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 petitioner's motion for additional discovery. See Notice of
Filing of Pet'r's Mot. for Add'l Disc., Dkt. No. 187. Respondents oppose this motion, primarily
on the grounds that petitioner has failed to make the necessary showing under Section I.E.2 of
the Court's Case Management Order ("CMO"), see Dkt. No. 155, to obtain the additional
discovery. Petitioner makes three requests for additional discovery, which are discussed
separately below.
1. Actual transcripts/video/audio of Al-Ghizzawi's interviews
Petitioner first seeks other versions of his own statements in whatever form they exist
(audio, video, written transcripts, contemporaneous notes, reports from others regarding the
interviews, etc.) from every interview he has been subjected to since he was taken into United
States custody. Petitioner represents that he has been interviewed numerous times, that the
summaries of his statements appended to the factual return are inaccurate, that his statements
may have been translated erroneously, and that respondents should "not be allowed to cherry
pick" which interviews it will summarize and rely upon. Pet'r's Mot. at 2 (filed under seal Jan.
31, 2009). In response, respondents argue that petitioner's request is overbroad and should be denied because "it relates to interviews of the petitioner that are not relied upon in the factual
return or have not otherwise been produced as exculpatory." Resp't's Opp'n at 7 (filed under seal
Feb. 5, 2009). Respondents assert that they have complied with their obligations under Section
I.E.1(2) of the CMO to produce "all statements, in whatever form, made or adopted by the
petitioner that the government relies on to justify detention." They also argue that petitioner falls
well short of justifying production of this additional evidence under Section I.E.2 of the CMO
because "petitioner does not explain how any of the other (unidentified) statements and
interviews requested have any bearing on the questions before this Court, or how this request
justifies the substantial governmental burdens which would be required for compliance." Id.
Although the Court agrees that petitioner has not made the necessary showing under
Section I.E.2 to justify production of evidence relating to all of his interviews, petitioner is
entitled to some additional discovery pursuant to Section I.E.1(2). Shortly after petitioner filed
his discovery motion, the Court resolved a similar issue in Zaid v. Obama, Civil Action No. 05-
1646, where respondents are subject to the same "automatic discovery" obligation under a
parallel CMO. See --- F. Supp. 2d ---, 2009 WL 294371 (D.D.C. Feb. 9, 2009). In that case, the
Court rejected respondents' cramped interpretation of Section I.E.1(2), and held that respondents
must "produce all versions of petitioner's statements that they rely upon in any form in which
those statements exist in the consolidated files" -- that is, the files compiled by the Joint
Intelligence Group ("JIG") of the Joint Task Force-Guantanamo ("JTF-GTMO") and the Office
for the Administrative Review of the Detention of Enemy Combatants ("OARDEC").1 Id. at *5.
1 The Court noted that the JIG and OARDEC files, though not fully comprehensive, were "consolidated assemblages of information on each detainee . . . which were reviewed by Department of Defense and Department of Justice attorneys in preparing the factual return," and
-2- The Court concludes that, based on petitioner's request, it is appropriate for respondents
to conduct a similar search in this case. Therefore, the Court will grant petitioner's motion for
additional discovery pursuant only to Section I.E.1(2) of the CMO (i.e., respondents must
produce all versions of petitioner's statements that they rely upon in any form in which those
statements exist in the consolidated files). Respondents are required to apply the same search
parameters as set forth in Zaid.
2. Documents relating to accuser
Petitioner also seeks evidence relating to a former detainee who is petitioner's primary
accuser with regard to one specific allegation in the amended factual return. See Am. Factual
Return ¶¶ 40-43 (filed under seal Oct. 31, 2008).2 Initially, petitioner asserts that his accuser's
credibility has been called into question during the course of another Guantanamo habeas
proceeding before Judge Leon. Moreover, petitioner's counsel represents that her own
investigation has revealed that the accuser's mental health may be at issue, that he has a
substance-abuse problem, that he may have been given certain inducements and promises of
favorable treatment in return for information about other detainees, and that he has levied serious
allegations against more than forty other detainees. See Pet'r's Reply at 2-3 (filed under seal Feb.
9, 2009). Hence, petitioner argues that he is entitled to his accuser's "complete file including, but
not limited to, any and all documents reflecting his credibility, reliability, mental status and the
number of and nature of the accusations he has made against other detainees." Id. at 3.
were compiled over the course of hundreds of thousands of hours. --- F. Supp. 2d ---, 2009 WL 294371, at *3. 2 Because the accuser's identity and the substance of the allegations made against petitioner are classified, the Court cannot discuss that information in this published Order.
