Zahir v. Bush

Opinion

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ABDUL ZAHIR,

Petitioner,

v. Civil Action No. 05-1623 (RWR)

GEORGE W. BUSH et al.,

Respondents.

MEMORANDUM ORDER

Petitioner Abdul Zahir, a detainee at Guantanamo Bay, has

moved under Section I.E.2 of the Case Management Order ("CMO")

for an order allowing him to propound to the respondents 84

numbered interrogatories, many containing multiple sub-parts, and

eight requests for production of documents. The respondents

oppose Zahir's requests, arguing that they are overbroad, that

they exceed the scope of discovery that was contemplated by

Section I.E.2 of the CMO, and that Zahir fails to make the

necessary showing that granting his requests would produce

evidence material to the lawfulness of Zahir's continued

detention. Because Zahir does not support several of his

requests by showing how the requested discovery will enable him

to rebut the factual basis for his detention, his motion for

leave to file those requests will be denied. However, because

the respondents do not show how answering several of Zahir's

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requests would be unfairly disruptive or burdensome to them,

Zahir's motion for leave to propound those requests will be

granted.

BACKGROUND

Zahir has been a detainee at the United States Naval Base in

Guantanamo Bay, Cuba ("Guantanamo") since b(1 ) The

respondents allege in their amended factual return that for

approximately three years before the Taliban fell from power in

December 2001, Zahir "worked closely as the translator and

trusted assistant of a senior al-Qaida commander in Afghanistan"

named Abdul Hadi aI-Iraqi ["al-Hadi"], who was purportedly al­

Qaida's "commander in northern Kabul," and that Zahir "assisted

in the management of al-Qaida guesthouses, procurement of

supplies and funding for al-Qaida's fighters, coordination of al­

Qaida and Taliban military activities, and the handling of money

for al-Qaida-sponsored activities." (See Amended Factual Return,

Ex. 1, Declaration of Rear Admiral David Thomas ("Thomas Decl.")

at ~~ 1, 3.) According to the amended factual return, IIIIIIII b( 1) that

provided al-Qaida affiliates with "safe venues to liase and to

rest between frontline deployments," served as "facilitation hubs

for training of fighters," and were reserved for "individuals

with specific, definable connections to al-Qaida," but were not

available to the general pUblic. (Id. at ~ 18.) b(1 )

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b(1 )

b(1 ) (Id. at , 19.) The

respondents also allege that after December 2001, Zahir "became

an active member of an anti-coalition cell that planned to use

violence against the armed forces of the United States and its

allies" in order to force them to leave Afghanistan, and that

Zahir supported this cell by "arranging funding from al-Qaida."

(Id. at , 1.) Zahir is further alleged to have been "involved

in" a grenade attack perpetrated against a vehicle carrying

foreigners in Zormat, Afghanistan; to have "associated" with

senior al-Qaida members including Usama bin Laden, Ayman al­

Zawahiri and Mohammed Atef; and to have had "repeated

interactions with Mullah Obaidullah, the Taliban Minister of

Defense, senior Taliban commanders, and other extremist

individuals and organizations." (Id. )

Zahir has asserted that he is not a member of al-Qaida, and

that he "did not know al-Hadi was a member of al-Qaida." (Thomas

Decl. at ~ 23.) As for the grenade attack in Zormat,

Afghanistan, the amended factual return states that Zahir

acknowledged that he was a passenger in the car driven by the

person who perpetrated the grenade attack. However, Zahir

claimed that he and another passenger attempted to convince the

perpetrator not to go through with the attack. (Id. at ,~ 52­

56. )

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Zahir's counsel has sent the respondents a set of 84

interrogatories and eight requests for production of documents.

SUbsequently, the respondents informed Zahir's counsel by letter

that they had "produced the majority of documents responsive to

this request" and that "much of the information responsive to

[Zahir's] request was produced in attachments to the Government's

[amended] factual return." (See Pet'r's Mot. to propound

Interrogatories and for Production of Documents ("Pet'r's Mot.")

at 1.) Zahir now moves for an order allowing him to propound

this discovery. Respondents oppose.

