Abdallah Al Ansi v. Bush

Opinion

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- UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FILED It/'''H CCURT sr-<

MUHAMMAD AHMAD ABDALLAH AL-ANSI, et al.,

Petitioners,

v. Civil Action No. 08- 192 3 ( GK)

BARACK H. OBANA, et al.,

Respondents.

ORDER

A Motions Hearing was held in this case on August 17, 2009,

which took place in a sealed courtroom due to the discussion of

classified information. Upon consideration of Petitioner AI-Ansi' s

Motion to Compel Discovery and Production of Classified Information

[Dkt. Nos. 99/100J, the Opposition, Reply, representations of the

parties, and the entire record herein, it is hereby granted in part

and denied in part.

Because of the very large number of discovery requests made by

Peti tioner, counsel were asked to focus their arguments on the

following major substantive issues in dispute: 1) the status of the

Guantanamo Review Task Force ("GRTF") I 2} the scope of

certifications of provision of exculpatory information provided by

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the Government, 1 -

3) medical records of Petitioner and his accusers,

4) bounties, 5) two depositions sought by Petitioner, 6) statements

of Petitioner as well as his accusers, 7) photographs of

Petitioner, and 8} the relevance of Petitioner's allegations of

torture, and documentation relevant to those allegations. Counsel

fully addressed these issues and were given the opportunity to

raise any other issues, including those which had been covered in

their pleadings.

Based upon the arguments of counsel, the Case Management Order

("CMO") of February 12, 2009, the persuasive decisions of other

judges on this District Court, and the applicable case law from the

Supreme Court and our Court of Appeals for this Circuit, the Court

reaches the following conclusions.

T. Automatic Discovery

As to Petitioner's requests under § I.E.1 of the CMO, it is

hereby

ORDERED, that Request No. 1 is denied. Petitioner requests

" raJ ny documents or obj ects in the Government's possession that are

referenced in the factual return. II The request sweeps far too

Despite the Government's representations at the hearing about the completeness of its certifications, it is still less than clear to the Court whether it has certified that it has complied with many of the discovery requests made by Petitioner. The Government should feel free to inform the Court as to any of the orders contained herein which it believes it has already certified compliance with.

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is further -

broadly, and does not fit under the parameters of § I.E.l; and it

ORDERED, that Request No. 2 is denied as formulated.

Petitioner requests "[alll statements, in whatever form, made or

adopted by Petitioner that relate to the information contained in

the factual return." Petitioner is entitled to all statements, "in

whatever form," that he made or adopted, which relate to any

information contained in the Factual Return upon which the

Government relies to justify his detention. See Zaid v. Bush, 596

F. Supp. 2d 11 (D.D.C. 2009) i and it is further

ORDERED, that Request No. 3 is denied as formulated.

Peti tioner requests" [i] nformation about the circumstances - -whether

coercive or not--in which such statement[s] of the Petitioner were

made or adopted." The Government is required to produce

"circumstances information" only for those statements upon which

the Government relies.

II. Additional Discovery and Requests for Additional EXC\llpatory Evidence

As to Petitioner's requests under §§ I.D.l and I.E.2 of the

CMO, it is hereby

ORDERED I that Request No. 4 is granted in part a.nd denied in

part. Petitioner requests " [a] 11 reports [, ] interviews,

interrogations, and statements (including tapes, transcriptions[,]

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referenced in the factual -

and original notes) referring to or discussing Petitioner, whether

return or not." The Government is

required to disclose all reports, interviews, interrogations, and

statements--including tapes, transcripts, and original notes--that

refer to or discuss Petitioner, provided that these items contain

information that the Government relies on to justify detention.

This requirement covers negative identifications provided by

any other detainees who could not identify Petitioner as an al­

Qaida bodyguard, a participant in battle at Tora Bora or elsewhere,

or an individual who fled or was captured with a group of alleged

al-Qaida bodyguards. Such fai lures to identi fy, if made, would

constitute exculpatory information under § I.D.l; and it is further

ORDERED f that Request No. 5 (" raj 11 prior and subsequent

reports, interviews f interrogations f and statements (including

tapes, transcriptions[,] and original notes) of any witness

identified in response to Request No. 4 (whether referenced in the

factual return or not)") is denied as over-broad; and it is further

ORDERED f that Interrogatory No. 1 and Request No. 6 are

denied, as Petitioner has withdrawn them; and it is further

ORDERED, that Request No. 7 is denied. Petitioner requests

"[alII information concerning whether the declarants in the

interviews and statements sought in Requests No[s]. 4 and 5 have

been released or are subject to plans for release." Under § 1.E.2,

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demonstrate that his detention is unlawful. -

