UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
____________________________________ ) SAIFULLAH PARACHA, ) ) Petitioner, ) ) v. ) Civil Action No. 04-2022 (PLF) ) DONALD J. TRUMP, et al., ) ) Respondents. ) ____________________________________)
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the motion [Dkt. No. 485] of petitioner
Saifullah Paracha to compel the United States to: (1) file a motion for exception from disclosure
under Section I.F of the Amended Case Management Order within seven days; and (2) provide
certain other discovery, or explain why the requested discovery is not required to be produced
under the Amended Case Management Order, within thirty days. The United States opposes
both requests. See Opposition at 1 [Dkt. No. 487]. Upon careful consideration of the parties’
papers, the relevant legal authorities, and the entire record in this case, the Court will grant Mr.
Paracha’s motion in part and deny it in part without prejudice.
On November 15, 2017, Mr. Paracha’s counsel requested unredacted versions of
21 documents which were previously disclosed in redacted form. See Opposition at 1-2. On
January 30, 2018, the United States responded that it could not provide unredacted versions of
those 21 documents because the redacted information is either: (1) irrelevant; (2) inculpatory
material upon which the United States does not intend to rely; or (3) “arguably exculpatory
material” that cannot be disclosed to Mr. Paracha’s counsel for reasons of national security. See id. at 2. As to this third category of arguably exculpatory material, the United States intends to
file an ex parte motion for exception from disclosure under Section I.F of the Amended Case
Management Order. See id. In the motion now before the Court, Mr. Paracha seeks an order
compelling the United States to file such a motion within seven days.
Section I.F of the Amended Case Management Order provides as follows:
Classified Information. If any information to be disclosed under Sections I.D or I.E of this Order is classified, the government shall, unless granted an exception by the Merits Judge, provide the petitioner’s counsel with the classified information, provided the petitioner’s counsel is cleared to access such information. If the government objects to providing petitioner’s counsel with the classified information, the government shall move for an exception to disclosure.
December 16, 2008 Amended Case Management Order at Section I.F [Dkt. No. 219]. Section
I.D.1 of the Amended Case Management Order, referenced in Section I.F, was amended by this
Court on July 16, 2009. As amended by this Court, Section I.D.1 provides, inter alia, that the
government shall disclose to the petitioner “all reasonably available evidence in the
government’s possession that tends materially to undermine the evidence that the government
intends to rely on in its case-in-chief or to otherwise support its justification for detaining the
petitioner . . . .” July 16, 2009 Amended Case Management Order at 3 [Dkt. No. 308]. Section
I.D.2 provides that “[i]f evidence described in [Section I.D.1] becomes known to the government
after the date [specified in Section I.D.1] on which the government was to disclose exculpatory
evidence in a petitioner’s case, the government shall provide the evidence to the petitioner as
soon as practicable.” November 6, 2008 Amended Case Management Order at Section I.D.2
[Dkt. No. 204].
Mr. Paracha’s counsel asserts that the “arguably exculpatory material” identified
by the United States is essential to preparing Mr. Paracha’s supplemental traverse, which is due
2 on July 31, 2018. See Opposition at 5-6. While the United States agrees that it must file a
Section I.F motion under these circumstances, it contends that it should not be required to do so
within seven days. See id. at 2-6. The United States suggests that filing a single, comprehensive
Section I.F motion after discovery closes would be more efficient, as it would limit the total
number of Section I.F motions filed and allow the Court to consider the full range of redacted
information in light of prior disclosures in the case. See id. at 1-3. The United States further
contends that preparing a Section I.F motion will take more than seven days, as the United States
must compile the redactions of the arguably exculpatory material, work with the relevant client
agencies to prepare declarations explaining the basis for the redactions, and prepare an ex parte
motion explaining why the redactions do not prevent Mr. Paracha from receiving meaningful
habeas review under Al Odah v. United States, 559 F.3d 539 (D.C. Cir. 2009).
Section I.F of the Amended Case Management Order provides that Mr. Paracha’s
counsel is entitled to the disclosure of exculpatory evidence unless the Court grants an exception
to disclosure. Section I.F does not specify a date by which the United States must move for an
exception from disclosure. Section I.D.2, however, makes clear that the United States must
provide exculpatory evidence “as soon as practicable” after it becomes known to the United
States. 1 While the Court recognizes that preparing a Section I.F motion may require significant
resources and agency coordination, those factors do not outweigh the fact that, absent an
exception from disclosure, Mr. Paracha’s counsel is entitled to review exculpatory evidence “as
soon as practicable” in order to prepare Mr. Paracha’s defense. And Mr. Paracha’s counsel
argues that he needs this material in order to prepare Mr. Paracha’s supplemental traverse, which
1 The Court assumes without deciding that the documents in question contain arguably exculpatory material based on the representations of the United States to that effect. See Opposition at 1.