DISCUSSION

The relevant portion of the CMO states:

The Merits Judge may, for good cause, permit the

petitioner to obtain limited discovery beyond that described in [Section I.E.1]. . . . Discovery requests shall be presented by written motion to the Merits Judge 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.

(CMO, November 6, 2008, docket entry #53 ("CMO"), § I.E.2.)

Several of the interrogatories and requests for production

that Zahir seeks to propound do not appear likely to lead to the

discovery of material information that would undermine the

legitimacy of his detention. In interrogatory 1, Zahir asks the

respondents to provide him with the identities of the person or

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people who answer the interrogatories. In interrogatories 29 to

31, Zahir asks respondents whether they have evidence showing

that Zahir dealt with chemical or biological weapons, and if the

respondents have such evidence, where they obtained it from. In

interrogatory 33, Zahir asks the respondents to identify all

information in the amended factual return that the government

learned after September 3, 2004. In interrogatories 34 to 37,

Zahir asks the respondents whether they possessed any information

that Zahir used the name b(1 ) and if so, when he used

that name. In interrogatories 48 to 51, Zahir asks the

respondents about details pertaining to a purported rocket attack

that occurred in 2002 against a United States installation near

Ghazny, Afghanistan.

Zahir does not show that the answers to any of these

questions are likely to contain material information that

undermines the legitimacy of his detention, nor does Zahir match

these requests with any assertions against him in the amended

factual return. For example, Zahir notes that he is referred to

by the name b(1 ) in one place in the amended factual

return, but he does not explain in any way how that reference

pertains to any of the factual assertions made against him, or

how the information about Zahir's purported use of that name

would in any way undermine the factual basis for his detention.

Because Zahir does not make a showing that answering these

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questions is likely to produce material evidence demonstrating

the unlawfulness of his detention, his request to propound these

interrogatories will be denied.

Zahir also seeks to propound several requests that would

likely produce legal theories instead of factual evidence that

would affect the legitimacy of Zahir's detention. In

interrogatories 3 to 6, Zahir requests legal definitions and

positions pertaining to the legal basis for Zahir's detention.

In interrogatories 40 to 45, Zahir asks the respondents whether

they claim that Zahir was or is a member of al-Qaida or the

Taliban, and if so, how the respondents define the word "member."

In interrogatories 52 and 74 to 83, Zahir seeks further

explanation from the respondents about the legal justification

for his detention. These topics, about which respondents bear

disclosure obligations under Section I.B of the CMO, are not

evidence pertinent to the factual basis for a petitioner's

detention discoverable under I.E.2. Therefore, Zahir's requests

to propound these interrogatories will be denied.

Interrogatory 2 is in effect not an interrogatory but a

document request that duplicates what the CMO already required

the respondents to produce under Section I.E.! with which the

respondents state they have complied. Even if it could properly

be viewed as an interrogatory, it lacks the specificity required

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under Section I.E.2 (1) and (2) of the CMO. Therefore, this

request will be denied.

Interrogatories 7 to 13 pertain to the respondents'

allegation that Zahir provided services at guesthouses or

training camp facilitation hubs affiliated with al-Qaida.

Interrogatories 14 to 28 request that the respondents specify

their position about whether Zahir engaged in armed combat or

other types of battle against the United States and coalition

forces, and if so, when and where he did so. The respondents

oppose answering these interrogatories because they claim that

Zahir has not shown that the answers would yield evidence

material to Zahir's case. While there is some merit to the

respondents' argument, it is conceivable that Zahir could use the

information that the responses to these interrogatories would

provide in his favor, and the respondents provide absolutely no

evidence of how answering these interrogatories would unfairly

disrupt or burden the respondents. However, Zahir has not

matched these requests with a specific assertion found in the

amended factual return that the answers would be likely to

undermine, and thus they stray from the type of discovery

anticipated under the CMO. Zahir's request for leave to issue

interrogatories 7 to 28 will be denied without prejudice. If

Zahir can, with specificity, point to an assertion in the amended

factual return that the answers to these questions might call

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into question, he may re-file his motion for leave to propound

these interrogatories.

