Al-Ghizzawi v. Bush

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ABDUL HAMID AL-GHIZZAWI,

Petitioner, v. Civil Action No. 05-2378 (JDB) BARACK OBAMA, et al.,

Respondents.

ORDER

Currently before the Court is [257] petitioner's motion for an order1 to show cause against

respondents for violating the Court's Order of June 1, 2009.2 That Order required the

government

to either (i) publicly file a declassified or unclassified factual return or (ii) file under seal with the petitioner's counsel and the appropriate Merits Judge an unclassified factual return highlighting with a colored marker the exact words or lines the government seeks to be deemed protected, as well as a memorandum explaining why each word or line should be protected.

June 1, 2009 Order at 1-2. Respondents were required to comply by July 29, 2009. They have

purported to do so in this case. See Docket Entry No. 251, July 29, 2009.

Petitioner contends, however, that respondents' factual return did not comply with the

Court's Order. Specifically, according to petitioner, respondents "continue[d] to unilaterally

redact information it seeks to protect with absolutely no attempt to highlight those materials, to

1 The Court notes that petitioner's motion seeks a "rule to show cause." The motion more properly seeks an "order to show cause." 2 That Order was issued by Senior Judge Hogan in his capacity as coordinating judge for the Guantanamo Bay detainee cases. This Court consulted with Judge Hogan and concluded that it will address petitioner's motion. meet and confer, or to explain to the Court (and counsel) why the material (most of which is

already in the public domain) should be protected." Pet'r's Mot. for Rule to Show Cause ("Pet'r's

Mot.") at 6. Accordingly, "the Government [] disregard[ed] the procedures set out in this Courts

[sic] Order . . . ." Id. at 4.

In response, respondents maintain that they have in fact abided by the Court's Order. See

Resp't's Opp'n to Pet'r's Mot. for Rule to Show Cause ("Resp't's Opp.") at n.2. They assert that

the "declassified returns redact any properly classified information, as well as information

designated as 'protected', which while not classified, implicates significant security or other

interests." Id. at 4. As a result, "the declassified versions of the unclassified returns were

suitable for public release." Id. For his part, petitioner concludes that redacting protected

information from the public factual returns violates the Court's June 1, 2009 Order. See Reply to

Pet'r's Mot. for Rule to Show Cause ("Pet'r's Reply") at 4.

Petitioner is correct.3 Respondents admit they filed public factual returns that redacted

not only classified information, but also information designated as protected. See Resp't's Opp.

at 4 & n.2. But the only procedure for redacting protected information in a public factual return

was pursuant to option (ii) of the Court's June 1, 2009 Order. Yet respondents did not avail

themselves of this procedure: they neither "highlight[ed] . . . the exact words or lines" deemed

protected, nor filed a "memorandum explaining why each word or line should be protected."

June 1, 2009 Order at 1-2.

3 Petitioner and Respondents debate whether publicly-available information could ever be properly redacted from the public factual returns. Compare Pet'r's Mot. at 7-8, with Resp't's Opp. at 6-11. The Court need not reach this issue because respondents have failed to comply with the Court's Order.

-2- Respondents' factual return is improper under option (i) as well. Filing pursuant to option

(i) is available where a public factual return redacts only classified information. Respondents,

however, suggest otherwise. They question whether the Court would invite "highlighted returns

to be filed under seal in each of over 150 cases and the likely rounds of litigation over specific

redactions that would have followed such submissions . . . ." Resp't's Opp. at n.2. But this

reading of the June 1, 2009 Order is incorrect. If option (i) governed the filing of public factual

returns that redacted protected information, option (ii) would be unnecessary -- there would be no

reason for the cumbersome procedures detailed in option (ii). Therefore, it is hereby

ORDERED that petitioner's motion for an order to show cause is GRANTED; it is

further

ORDERED that respondents must file a factual return in compliance with the Court's

June 1, 2009 Order. If respondents wish to redact any information that is not classified, they

must do so according to the procedures set forth in option (ii) of the Order; it is further

ORDERED that respondents shall have until October 16, 2009, to comply with this

Order.

SO ORDERED.

/s/ JOHN D. BATES United States District Judge

Dated: September 24, 2009

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