Zaid v. Bush

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WALEED SAID BN SAID ZAID,

Petitioner, Civil Action No. 05-1646 (JDB) v.

BARACK H. OBAMA, et al.,

Respondents.

ORDER

Petitioner seeks leave to depose Robert M. Gates, the Secretary of the Department of

Defense, or his designee pursuant to Federal Rule of Civil Procedure 30(b)(6). Petitioner argues

that respondents are in no position to represent to this Court, as they have, that respondents do

not posses any recordings of petitioner's statements that they rely upon to justify detention.

Petitioner reasons that respondents have not produced information about the circumstances of

each interrogation, as they are required to under the Case Management Order ("CMO"), and he

infers that respondents do not know which "interrogations" match up with which "statements."

Moreover, petitioner raises a spoliation issue. Petitioner cites to press articles, a report produced

by Seton Hall University, and a declaration from a different Guantanamo detainee to support his

argument that interrogations were routinely recorded. Petitioner reasons that if interrogations

were recorded but recordings of his interrogations do not now exist, then those recordings must

have been destroyed, perhaps in violation of a court order. Respondents rebut petitioner's factual assertions with declarations explaining that interrogations were routinely monitored by video but

only rarely recorded. See Declarations of Paul B. Rester & Jeffrey Davies (attached to

Respondents' Opp'n at Exhibits A & B). Moreover, respondents argue that a deposition under the

Federal Rules of Civil Procedure is inappropriate in this habeas case and that the deposition falls

well outside the scope of the CMO.

Although petitioner raises valid concerns -- which respondents only partially address in

their declarations -- he is not entitled to depose the Secretary of Defense or his designee about

interrogation policies. Petitioner has not alleged that his interrogations were videotaped; he

relies on a declaration from another detainee claiming that detainee's interrogations at

Guantanamo were videotaped. Without some sort of showing that a deposition -- which is

beyond the scope of discovery contemplated in the CMO -- would substantially help this case,

the Court will not grant such an open-ended, potentially burdensome request. Such a request

might be warranted had petitioner made a strong showing that one of his interrogations was in

fact recorded. Moreover, this Court has addressed some of petitioner's concerns in its March 2,

2009 order resolving petitioner's motion to compel compliance with section I.E.1(3) of the CMO.

In that order, the Court required respondents to search for additional information and warned that

it anticipated that it would not allow respondents at a later stage to introduce new evidence

within the section I.E.1(3) request in an effort to rebut petitioner's factual assertions.

Hence, the Court need not, at this stage, address the factual assertions raised in

petitioner's motion. Petitioner has not made a showing that the requested deposition "is likely to

produce evidence that is exculpatory or that will demonstrate that the petitioner is not an enemy

combatant." See CMO § I.E.2. Accordingly, petitioner's motion for leave to depose Secretary

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SO ORDERED.

/s/ JOHN D. BATES United States District Judge

Date: March 24, 2009

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