Muhammad Husayn v. Gates

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ZAYN AL ABIDIN MUHAMMAD HUSAYN (ISN #10016),

Petitioner, v. Civil Action No. 08-1360 (EGS) LLOYD AUSTIN, et al.,

Respondents.

ORDER

Pending before the Court is Petitioner’s Motion to Order

the Director of National Intelligence to Search for the Tapes

and Drawings Depicting Petitioner’s Torture, to Report the

Results of that Search Under Oath, and to Deliver Any Responsive

Material to Court Security (“Pet’r’s Mot.”), see generally ECF

No. 512; which Respondents oppose, see generally Resp’ts’ Opp’n,

ECF No. 534. Upon careful consideration of Petitioner’s motion,

Respondents’ opposition, the reply thereto, and for the reasons

explained below, the Court FINDS AS MOOT Petitioner’s motion.

Petitioner’s counsel state that they were informed that the

videotapes of Petitioner’s interrogation have not been destroyed

and Petitioner’s drawings have not been lost. See Pet’r’s Mot.,

ECF No. 512 at 3. In response to the Motion, Respondents

conducted searches for the tapes and “no evidence of them or

their continued existence was found.” Resp’ts’ Opp’n, ECF No. 534 at 4. Respondents also state that the drawings have not been

lost, but rather have already been produced to Petitioner. Id.

at 5.

In view of the searches that were conducted, Petitioner, in

his Reply briefing, acknowledges that “[t]he only question that

remains for the Court is whether the search undertaken and

declarations submitted by Respondent are sufficient to moot this

Motion” and “suggests” that they are insufficient for two

reasons. Reply, ECF No. 535 at 1.

First, Petitioner argues that “Respondent has conducted a

search and has reported that the search did not yield any tapes

of Petitioner’s interrogation. But that is not what Petitioner

sought. That is, we do not know the results of the search . . .

Respondent should report what the search did uncover, rather

than what it did not, and let the interpretation of that answer

be resolved by the adversarial process.” Reply, ECF No. 2. The

Court rejects this request. Petitioner asked the Court to order

a search for the videotapes. Respondents conducted searches,

found no videotapes, and provided appropriate declarations

describing the searches. Petitioner is not entitled to more.

Second, Petitioner requests that the personnel who actually

conducted the searches submit affidavits. See Reply, ECF No. 535

at 2-3. The Court rejects this request.

2 Attached to Respondents’ opposition briefing are two

declarations. The first concerns the searches conducted of the

Central Intelligence Agency’s (“CIA”) Rendition, Detention &

Interrogation network (“RDINet”) which contains all information

and materials produced and preserved concerning the CIA’s

Rendition, Detention and Interrogation (“RDI”) Program. Resp’ts’

Opp’n, ECF No. 534 at 5. The declaration describes preservation

directives and orders issued by CIA Directors in 2007, 2008 and

2009, CIA Decl., ECF No. 534 at 37-38 ¶¶ 5-6; and explains that

the information and materials were collected and stored in the

RDINet. Id. at 39 ¶ 7. Respondent states that the search of the

RDINet did not result in any videos of Petitioner. Resp’ts’

Opp’n, ECF No. 534 at 8.

Second is the Declaration of Patricia Gaviria, Director,

Information Management Division, Office of the Director of

National Intelligence, which describes the searches conducted of

materials archived with that office. See generally Gaviria

Decl., ECF No. 534 at 44-50. Ms. Gaviria first describes the

search request issued in December 2007 for any records regarding

the destruction of the videotapes. Id. at 49 ¶ 11. She then

describes the search directive issued in June 2009 “requiring

all staff employees, detailees and contractors to locate,

preserve and maintain all records, information and other

materials relating to the detention and interrogation program

3 conducted by the CIA.” Id. With regard to these two searches,

Ms. Gaviria attested “I understand, based on information that

has been provided to me, that no videos depicting Petitioner’s

time in CIA custody or depicting the treatment of any detainee,

were located in response to these requests.” Id.

Next, Ms. Gaviria attests to the following with regard to

the searches conducted in response to the instant motion: “in

May 2018, [Information Management Division] personnel, in

consultation with the Office of General Counsel, completed an

electronic search of its archived database index with the

queries repeated within several iterations, each time refining

the search terms in order to produce the most responsive search

results. [This] search did not result in any responsive records,

including videos of Petitioner’s treatment while in CIA custody

or records indicating that copies of such videos exist.” Id. at

49 ¶ 12.

Petitioner has provided no legal authority that would

compel the Court to depart from the well-established practice of

accepting declarations from the appropriate official with close

knowledge of the information and relevant records systems, and

of the searches that were conducted, as were provided here.

For the reasons stated above, it is hereby

ORDERED that Petitioner’s Motion to Order the Director of

National Intelligence to Search for the Tapes and Drawings

4 Depicting Petitioner’s Torture, to Report the Results of that

Search Under Oath, and to Deliver Any Responsive Material to

Court Security, ECF No. 512 is FOUND AS MOOT.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge May 31, 2023