Al Wady v. Bush ( 2009 )

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FILED WITH THE
COURT SE'URITY OFFICER
UNITED STATES DISTRICT COURT CSO: tl~
DATE: 7rf~~+--__
FOR THE DISTRICT OF COLUMBIA
HAMOUD ABDULLAH HAMOUD
HASSAN AL WADY,
Petitioner, Civil Action No.: 08-1237 (RMU)
v. Re Document No.: 137
BARACK OBAMA et al.,
Respondents.
MEMORANDUM OPINON
GRANTING IN PART AND DENYING IN PART THE PETITIONER'S
MOTION FOR ADDITIONAL DISCOVERY
I. INTRODUCTION
This case comes before the court on the motion for additional discovery filed by
petitioner Hamoud Abdullah Harnoud Hassan Al Wady (ISN 574). The petitioner seeks the
production of certain materials that he contends he is entitled to under the amended Case
Management Order ("CMO"), I which governs the government's discovery obligations in these
habeas proceedings. For the reasons stated below, the court grants in part and denies in part
these requests.
II. THECMO
By way of background, § I.D.1 of the CMO requires the government to "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."
Judge Hogan issued the Case Management Order on November 6, 2008. Judge Hogan then
issued an Order amending the November 6,2008 Case Management Order on December 16,
2008. Finally, this court issued an Omnibus Order regarding the Case Management Order on
April 23, 2009. The court refers to the integrated Case Management Order as the CMO.
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CMO § LD.I. Section I.E. 1 requires the government, upon the petitioner's request, to provide
three categories of information, provided the information is reasonably available. Id. § I.E. 1;
Omnibus Order (Apr. 23, 2009) (reading the "reasonably available" requirement into § I.E. I).
These three categories of information are:
(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.
CMO § LE.I.
Section LE.2 of the CMO provides for the disclosure of materials upon a showing of
good cause by the petitioner. Id. § I.E.2. A request for information under this provision must be
narrowly tailored, specify the discovery sought and explain why the request, if granted, would
likely produce evidence that demonstrates that the petitioner's detention is unlawful. See id. If
the petitioner's request satisfies these criteria, the government must offer specific facts
explaining how the request, if granted, would place an undue burden on the government. See id.;
Omnibus Order (Apr. 23, 2009).
The CMO defines "reasonably available evidence" as "evidence contained in any
information reviewed by attorneys preparing factual returns for all detainees; it is not limited to
evidence discovered by the attorneys preparing the factual return for the petitioner." CMO
§ I.D.l. As this court has clarified, "reasonably available evidence" also includes "information
compiled pursuant to Executive Order 13,492; detainees' medical records; and information
within the possession or control of the director of the Joint Intelligence Group of the Joint Task
Force-Guantanamo." Omnibus Order (Apr. 23,2009); see also In re Guantanamo Bay Detainee
Litig., No. 08-0442 (D.D.C. June 10,2009) (Order) (denying the government's motion to
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reconsider numerous orders holding that materials assembled as part of Executive Order 13,492
are "reasonably available"). With these standards in mind, the court turns to the petitioner's
motion.
III. ANALYSIS
A. All Interview Reports 0'- the Government's "Complete File" on
_ a n d a Declaration Detailing the Government's Efforts to
Identify Exculpatory Information Regarding that Detainee
According to the petitioner, the government bases several of the central allegations in its
factual return on statements made by fellow Guantanamo detainee •
( I S . Petr's Mot. at 3-4. The petitioner contends that although allegations made by
~re referenced in only two paragraphs of the factual return, he is the only witness who
has alleged that the petitioner was ever involved in any fighting against the United States. [d.
Earlier this year, the government produced to the petitioner a packet of information
containing impeachment evidence regarding_including information about his prior
criminal history, information concerning his psychiatric problems and reports from government
agents expressing doubt as to the reliability of information obtained from him. Id. at 4-5 & Ex.
