Sadkhan v. Bush

Opinion

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

) JAWAD KARBAR SADKHAN, ) ) Petitioner, ) ) v. ) Civil Action No. 05·1487 (RMC) ) BARACK H. OBAMA, et al., ) ) Respondents ) ------------) MEMORANDUM OPINION

Jawad Kabbar SadkhanAl-Sahlani, a detainee ~t Guantanamo Bay, seeks additional

discovery from the United States beyond what is required by the Case Management Order, as

amended, issued by Judge Thomas F. Hogan (the "CMO"). Counsel state that Mr. Sadkhan is a

Shi'ite Iraqi who has been detained for over seven years because other detainees told interrogators

that he served as a Tal1ban leader in Northern Afghanistan. Mr. Sadkhan himself has repeatedly

denied the allegations against him on all but one occasion. His discovery requests will be addressed

in tum.

I. LEGAL STANDARDS

Discovery requests in these Guantanamo Bay Detainee Litigation proceedings are

governed principally by Sections LD.l, I.E.l and LE.2 of the CMO. Section I.D.l of the CMO

states:

The government shall disclose to the petitioner all reasonably available evidence in its possession that tends materially to undermine the information presented to support the government's justification for detaining the petitioner. ... In this context, the term "reasonably available evidence" means evidence contained in any information UNCLASSIFIEDIIFOR PUBLIC RELEASE

reviewed by attorneys preparulg factual returns for all detaulees; it is not limited to evidence discovered by the attorneys preparing the factual return for the petitioner. The term also includes any other evidence the government discovers while litigating habeas corpus petitions fJ.led by detainees at Guantanamo Bay.... [D]isclosure [of such exculpatory evidence] shall occur within 14 days of the date on which the government files the factual return. By the date on which disclosure is to occur under this paragraph, the govenunent shall fJ.le a notice certifying either that it has disclosed the exculpatory evidence or t4at it does not possess any exculpatory evidence.]

Section I.E. 1 states:

If requested by the petitioner, the goveinment shall disclose to the petitioner (1) any documents and objects in the government's possession that the government relies on to justify detention; (2) all statements, in whatever form, made or adopted by the petitioner that the government relies on to justify detention; and (3) information about the circumstances in which such statements of the petitioner were made or adopted.... [R]equested disclosure shall occur within 14 days of the date on which the government fIles the factual return or within 14 days of the date on which the petitioner requests disclosure, whichever is later.

Section I.E.2 states:

The Merits Judge may, for good cause shown, permit the petitioner to obtain limited discovery beyond that described in [Section I.E.I]. . . . Discovery requests shall be presented by written motion to the Merits ~udge and (1) be narrowly tailored, not open-ended; (2) specify the discovery sought; (3) explain why the request, if granted, is likely to produce evidence that demonstrates that the petitioner's detention is unlawful ... ; and (4) explain why the requested, discovery will enable the petitioner to rebut the factual basis for his detention without unfairly disrupting or unduly burdening the government. ... The Merits Judge will set the date by which all discovery must be completed.

IThe Government filed a motion for extension of tUne, from December 30, 2008 to January .30, 2008 to produ'ce exculpatory evidence and to file its certification of compliance with Section I.D.I. To date, the Government has not yet filed a certifIcation regarding exculpatory evidence.

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III. ANALYSIS

Mr. Sndkhan' s counsel argue that the Government has nol completed the mandatory

production of exculpatory evidence required under Section I.D.I or the production of evidence they

requested under Section I.E. 1. Mr. Sadldlan, through counsel, therefore moves the Court to compel

the Govermllent to comply with Sections l.D.l and I.E. I of the CMO, or in the alternative, seeks

pennission to obtain this discovery pursuant to Section l.E.2. Counsel also seek production ofMr.

Sadkhan's Medical Records pursuant to Section I,E.2 of the CMO.

A. Discovery Requests pursuant to Section LD.! and/or LE.2 of the CMO

1.

The Goverrnnent has produced the questions, answers and test result but objects to

producing the technical examiner's report on the basis that "it is very difficult to understand how a

technical report will help Petitioner materially undermine the basis for his detention" and, thus, it is

irrelevant. Resp'ts' Opp'n at 9-10. The Court disagrees. The full report may well assist :Mr.