In interrogatory 32 and request for production I, Zahir asks

whether the respondents obtained information about Zahir from al­

Hadi, and for all records containing or referring to statements

made by al-Hadi about Zahir. Zahir supports this request by

arguing that one of the three principal justifications the

respondents give for detaining Zahir is that he allegedly

performed administrative work and provided translation services

for al-Hadi, who was purportedly a high level al-Qaida operative.

The respondents oppose these requests by arguing that the amended

factual return places no reliance on any statement made by al­

Hadi about Zahir. They further argue that Zahir would receive

any statement made by al-Hadi about Zahir that is exculpatory

under Section I.D.l of the CMO, and that some of the information

responsive to this request could be classified at a level above

the level at which Zahir's counsel could have access to the

information because Zahir's counsel does not have a "need to

know" the information.

The amended factual return does not claim to rely upon any

statements made by al-Hadi, and Zahir's counsel would receive any

statement made by al-Hadi that is exculpatory under section I.D.l

of the CMO. However, a significant assertion against Zahir is

that he worked for al-Hadi, a claim that Zahir appears to rebut

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by arguing that he did not know that al-Hadi worked for al-Qaida.

Therefore, statements made by al-Hadi that could affect the

determination of whether Zahir knew that al-Hadi was a member of

al-Qaida should be provided to Zahir's counsel. If the

respondents identify information that complies with this request,

yet the respondents believe that the information should not be

provided to Zahir's counsel because he does not need to know it,

the respondents may file the information with the court under

seal accompanied by a motion to deny disclosure, explaining with

specificity why the information is not relevant to Zahir's

detention.

In interrogatories 38 and 39 and request for production 7,

the petitioner asks the respondents whether an individual named

to whom reference is made in the document

was ever detained by the government, and if he was,

whether he produced information which the government relies upon

for detaining Zahir. Zahir also requests any documents

pertaining to~that contain information relevant to his

detention. The respondents oppose, arguing that the evidence

regarding _ that is cited in the amended factual return

all derived from the petitioner himself. While the respondents

clearly have an obligation under Section I.D.l of the CMO to

provide Zahir with information taken from or about _ t h a t

is exculpatory for Zahir, Zahir has failed to show how these

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requests are narrowly tailored to produce evidence that would

undermine the factual basis for Zahir's detention. Therefore,

these requests will be denied.

In interrogatories 46 and 47, Zahir asks whether the

Peshawar Cell of al-Qaida ever committed any acts against United

States or coalition forces, personnel, or property, and if so,

when and where such attacks occurred. In interrogatories 53 to

59 and request for production 5, Zahir asks for any evidence the

respondents have, in addition to Zahir's statements cited in the

amended factual return, showing that Zahir b(1 ) b(1 )

b(1 ) and that Zahir was involved in

making time-delayed explosive devices. Respondents oppose these

requests on two grounds. They argue that Zahir has not shown

that these requests would produce evidence that will materially

advance Zahir's case in part because the respondents' assertions

are primarily based upon Zahir's own statements, and that any

shortcoming in the evidence pertaining to the nature of the

Peshawar Cell, Zahir's b( 1)

or Zahir's knowledge that the group he was purportedly

associating himself with engaged in violent acts through the use

of time-delayed explosive devices, are appropriately addressed as

challenges to the sufficiency of the respondents' evidence.

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As was previously mentioned, the respondents allege as part

of the factual basis for Zahir's detention that after

December 2001, Zahir "became an active member of an anti­

coalition cell that planned to use violence against the armed

forces of the United states and its allies" in order to force

them to leave Afghanistan, and that Zahir supported this cell by

"arranging funding from al-Qaida." (See Thomas Decl. at ~ 1.)

The respondents further allege that Zahir b( 1)

b( 1)

b(1 ) and that Sur Gul, a member of the group

Zahir was associating himself with after December 2001, was an

"explosives expert" who provided training to Zahir regarding "how

to initiate the time-delayed detonation of a bomb." (Id. at

~~ 41, 44.) Thus, specific information about the nature and

extent of the combatant activities of this anti-coalition cell is

centrally relevant to portions of the of the factual basis cited

by the respondents for Zahir's detention. Therefore, if the

respondents possess any information undermining the assertion

that the Peshawar Cell took part in or otherwise planned to

engage in hostile activities against the United States or its

allies, the respondents will be ordered to produce that evidence

to Zahir. Otherwise, these requests will be denied.

