO' (ISN 030).            )
                                               )
               PelitiIHH'r,	                   )
                                               )               Civil :'in. 09- i45   (l~CL)
       v.	                                     )

                                               I

BARACK H. OBAMA, et al.,                       )

                                               )

               Respondents.                    )

--------------)

                                   l'vlEM.ORA.NDUM OPINION

       Petitioner is challenging the legality of his detention at the United States ;-.Javal Base in

                                                                      7
Guantanamo Bay. Cuba ("Guantanamo"). Before the Court is petitioner's J irst i\1otion 11096]

for Leave to Take Discovery,	 As explained herein. petitioner's motion shall be granted in pali

and denied in pan.




                                       I. BACKGROUND

       The Court is operating under the Case Jv1anagcment Order ("C1\.10") issued by Judge:

Hogan of this Court in the consolidated Guantanamo habeas cases (!'.Iisc. ND. 08-442) on

November 6, 2008. as a.mended on Decemher 16,2008. 1 Petitioner seeks discovery under




        I'The l\.mended ('1\,10 was later amended further by Judge \\ralton of this Court Gherebi
v Bush, (iv. No. 04-1164, Order l797] ('O.D.C. Dec. 19,2008) (V/alton, J). Because that Order
was issued before petitioner's case was transferred from JUdge \Valton to the undersigned
member of the Court, it is binding on petitioner's case. However. Judge 'Walton's amendments
do not affect Amended eMO § I.E, which is the only section at issue for most of petitioner's
requests.
                                   UNCLASSIFIEDIIFOR PUBLIC RELEASE




Am',~mled C~lO    S1.E.1,   (tvlo!. at 3,) !vlast (\fpeI'ltioner's requests stem from stl1CI"llen!s made

by p:spondents in t.heir Factual ,Return ('·Return"). in \:vhich respondents set forth their

                  pcritiol,er"s detenli()\). Section LE.1 states that

        [tlbe lv'lerits Judge nUIY, for good cause, permit the petitioner to obtain limited
        discoverY beyond that described in [Section 1.E.I. which deab with dOCUl11cnts
        thaI arc themselves cited in the Return and the petitioner" s o\\"n staIernen~sl,
        Discover'y reguc:sts shall ... (1) he narrowly tailored. not open-ended: t,1) spc::ify
        the discovery s()ught: (3) explain \vh) the request, if granted, is likely to lxoduce
        evidence that demonstrates that petitioner's detention is unlawful: and (4) explain
        ,:vhy the requested discovery will enable the petitioner to rebut thcf~lctual b,~sis f"f
        his deh:ntion without unfairly disrupting or unduly burdening the governrnem.

Amended CMO § I.E.2 (citations omitted). The Court will consider each of petitioner's requests

and wilt only grant those which comply with the Amended CMO,

        Before moving on to petitioner' s individual discovery requests, the Court \v.il1 address the

,1.mended CivIO § 1.E.2 requirement that requests not be unfairly disruptive or unduly

burdensome to the government. Petitioner does not specify \vhere any of the discovery he is

seeking is located. In order to avoid undue burden on the government. the Court will          (ml~i


consider petitioner's discovery requests insofar as they seek reasonably available' evidence. In

the context of this opinion, "reasonably available" evidence means evidence contained in any

information rcvie'wed by attorney's preparing factual returns for all detainees held at Ciuantanamo

Bay or any other United Stales military facility; it is not limited to the evidence discovered by

al.l()rneys preparing factual returns fl.)r this petitioner. See Gherebi 1'. Bush, C1\. No. (14-1164,

()rder (7971 (D.D.C. Dec, 19,2008) (Walton, l) (amending sl1ghtly :\mended CI"\'1.O § 1.D.1).