Sad1

Inasmuch as the Government has possession of the report - having produced a redacted form in

separate litigation under the Freedom of Information Act (''FOIA''), 5 U.S.c. § 552 - there is no

particular burden in producing it.

2. Any and all statements made by Mr. Sadkhan, including all interrogation memoranda, notes and reports.

Petitioner's counsel argue that they believe he has made hundreds of statements to

various interrogators at Guantanamo Bay over the years, that he has consistently denied the

allegations against him, and that these consistent statements "are exculpatory and demonstrate the

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unlawfulness ofhis detention." Pet'r's Mem. at 6. They add that the Government \I\'ill not be unduly

burdened, despite the fact that the '·"file is very lengthy,''' id., because it appears that someone

reviewed it as recently as January 2008. The Govenunent protests that the request for "any and all"

statements made by him. without qualification, is overly-broad, unduly burdensome for the

Govenmlent, and the kind of open-ended request that is specifically prohibited by the CMO. Resp' ts'

Opp'n at 10. The Govenunent also chides Petitioner's counsel for failing to "identify the particular

documents or statements for which discovery is necessary." Id.

The Court agrees that a request for "any and all" statements is overbroad and would

amount to a fishing expedition for exculpatory evidence. On the other hmd, Mr. Sadkhan has been

held for a lengthy period and apparently questioned on numerous occasions. It would be entirely

unreasonable to expect him to remember what he might have said during any particular mterview to

identify with the specificity the Government suggests. The request must be put into a more

reasonable perspective.

There is apparently a fUe on Mr.Sadkhan at Guantanamo Bay that contains records

of his statements. Copying md classifying them - if they amount to hundreds as counsel indicates

- would be unduly burdensome for the Government with little accomplished for Mr. Sadkhm,

especially since the record before the Court already makes it clear that he has consistently asserted

his innocence. But the Court is unclear as to who for the Government actually reviewed said large

fUe, determined what statements were of value to the Govemment md which contained exculpatory

information, and decided that the rest could remain in the fIle. The Court will order the Government

to provide these details (names of agents are not required but rank and agency will be necessary) so

that it can more properly determine whether additional production must be made.

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3. Full and complete documents. not excerpts, (d any and all documents produced by Respondents.

Petitioner's counsel seek full and complete documents, not merely excerpts, of any

and all documents produced by Respondents. Petitioner has set forth no arguments in support ofthis

request or even a list of the documents to which they refer. The Coun therefore will deny this

request.

4. All 2007 and 2008 Administrative Review Board (HARB") documents.

The Government has produced one paragraph from page nine of a ten-page November

2007 ARB report. The paragraph in question was the Recommendation of the ARB, indicating that

it credited Mr. Sadkhan and, for veiled reasons, did not credit other detainee testimony concerning.

the alleged role MI'. Sadkhan played overseas. Counsel for Mr. Sadkhan ask for a copy of the entire

report, asserting that "[i]n a federal forum, a party is not allowed to pick and choose portions of a

document that it deems worthy of disclosure." Pet'r's Mem. at 7. The Government responds that

"[i]t is dubious whether an officer's or an ARB 's opinion is relevant whatsoever." Resp'ts' Opp'n

at 12.

Given the conclusion of the 2007 ARB, and the reasons for it, as well as the nature

of the evidence contained in the Amended FactualRetum ("the Factual Return"), the Court fmds that

the entire ARB Report from the 2007 ARB must be produced. The nature of the factual evidence

relied upon by the ARB and its reasons for discrediting those who gave information against Mr.

Sadkhan will help to exculpate him. Because the document has been produced, in heavily redacted

form, in the FOIA litigation, its full production now should not be unduly burdensome. 2

2 In making this statement, the Court does not overlook the differences between review for FOIA production and review for production in this context. Every line of every classified document .

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Mr. Sadldlan has informed his lawyers that he had an ARB in late 2008 as well and

they ask for that report. The Govenmlent responds, "while Petitioner may have had some sort of

hearing in 2008, there is no indication that he had an ARB." Resp't's Opp'n at 12 n.4. This response

is lllsufficient. Either Ivir. Sadldla11 had a 2008 ARB or he did not. The only ones who Ca11 fInd that

out with certainty are Government counsel. The Court will direct the Government to acquire precise

information on this point.

