Razak v. Bush

Opinion

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FILED WITH THE

- COURT SECURITY OFfiCER esO: dJZ~:tt(,~" DATE: : ~ 7Z,/(~;! ,/

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

HAMID AL RAZAK, et al.,

Petitioners,

v. Civil Action No. 05-1601 (GK)

BARACK H. OBAMA, et al.,

Respondents.

ORDER

A Motions Hearing was held in this case on July 21, 2009,

which took place in a sealed courtroom due to the discussion of

classified information. Upon consideration of Petitioner Razak's

Motion to Compel Compliance With the Court's Case Management Order

[Dkt. No. 206], the Opposition, Reply, representations of the

parties, and the entire record herein, it is hereby granted in part

and denied in part.

As to Section IV of Petitioner's Motion, it is hereby

ORDERED, that Request No. 1 is granted in part. The

Government is required to search for the names of the anonymous

sources,l and then search for exculpatory evidence related to those

names, including credibility assessments pertaining to the

Said names are not required to be produced to Petitioner.

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.­ statements they gave upon which the Government relies; and it is

further

ORDERED, that Request No.2 is denied without prejudice. The

document request must be viewed in the context of the Government's

certification that it has complied with its obligations under §

I.D.1 of the Court's Case Management Order ("eMO"). Given this

fact, the request sweeps too broadly, creates a substantial burden

on the Government, and is based on a premise of pure speculation.

This request is properly brought, if at all, under § I.E.2 of the

CMO; and it is further

ORDERED, that Request No. 3 is denied without prejudice; and

it is further

ORDERED, that Request No. 4 is denied without prejudice. The

timeline requested, if it exists, does not tend to materially

undermine allegations brought by the Government. This request is

properly brought, if at all, under § I.E.2 of the CMO; and it is

ORDERED, that Request No. 5 is denied without prejudice. The

requested information does not fall within the confines of § I. D.1;

and it is further

ORDERED, that Request No.6 is granted, pursuant to § I.D.l of

the CMO. See Order at 3-4, Abdah v. Obama, Civ No. 04-1254 (HHK)

(D.D.C. Apr. 8, 2009) [Dkt. No. 477]; and it is further

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ORDERED, that Request No.7 is denied without prejudice.

request is properly brought, if at all, under § I.E.2 of the CMO; This

ORDE.RED, that Request No. 8 is denied. The requested

information does not tend to materially undermine allegations

brought by the Government, and therefore does not fall within the

confines of § I.D.I; and it is further

ORDERED, that Request No. 9 is granted, pursuant to the

Court's Order with respect to Request No.1; and it is further

ORDERED, that Request No. 10 is granted in part. The

Government shall first determine whether any such "action reports"

were created regarding Petitioner's arrest. If they were, the

Government shall then conduct a search of such reports for

exculpatory evidence, pursuant to § I.D.1 of the CMO.

As to Section V of Petitioner's Motion, it is hereby

ORDERED, that Request Nos. 1-52 are granted. These requests

all deal with the issue of what information the Government actually

"relies" on to justify Petitioner's detention. The Petitioner

maintains that particular underlying documents referenced in

already-produced intelligence reports are the foundation of certain

2 Petitioner erroneously double-designated Request No.4. The request pertaining to "records of interrogations where Petitioner allegedly provided inconsistent information" is properly designated as No . 5. The Court will re-number this and subsequent requests appropriately.

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claims against the Petitioner. The Government argues that those

underlying documents are not the "documents or objects," under §

I.E.l(l), that it relies on to justify detention; rather, it

argues, the already-produced intelligence reports are being relied

on, and any internal references to other documents are not

automatically discoverable.

The CfJlO requires the Government to produce, if requested, "any

documents or objects in its possession that the Government relies

on to justify detention." CMO at § 1.8.1(1). These five requests

involve scenarios where the Government has produced an intelligence

report that references the substance of another particular document

or object (e.g. an intelligence report that references a photograph

identified by the Petitioner) in order to justify its detention of

the Petitioner. In these scenarios, therefore, the Government does

indeed rely on the substance of the underlying documents and

objects. It is not enough that the Government produce intelligence

reports that merely describe or reference the underlying items; it

must produce the particUlar documents relied on in those

intelligence reports; and it is further

ORDERED, that Request No.6 is granted, pursuant to § I.8.1(2)

of the CMO. See Order, Zaid v. Bush, 596 F. Supp. 2d 11 (D.D.C.

2009) (JDB); and it is further

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ORDERED, that Request No. 7 is denied. In light of the

Government's representation that the referenced intelligence report

does not contain any statement by Petitioner upon which the

Government relies to justify his detention, the request does not

fall within the confines of § 1.8.1(1) of the CMO; and it is

ORDERED, that Request No. 8 is denied. The requested

information does not fall within the confines of § I. E.1 of the

ORDERED, that Request No. 9 is denied. The requested

information does not fall within the confines of § I.E.l(2) of the

CMO.

As to Section VI of Petitioner's Motion, it is hereby

ORDERED, that Petitioner's request that the Court review

redacted documents in camera and ex parte is denied. The

Government has certified that none of the documents in question

support "a determination that Petitioner is not an enemy

combatant." Gov. Opp'n to Pet's. Mot. to Compel at 38. Moreover,

the Government also represents that it does not rely upon any

information redacted from those documents. Consequently, the

information does not fall within the confines of § I.E.1(1) of the

CMO. In addition, Al Odah v. United States, 559 F.3d 539 (D.C.

Cir. 2009) / upon which Petitioner relies, addressed a very

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different factual and

distinguishable from this case. -

legal scenario, and is therefore

July bi'A' 2009 Kessle~ States District Judge

Copies to: Attorneys of Record via ECF

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