                                                    2




                                   UNCLASSIFIEDIIFOR PUBLIC RELEASE
                                        UNCLASSIFIEDIIFOR PUBLIC RELEASE




                              II. PETlTlO:"iEJl'S DISCOVERY              REQl.~ESTS


A.	 Circumstances Sunounding Pctitiollerls Statements Cited in Return (Pet'r Req. # 19)

          Pelitlclner seeks   "un~'   and   documents discussing       Ih~   circmnstances sUrf(lunding"

pctltioncr\; statcnlcnls ci Lcd in the I\.ctllrn. including "the location of the in1cnogalion and any

reports of abuse. coercion[,J or inhmnan or degrading trcarmelll [petitioner] may have suffered,"

Respondel]!.." recognize tbat     ill formation   as to the circumstances of petitioner' 5 sUllements      J~lJls


clearly within the discovery allowed by Amended CI'v10 § IT .1. Howcver. resp:Hldents                 argm~


that they have already conlp1ied \"lith their       S I.E.]   obligation by discIc\sing ".information about the

circumstances" surrounding all such statements. Petitioner offers no reason to believe that the

g()vernment has not fulfi lied its obligation here, nor does he allege abuse. coercilm. or inhuman

or degrading treatment. Accordingly. petitioner's request shall be denied as mon1.



B.	   Statemt~nts   hy Otbt'r Detainees RcHed Upon in the Return (Pet'r Reqs, # 2, 6,8, 10, 13,
      15, 17)

          Respondents' Return relies upon statements by other Guantanamo detainees in setting

fonh its legal basis /()r petitioner's detention. Respondents have disclosed those statements (or

smnlllaries thereof) but only in the forms in which the RetuIl1 relied upon them. Petitioner now

seek s "any audi (lOr video tapes, transcripts [.] or original repOlis of interrogations" for seven of

these other detainees::-·tha.t is, all other forms of the relied-:"lpOl1 statements. In support of these

requests petitioner citcs an opinion by another judge of this Court ordering production of




                                                          3




                                        UNCLASSIFIEDIIFOR PUBLIC RELEASE
                                             UNCLA.SSIFIEDIIFOR PUBLIC RELEASE




    statements, in various f"lmns, relied upon in a factual retum, Zaid v, ()bamo. Civ,           "\;0.             1646,

    Order [I 16J (Jan, 14,2009) (Bates, 1). But Judge Bates' Order dealt 'with additional f()nns of

    no,ftll,t'.IU,"·   's st3temeJl!~, relied upon on the Return, a maHer add:essed by Amended ('\10 ~ LE.l ,

    IIere petitioner 5e,::1';:5 additional forIns of statements made not by him but by other detainees,

    which would fall under .\melKled C:-"IO            1.1:.2. Petitioner's request fails 1.1 [nee! the

    requirements of § I.E.2 in at kasl one imp(}l·l.ant respect: petitioner docs not explain                        "the

       ,       ,;
                 L'Tanted, is like/r to produce evidence that demonstrates that petitioner' s dett~ntion is
    recues!., if "".'             . ..

    unlawfuL" Amended CvtO § LE.2 (emphasis added). Petitioner speculates that the statements

    may have been recorded or translated incorrectly. Such speculation. though possible. does not

 indicate a likelihood that additional l;:mns (lfthe statements will sho'\' that petitioner's detention

    is unlawful. Acc()rcling.ly, petitioner's requests fCll' additional forms of detainee stalements shall

 h-: denied.



    C. Circumstances of Stah:~.ments by Various Other Detainees

                Petitioner also requests the circumstances surrounding tbe detainee statements discussed

    in the previous subsection. Again, these requests will be evaluated under Amended CvlO §

 J.E.2,

                1. C'lrcumslaJlces ((lSratemctlls by DeTainee                            (l'ct'rReq.      i;   1)

                Petitiol1<1:!1' requests the circumstances surrounding statements by

_                        Petitioner supports this request with evidence o l _ h a r s h treatment.