Petitioner has not adequately explained how such evidence would

Second, under § I.D.I,

the link between the information sought and the justification for

Petitioner's detention is too attenuated to constitute exculpatory

evidence. Finally, under § I.E.2(4), the requested discovery would

unduly burden the Government and very possibly interfere with

delicate negotiations with other countries; and it is further

ORDERED, that Request Nos. 8-10 are granted in part and denied

in part. 2 Request Nos. 8 and 9, and the portion of No. 10 that

refers to audio or video tapes of CSRT and ARB proceedings, are

denied. Under § I.E.2, the disclosure sought is too broad, and not

narrowly tailored. Moreover, Petitioner has already been given a

significant number of documents pertaining to the CSRT and ARB

proceedings. While the Government is absolutely required to

disclose, under § I.D.l, any exculpatory evidence to be found in

those proceedings, comprehensive disclosure of all of those

proceedings is unjustified because the conclusions reached in those

proceedings are not relevant to what must be decided in this

Request No.8: "All classified information reviewed by the Combatant Status Review Tribunal in making the determination that Petitioner was an 'Enemy Combatant.'" Request No.9: "All classified information reviewed by the Administrative Review Board in making the determination that the continued detention of Petitioner is necessary." Request No. 10: "Any audio or video tapes of Petitioner's CSRT proceeding, Administrative Review [BJoard Proceedings, and interviews or interrogations of Petitioner."

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As to the requested -

litigation, namely the lawfulness of his continued detention.

interviews or interrogations of

Petitioner, the request is granted, but only as to statements in

the Factual Return upon which the Government relies; and it is

further

ORDERED, that Request No. 11 is granted in part. Petitioner

requests "(aJ 11 documents concerning the medical treatment of

Petitioner since he has been in United States custody, including

but not limited to all medical records and psychological records,

following his torture in Kandahar, and all medical records

Petitioner is entitled to medical and psychological records

from 2001-2004, because they may provide exculpatory information

relating to torture, whose continuing impact may have affected the

seven statements given by Petitioner upon which the Government

relies; and it is further

ORDERED, that Request Nos. 12 and 14-21 are granted in part

and denied in part. With some minor variations, the requests seek

information about nine witnesses 3 relied upon by the Government,

including "all medical records showing mental instability or

physical illness from the time of capture through the present (or

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date of release) ; all -

statements, interviews,

recordings, and interrogation reports of [the witness] ; all records memoranda,

of or memoranda concerning the torture or use of harsh

interrogation tactics on [the witness]; any documents concerning

incentives, rewards or plans for release for [the witness] i and all

documents concerning the credibility of [the witness'] accusations

against other detainees, including but not limited to statements

made by other detainees."

As formulated, the request is far too broad, open-ended, and

not narrowly tailored under § I.E.2. The Government is required to

produce all medical records showing mental instability or physical

illness from the time of capture through the time that the witness

gave his most recent inculpatory statement upon which the

Government relies. The Government must also produce all records or

memoranda of torture concerning abusive interrogation tactics for

that period, and all documents concerning the credibility of the

witnesses' accusations against Petitioner or any other detainees;

and it is further

ORDERED I that Interrogatory No. 2 4 and Reques t No. 13 are

denied. Petitioners ask that the Government "describe the

circumstances under which made an 'in person'

4 This interrogatory was mis-labeled as "Interrogatory No. 1" in Appendix A to Petitioner's Motion.

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identification

memoranda, of -

Petitioner and produce

and documents concerning the same. all interview notes,

(Factual Return,

Narrative ~ 16j /I

The Government claims that it has already searched for,

located, and produced all reasonably available evidence in response

to this request. The Government is required to file a sworn

certification to that effect, or respond to the request; and it is

ORDERED, that Request No. 22 is denied. This request states,

1/ It] he Government relies on the following reports which even in

their classified form remain highly redacted. Please produce

unredacted copies of the following documents relied upon by the

The Government is not relying upon the redacted information,

and therefore need not produce unredacted versions of the reports;

