In Re: Guantanamo Bay Detainee Litigation

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE: Misc. No. 08-mc-0442 (TFH)

GUANTANAMO BAY DETAINEE Civil Action No. 05-cv-1244 (CKK) LITIGATION

ORDER

On January 15, 2009, this Court interpreted its September 11, 2008, Protective Order

and Procedures for Counsel Access to Detainees at the United States Naval Base in

Guantanamo Bay, Cuba (“Guantanamo Bay”) (Docket No. 57, 05-cv-1244; Docket No. 409,

08-mc-0442) to permit counsel for a petitioner to review with the petitioner statements in the

exhibits to the Classified Factual Return for that petitioner (“classified statements”), if the

Privilege Review Team determines the statements were made by that petitioner to agents of the

United States government. See Docket No. 109, 05-cv-1244; Docket No. 1521, 08-mc-0442.

Petitioner’s counsel were only permitted to review with the petitioner the text of petitioner’s

statements, the petitioner’s name, and the dates the statements were made. In light of this

interpretation, the Court granted Petitioner Tariq Alsawam’s (ISN 535) motion to allow his

counsel to review a document (Ex Parte Exhibit 1) with petitioner that contained classified

statements made by petitioner to agents of the United States government.

Pending before the Court is Respondents’ Motion to Vacate January 15, 2009, Order and

Emergency Request for Stay of Order (“Motion to Vacate”) (Docket No. 120, 05-cv-1244;

Docket No. 1563, 08-mc-0442), which was filed on the evening of January 29, 2009.

Respondents ask the Court to vacate its January 15, 2009, Order since the government has completed its declassification review of Petitioner Alsawam’s classified statements.

Respondents contend that “[t]he declassified documents contain no significant redactions of

Petitioner’s statements.” Motion to Vacate 4. Therefore, according to Respondents, the Court’s

January 15, 2009, Order is moot, as Petitioner’s counsel can now review the declassified version

of Petitioner’s statements with Petitioner. Id. at 5. Alternatively, Respondents recommend that

the Privilege Review Team review Ex Parte Exhibit 1 against the declassified material and redact

any information that remains properly classified. Id. For the foregoing reasons, Respondents’

Motion to Vacate is DENIED.

In its Motions to Vacate, Respondents’ raise both national security and separation and

powers concerns. The Court recognizes the potential national security issues with disclosing

classified information to a detainees and, therefore, will clarify its January 15, 2009, Order

(Docket No. 109, 05-cv-1244; Docket No. 1521, 08-mc-0442).

If the government completes a declassification review of a petitioner’s classified

statements made to agents of the United States government before petitioner’s counsel is

scheduled to review such statements with petitioner, any document created by petitioner’s

counsel containing petitioner’s classified statements must be screened by the Privilege Review

Team. The Privilege Review Team will compare counsel’s document with the declassified

material. If the Privilege Review Team determines that a statement in counsel’s document

should be redacted because it is not declassified, counsel must present that statement before the

appropriate Merit Judge for a particularized determination if it should be released for review

with petitioner.

Documents created by petitioner’s counsel that contain petitioner’s classified statements

2 made to agents of the United States government are only subject to this declassification

screening if (i) the government has completed its declassification review of petitioner’s

classified statements made to agents of the United States government and (ii) there is sufficient

time for the appropriate Merit Judge to adjudicate on whether petitioner can review his

classified statements.

In light of Respondents’ admission that “no significant redactions of Petitioner’s

statements” were made in declassifying Petitioner’s statements, as well as the time constraints

presented by Respondent’s request to condition Petitioner’s counsel use of Ex Parte Exhibit 1

four days before she is scheduled to visit Petitioner at the United States Naval Base in

Guantanamo Bay, Cuba, the Court

ORDERS that Respondents’ Motion to Vacate January 15, 2009, Order and Emergency

Request for Stay of Order is DENIED. Petitioner’s counsel is permitted to review Ex Parte

Exhibit 1 with Petitioner, provided the Privilege Review Team has screened the document

pursuant to the Court’s January 15, 2009, Order.

January 30, 2009 /s/ Thomas F. Hogan United States District Judge