2013 Thomson Reuters. No Claim to Original US

Gillman, Joe 6/26/2013 For Educational Use Only

Alsawam v. Obama, 864 F.Supp.2d 1 (2012)

864 F.Supp.2d 1 Motion granted in part and denied in part. United States District Court, District of Columbia.

Tariq Mahmoud ALSAWAM, Petitioner, West Headnotes (12) v. Barack H. OBAMA, President of the [] Habeas Corpus United States, et al., Respondents. Discovery and disclosure; physical or mental examination Civil Action No. 05– 01244(CKK). | April 10, 2012. Habeas petitioner's motion to compel additional discovery in his action challenging his detention Synopsis at the U.S. Naval facility at Guantanamo Background: After petitioning for, inter alia, writ of habeas Bay, Cuba, was not untimely, even though corpus, challenging his detention at the U.S. Naval Base at he could and should have made some of his Guantanamo Bay, Cuba, petitioner moved, pursuant to Case requests earlier; requests could potentially lead Management Order (CMO) as supplemented, for additional to evidence that would undermine the basis for discovery, and for reconsideration of prior order denying his his continued detention, and Government did request for additional discovery. not identify any material and undue prejudice it would suffer if required to respond to the requests. Holdings: The District Court, Colleen Kollar–Kotelly, J., held that: [2] Estoppel [][1][] motion to compel additional discovery was not Claim inconsistent with previous claim or untimely; position in general Habeas Corpus [2] motion was not barred by doctrine of judicial estoppel; Discovery and disclosure; physical or mental examination [3] Government was required to provide petitioner with Habeas petitioner's motion to compel additional requested copy of photograph which was shown to a witness discovery in his action challenging his detention and identified as petitioner; at the U.S. Naval facility at Guantanamo Bay, Cuba, was not barred by doctrine of judicial [4] Government was required to provide petitioner with estoppel even though petitioner's litigation requested copies of photographs of a person he allegedly stance stood in tension with his prior theory of strongly resembled; the case; petitioner's earlier efforts to emphasize his cooperation with the Government never [5] petitioner's request for evidence regarding the alleged crystallized into a concrete litigation position presence of noncombatants in a particular area of Afghanistan that could be said to be clearly inconsistent would be denied without prejudice; and with his subsequent efforts to undermine the credibility or reliability of his alleged inculpatory [6] request for reports of petitioner's interrogations during statements, and he would not derive an unfair specific time period, would be granted in part and denied in advantage or impose an unfair detriment on the part. Government if allowed to pursue his changed theory of the case.

Alsawam v. Obama, 864 F.Supp.2d 1 (2012)

produce evidence that petitioner's detention was unlawful. [3] Habeas Corpus Discovery and disclosure; physical or mental examination [6] Habeas Corpus Pursuant to case management order (CMO) Discovery and disclosure; physical or governing petitioner's habeas action challenging mental examination his detention at the U.S. Naval Base at Habeas petitioner's request, pursuant to case Guantanamo Bay, Cuba, Government was management order (CMO) governing his action required to provide petitioner with requested challenging his detention at the U.S. Naval copy of photograph which was shown to a facility at Guantanamo Bay, Cuba, for access witness and identified as petitioner during an to his original medical records, would be interrogation; permitting petitioner to obtain the denied without prejudice, where petitioner had photograph would allow him to challenge the withdrawn the request. accuracy and reliability of the identification.

[7] Habeas Corpus [4] Habeas Corpus Discovery and disclosure; physical or Discovery and disclosure; physical or mental examination mental examination Habeas petitioner's request, pursuant to case Pursuant to case management order (CMO) management order (CMO) governing his action governing petitioner's habeas action challenging challenging his detention at the U.S. Naval his detention at the U.S. Naval Base at facility at Guantanamo Bay, Cuba, for certain Guantanamo Bay, Cuba, Government was information regarding his forcible removal from required to provide petitioner with requested his cell, would be granted insofar as it sought copies of photographs of a person he allegedly information relating to a specific time period, strongly resembled and two alleged photographs and would otherwise be denied; request was of petitioner that were shown to a witness during not narrowly tailored and did not explain why an interrogation; petitioner was entitled to pursue the request was likely to produce evidence that limited discovery in connection with his theory petitioner's detention was unlawful. that he had been mistaken for an explosives trainer for a terrorist organization. [8] Habeas Corpus Discovery and disclosure; physical or [5] Habeas Corpus mental examination Discovery and disclosure; physical or Habeas petitioner's request, pursuant to case mental examination management order (CMO) governing his action Habeas petitioner's request, pursuant to case challenging his detention at the U.S. Naval management order (CMO) governing his action facility at Guantanamo Bay, Cuba, for evidence challenging his detention at the U.S. Naval regarding the alleged presence of noncombatants facility at Guantanamo Bay, Cuba, for all in a particular area of Afghanistan, would be entries pertaining to him in two logs, would be denied without prejudice, where request was denied; request was not narrowly tailored and framed in such vague and unilluminating terms did not explain why the request was likely to that the District Court would have to guess what kind of information petitioner had in mind;

Alsawam v. Obama, 864 F.Supp.2d 1 (2012)

rather, parties would be required to confer in an request for all reports, without further limitation, attempt to refine and narrow the scope of the was not narrowly tailored and did not explain request. why it was likely to produce evidence that petitioner's detention was unlawful.