ORDERED, that Interrogatory No. 3 and Request No. 23 are

granted. Petitioner requests that the Government "identify the

source of information in the following intelligence reports and

p.roduce any documents or memoranda reflecting on the source's

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credibility: (a) - (b)

Petitioner is not seeking the redacted information, he is seeking ,,5

the source for that portion of the statements which is not redacted

and upon which the Government does rely; and it is further

ORDERED, that Interrogatory No. '1 and Request No. 24 are

denied. Petitioner requests that the Government "identify the

source(s), author Is) , and translators involved in the creation of

the document appended to the Factual Return:

" and "produce all documents, tapes,

photographs, or interview notes supporting the

and all 'pertinent information collected

concerning source and source family passed to the FBI 1IIIIIIII and

is available on request,' as stated in that document;" and it is

ORDERED, that Request No. 25 is gra.nted. Petitioner seeks

production

This

document is the only one on which the Government relies to prove

that Petitioner received combat training. Obviously, any

5 Petitioner mistakenly included two requests for the same document in Appendix A to its Motion. That duplicative request has been omitted.

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impeachment of this document could, under § I.E.2, produce evidence

that undermines the Government's claim of lawful detention. The

request is narrowly tailored and specifies the particular discovery

sought; and it is further

ORDERED, that Request No. 26 is denied. Petitioner requests

" [a] 11 information relating to the Uni ted States ['] use of bounties

to capture individuals in connection with the hostilities in

Afghanistan after September 11, 2001." The request sweeps far too

broadly; and it is further

ORDERED, that Interrogatory No. 5.and Request No. 27 are

granted. Peti tioner requests that the Government "identify and

describe any payments or bounties that were made in connection with

the capture of Petitioner and/or the transfer of Petitioner to U.S.

custody. Please describe the circumstances of any such payments,

including the name of the recipient and the amount of the payment

and any supporting documentation of such bounty."

Under § 1. D.1 of the CMO, such information qualifies as

eXCUlpatory evidence. See Order at 3-4, Abdah v. Obama, Civ No.

04-1254 (HHK) (D.D.C. Apr. 8, 2009) [Dkt. No. 477J; and it is

ORDERED, that Interrogatory No.6 and Request Nos. 28 and 29 6

6 Request No. 28: "All information and documentation about the circumstances of Petitioner's 'arrest' or 'capture' (as alleged in the Factual Return) in Pakistan and the circumstances of

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are denied.

for, located, -

The Government claims that it has already searched

and produced all reasonably available evidence in

response to this request. The Government is required to file a

sworn certification to that effect, or respond to the request; and

it is further

ORDERED, that Request No. 30 is granted in part and denied in

part. Petitioner requests "[aJ ny documents, including but not

limited to any interrogation logs or interrogation plans that list

or describe the date, time, place or circumstances of any

interrogations of petitioner, all Analyst Support Packages for Mr.

al Ansi (including the most up-to-date support package)."

The Government is required to disclose any interrogation logs,

if they exist, that list or describe the date, time, or place of

any interrogations of Petitioner; and it is further

ORDERED, that Request No. 31 is den..i ed. Petitioner requests

that the Government "produce all documentation of the Government's

Petitioner's movement between detention facilities from the date Respondents contend he was 'captured' until he was transferred to Guantanamo. This request encompasses, but is not limited to, documents related to Petitioner's arrest at the Pakistani border, the Pakistani detention facility, and his detention under U. S. custody in Kandahar. II

Interrogatory No. 6 and Request No. 29: "Describe the circumstances of Petitioner's arrest and produce all documents and evidence that Petitioner was 'captured with approximatelyllllother members of Usama bin Laden's security detail, including several bodyguards,' paragraphs 33 and 44 of Respondents' Narrative to the Factual Return Narrative. II

