Muhammad Husayn v. Gates

• Court: District Court, District of Columbia
• Decided: March 29, 2011
• Docket: Civil Action No. 2008-1360
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_____________________________ ) ZAYN HUSAYN, ) ) Petitioner, ) ) v. ) Civil Action No. 08-1360 (RWR) ) ROBERT GATES, ) ) Respondent. ) )

MEMORANDUM ORDER

Guantánamo Bay detainee Zayn Husayn, also known as Abu

Zubaydah, has petitioned for habeas corpus relief. Petitioner

has moved for an order requiring the respondent to remove

unauthorized redactions from petitioner’s pleadings and court

filings, and requiring the respondent to expedite the

classification review process for documents Zubaydah has

submitted to the Department of Justice Court Security Office for

filing with the court. Specifically, Zubaydah objects to

redactions regarding his description of the interrogation

techniques inflicted upon him while he was in CIA custody,

redactions of Zubaydah’s personal knowledge of his experience

within the CIA “Torture and Rendition Program,” and redactions of

statements made by Zubaydah’s counsel based upon information that

is found within the public domain. (Petr.’s Mem. in Supp. of

Mot. for Relief from Improper Classification at 1.) Zubaydah -2-

alleges that he cannot adequately respond to the respondent’s

factual return without declassifying that information because the

classification hinders his ability to investigate facts and

circumstances leading to Zubaydah’s abduction, imprisonment, and

torture. (Id. at 6.) Zubaydah, noting that he has not yet

received notification of the completion of the classification

review of his amended petition for a writ of Habeas Corpus, asks

additionally for an order directing the government to promptly

complete the classification review for outstanding documents.

(Id. at 27.)

While Zubaydah’s request to order the respondent to expedite

the classification review process is well taken, Zubaydah has not

alleged that his counsel has not been granted access to

classified material, and Zubaydah does not identify any provision

of the case management order that allows for petitioners to

bring, essentially, a FOIA challenge in the midst of a habeas

petition. Section I.F. of the Amended Case Management Order

provides that the government must provide petitioner’s counsel,

not the public at large, with classified information unless the

government moves for an exception to disclosure.

In addition, this motion may have become moot in part by

subsequent disclosure of information that provides Zubaydah’s

counsel with a sufficient basis to challenge Zubaydah’s

detention. Shortly after Zubaydah filed his motion, the -3-

respondent filed a public version of the factual return. Even

more, the parties have not briefed or discussed whether the

respondent could provide the petitioner with adequate substitute

information, using a procedure analogous to the “adequate

substitute” provisions of the Classified Information Procedures

Act (“CIPA”), 18 U.S.C. app. III, whereby the respondent could

fashion and provide to Zubaydah a document containing an adequate

substitute for the information Zubaydah’s counsel seeks to use to

investigate his claim. See Mohamed v. Gates, 624 F. Supp. 2d 40,

44 (D.D.C. 2009) (requiring the parties to confer and file a

joint status report about the propriety of using the adequate

substitute process to resolve a dispute about classified

information); Khaled A.F. Al Odah v. United States, 559 F.3d 539,

547 (D.C. Cir. 2009) (stating that procedures under the CIPA

“should also be available in habeas” proceedings). Accordingly,

it is hereby

ORDERED that the petitioner’s motion [192] for relief from

improper classification be, and hereby is, GRANTED in part and

DENIED without prejudice in part. The respondent shall file by

April 8, 2011 a memorandum revealing when the classification

review process for petitioner’s amended petition for a writ of

Habeas Corpus and any additional documents the petitioner has

submitted for classification review will be complete. The

remainder of the petitioner’s motion is denied without prejudice. -4-

SIGNED this 29th day of March, 2011.

/s/ RICHARD W. ROBERTS United States District Judge