Alsawam v. Obama

864 F. Supp. 2d 1, 2012 U.S. Dist. LEXIS 78242, 2012 WL 2036036
District Court, District of Columbia·Decided April 10, 2012·No. Civil Action No. 05-01244(CKK)·Published·Cited by 2 cases

Opinion

MEMORANDUM OPINION AND ORDER

COLLEEN KOLLAR-KOTELLY, District Judge.

Before the Court is the [250/255] Motion to Compel Discovery filed by Petitioner Tariq Mahmoud Al Sawah (ISN 535). See Pet’s Mot. to Compel Disc. (“Pet’r’s Mem.”), ECF No. [250]; Pet’r’s Supplement to Mot. to Compel Disc. (“Pet’r’s Suppl. Mem.”), ECF No. [255]. The Government has filed an Opposition and Petitioner has filed a Reply. See Gov’t’s Mem. in Opp’n to Pet’r’s Mot. to Compel Disc. (“Gov’t’s Opp’n”), ECF No. [256]; Gov’t’s Resp. to Pet’r’s Supplement to Mot. to Compel Disc. (“Gov’t’s Suppl. Opp’n”), ECF No. [260]; Pet’r’s Reply to Gov’t’s Mem. in Opp’n to Mot. to Compel Disc. (“Pet’r’s Reply”), ECF No. [261], The motion is therefore fully briefed and ripe for a decision. In an exercise of its discretion, the Court finds that hearing oral argument would not be of assistance. See LCvR 7(f). Upon careful consideration of the parties’ submissions,1 the relevant authorities, and the record as a whole, Petitioner’s Motion to Compel shall be GRANTED IN PART and DENIED IN PART.

I. LEGAL STANDARD

Petitioner’s Motion to Compel is governed by the [68] Case Management Order entered by Judge Thomas F. Hogan on November 6, 2008, as amended by Judge Hogan’s [86] Order dated December 16, [4]*42008 (the “CMO”), and as supplemented by this Court’s [149] Order Regarding Petitioner’s Requests for Additional Discovery dated April 6, 2009 (“April 6, 2009 Order”). For purposes of Petitioner’s Motion to Compel, the Government’s relevant disclosure obligations under this regime are three-fold.

First, Section I.D.l of the CMO delineates the scope of the Government’s ongoing obligation to disclose “exculpatory evidence” to Petitioner even in the absence of a specific request. Specifically, the Government must “disclose to the petitioner all reasonably available evidence in its possession that tends materially to undermine the information presented to support the government’s justification for detaining the petitioner.” CMO § I.D.l. The term “exculpatory evidence” includes, but is not limited to, “any evidence or information that undercuts the reliability and/or credibility of the Government’s evidence,” such as “evidence that casts doubt on a speaker’s credibility, evidence that undermines the reliability of a witness’s identification of Petitioner, evidence that indicates a statement is unreliable because it is the product of abuse, torture, or physical incapacity, or evidence that demonstrates material inconsistencies between statements.” Apr. 6, 2009 Order at 2. “[T]he term ‘reasonably available evidence’ means evidence contained in any information reviewed' by attorneys preparing factual returns for all detainees,” and “also includes any other evidence the government discovers while litigating habeas corpus petitions filed by detainees at Guantanamo Bay.” CMO § I.D.L Therefore, the universe of “reasonably available evidence” includes, but is not limited to, traverses filed by other detainees.

Second, Section I.E.l of the ,CMO requires the Government to disclose the following to Petitioner upon his request: “(1) any documents and objects in the government’s possession that the government relies on to justify detention; (2) all statements, in whatever form, made or adopted by 'the petitioner that the government relies on to justify detention; and (3) information about the circumstances in which such statements of the petitioner were made or adopted.” CMO § I.E.l. The phrase “in whatever form” means “all forms (including audio or video), whether cumulative or not.” Apr. 6, 2009 Order at 3. The phrase “circumstances in which such statements of the petitioner were made or adopted” encompasses “all surrounding circumstances,” including, but not limited to, “the use of coercive tactics as well as inducements and promises.” Id.

Third, Section I.E.2 of the CMO confers upon the Court the discretion to authorize additional limited discovery beyond what is required by Sections I.D.l and I.E.l upon a showing of “good cause.” Requests for additional discovery must “(1) be narrowly tailored, not open-ended; (2) specify the discovery sought; (3) explain why the request, if granted, is likely to produce evidence that demonstrates that the petitioner’s detention is unlawful; and (4) explain why the requested discovery will enable the petitioner to rebut the factual basis for his detention without unfairly disrupting or unduly burdening the government.” CMO § I.E.2 (internal citations and quotations omitted).

II. DISCUSSION

Through his [250/255] Motion to Compel, Petitioner seeks information relating to nine overarching categories. The Court shall address each of those nine categories in turn below. Preliminarily, however, the Court must address the Government’s arguments that Petitioner’s pending discovery requests are either untimely or barred by the doctrine of judicial estoppel. Nei[5] ther argument need detain the Court long. Over the years, Petitioner’s focus in this litigation has undergone a marked shift. Earlier in this case, Petitioner’s attention was focused, albeit not exclusively, on obtaining information relating to his cooperation with the Government in order to demonstrate that he has served as a valuable source of intelligence. In fact, this action remained at a standstill for quite some time while the parties attempted to reach an agreement resolving the issues surrounding Petitioner’s detention. Unsurprisingly, when negotiations failed to yield an agreement, Petitioner’s focus changed, such that today Petitioner’s challenge to his continued detention depends in large part on his efforts to undermine the credibility or reliability of his many alleged inculpatory statements to interrogators. His pending discovery requests are part of those efforts.

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Alsawam v. Obama, 864 F. Supp. 2d 1, 2012 U.S. Dist. LEXIS 78242, 2012 WL 2036036 (D.D.C. 2012).

864 F. Supp. 2d 1 (Alsawam v. Obama) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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