-3- Respondents assert that petitioner's request is "simply overly-broad and goes far beyond the
scope of discovery appropriate in a wartime habeas setting." Resp't's Opp'n at 5. According to
respondents, petitioner's counsel "has now received all of the exculpatory materials identified by
the Government, with the exception of one document relating to [the accuser], which the
Government expects to produce shortly." Id. They also argue that requests for information
regarding the accuser's mental status or accusations made against other detainees are not
narrowly tailored as Section I.E.2 of the CMO requires.
Under the criteria set forth in Section I.E.2 of the CMO, petitioner has not demonstrated
that he is entitled to his accuser's "complete file." However, under those same criteria --
specifically, subsection (3) -- the Court concludes that petitioner's request should be granted in
part because any information that bears upon the accuser's credibility -- and therefore the
reliability of the statements cited in the amended factual return -- could be exculpatory.
Therefore, respondents must produce any evidence that bears upon the accuser's credibility
and/or the reliability of the statements cited in paragraphs 40 through 43 of the amended factual
return. This includes, but is not limited to, any evidence related to: the accuser's mental health,
the accuser's alleged substance-abuse problem, inducements or promises of favorable treatment
made to the accuser in exchange for testimony about petitioner, and the total number of detainees
about whom the accuser provided information to the Government.
3.
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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 petitioner's motion for additional discovery. See Notice of
Filing of Pet'r's Mot. for Add'l Disc., Dkt. No. 187. Respondents oppose this motion, primarily
on the grounds that petitioner has failed to make the necessary showing under Section I.E.2 of
the Court's Case Management Order ("CMO"), see Dkt. No. 155, to obtain the additional
discovery. Petitioner makes three requests for additional discovery, which are discussed
separately below.
1. Actual transcripts/video/audio of Al-Ghizzawi's interviews
Petitioner first seeks other versions of his own statements in whatever form they exist
(audio, video, written transcripts, contemporaneous notes, reports from others regarding the
interviews, etc.) from every interview he has been subjected to since he was taken into United
States custody. Petitioner represents that he has been interviewed numerous times, that the
summaries of his statements appended to the factual return are inaccurate, that his statements
may have been translated erroneously, and that respondents should "not be allowed to cherry
pick" which interviews it will summarize and rely upon. Pet'r's Mot. at 2 (filed under seal Jan.
31, 2009). In response, respondents argue that petitioner's request is overbroad and should be denied because "it relates to interviews of the petitioner that are not relied upon in the factual
return or have not otherwise been produced as exculpatory." Resp't's Opp'n at 7 (filed under seal
Feb. 5, 2009). Respondents assert that they have complied with their obligations under Section
I.E.1(2) of the CMO to produce "all statements, in whatever form, made or adopted by the
petitioner that the government relies on to justify detention." They also argue that petitioner falls
well short of justifying production of this additional evidence under Section I.E.2 of the CMO
because "petitioner does not explain how any of the other (unidentified) statements and
interviews requested have any bearing on the questions before this Court, or how this request
justifies the substantial governmental burdens which would be required for compliance." Id.
Although the Court agrees that petitioner has not made the necessary showing under
Section I.E.2 to justify production of evidence relating to all of his interviews, petitioner is
entitled to some additional discovery pursuant to Section I.E.1(2). Shortly after petitioner filed
his discovery motion, the Court resolved a similar issue in Zaid v. Obama, Civil Action No. 05-
1646, where respondents are subject to the same "automatic discovery" obligation under a
parallel CMO. See --- F. Supp. 2d ---, 2009 WL 294371 (D.D.C. Feb. 9, 2009). In that case, the
Court rejected respondents' cramped interpretation of Section I.E.1(2), and held that respondents
must "produce all versions of petitioner's statements that they rely upon in any form in which
those statements exist in the consolidated files" -- that is, the files compiled by the Joint
Intelligence Group ("JIG") of the Joint Task Force-Guantanamo ("JTF-GTMO") and the Office
for the Administrative Review of the Detention of Enemy Combatants ("OARDEC").1 Id. at *5.
1 The Court noted that the JIG and OARDEC files, though not fully comprehensive, were "consolidated assemblages of information on each detainee . . . which were reviewed by Department of Defense and Department of Justice attorneys in preparing the factual return," and
-2- The Court concludes that, based on petitioner's request, it is appropriate for respondents
to conduct a similar search in this case. Therefore, the Court will grant petitioner's motion for
additional discovery pursuant only to Section I.E.1(2) of the CMO (i.e., respondents must
produce all versions of petitioner's statements that they rely upon in any form in which those
statements exist in the consolidated files). Respondents are required to apply the same search
parameters as set forth in Zaid.