[9] Habeas Corpus Discovery and disclosure; physical or [12] Habeas Corpus mental examination Discovery and disclosure; physical or Habeas petitioner's request, pursuant to case mental examination management order (CMO) governing his Habeas petitioner's request, pursuant to case action challenging his detention at the U.S. management order (CMO) governing his action Naval facility at Guantanamo Bay, Cuba, for challenging his detention at the U.S. Naval unredacted copies of his exhibits, would be facility at Guantanamo Bay, Cuba, for a list of denied. all materials identified by a particular number, would be denied; Government's representation that the materials did not pertain to petitioner's [10] Habeas Corpus arrest satisfied the Court that the request was Discovery and disclosure; physical or not likely to produce evidence that petitioner's mental examination detention was unlawful. Habeas petitioner's request, pursuant to case management order (CMO) governing his action challenging his detention at the U.S. Naval facility at Guantanamo Bay, Cuba, for an Attorneys and Law Firms unredacted copy of a specific exhibit, would be denied without prejudice, where Government *3 Lara Gabrielle Quint, Tony Lenell Axam, Mary Manning represented that it was making appropriate Petras, Rosanna M. Taormina, Federal Public Defender for inquiries as to whether it would be feasible to D.C., Washington, DC, for Petitioner. disclose a less redacted version of the requested report. Hector G. Bladuell, Scott Michael Marconda, Alexander Kenneth Haas, Andrew I. Warden, David Hugh White, James J. Schwartz, Jonathan S. Needle, Julia A. Berman, [11] Habeas Corpus Kathryn Celia Davis, Patrick D. Davis, Robert J. Prince, Terry Discovery and disclosure; physical or Marcus Henry, James J. Gilligan, Kristina Ann Wolfe, Olivia mental examination Hussey Scott, Timothy Allen Bass, Hector G. Bladuell, U.S. Department of Justice, Washington, DC, for Respondents. Habeas petitioner's request, pursuant to case management order (CMO) governing his action Opinion challenging his detention at the U.S. Naval facility at Guantanamo Bay, Cuba, for reports of his interrogations during a specific time period, MEMORANDUM OPINION AND ORDER would be granted in part and denied insofar COLLEEN KOLLAR–KOTELLY, District Judge. as it sought portions of reports that related to surrounding circumstances of the interrogations, Before the Court is the [250/255] Motion to Compel including the use of allegedly coercive tactics, Discovery filed by Petitioner Tariq Mahmoud Al Sawah or reflect on petitioner's mental condition or (ISN 535). See Pet's Mot. to Compel Disc. (“Pet'r's Mem.”), deterioration, and would otherwise be denied; ECF No. [250]; Pet'r's Supplement to Mot. to Compel Disc.

Alsawam v. Obama, 864 F.Supp.2d 1 (2012)