Finally, Petitioner's counsel ask for "all documents considered by the ARB in reaching

its recommendations." Pet'r Mem. at 8. This request is over-broad and not nan'owly tailored as

required by Section I.E.2. 3 Counsel for Mr. Sadkhan suggest that there might be exculpatory

information ill the documentation, given' the 2007 .t\RB's conclusions, but that is much too

speculative to meet the standards of the CMO.

5. Any a11d all statements made by GuantQ1~amo detainees who have implicated Mr. Sadkhan that contain contradictory statements or indicate a lack of credibility, any polygraph examinations that have been administered to such detainees, and an)' and all other reports, ARBs and CSRTs4 that call into question the credibility or reliability of these men.

A discovery request that starts with "any and all"is almost certainly in trouble under

the CMO and this one is no exception. The Government has identified nine detainees who allegedly

provided information about Mr. Sadkhan's activities. TheFactual Return and subsequent productions

must be reviewed and a determination made concerning its classification level; this often requires review by multiple agencies; and each agency has only so many classifIcation experts who can perform this work. The point made is that the document is identified, so no search is required.

3 Disclosure of these documents considered by the ARB in reaching its recommendations is not mandated by Section I.D.l.

4 A CSRT is a Combatant Status Review Tribunal.

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of documents contain numerous recantations and credibility issues concerning these people.

Depending on how long anyone of them has been at Guantanamo. there may be hundreds of

interviews with each, to say nothing of the difficulty of identifying "any and all other rep011s, ARB s

and CSRTs" that questioned their reliability. Pet'r's Mem. at 9. The burden on the Goverrunent from

this request could be enormous. vVhen weighed against the possibility of finding additional

discrediting information about the nine detainees, most especially given what is already in the record

and provided by the Government, the enormous burden becomes staggering. Since, however, these

nine detainees formulate the basis for the Government's allegations, the Court will order counsel for

the United States in this case to inquire of all Government counsel doing work involving Guantanamo

detainees ifthey have any records that concem detainees with ISN numbers

and_and that indicate a lack of credibility in one or more of them (in addition to

what has been produced already).

6. Any and all records and documents which state, imply, s ~ manner indicate that IS~was alleged to be or was t h e _

Again, Mr. Sadkhan' s counsel have imported broad discovery-type language that does

not fit the circumstance or the CMO. The Government has presented the evidence on which it

intends to rely to support its allegations. It does not need to search for more evidence in support of

its case.

7. Any and all records pertaining to the circumstances of Mr. Sadkhan's capture, including information conceming bounties.

Counsel for Mr. Sadkhan do not really want - or need - any and all records pertaining

to the circumstances of Mr. Sadkhan's capture. What they want, and may find helpful, is whether

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Mr. Sadkhan was tumed over to the United States in return for a bounty. Sec Pet'r's Mel11. at ]4

(Mr. Sadldlan "asserts thar he was sold to the United States for a boumy.... Such information would

materially undermine Respondents' allegations ... and is clearly exculpatory."). The United States

must inform Mr. Sadkhan's counsel, by producing records or otherwise, of a single fact: Vi!aS

someone paid or otherwise compensated for turning over Mr. Sadldlan or not?

8. The recommendation of MG Geoffrey Miller that Mr. Sadkhan be released from Guantanamo and any and all materials reviewed or relied upon by ColonelMP Brittan P. MallowandMGGeoffreyMiller in recommending his release.

According to counsel:

Both Colonel MP Brittan P. Mallow, then the Commander of the United States Department of Defense Criminal Investigation Task Force, and MG Geoffrey Miller, then the Commander of JTF­ GITMO, reviewed [Mr. Sadldlan's] fIle and reconunended [his] release in 2003 or 2004. Respondents produced the recommendation of Colonel Mallow in the Amended Factual Return. The recommendation ofMG Miller, however, has not been produced and is simply referenced in one exhibit of the Amended Factual Return.

Pet'r's Mem. at 15. Petitioner's counsel request production of MG Miller's actual report

recommending the release of Mr. Sadkhan. Counsel for Mr. Sadkhan also seek copies of all materials

on which either officer relied in making his recommendation. !d. The Government objects, mostly

to the "any and all" language of the second half of the request.