         Jpetitioner's motion requests ;'all documents discussing the circumstances surrounding
 the statements aggressive and harsh treatment [sic] at Guantan~mo through A.pril 14,2003" of'.
_         Although petitioner's requc.~st appears to be missing severa.! \vords, the Court shall

                                                            4




                                            UNCLA.SSIFIEDIIFOR PUBLIC RELEASE
                                                       UNCLASSIFIEDIIFOR PUBLIC RELEASE




Petition:.:r draws extensively from a report by tbe Department of Justicc's ()ffice of InspectOJ

Genera! (hereinafter "OIG report") provided by respondents in discovery. (PetYs :'-.101. <It 3-12;

set a/so IZesp' Is' (fPf,"r, at 6 (noting respcindc:11S'                     produ~:li(ln   oC the ()1 Ci repOrli. According to

",.!,I, '"......   the           rcp,.',t      dl~scrihl.'d   rdiginus insults, the use       dogs. sleep                is~>lati em.


      other tactics thaI could reasonably be ex!)ecte(! to result in coercion. Petitioner did not allach

relevam portions of' the Ole; reporlto his filings, but respondents did not contradict his SUlllmary.

The OTG report suppons plaintiff's claim that it is likely Ihm documents exist that w(luJd coniiTm

or expand upon rhe harsh treatment_has endured. I f _ h a s endured harsh

treaunen: that \veakens the credibility of his statements, respondents' case that petitioner is being

legally detained is \veakened. Accordingly, any reasonably available evidence of abuse,

coercion, or inhuman or degrading treatment suffered b y _ a f t e r his c,:pllU'C but before

any statement            llf   his   relie~d   upon in the Return must be disclosed to petitioner.



_was       In addition           l0   evidence          harsh treatment. petitioner also requests the locations in \vhich

                         held since his tra.nsfer and generalized information as

w.hich he \'las held during that period." (:-1ot. at 9.) But petitioner has not claimed that the
                                                                                                  to   "the conditions under




locntlons in \vhjc~\vas held would negatively affect_credibility or otherwise

5ho.. \ that petitioner is being unlawfuJly detained. Nor has petitioner made such a claim as to the

generalized conditions in which petitioner was held. Petitioner has rhus failed to meet the

requirement that the sought discovery be likely to prove his detention is unlawful.

pelitioner's request must be denied in these two regards.



construe the request as seeking t.he circumstances surrounding _                                          statements, as well as

evidence Dfaggressive and harsh treatment through April 14, 2003.


                                                                         5




                                                      UNCLASSIFIEDIIFOR PUBLIC RELEASE
                                        UNCLASSIFIEDIIFOR PUBLIC RELEASE




        ], Circul1Istances of'Swfemcnls by Delainc'e                                                         i:   51

        Petiti(Hler        seeks the \..IJLl'UL""'''.''''.:l of stutenl(~nts      detainee

                      cited in the Return (including the location of his interrogation), To support his

claim ()f_'s questJ:,:lnahlc credibility petitioner submits                    l\VO   independent news accounts

focusing on the harsh trealment alleged visited upon _since his capturc,C                             (See ]\[01.       at

16-] 7 (citing "F'rum German) to Guanta:lamo: the Career of ]lrisoncr No, . ' . Spiegel (()ct. 9,

2008,; "The Conscience of              ColoneL"           St, J. (i\lar. 31. 2007)).) Two          !l('\VS    stories are not

a.\together consistent with each other, but they both specifically allege harsh treatment against

_ . The two independen.t news accounts from m,\jor periodicals specifically alleging harsh

lreatmt~nt agains1_ is i.n this case enough to meet the likelihood requir.::menl of the

and accordingly respondents are ordered to disclose any reasonably available c\'idence of abuse.

coercion. or inhuman or degrading trean:nenl suffered by_after                               capture              bef;:Jre

made any       the statements relied upon in the Return.

        tImvever, petitioner has not claimed that the Iocation(sl in \l,'hich _was interrogated

negatively affected        credibility or \>,'ould demonstrate that petitioner's detention is unlawful.

Petitioner's request shall be denied in that respect.