2. Documents relating to accuser
Petitioner also seeks evidence relating to a former detainee who is petitioner's primary
accuser with regard to one specific allegation in the amended factual return. See Am. Factual
Return ¶¶ 40-43 (filed under seal Oct. 31, 2008).2 Initially, petitioner asserts that his accuser's
credibility has been called into question during the course of another Guantanamo habeas
proceeding before Judge Leon. Moreover, petitioner's counsel represents that her own
investigation has revealed that the accuser's mental health may be at issue, that he has a
substance-abuse problem, that he may have been given certain inducements and promises of
favorable treatment in return for information about other detainees, and that he has levied serious
allegations against more than forty other detainees. See Pet'r's Reply at 2-3 (filed under seal Feb.
9, 2009). Hence, petitioner argues that he is entitled to his accuser's "complete file including, but
not limited to, any and all documents reflecting his credibility, reliability, mental status and the
number of and nature of the accusations he has made against other detainees." Id. at 3.
were compiled over the course of hundreds of thousands of hours. --- F. Supp. 2d ---, 2009 WL 294371, at *3. 2 Because the accuser's identity and the substance of the allegations made against petitioner are classified, the Court cannot discuss that information in this published Order.
-3- Respondents assert that petitioner's request is "simply overly-broad and goes far beyond the
scope of discovery appropriate in a wartime habeas setting." Resp't's Opp'n at 5. According to
respondents, petitioner's counsel "has now received all of the exculpatory materials identified by
the Government, with the exception of one document relating to [the accuser], which the
Government expects to produce shortly." Id. They also argue that requests for information
regarding the accuser's mental status or accusations made against other detainees are not
narrowly tailored as Section I.E.2 of the CMO requires.
Under the criteria set forth in Section I.E.2 of the CMO, petitioner has not demonstrated
that he is entitled to his accuser's "complete file." However, under those same criteria --
specifically, subsection (3) -- the Court concludes that petitioner's request should be granted in
part because any information that bears upon the accuser's credibility -- and therefore the
reliability of the statements cited in the amended factual return -- could be exculpatory.
Therefore, respondents must produce any evidence that bears upon the accuser's credibility
and/or the reliability of the statements cited in paragraphs 40 through 43 of the amended factual
return. This includes, but is not limited to, any evidence related to: the accuser's mental health,
the accuser's alleged substance-abuse problem, inducements or promises of favorable treatment
made to the accuser in exchange for testimony about petitioner, and the total number of detainees
about whom the accuser provided information to the Government.
3. Additional evidence and/or absence of evidence
Petitioner's final request for additional discovery contains five distinct sub-parts and is
broadly aimed at uncovering information regarding (1) petitioner's role in hostilities against the
United States, and (2) whether his classification as an enemy combatant is proper. In the
-4- alternative, petitioner requests a statement from respondents certifying that no such evidence
exists. Respondents argue that these requests are "vague, overbroad, and simply do not meet the
high standards articulated" by Section I.E.2 of the CMO. Resp't's Opp'n at 10. Respondents also
assert that these requests are not tied "to issues raised in the factual return," nor has petitioner
explained "how this discovery will enable him to rebut the factual basis for his detention without
unfairly disrupting or unduly burdening the government." Id. The Court agrees. A review of
petitioner's motion and reply confirm that, as respondents' assert, petitioner has not made the
required showing to satisfy the standard set forth in Section I.E.2 of the CMO. Petitioner's five
requests are broad and open-ended and fail to satisfy the four criteria identified in Section I.E.2.
Accordingly, this request will be denied.
Therefore, it is hereby ORDERED that petitioner's motion is GRANTED IN PART
AND DENIED IN PART; it is further
ORDERED that pursuant to Section I.E.1(2) of the CMO, respondents produce all
versions of petitioner's statements that they rely upon in any form in which those statements exist
in the consolidated JIG and OARDEC files; it is further
ORDERED that, as detailed above, respondents produce any evidence that bears upon
the credibility of petitioner's primary accuser; it is further
ORDERED that in all other respects, petitioner's motion is DENIED; it is further
ORDERED that respondents shall have until March 20, 2009 to comply with this Order;
it is further
ORDERED that the status report, previously due by March 5, 2009, is due by not later
than April 3, 2009; and it is further
-5- ORDERED that the status conference, previously scheduled for March 9, 2009, is
rescheduled for April 9, 2009 at 9:30 a.m in Courtroom 8, and all deadlines relating to the
motions for judgment on the pleadings shall be STAYED until further order of the Court.
SO ORDERED.
/s/ JOHN D. BATES United States District Judge
Dated: March 2, 2009
-6-