3 is due on July 31, 2018. Accordingly, the Court will grant Mr. Paracha’s motion in part. On or
before June 29, 2018, the United States shall either produce unredacted versions of the 21
documents requested by Mr. Paracha’s counsel disclosing any arguably exculpatory material, or
move for an exception from disclosure under Section I.F of the Amended Case Management
Order.
Separately, Mr. Paracha moves to compel the United States to provide certain
other discovery, or explain why the requested discovery is not required to be produced under the
Amended Case Management Order, within thirty days. See Opposition at 7. The requested
discovery refers to approximately ten items or categories of information that Mr. Paracha’s
counsel requested in his letters of November 15, 2017 and March 20, 2018. See id. The United
States asserts that it is in the process of determining whether the requested discovery may be
located, and if so, whether it can be provided to Mr. Paracha’s counsel in either redacted or
unredacted form. See id. The United States represents that it “expect[s] to have completed [its]
searches for the requested information . . . and hope[s] to have provided, if possible, any
resulting documents that [it agrees] are required to be produced to Petitioner’s counsel and that
can be cleared for production by the classification authorities prior to the new traverse deadline
of July 31, 2018.” Id. at 8.
Based on government counsel’s representation that it hopes to provide the
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
____________________________________ ) SAIFULLAH PARACHA, ) ) Petitioner, ) ) v. ) Civil Action No. 04-2022 (PLF) ) DONALD J. TRUMP, et al., ) ) Respondents. ) ____________________________________)
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the motion [Dkt. No. 485] of petitioner
Saifullah Paracha to compel the United States to: (1) file a motion for exception from disclosure
under Section I.F of the Amended Case Management Order within seven days; and (2) provide
certain other discovery, or explain why the requested discovery is not required to be produced
under the Amended Case Management Order, within thirty days. The United States opposes
both requests. See Opposition at 1 [Dkt. No. 487]. Upon careful consideration of the parties’
papers, the relevant legal authorities, and the entire record in this case, the Court will grant Mr.
Paracha’s motion in part and deny it in part without prejudice.
On November 15, 2017, Mr. Paracha’s counsel requested unredacted versions of
21 documents which were previously disclosed in redacted form. See Opposition at 1-2. On
January 30, 2018, the United States responded that it could not provide unredacted versions of
those 21 documents because the redacted information is either: (1) irrelevant; (2) inculpatory
material upon which the United States does not intend to rely; or (3) “arguably exculpatory
material” that cannot be disclosed to Mr. Paracha’s counsel for reasons of national security. See id. at 2. As to this third category of arguably exculpatory material, the United States intends to
file an ex parte motion for exception from disclosure under Section I.F of the Amended Case
Management Order. See id. In the motion now before the Court, Mr. Paracha seeks an order
compelling the United States to file such a motion within seven days.
Section I.F of the Amended Case Management Order provides as follows:
Classified Information. If any information to be disclosed under Sections I.D or I.E of this Order is classified, the government shall, unless granted an exception by the Merits Judge, provide the petitioner’s counsel with the classified information, provided the petitioner’s counsel is cleared to access such information. If the government objects to providing petitioner’s counsel with the classified information, the government shall move for an exception to disclosure.
December 16, 2008 Amended Case Management Order at Section I.F [Dkt. No. 219]. Section
I.D.1 of the Amended Case Management Order, referenced in Section I.F, was amended by this
Court on July 16, 2009. As amended by this Court, Section I.D.1 provides, inter alia, that the
government shall disclose to the petitioner “all reasonably available evidence in the
government’s possession that tends materially to undermine the evidence that the government
intends to rely on in its case-in-chief or to otherwise support its justification for detaining the
petitioner . . . .” July 16, 2009 Amended Case Management Order at 3 [Dkt. No. 308]. Section
I.D.2 provides that “[i]f evidence described in [Section I.D.1] becomes known to the government
after the date [specified in Section I.D.1] on which the government was to disclose exculpatory
evidence in a petitioner’s case, the government shall provide the evidence to the petitioner as
soon as practicable.” November 6, 2008 Amended Case Management Order at Section I.D.2
[Dkt. No. 204].