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in Kandahar and Guantanamo Bay, Cuba." -

interrogation techniques and torture of Petitioner while detained

The Government claims that

it has already searched for, located, and produced all reasonably

available evidence in response to this request. The Government is

required to file a sworn certification to that effect, or respond

to the request; and it is further

ORDERED, that Request No. 32 is denied. Petitioner seeks

"[a]ll communications between Government interrogators and their

superiors (whenever located) about the interrogation of

Petitioner." The request is open-ended and sweeps too broadly; and

ORDERED, that Request No. 33 is gra.nted. Petitioner is

entitled to "[a]ny documentation of Petitioner's travel from Yemen

to Pakistan and Afghanistan, including passport and visa

documentation;" and it is further

ORDERED, that Request No. 34 is denied, for failure to comply

wi th the requirements of § I. E . 2 (3) . In asking for "[a] ny

documentation or items (or a log or inventory of such items) taken

from Petitioner since the time of his capture in 2001," Petitioner

provides no indication of why, if granted, such a request would

produce evidence that his detention is unlawful; and it is further

ORDERED, that Request No. 35 is denied. Petitioner requests

" [a] 11 documents proving or disproving that Petitioner attended the

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Dimaj Institute or personally knew Shaykh Muqbil al Wadi.

Government claims that it has already searched for, ff

located, and The

produced all reasonably available evidence in response to this

request. The Government is required to file a sworn certification

to that effect, or respond to the request; and it is further

ORDERED, that Request No. 36 is granted in part. Petitioner

ORDERED, that Request Nos. 37 and 38 7 are denied. The

Government claims that it has already searched for, located, and

produced all reasonably available evidence in response to these

Request No. 37: "All documents from the Pakistani police station that concern the circumstances of Petitioner's \ arrest' and all documents from the Pakistani detention facility in Peshawar where he was detained prior to being turned over to U.S. Custody." Request No. 38: "please produce any agency evaluations of the credibility of the information contained in any interrogation report upon which Respondents rely."

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requests. -

The Government is required to file a sworn certification

to that effect, or respond to the request.

To the extent that the Government is arguing that the

information sought under Request No. 37 would not be relevant, and

therefore was not provided, the Petitioner's request is granted,

under § I.E.2; and it is further

ORDERED, that Request No. 39 is denied without prejudice.

Petitioner requests production of "any documentation, including

employment records of termination, concerning the skill and

expertise of the following translators used by Respondents: l1li

Petitioner has not identified any specific words, phrases, or

statements from any evidence upon which the Government relies in

the Factual Return that he alleges was not properly translated,

summarized, or paraphrased. Consequently, the requirement in §

I.E.2(3) of the CMO has not been satisfied; and it is further

ORDERED, that Request No. 40 is denied. Petitioner seeks

production of "the Justice Department's Office of Professional

Responsibility (OPR) investigating the conduct of the Bush

Administration lawyers' torture memos."

The request is over-broad and open-ended, and therefore fails

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to comply with

this information § I.E.2 (3).

would -

Petitioner fails to demonstrate why

specifically address the lawfulness of

Petitioner's detention; and it is further

ORDERED, that Request No. 41 is denied. In seeking production

of "Inspector General John L. Helgerson's Report issued on May 7,

2004," Petitioner again fails to demonstrate, under § l.E.2(3), why

this report would specifically address the lawfulness of

Petitioner's detention. The Report spans thousands of pages, and

Petitioner does not explain how the critique of the legality of

certain interrogation methods could rebut the Governments's factual

basis for its case against Petitioner; and it is further

ORDERED, that Request No. 42 is denied, as it is duplicative

of Request No. 40; and it is further

ORDERED, that Request No. 43 is gra.nted in part and denied in

part. Petitioner seeks "any documents drafted by Government

officials, employees, or outside expert consultants that question

the means used or reliability of information obtained as a result

of any 'harsh' interrogation techniques of the types described in

the CIA Torture Memos or which were used on any of the detainees on

whose statements Respondents rely to support the claim that

Petitioner was an enemy combatant or to otherwise justify his

detention for the past eight years."

As formulated, the request is not narrowly tailored, and is

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open-ended. -

The Government is, however, required to disclose what,

if any, requests were made by interrogators to use specific harsh

interrogation techniques for which. explicit permission was required

in interrogating detainees upon whose accusations the Government

relies in this case; and it is further

ORDERED, that Request No. 44-46 are denied, as Petitioner has

withdrawn them; and it is further

ORDERED, that Request Nos. 47-50 6 are denied, under § I.E.2 of

the CMO. They are open-ended and would unduly burden the

Government.