A. The petitioner, however, alleges that in violation of § 1.0.1 of the CMO, the government has
not produced all of the exculpatory information regarding_that is reasonably available.
ld. at 5. Specifically, the petitioner has identified several documents that allegedly undermine
~redibility but were not produced in this case: (1) an "Intel Value Assessment"
containing additional information regarding_criminal history and psychological
instability, id., Ex. C; (2) interrogation reports reflecting inducements offered to _ id.,
Exs. 0 & E; and, (3) a June 2007 warning by the Office of Administrative Review of the
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Detention of Enemy Combatants ("OARDEC") about· redibility, referenced in a
January 30, 2009 memorandum opinion by Judge Leon, id. at 7 (citing El Gharani v. Bush, No.
05-429 (Jan. 30,2009) (Mem. Op.».
The petitioner contends that in light of the government's failure to comply with its
disclosure obligations, the court should order the government to produce its "complete file" on
_including all interview reports o f _ i n its possession,2 regardless of whether
they pertain to the petitioner. Petr's Mot. at 7-8, 12. In addition, the petitioner requests an order
requiring the government to provide a declaration detailing its procedures for identifying
exculpatory information regarding~xplaining why that search did not produce the
exculpatory information originally omitted and explaining what steps it is taking to prevent
further omissions. Id. at 8_9. 3
The government maintains that it conducted a search for all reasonably available
exculpatory information regarding_and made two separate productions of such
materials to the petitioner. Govt's Opp'n at 5-6. Although the government acknowledges that it
did not produce to the petitioner the documents identified in his motion, it suggests that the
documents are not "material" to this litigation and that it had already provided to the petitioner
the exculpatory information contained in those documents. Id. at 6-8. Furthermore, it argues
that the petitioner's broad request for all reports of interrogations o~regardless of
whether they concern the petitioner, is not justified by any provision of the CMO. Id. at 6-7.
Specifically, the petitioner seeks the twenty-four FBI interrogation reports ("FD-302s") and
twenty-seven Intelligence Infonnation Reports ("IIRs") referenced in the Intel Value Assessment,
as well as any additional reports prepared after the creation of the Intel Value Assessment. See
Petr's Mot. at 7-8.
In the alternative, the petitioner requests that the court hold a hearing during which government
counsel would be "required to justify their blatant dereliction." Petr's Reply at 5.
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In addition, the government contends that the petitioner has not shown good cause for the
requested declaration. Id. at 7-9. The fact that the documents were produced in other cases, the
government argues, demonstrates that it has not been "hiding" documents. Id. at 9.
Furthermore, the government states that the requested declaration would be "redundant," as the
government has already filed certifications regarding its production of exculpatory information.
Id.
It is, by now, well-established that evidence undermining the reliability of statements
made by detainee accusers on whom the government relies constitutes materially exculpatory
evidence that must be produced under § 1.0.1 of the CMO. See Bin Attash v. Obama, 628 F.
Supp. 2d 24, 40 (D.D.C. 2009) (noting that "if the government intends to rely on the statement of
any witness to justify holding the petitioner, it must produce any reasonably available evidence
that would undermine the credibility of that witness's statement"); Al-Ghizzawi v. Obama, 600 F.
Supp. 2d 5, 7-8 (D.D.C. 2009) (ordering the government to disclose documents relating to "the
accuser's mental health, the accuser's alleged substance-abuse problem, inducements or
promises of favorable treatment made to the accuser ... and the total number of detainees about
whom the accuser provided information to the Government"); Al-Adahi v. Obama, 597 F. Supp.
2d 38, 43 (D.D.C. 2009) (observing that "the term 'exculpatory evidence' includes any evidence
of abusive treatment, torture, mental incapacity, or physical incapacity which could affect the
credibility and/or reliability of evidence being offered"); Al-Mithali v. Bush, 2009 WL 71517, at
*1 (D.D.C. Jan. 9,2009) (ordering the government to produce all materially exculpatory
evidence in its possession, "including any evidence or information that undercuts the reliability
and/or credibility of the government's evidence ... such as evidence that casts doubt on a
speaker's credibility"); see also Al Odah v. United States, 559 F.3d 539,546 (D.C. Cir. 2009)
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(observing that "[i]nfonnation that is exculpatory, that undermines the reliability ofother
purportedly inculpatory evidence, or that names potential witnesses capable of providing
material evidence may all be material") (emphasis added).