Mr. Paracha’s counsel asserts that the “arguably exculpatory material” identified
by the United States is essential to preparing Mr. Paracha’s supplemental traverse, which is due
2 on July 31, 2018. See Opposition at 5-6. While the United States agrees that it must file a
Section I.F motion under these circumstances, it contends that it should not be required to do so
within seven days. See id. at 2-6. The United States suggests that filing a single, comprehensive
Section I.F motion after discovery closes would be more efficient, as it would limit the total
number of Section I.F motions filed and allow the Court to consider the full range of redacted
information in light of prior disclosures in the case. See id. at 1-3. The United States further
contends that preparing a Section I.F motion will take more than seven days, as the United States
must compile the redactions of the arguably exculpatory material, work with the relevant client
agencies to prepare declarations explaining the basis for the redactions, and prepare an ex parte
motion explaining why the redactions do not prevent Mr. Paracha from receiving meaningful
habeas review under Al Odah v. United States, 559 F.3d 539 (D.C. Cir. 2009).
Section I.F of the Amended Case Management Order provides that Mr. Paracha’s
counsel is entitled to the disclosure of exculpatory evidence unless the Court grants an exception
to disclosure. Section I.F does not specify a date by which the United States must move for an
exception from disclosure. Section I.D.2, however, makes clear that the United States must
provide exculpatory evidence “as soon as practicable” after it becomes known to the United
States. 1 While the Court recognizes that preparing a Section I.F motion may require significant
resources and agency coordination, those factors do not outweigh the fact that, absent an
exception from disclosure, Mr. Paracha’s counsel is entitled to review exculpatory evidence “as
soon as practicable” in order to prepare Mr. Paracha’s defense. And Mr. Paracha’s counsel
argues that he needs this material in order to prepare Mr. Paracha’s supplemental traverse, which
1 The Court assumes without deciding that the documents in question contain arguably exculpatory material based on the representations of the United States to that effect. See Opposition at 1.
3 is due on July 31, 2018. Accordingly, the Court will grant Mr. Paracha’s motion in part. On or
before June 29, 2018, the United States shall either produce unredacted versions of the 21
documents requested by Mr. Paracha’s counsel disclosing any arguably exculpatory material, or
move for an exception from disclosure under Section I.F of the Amended Case Management
Order.
Separately, Mr. Paracha moves to compel the United States to provide certain
other discovery, or explain why the requested discovery is not required to be produced under the
Amended Case Management Order, within thirty days. See Opposition at 7. The requested
discovery refers to approximately ten items or categories of information that Mr. Paracha’s
counsel requested in his letters of November 15, 2017 and March 20, 2018. See id. The United
States asserts that it is in the process of determining whether the requested discovery may be
located, and if so, whether it can be provided to Mr. Paracha’s counsel in either redacted or
unredacted form. See id. The United States represents that it “expect[s] to have completed [its]
searches for the requested information . . . and hope[s] to have provided, if possible, any
resulting documents that [it agrees] are required to be produced to Petitioner’s counsel and that
can be cleared for production by the classification authorities prior to the new traverse deadline
of July 31, 2018.” Id. at 8.
Based on government counsel’s representation that it hopes to provide the
requested documents that have been cleared for production before July 31, 2018, the Court will
deny Mr. Paracha’s request for discovery without prejudice. On or before June 29, 2018, the
parties shall file a joint status report addressing: (1) whether the requested discovery has been
located; (2) if so, whether it can be provided to Mr. Paracha’s counsel in either redacted or
4 unredacted form; and (3) whether an extension of the July 31, 2018 due date for the
supplemental traverse is necessary. Accordingly, it is hereby
ORDERED that Mr. Paracha’s motion to compel [Dkt. No. 485] is GRANTED
IN PART and DENIED IN PART without prejudice; more specifically it is
FURTHER ORDERED that Mr. Paracha’s motion to compel the United States to
file a motion for exception from disclosure under Section I.F of the Amended Case Management
Order is GRANTED IN PART. On or before June 29, 2018, the United States shall either
produce unredacted versions of the 21 documents requested by Mr. Paracha’s counsel disclosing
any arguably exculpatory material, or move for an exception from disclosure under Section I.F of
the Amended Case Management Order; and it is
FURTHER ORDERED that Mr. Paracha’s motion to compel the United States to
provide certain other discovery, or explain why the requested discovery is not required to be
produced under the Amended Case Management Order, is DENIED without prejudice. On or
before June 29, 2018, the parties shall file a joint status report addressing: (1) whether the
requested discovery has been located; (2) if so, whether it can be provided to Mr. Paracha’s
counsel in either redacted or unredacted form; and (3) whether an extension of the July 31, 2018
due date for the supplemental traverse is necessary.
SO ORDERED.
_______/s/_________________ PAUL L. FRIEDMAN United States District Judge DATE: May 24, 2018