(“Pet'r's Suppl. Mem.”), ECF No. [255]. The Government in any information reviewed by attorneys preparing factual has filed an Opposition and Petitioner has filed a Reply. returns for all detainees,” and “also includes any other See Gov't's Mem. in Opp'n to Pet'r's Mot. to Compel Disc. evidence the government discovers while litigating habeas (“Gov't's Opp'n”), ECF No. [256]; Gov't's Resp. to Pet'r's corpus petitions filed by detainees at Guantanamo Bay.” Supplement to Mot. to Compel Disc. (“Gov't's Suppl. CMO § I.D.I. Therefore, the universe of “reasonably available Opp'n”), ECF No. [260]; Pet'r's Reply to Gov't's Mem. evidence” includes, but is not limited to, traverses filed by in Opp'n to Mot. to Compel Disc. (“Pet'r's Reply”), ECF other detainees. No. [261]. The motion is therefore fully briefed and ripe for a decision. In an exercise of its discretion, the Court Second, Section I.E.1 of the CMO requires the Government to finds that hearing oral argument would not be of assistance. disclose the following to Petitioner upon his request: “(1) any See LCvR 7(f). Upon careful consideration of the parties' documents and objects in the government's possession that the submissions, 1 the relevant authorities, and the record as a government relies on to justify detention; (2) all statements, whole, Petitioner's Motion to Compel shall be GRANTED IN in whatever form, made or adopted by the petitioner that the PART and DENIED IN PART. government relies on to justify detention; and (3) information about the circumstances in which such statements of the petitioner were made or adopted.” CMO § I.E.1. The phrase “in whatever form” means “all forms (including audio or I. LEGAL STANDARD video), whether cumulative or not.” Apr. 6, 2009 Order at 3. The phrase “circumstances in which such statements Petitioner's Motion to Compel is governed by the [68] Case of the petitioner were made or adopted” encompasses “all Management Order entered by Judge Thomas F. Hogan surrounding circumstances,” including, but not limited to, on November 6, 2008, as amended by Judge Hogan's [86] “the use of coercive tactics as well as inducements and Order dated December 16, *4 2008 (the “CMO”), and promises.” Id. as supplemented by this Court's [149] Order Regarding Petitioner's Requests for Additional Discovery dated April 6, Third, Section I.E.2 of the CMO confers upon the Court the 2009 (“April 6, 2009 Order”). For purposes of Petitioner's discretion to authorize additional limited discovery beyond Motion to Compel, the Government's relevant disclosure what is required by Sections I.D.1 and I.E.1 upon a showing obligations under this regime are three-fold. of “good cause.” Requests for additional discovery must “(1) be narrowly tailored, not open-ended; (2) specify the First, Section I.D.1 of the CMO delineates the scope of the discovery sought; (3) explain why the request, if granted, Government's ongoing obligation to disclose “exculpatory is likely to produce evidence that demonstrates that the evidence” to Petitioner even in the absence of a specific petitioner's detention is unlawful; and (4) explain why the request. Specifically, the Government must “disclose to the requested discovery will enable the petitioner to rebut the petitioner all reasonably available evidence in its possession factual basis for his detention without unfairly disrupting or that tends materially to undermine the information presented unduly burdening the government.” CMO § I.E.2 (internal to support the government's justification for detaining citations and quotations omitted). the petitioner.” CMO § I.D.1. The term “exculpatory evidence” includes, but is not limited to, “any evidence or information that undercuts the reliability and/or credibility of the Government's evidence,” such as “evidence that casts II. DISCUSSION doubt on a speaker's credibility, evidence that undermines the reliability of a witness's identification of Petitioner, Through his [250/255] Motion to Compel, Petitioner seeks evidence that indicates a statement is unreliable because information relating to nine overarching categories. The it is the product of abuse, torture, or physical incapacity, Court shall address each of those nine categories in turn or evidence that demonstrates material inconsistencies below. Preliminarily, however, the Court must address the between statements.” Apr. 6, 2009 Order at 2. “[T]he term Government's arguments that Petitioner's pending discovery ‘reasonably available evidence’ means evidence contained requests are either untimely or barred by the doctrine of

Alsawam v. Obama, 864 F.Supp.2d 1 (2012) judicial estoppel. Neither *5 argument need detain the Court requests, any such burden would not be undue so long as long. Over the years, Petitioner's focus in this litigation has the requests fail within the scope of permissible discovery undergone a marked shift. Earlier in this case, Petitioner's under the CMO. In the final analysis, the Court concludes that attention was focused, albeit not exclusively, on obtaining timeliness does not present a bar to the Court's consideration information relating to his cooperation with the Government of Petitioner's Motion to Compel. in order to demonstrate that he has served as a valuable source of intelligence. In fact, this action remained at a standstill [2] The Government's argument based on the doctrine of for quite some time while the parties attempted to reach judicial estoppel is even less persuasive. The Government an agreement resolving the issues surrounding Petitioner's sets forth its argument in a single footnote in its Opposition, detention. Unsurprisingly, when negotiations failed to yield a footnote that does not even appear in the argument an agreement, Petitioner's focus changed, such that today section. See Gov't's Opp'n at 6 n. 2. This Court “need Petitioner's challenge to his continued detention depends not consider cursory arguments made only in a footnote,” in large part on his efforts to undermine the credibility Hutchins v. District of Columbia, 188 F.3d 531, 539 n. 3 or reliability of his many alleged inculpatory statements to (D.C.Cir.1999) (en banc), and it declines to do so here. interrogators. His pending discovery requests are part of those Regardless, although the Court recognizes that Petitioner's efforts. current litigation stance stands in tension with his prior theory of the case, the Court is not convinced that Petitioner's earlier [][1][] Considering the record as a whole, the Court is efforts to emphasize his cooperation with the Government unpersuaded by the Government's arguments that Petitioner's ever crystallized into a concrete litigation position that could pending discovery requests are either untimely or barred be said to be *6 “clearly inconsistent” with his current by the doctrine of judicial estoppel. Beginning with the efforts to undermine the credibility or reliability of his Government's timeliness argument, the Court recognizes that alleged inculpatory statements. New Hampshire v. Maine, Petitioner could and should have made some of his pending 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). discovery requests earlier, but the Court also acknowledges Furthermore, for reasons already discussed, the Government that the factual and legal landscape of this case has been has not shown to this Court's satisfaction that Petitioner under continual development with the Government's ongoing “would derive an unfair advantage or impose an unfair disclosures and with each successive opinion from the United detriment” on the Government if allowed to pursue his present States Court of Appeals for the District of Columbia Circuit. theory of the case. Id. at 751, 121 S.Ct. 1808. Accordingly, Even though this action has been pending for some time, the the doctrine of judicial estoppel likewise presents no bar to Court is ultimately left unconvinced that Petitioner should the Court's consideration of Petitioner's Motion to Compel. now be precluded from pursuing limited discovery requests that could potentially lead to evidence that would undermine With those preliminary matters aside, the Court now turns the basis for his continued detention. That is particularly so to addressing the nine categories of information sought by because the Government has failed to identify any material Petitioner through his Motion to Compel. and undue prejudice that it would suffer if it were required to respond to Petitioner's requests at this time. Although the Government claims that “additional discovery threatens to A. Petitioner's Requests for Photographs (Request No. 1) disrupt the schedule contemplated by the Court for resolving Petitioner's first request seeks a series of photographs. It can the merits of this case,” Gov't's Opp'n at 24, the Court has be divided into two basic sub-parts. The Court addresses each not set dates for the merits hearing or even for the briefing sub-part in turn. of pre-hearing motions. While requiring the Government to respond to limited discovery requests might delay a final [3] First, Petitioner seeks a copy of a single photograph resolution of this case, any delay would be minimal in the shown to David Hicks (ISN 002) (“Hicks”) and identified as grand scheme of things and would not significantly disrupt the Petitioner during an interrogation [redacted] See Pet'r's Mem. schedule contemplated by the Court. Meanwhile, to the extent at 8. Petitioner avers, and the Government does not deny, the Government intended to suggest that it would be burdened that the Government intends to rely on Hicks' identification merely by being required to respond to Petitioner's discovery of Petitioner in support of its allegation that Petitioner