In interrogatories 60 to 68 and requests for production 2

and 3, Zahir seeks information about the respondents' evidence,

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or lack of it, regarding his role in the grenade attack in

Zormat, Afghanistan, including any statements made by the victims

of the attack or their driver. The respondents oppose, arguing

that Zahir's requests do not seek evidence that would facilitate

his ability to challenge the legality of his detention. The

amended factual return cites only to Zahir's own descriptions of

the attack, including his exculpatory comments about the attack.

Zahir has not shown that seeking information about any other

evidence concerning the attack will enable him to rebut the facts

the respondents advanced about this attack for which Zahir

himself was reportedly the source.

In interrogatories 69 to 72 and request for production of

documents 5, Zahir seeks information regarding whether the

government has evidence that Zahir would seek out Usama bin Laden

and several associates. Because Zahir does not connect these

requests to any specific assertion in the amended factual return,

they will be denied.

In interrogatory 73, Zahir seeks the circumstances under

which b(1), b(6) provided a statement on which the

respondents rely in the amended factual return. While the

respondents argue that Zahir has not made any showing or

assertion that the statements at issue were coerced, the

respondents have not made plain how Zahir could have access to

such important information before seeking it from respondents,

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given the restricted nature of these habeas proceedings. In

order to facilitate for the petitioner a meaningful opportunity

to challenge the factual basis of his detention, the

circumstances of a petitioner's statement, and the circumstances

of an inculpatory statement made against a petitioner that are

relied upon by the respondents, must be provided in total to that

petitioner. Therefore, this request will be granted.

In interrogatory 84 and request for production 7, Zahir

seeks evidence pertaining to chemicals that were found

purportedly in Zahir's residence when he was captured. The

respondents directly state in their opposition that they will

"not rely on Petitioner's possession of these chemicals to

justify his detention[.J" (Resp'ts' Opp'n to Pet'r's Mot. for

Disc. at 31.) Zahir has not shown how these requests are likely

to produce evidence that would undermine the factual basis for

detention, and they will be denied.

In request for production 4, Zahir requests production of a

ledger that the respondents claim Zahir used to maintain a

balance of certain finances for al-Qaida. (See Thomas Decl. at

~ 37.) The respondents object to this request, arguing that the

ledger is irrelevant and would not produce exculpatory

information because they do not actually rely on the ledger, but

instead rely upon intelligence reports describing the ledger.

That distinction is not fatal, as Zahir's examination of the

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ledger itself could demonstrate that reports about its nature are

mistaken or misleading, and would undermine the factual basis for

Zahir's detention. This request will be granted.

In request for production 6, Zahir seeks an audio/visual

recording of his Combatant Status Review Tribunal ("CSRT")

proceeding. The respondents oppose, arguing that they do not

rely upon Zahir's testimony at his CSRT proceeding to justify his

detention, and that they provided with the amended factual return

a transcript of the CSRT proceeding. Zahir makes no showing that

the recorded version of the transcript he already possesses

would undermine the factual basis for his detention. This

CONCLUSION AND ORDER

For the reasons mentioned above, it is hereby

ORDERED that petitioner's motion [85] for leave to take

discovery be, and hereby is, GRANTED in part and DENIED in part.

Zahir's request to propound interrogatories 32 and 73 and

requests for production 1 and 4 are GRANTED. Respondents shall

also respond to interrogatories 46, 47, and 53 to 59, and request

for production 5 with information they possess undermining the

assertion that the Peshawar Cell planned to or did take part in

hostilities against allied forces. Respondents shall answer

these requests by October 30, 2009. Zahir's request to propound

his requests otherwise is DENIED.

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SIGNED this 23rd day of September, 2009.

lsi RICHARD W. ROBERTS United States District Judge