        3.   C'ircumS£a17Ct'~S (~f   S'lafemenlS bJ' ()ther Delainees (Pct 'r Reqs,          i'   7 9. )' 2, 1,J.

       Petitioner seeks the circumstances of statements by                        other detainees:_




       "Although media reports cannot, of course, be considered as evidence, tbey can be
considered here   the Court in determining whether to grant petitioner's discovery request under
the A.mended C~10,

                                                            6




                                        UNCLASSIFIEDIIFOR PUBLIC RELEASE
                                       UNCLASSIFIEOIIFOR PUBLIC RELEASE




                        P(~titjoner   ilnplies that these detainees may have been subjected       to   harsh

treatment thal would negatively arrec; their credibility. Bm petitioner offers l1Dthiug that                 WCILlid


nise his iInplicarions above mere speculation        to   the likelihood required by Amended Ch·l(l §

   .:2. Accordingly, petitioner does not meet the requirements of the Amended ClvIO. and his

 requests for the circumstances surrounding the statements           these fj Vt: other dc:ainees       III US!   be

denied.




D. ()thcr Information Rehlted to the Credibility of Othcr             Dct~lirll~es


          1. "Al1y mul./lll Documents" Related 10 fhe Credibility of                                    ond
                                 ('Pel ',. Reqs. #- 3, 4)

          Petiti oner seeks "any and all documents" related to the creeli bi Iity of two detainees \\lhose

statements arc relied upon in the Return: _(discussed aboy;:1 and

. . F o r _ petitioner also seeks "sp::cifically any assessments related to his credibility

by the Oft1ce of Adnlinistrative R.eview for the Detention of Enemy Combatants." Again. these

requests \:vill be evaluated according to /\mended CMO § 1.E.2.

          As au initial matler, the request for "any and all" documents "related" to !hc credibility of

either detainee is not namnvly tailored as requin:d by § 1.E.2. Considering that § I.E.2 applies by

its terms only to e\'id'~:nce that is likely to prove that petitioner is unlawfully detained, the Court

will consider these requests only insoflu as they seek any documents that reflect          '·""",.·,I,u,", ,I"   upon

the credihility of either detainee.

          Even after that limitation, petitioner 5ti11111u5t establish that it is in fact likely that the

discovery request will yield evidence that will sho'>\' that petitioner is unlawfully detained: in



                                                       7





                                       UNCLASSIFIEOIIFOR PUBLIC RELEASE
                                           UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                   .~..                 .,.               ..
(Ither woros. thJl such negative assessments of the dellliIH::es' eredibiE!\' arc likeh'

Peliti,Hler bas met hi" burdell as t(_ _ with the ()Ie; rep()rt ddailing_barsh

lre,urnent Given the lreaHnent described in             th,~   ()IG rqxl1"t, it is likely that negative assessment,:

or_credibilttyexist As f b r _ petilioner attclches as Appendix                                        i'!, 11   classined

nn'111lP"m    by another judge oft111s           (ShIi v, Bush, Cis,          05-429 (D,D.C Jan 30,2(09)

(Ll",J!L   .1.») concluding that_lacked credibility, 'That opinion cited a June 2007 v.:arning

       the Office:         Admi.l1istrative Review and Detention of Enemy (\'mbatants ((}\RI)EC) at

(iuantananlO Bay stating thal_"t'irst-hand knowledge in reporting has come into

question since 2005," (Mot App, /\. at 5,) The finding ofanolherjudge of this Court supported

by a government st<nement questioning_reliability, establishes that it is likely that

documents exisl that renee! negatively upon _credibiliry, Accordingly, respondents

are ordered 10 disclci sc any reasonably 3\'ailable documents that refleclncgativcJy on either.

                                   credibility. For_respondents are specifically ordered to disclose

the OARDEC rep(lI1 cited in Judge Leon':; Sliti opinion.