Alsawam v. Obama, 864 F.Supp.2d 1 (2012) worked for al-Qaida as an explosives instructor, albeit in conjunction with other evidence. As a result, permitting B. Petitioner's Request for Information from the Detainee Petitioner to obtain a copy of the photograph shown to Hicks Log and the INTREP Activity Log (Request No. 2) will allow him to challenge the accuracy and reliability of the [5] Petitioner's second request is for “all log entries from the identification. In this respect, Petitioner's first request satisfies ‘Detainee Log’ and the ‘INTREP Activity’ log which relate the requirements of Section I.E.2 of the CMO. Accordingly, to [him] for the period between May 2002 and December it shall be GRANTED. 2003.” 3 Pet'r's Mem. at 2. Petitioner concedes that the Government has already disclosed entries from both of [4] Second, Petitioner seeks (1) copies of photographs of these logs, and he contends that those entries demonstrate Hamza Zubair (“Zubair”) taken following certain raids that his “mental deterioration during this time period.” Id. at took place in Karachi, Pakistan in September 2002 and (2) 9. Nonetheless, Petitioner claims that unidentified former- two photographs alleged to be of Petitioner that were shown to detainees informed his counsel that Petitioner's aberrant Lufti Al Arnbi Al Gharise (ISN 1209) (“Al Gharise”) during behavior “lasted much longer than the limited entries an interrogation [redacted] 2 See Pet'r's Mem. at 2; Pet'r's disclosed by the government indicate.” Id. at 10. On this Reply at 2. In this case, Petitioner intends to proceed in part basis alone, Petitioner argues that he is now entitled to under the theory that he “strongly resembles” Zubair, relying all log entries relating to him during this time period, in large part on his contention that he has on at least one without further limitation. Id. Framed in such broad terms, occasion been mistakenly identified by Government agents as Petitioner's request is not narrowly tailored and does not Zubair. See Pet'r's Reply at 3. From this premise, Petitioner explain why the request is likely to produce evidence that intends to argue that “government interrogators came to Petitioner's detention is unlawful. Accordingly, Petitioner's mistakenly believe that Petitioner was an al Qaida explosives second request for discovery shall be DENIED. trainer and, as a result, led Petitioner into make [sic] a [sic] false confessions that he was an al Qaida explosives trainer.” Nonetheless, the Court pauses to observe that the Government Pet'r's Mem. at 8. For its part, the Government concedes represents that the entries that it has produced to Petitioner to that there was “initial confusion” by Government agents that date include “all potentially exculpatory entries” from both led to the mistaken identification referred to by Petitioner, logs. Gov't's Opp'n at 17. The term “exculpatory evidence” but otherwise paints Petitioner's theory as a “whimsical includes “any evidence or information that undercuts the fantasy.” Gov't's Opp'n at 12–13. Regardless of whether reliability and/or credibility of the Government's evidence.” the Government intends to rely upon “photo identifications Apr. 6, 2009 Order at 2. From the Government's [262] by individuals who might have mistaken Petitioner for Witness and Exhibit Lists, it is clear that the Government *7 Zubair,” id. at 14, the Court finds that Petitioner is intends to rely on numerous statements that Petitioner entitled to pursue limited discovery in connection with his made to interrogators during the time period covered by present theory, whatever its ultimate merits. In this respect, Petitioner's second request, including statements made on Petitioner's first request satisfies the requirements of Section [redacted] Given the Government's reliance on statements I.E.2 of the CMO. Accordingly, it shall be GRANTED. spread throughout this period, any entries contained in the Detainee Log and the INTREP Activity log pertaining to In sum, Petitioner's first request, as narrowed by Petitioner, Petitioner's mental deterioration during this time period shall be GRANTED in its entirety. By no later than May 1, would fall within the ambit of the exculpatory evidence that 2012, the Government shall produce (1) the single photograph must be disclosed under Section I.D.1 of the CMO because shown to Hicks and identified as Petitioner during an they would tend to undercut the reliability and/or credibility interrogation [redacted] (2) copies of any photographs of of *8 Petitioner's statements. Similarly, the Government Zubair that were taken following the raids that took place must produce “information about the circumstances in which in Karachi, Pakistan in September 2002, and (3) the two such statements of [Petitioner] were made or adopted” photographs alleged to be of Petitioner that were shown to Al under Section I.E.1 of the CMO. Because this encompasses Gharise during an interrogation [redacted] information about “all surrounding circumstances,” Apr. 6, 2009 Order at 3, any entries in the Detainee Log and the INTREP Activity log pertaining to Petitioner's mental