III. Request for Admissions

As to Petitioner's Request for Admissions" ("RFAs"), it is

The requests in this interval were mis-numbered, as there were two Request No. 48s. The rUling applies to both of those requests.

Peti tioner asks the Government to admit or deny the following: 1. Prior to traveling to Afghanistan, Muhammad Ahmed Abdallah al Ansi lived in Sanaa, Yemen. 2. There is no evidence that Muhammad Ahmed Abdallah al Ansi ever committed any acts hostile to the United States during his years in Yemen. 3. There is no evidence that Muhammad Ahmed Abdallah al Ansi participated in any violent act during his years in Yemen. 4. There is no evidence that Muhammad Ahmed Abdallah al Ansi was arrested or convicted of any crime during his years in Yemen. 5. There is no evidence that Muhammad Ahmed Abdallah al Ansi was a member of any extremist or anti-United States organization during his years in Yemen. 6. There is no evidence that Muhammad Ahmed Abdallah al Ansi

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ORDERED, -

that the Government must respond to RFAs 2-9. The

Government's current responses to RFAs 2-9 are evasive and

disingenuous. The Government is to squarely admit or deny whether

"there is evidence U supporting the particular request for

admission. If there is "no evidence" regarding a specific request

for admission, the Government is to say so.

IV. Supplemental Request for Production

In Appendix B to Petitioner's Motion, he includes an

addi tional request for production .10 It is hereby

ORDERED, that the supplemental request is denied. It would be

inappropriate for this Court to issue any order which could affect

engaged in any act or made statements hostile to the United States or his allies during his years in Yemen. 7. Muhammad Ahmed Abdallah al Ansi was taken into custody by the Pakistani police, not the United States military. 8. There is no evidence that Muhammad Ahmed Abdallah al Ansi had a weapon of any kind at the time he was taken into custody. 9. No physical evidence was obtained from Muhammad Ahmed Abdallah al Ansi at the time he was taken into custody that indicated he was engaged in any unlawful activity or activity hostile to the United States or its allies.

1.0 Supplemental Request: "Any photographs documenting the abuse of prisoners in Iraq and Afghanistan by United States military personnel, which are the sUbject of litigation between the Government and American civil Liberties Union and which are referenced in the May 14, 2009, New York Times article attached hereto, in which the Petitioner, Muhammad Ahmad Abdallah al Ansi (ISN 29), or any of the detainees upon whose statements Respondents rely in the Factual Return are depicted. u

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docket. It would be -

or interfere with another judge's handling of a case on his or her

particularly inappropriate as to the

"litigation between the Government and American Civil Liberties

Union," given the complexity and·sensitivity of that litigation,

with which that judge is undoubtedly fully familiar and with which

this Court has no familiarity.

v. Depositions and/or Interviews

As to Petitioner's request to take depositions or conduct

interviews of two central Government witnesses, upon whose

accusations the Government relies to justify detention, it is

ORDERED, that the request is granted in part and denied in

part. Petitioner has demonstrated restraint in asking for access

to only two of the multiple accusers. Moreover, those two

detainees have already retracted the substance of their accusations

against Petitioner. Petitioner's counsel has already received

permission from counsel for one of these detainees to interview

him, and has been in touch with counsel for the other detainee and

has reason to believe that permission will be given to interview

him. In the context of this request, no detainee may be

interviewed without the permission of his counsel.

Petitioner has assured the Court that his counsel will make

all arrangements to coordinate any procedure allowed by the Court.

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Counsel correctly point out that the only difference between such

an interview and a regular counsel-client meeting at Guantanamo Bay

would be the addition of the detainee's own counsel. There is no

persuasive evidence that the addition of that one individual would

either compromise security or cause undue logistical burdens to the

Finally, the Court is permitting a witness interview rather

than the deposition that Petitioner prefers. The Court wishes to

make the proceedings as simple and uncomplicated as possible I

rather than adding another individual to the proceeding (i.e., the

court reporter) and additional equipment which could be prove to be

problematic. All counsel will of course remain subject to the

existing requirements and prohibitions contained in the Protective

Orders, meani.ng that no classified information may be shared by any

counsel with the detainee being interviewed. Petitioner's counsel

has assured the Court that she will clear any problematic questions

and/or subject-matter areas with the Government.

-1 "'I 2009 August,,:..;~,, I Judge

Copies to: Attorneys of Record via ECF

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