             2.   Rea,I'ol1s)!)"   Release ofDclQinee                          (Pet ',. Req, "# 11.1

             Detainee                                              w'hose statements were relied upon in the

return, has been released from Guantanamo since giving those statements. Petitioner seeks the

reasons n)r_release, speculating that_may have been released in return for

providing incriminatory statements about petitioner. Petitioner offers no c\'idence of any kind to

support his speculation and thus illiIs to establish that his request. ifgranted, would be likely to

show that he is being unluwfi..lny detained, By the terms of Amended GvfO § 1.E,2, petitioner's

request must be denied.


                                                               8




                                           UNCLASSIFIEDIIFOR PUBLIC RELEASE
                                          UNCLASSIFIEDIIFOR PUBLIC RELEASE




           3,            t: Bow1!.! tVa.\' Paid in       Relation tu Pelitioner 's ('apTlire          )'




                                           all   dCiC              rctating to any bounty paid   L\


       capture, Pcritlclner notes thaI another judge of this Court has held tl1:11 such de,cumenls fall

Ullder A
       .nlcnded (:\·10 § I,I),l,                  requires :lisclosurc of       1 rcascl!1ab]~ (l\'aibblc c\'idence in

its possession that tends material!) til underm inc the infoI1nation presented                 to supp~m   the

g(y"eml.ll ent' S Jttml:lc,H I()11      hoJding the prisoner." (!vlc1t. al ::5 !Cilin\; liro!im ,

05-1429, Doc, [191] (D,D,C. Jan, 7, 2Cl(9) (Urbina. J.)). It appears 10 the Court that such hounty

information would emly fall under i\.r'!lended ClvfO § LD.l if it undermined theinformarion in

the Retum, If it did            then it \\lould be irrelevant to respondents' case for detention.

'l'herefore, the   governln(~l1t     is ordered   W     disclose any reasollahJy available documents relating to

any fees, bounties, or other monetary or non-monetary remuneration or consideration given to

third partiesf())" the apprehension, transfer into the government's custody, continued devemion. or

investigation ofpelitlclrlcr, inc.luding hUI not limited to payments. gifts, loans. promises of

leniency, preferential treat111enL release, reduction in charges. or improvements in the conditions

(\f   detention given to third parties,     bUI    only insofar as the information contained i:1 those

doclJ.mcnts tends materially to undermine the information provided in the Return.




E. Depositions of Other Detainees (Pet'" Reqs. # 5,7,9,12,14, 16)

          Finally, petitioner seeks to depose six oftbe seven detainees whose statements are cited

or relied upon in the Ret urn regarding the circumstances of those statements. Petiticmers'

requests itH dep()sitions appear lO fali fuUy Outside the bounds of the Amended C\ Ie).

Petitioner's requests for depositions shalj be denied.


                                                               9




                                         UNCLASSIFIEDIIFOR PUBLIC RELEASE
                                   UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                           HI. CONCLUSION

       The          '''''lue::.,,) c~ntained   in petitioner's First \101ion [1 (JCJ6] for   Lc~;ne wLd:~



Disc()\,cry shall b'c granted anc! denied as descrihed herein .t\ separate Order shall issue This dak.




                                                             cz_ c:. ~._
                                                              ~:~TIJ
                                                              CHIEF JUDGE




                                                        10




                                   UNCLASSIFIEDIIFOR PUBLIC RELEASE
                                          ~   i     • •     :   •




                                                                                           FILeD WITH



                                 11;,\rrl::D STATESD.ISTRICI' cOl11rr
                                                                                          ~

                                 FC)R         DISTRICT OF ('()LL\IBLA


,\AJ)JH OJ\lAR AB[)['iLLAH HI:"
SA 'AD(nr~1 /\'1,SA 'AR'" (ISI'\ 03ft).

               ]It,'1 ilioucr,
                                                                CiyiI ;'\ o. 09-7o-t5 (R C' L)
       ,.
BARAeK H.     OBA~lA. et         al.•

               Responden Is.
------_._----.    --­
                                                  ORDER




                                        UNCLASSIFIEDIIFOR PUBLIC RELEASE