Alsawam v. Obama, 864 F.Supp.2d 1 (2012) condition or deterioration due to the conditions of his Petitioner's request is not narrowly tailored and does not detention would fall within the ambit of the Government's specify with sufficient particularity the discovery sought. disclosure obligations under Section I.E.1 of the CMO. Based See id. On this score, the Court agrees in part. As on the Government's representation that the entries that it has presently framed, Petitioner fourth request seeks [redacted] produced to date include “all potentially exculpatory entries” will evidence the “psychological distress” he allegedly from both logs, Gov't's Opp'n at 17, the Court understands the suffered. However, when Petitioner has sought other evidence Government to be representing that it has complied with the potentially bearing on his mental condition, he has confined foregoing requirements. However, to dispel any doubt, by no his requests to the time period extending from May 2002 later than May 1, 2012, the Government shall (a) certify to through December 2003. In connection with this request, the Court that it has produced all entries from the Detainee Petitioner has not attempted to explain why the time period Log and the INTREP Activity log (or portions thereof) that should extend further back in time to cover January 2002 pertain to Petitioner's mental condition or deterioration in the through April 2002. In that respect, the Court finds that period extending from May 2002 through December 2003, Petitioner's fourth request is not narrowly tailored and (b) produce such entries, or (c) justify its failure to produce that Petitioner has failed to explain why the request is such entries. likely to produce evidence *9 that demonstrates that his detention is unlawful. Nonetheless, as previously noted, the Government intends to rely upon numerous statements made C. Petitioners Request for Access to His Original Medical by Petitioner from May 2002 through December 2003. Given Records (Request No. 3) the Government's reliance on statements spread throughout [6] Petitioner's third request is for access to his “original” this period, Petitioner's request [redacted] showing his medical records. Pet'r's Mem. at 3. Because Petitioner has forcible removal from his cell in this specific time period since withdrawn this request, see Pet'r's Reply at 8, it need not satisfies the requirements of Section I.E.2 of the CMO. be resolved by the Court and it shall be DENIED WITHOUT PREJUDICE. Accordingly, Petitioner's fourth request for discovery shall be GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART. Specifically, the request shall be D. Petitioner's Request [redacted] His Forcible Removal GRANTED insofar as Petitioner seeks reflecting his forcible from His Cell at Guantanamo Bay (Request No. 4) removal from his cell by Guantanamo Bay personnel in the [redacted] Pet'r's Reply at 9. Petitioner also relies upon time period extending from May 2002 through December an entry from the INTREP Activity log produced by the 2003; and the request shall be DENIED WITHOUT Government that reflects that, on at least one occasion PREJUDICE insofar as Petitioner seeks [redacted] reflecting (specifically, on December 2, 2002), Petitioner [redacted] his forcible removal from his cell by Guantanamo Bay Pet'r's Mem., Attach. G at 2. personnel in the time period extending from January 2002 through April 2002. [7] The Government's response is two-fold. First, the Government claims that Petitioner has failed to explain why the request is likely to produce evidence that demonstrates E. Petitioner's Request for Evidence of Noncombatants in that his detention is unlawful. Specifically, the Government Tora Bora (Request No. 5) argues that Petitioner has not articulated [redacted] Gov't's Petitioner's fifth request was originally brought under Section Opp'n at 20. The Court disagrees. To the extent there are I.E.2 of the CMO and sought “all documentary evidence [redacted] Petitioner was “forcibly removed” from his cell that is within the government's possession which tends to and suffered “psychological distress” relatively close in show that noncombatants were present at Tora Bora during time to making inculpatory statements to interrogators, then the time period the government maintains Petitioner was they might be probative of Petitioner's mental condition at at Tora Bora, including any documents that tend to show the time he made such statements or otherwise reflect on that some noncombatants were detained and subsequently the “surrounding circumstances” in which those inculpatory released.” Pet'r's Mem. at 3. In his Reply, Petitioner narrows statements were made. Second, the Government claims that the scope of the request, indicating that he now “asks only that