The recommendation of MG Miller is just as relevant as the recommendation of

Colonel Mallow, which has been produced. The Government will be ordered to undertake a

reasonable search to locate MG Miller's reconunendation and produce it to counsel for J\.11'. Sadkhan.

The request for "any and all" of the underlying documentation is over-broad and will be denied.

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B. Discoverl Requests pursuant to Section I.E.1 and/or I.E.2 of the CMOs

1. Any and ail statements made 17.1' Petitioner. including in.terrogation memoranda; reports, and notes.

According to counsel, the references in the Factual Return to Mr. Sadkhan's

"consiSlent statements of innocence m1er the previous six (6) years prior to these interrogations [in

January and February 2008J show that Respondents' reliance on [Mr. Sadkhan' sJ isolated' admission'

is in fact based on all previous denials of the allegations." Pefr's Mem. at 17. The Court is unable

to make sense of this sentence and does not fmd that it supports the request for "any and all"

statements Mr. Sadkhan has made. The Government '11as stated to Petitioner's counsel that they

have produced all the statements they intend to rely on," and have produced interrogation memoranda

that state '''433 has claimed his innocence for over 6 years and says all allegations against him are

false'" and throughout '''his whole time at GTMO, he has never waivered [sicJ from his story of

innocence.'" Pefr's Mem. at 17 (internal citation omitted). M1'. Sadkhal1' s constancy is thus

admitted by the Government, Having scores of exhibits that demonstrate the truth of the admission

would serve no purpose and would unduly burden the Governmentand this habeas process.

2. All audio and video recordings of statements made by Mr. Sadkhan.

The Government objects, stating that counsel base this request on "rank speculation"

that Mr. Sadkhan's admission that he was a Taliban interrogator was sarcastic or taken out of

context. Resp'ts' Opp'n at 19. The Court will not order the Government to produce all recordings

that might exist of statements by Mr. Sadkhan but it must produce, if such exists, any audio or video

5 Petitioner's counsel also contend that all ofMr. Sadkhan' s statements are discoverable under Section LD.1 of the CMO as well. The Court's rulings in this section address arguments under Sections LD.1, I.E.! and I.E.2.

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recording of any statement by Mr. Sadkhan admitting that he \vas a Taliban interrogator.

3~ b~formation regarding the circumstances surrounding Mr. Sadkhan 'salleged statements.

Counsel for Mr. Sadkhan wanl to know who questioned Mr. Sadkhan; whether and

what type of coercive measures were used; whether and what type of incentives were used; whether

it was cold or hot, noisy or quiet, light or dark, and allY restraints au Mr. Sadkhau's movements; how

he was treated in the 30-day period before any interrogation and whether there was a series of

continuous intenogatiolls; and whether he made requests for food, water, sleep or anything else that

were denied. Pet'r's Mem. at 20-21.

This request is altogether too broad to be enforced. Counsel say the information

relates to the reliability of Mr. Sadkhan's own statements and that Respondents will not be unduly

burdened because the information is in their custody and conttol. However, counsel aclmowledge

that they already lmow that during the February 2008 questioning, during which time Mr. Sadkhan

allegedly admitted being a Taliban inten'ogator, the

. ' " Pet'r's Mem. at 20.

For the critical event, counsel already have the information they demand. _

The interrogation memorandum identifies who was involved in questioning

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Mr. Sadkhan and what incentives were used.

The reque~t amountE> to a fishing expedition that is entirely inconsistent with these

proceedings and the CMO. The Government need not respond.

C. DiscoverJ' Requests for Production ofMr. Sadkhan 's Medical Records pursuant to Section I.E.2

Other jurists handling Guantanamo cases have, on occasion, ordered the Govermnenl

to produce medical records for a detainee. Building on these, counsel here ask for copies of Mr.

Sadkhan's medical records, as "important to an evaluation ofhis mental state and [to Jprovide context

for any statements" he made to interrogators. Pet'r's Mem. at 22. It may be that Mr. Sadkhan has

had a medical condition that could conceivably affect how he answered questions. It may not be.

Counsel provide no basis to know, one way or the other. Without some sort of comlection, this

request is merely a fishing expedition to which the Govemment need not respond.

A memorializing order accompanies this Memorandum Opinion.

Date: April 1, 2009 /s/ ROSEMARY M. COLLYER United States District Judge

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