Alsawam v. Obama, 864 F.Supp.2d 1 (2012) the Court specifically require the Government” to “disclose Bay habeas case before Judge Emmet G. Sullivan. See Order, such evidence pursuant to Section I.D.I of the CMO which Batarfi v. Gates, Civil Action No. 05–00409(EGS), 2009 requires the government to disclose ‘all reasonably available WL 8633133 (D.D.C. Feb. 10, 2009), ECF No. [162], at evidence in its possession that tends to materially undermine 2. Ultimately, however, Petitioner has framed his request in the information presented to support the government's such vague and unilluminating terms that the Court is left justification for detaining the petitioner.’ ” 4 Pet'r's Reply at to guess as to what kind of information he has in mind, let 10 (quoting CMO § I.D.I). So framed, Petitioner's request is alone whether such information would fall within the scope of substantially narrowed, reaching only “reasonably available the Government's disclosure obligations under Section I.D.1. evidence”—that is, “evidence contained in any information Nor is the Court convinced that the Government would be reviewed by attorneys preparing factual returns for all able to fare any better. Most notably, Petitioner makes no detainees” and “any other evidence the government discovers attempt to articulate how he would define “combatant” and while litigating habeas corpus petitions filed by detainees at “noncombatant” in the context of this request or at what point Guantanamo Bay.” CMO § I.D.1. in time the determination of whether an individual was a “combatant” or “noncombatant” would govern (at detention, [8] The Government claims that “any evidence regarding through a subsequent determination by the Government, the presence of noncombatants in Tora Bora would in no through a favorable court ruling, etc.). Accordingly, at this way undermine the Government's rationale for detaining time, the Court declines Petitioner's invitation to “specifically Petitioner,” emphasizing that it relies not only on Petitioner's require” the Government to produce reasonably available mere presence in Tora Bora in the relevant time period, evidence tending to show that noncombatants were present at but also evidence that “petitioner *10 stayed in al-Qaida Tora Bora during the time period the Government maintains guesthouses, attended terrorist training camps, worked for Petitioner was in the area under Section I.D.1 of the CMO. al-Qaida as an explosives instructor, and fought on the Instead, the Court shall require the parties to promptly meet front lines on behalf of al-Qaida and the Taliban before and confer in an attempt to refine and narrow the scope retreating to Tora Bora.” Gov't's Opp'n at 22. While the of Petitioner's request under Section I.D.I of the CMO. By Court agrees with the Government that at the merits stage no later than May 1, 2012, the parties shall file a Joint it must consider the evidence “in its entirety in determining Status Report indicating the fruits of their efforts. In the whether the government has satisfied its burden of proof,” meantime, Petitioner's fifth request is DENIED WITHOUT Salahi v. Obama, 625 F.3d 745, 753 (D.C.Cir.2010), it PREJUDICE. also recognizes that the Court of Appeals has suggested that the ratio of “combatants” to “noncombatants” in Tora F. Petitioner's Request for Unredacted Copies of Bora might be one relevant consideration among many Petitioner's Exhibits [redacted] (Request No. 6) when determining the lawfulness of a petitioner's detention. [9] Petitioner's sixth request seeks “[u]nredacted copies of See Uthman v. Obama, 637 F.3d 400, 404 (D.C.Cir.2011) Petitioner's Exhibits [redacted]” Pet'r's Suppl. Mem. at 2. (“Because few, if any, non-combatants were near Tora Bora, Petitioner's sole argument in support of disclosure is that the it follows that most, if not all, of those in the vicinity production of unredacted copies of these exhibits is required of Tora Bora ... were combatants.”). As a result, it is at by the terms of this Court's April 6, 2009 Order. See id. at 2– least conceivable that there is a universe of reasonably 3. But Petitioner's understanding of the scope of this Court's available evidence relating to this subject that might “tend[ ] April 6, 2009 Order is mistaken. Pursuant to the Court's materially to undermine the information presented to support Order, the Government was required to disclose reports the government's justification for detaining the petitioner” of interrogations *11 of Petitioner from November 2001 and thus be discoverable under Section I.D.1 of the CMO. through May 2002 insofar as those reports included [redacted] For example, that universe might include evidence suggesting Apr. 6, 2009 Order at 13. The Court neither contemplated nor that certain Uighurs were apprehended in Tora Bora but were anticipated that the Government would produce unredacted subsequently found by the Department of Defense to no copies of such interrogation reports to the extent they include longer be enemy combatants, as such evidence was apparently other information. Accordingly, Petitioner's sixth request gathered and produced by the Government in a Guantanamo is DENIED. However, by no later than May 1, 2012 ,

Alsawam v. Obama, 864 F.Supp.2d 1 (2012) the Government shall (a) certify to the Court that it has interrogations in this time period, without further limitation, not redacted information about [redacted] from Petitioner's is not narrowly tailored and does not explain why it is likely Exhibits [redacted] (b) produce such information, or (c) to produce evidence that demonstrates that his detention is justify its failure to produce such information. unlawful.

G. Petitioner's Request for an Unredacted Copy of I. Petitioner's Request for AFGP 2002–800628 (Request Petitioner's [redacted] (Request No. 7). No. 9) [10] Petitioner's seventh request seeks “[a]n unredacted [12] Petitioner's ninth request is for “[a] list of all materials copy of Petitioner's Exhibit [redacted] In response, the seized on December 15, 2001 and identified as AFGP Government represents that it is mak[ing] appropriate # 2002–800628.” Pet'r's Suppl. Mem. at 2. Petitioner's inquiries as to whether it would be feasible to disclose a request is predicated on his assumption that AFGP 2002– less redacted version of the report.” Gov't's Suppl. Opp'n at 800628 “refers to materials seized at the time of Petitioner's 4. Accordingly, there does not appear to be a need for the arrest.” Id. at 5. The Government responds that Petitioner's Court to resolve Petitioner's request at this time. The parties “assumption is incorrect,” Gov't's Suppl. Opp'n at 5, and shall promptly meet and confer and, by no later than May introduces documentation evidencing *12 that AFGP 2002– 1, 2012 , file a Joint Status Report indicating whether they 800628 consists not of materials that were seized at the have resolved Petitioner's concerns. At this time, Petitioner's time of Petitioner's arrest, but rather military training camp seventh request is DENIED WITHOUT PREJUDICE. applications that were recovered during a raid of an office in Kandahar, Afghanistan that have no relevance to the lawfulness of Petitioner's detention. Indeed, the Government H. Petitioner's Request for Reports of Interrogations represents that the underlying report that references AFGP Between June 2002 and October 2002 (Request No. 8) 2002–800628 “was disclosed to Petitioner's counsel in error.” [11] Petitioner's eighth request is for “[a]ll reports of Id. at 6 n. 4. These representations satisfy the Court that interrogations of Petitioner between June and October 2002.” Petitioner's request is not likely to produce evidence that Pet'r's Suppl. Mem. at 2. In support, Petitioner claims demonstrates that Petitioner's detention is unlawful. Because that “coercive tactics” may have been used in connection Petitioner has failed to offer any argument in rebuttal, his with interrogations during this time period and alleges ninth request for discovery is DENIED. that his “mental condition deteriorated as the interrogation process intensified.” Id. at 4. Earlier in this action, the Court required the Government to disclose to Petitioner those portions of reports of interrogations from November III. CONCLUSION AND ORDER 2001 through May 2002 that included “descriptions of For the reasons set forth above, it is, this 10th day of April, the surrounding circumstances of Petitioner's interrogations” 2012, hereby ORDERED that Petitioner's [250/255] Motion and “information concerning the use of coercive tactics, if to Compel is GRANTED IN PART and DENIED IN PART, any were employed.” Apr. 6, 2009 Order at 13. Having as follows: already permitted the production of such records for an earlier time period, the Court sees no good reason to depart (a) Petitioner's first request is GRANTED. By no later than from this logic now. Petitioner's eighth request shall be May 1, 2012, the Government shall produce to Petitioner GRANTED IN PART and DENIED IN PART. Specifically, (i) the single photograph shown to Hicks and identified as the request shall be GRANTED insofar as Petitioner seeks Petitioner during an interrogation on December 1, 2002, those portions of reports of interrogations of him between (ii) copies of any photographs of Zubair that were taken June 2002 and October 2002 that relate to the “surrounding following the raids that took place in Karachi, Pakistan in circumstances” of the interrogations, including the use of September 2002, and (iii) the two photographs alleged to coercive tactics, or that reflect upon Petitioner's mental be of Petitioner that were shown to Al Gharise during an condition or deterioration; the request shall otherwise be interrogation [redacted] DENIED because Petitioner's request for all reports of

Alsawam v. Obama, 864 F.Supp.2d 1 (2012)

(b) Petitioner's second request for all log entries from the 2012, file a Joint Status Report indicating the fruits of their Detainee Log and the INTREP Activity log which relate efforts. to him for the period between May 2002 and December (f) Petitioner's sixth request for unredacted copies of 2003 is DENIED. However, by no later than May 1, Petitioner's Exhibits 1, 2, 4 through 8, 162, and 163 2012, the Government shall (i) certify to the Court that it is DENIED. However, by no later than May 1, 2012 , has produced all entries from the Detainee Log and the the Government shall (i) certify to the Court that it INTREP Activity log (or portions thereof) that pertain to has not redacted information about “all surrounding Petitioner's mental condition or deterioration in the period circumstances” in which the statements of *13 Petitioner extending from May 2002 through December 2003, (ii) were made from Petitioner's Exhibits 1, 2, 4 through 8, 162, produce such entries, or (iii) justify its failure to produce and 163, (ii) produce such information, or (iii) justify its such entries. failure to produce such information.

(c) Petitioner's third request for access to his original (g) Petitioner's seventh request for an unredacted medical records is DENIED WITHOUT PREJUDICE. copy of Petitioner's Exhibit 9 is DENIED WITHOUT (d) Petitioner's fourth request is GRANTED insofar as PREJUDICE. The parties shall promptly meet and confer Petitioner seeks [redacted] reflecting his forcible removal and, by no later than May 1, 2012 , file a Joint Status from his cell by Guantanamo Bay personnel in the time Report indicating whether they have resolved Petitioner's period extending from May 2002 through December concerns. 2003 and is DENIED WITHOUT PREJUDICE insofar as (h) Petitioner's eighth request is GRANTED insofar as Petitioner seeks [redacted] reflecting his forcible removal Petitioner seeks those portions of reports of interrogations from his cell by Guantanamo Bay personnel in the time of him between June 2002 and October 2002 that relate period extending from January 2002 through April 2002. to the “surrounding circumstances” of the interrogations, (e) Petitioner's fifth request for an Order specifically including the use of coercive tactics, or that reflect requiring the Government to produce reasonably available upon Petitioner's mental condition or deterioration, and is evidence tending to show that noncombatants were present otherwise DENIED. at Tora Bora during the time period the Government (i) Petitioner's ninth request for a list of all materials maintains Petitioner was in the area under Section I.D.1 identified as AFGP 2002–800628 is DENIED. of the CMO is DENIED WITHOUT PREJUDICE. The parties shall promptly meet and confer in an attempt to SO ORDERED. refine and narrow the scope of Petitioner's request under Section I.D.1 of the CMO and, by no later than May 1,

Footnotes 1 The Court's consideration has been confined to the specific arguments tendered by the parties in their briefing. The Court has not, and shall not, sift through the record in an attempt to identify arguments, or locate evidence, in support of the parties' respective positions. 2 Petitioner originally sought “copies of photographs of Hamza Zubair that are within the possession of the government,” Pet'r's Mem. at 2, but he has since narrowed his request to those specific “photographs of Hamza Zubair taken following [the] raids that took place in Pakistan on September 10, 2002,” Pet'r's Reply at 2. Had Petitioner pursued his request as originally framed, the Court would have found that the request is not narrowly tailored, does not specify with sufficient particularity the discovery sought, or explain why the requested information would enable Petitioner to rebut the factual basis for his detention without unfairly disrupting or unduly burdening the Government. 3 Originally, Petitioner's second request also encompassed “reports or documents within the government's possession which indicate that Petitioner was subjected to frequent cell movements, [redacted] while detained at Guantanamo Bay.” Pet'r's Mem. at 2. Petitioner has since withdrawn that aspect of his request based on the assumption that a review of certain records conducted by the Government's declarant [redacted] Pet'r's Reply at 8. Accordingly, there appears to be no need for the Court to resolve the request. However,

Alsawam v. Obama, 864 F.Supp.2d 1 (2012)

if Petitioner's assumption about the scope of the declarant's review is incorrect, the Government must promptly notify Petitioner's counsel and bring the matter to the Court's attention. 4 Had Petitioner pursued his request as originally framed under Section I.E.2, the Court would have found that the request is not narrowly tailored, does not specify with sufficient particularity the discovery sought, or explain why the requested information would enable Petitioner to rebut the factual basis for his detention without unfairly disrupting or unduly burdening the Government. In particular, the Court credits the Government's representation that “[d]uring the relevant time period, there were numerous military units operating in the Tora Bora region” and “any one of those units may have been involved” in detaining noncombatants. Gov't's Opp'n at 23. A search for records responsive to Petitioner's expansive original request would unfairly disrupt and unduly burden the Government because “there is no centralized system of records” and the Government would have to contact “each of those military units and ask them to search for records which might or might not exist, and which were created over nine years ago.” Id.