The petitioner has identified at least three documents that fall within this category of
automatic disclosure but were not produced by the government. The two interrogation reports
identified by the petitioner, Petr's Mot., Exs. D & E, reflect inducements offered t o _ i n
exchange for his cooperation and are therefore material to~redibility, see Bin
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Attash, 628 F. Supp. 2d at 40 (noting that exculpatory evidence includes any evidence of
"inducements offered to a third party before or during the interrogation in which the statement
was made"); Al-Ghizzawi, 600 F. Supp. 2d at 7-8 (requiring the disclosure of "inducements or
promises of favorable treatment made to the accuser"). Moreover, the June 2007 OARDEC
warning referenced in Judge Leon's opinion plainlY falls within the automatic disclosure
requirements of § J.D.! and should have been produced. Judge Leon expressly referenced this
warning in concluding t h a t _ i s not a credible witness. See El Gharani, No. 05-0429
(D.D.C. Jan. 30, 2009) (Mem. Op.) (noting that the documents submitted "raise serious questions
about the credibility and reliability of_uncorroborated statements"). Indeed, having
reviewed the OARDEC warning in connection with another habeas case before this court, it is
abundantly clear to the court that this document materially Wldennines the credibility of
_ In light of the government's reliance on allegations made b y _ t o justify the
petitioner's detention, its failure to produce those documents in this case constitutes a failure to
comply with § J.D.! of the CMO.
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interro ation re art which recommends offering
Petr's Mot., Ex. E.
Likewise, the petitioner has submitted an interrogation memorandum, which notes that "it is also
very useful to remind _ that being truthful will help get him back to his family as soon
as possible." Id., Ex. D.
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Perhaps the most troubling aspect ofthe government's noncompliance is the oddly
cavalier attitude it displays in its opposition toward its disclosure obligations under the CMO.
The government appears to argue that because the petitioner happened to acquire these
exculpatory documents as a result of their disclosure in other habeas cases, he cannot complain
because "he has the information, which he is now free to use to discredit • , Govt's
Opp'n at 9. It is, however, the government's obligation to disclose exculpatory infonnation
within its possession, see CMO § LD.l, not the petitioner's duty to ferret out exculpatory
infonnation produced in other cases. Likewise, given the government's failure to produce
exculpatory documents falling plainly within the scope of § 1.0.1, the argument that a
declaration detailing the government's efforts to identify exculpatory information would be
"redundant" because the government has already provided such declarations in the past reflects a
disquieting cynicism that has no place in this litigation. The fact that the government failed to
produce exculpatory documents, despite having certified its efforts to produce exculpatory
infonnation, does not lead to the inference that a subsequent certification would be redundant,
but rather, raises the possibility that any such prior certifications were mistaken, incomplete or
false.
Accordingly, the court orders the government to conduct an additional search for
exculpatory infonnation regarding_that was not produced in this case, including, but
not limited to, a review of all exculpatory infonnation regarding_disclosed in
connection with any other detainee habeas case. In addition, the government will file a
declaration describing the procedures used to identify exculpatory infonnation regarding
~d certifying the completeness of those efforts.
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The court, however, declines at this time to order the production of all interview reports
of~r the govermnent's "complete file" on that detainee. These requests seek the
production of materials not covered by § J.D.!, as the petitioner has made no showing that every
one of these reports or every document in the govermnent's file o n _ i s materially
exculpatory. See CMO § LD.I; AI-Ghizzawi, 600 F. Supp. 2d at 8 (denying the petitioner's
request for the production of "the complete file" on third-party accusers). Nor has the petitioner
demonstrated that these requests are narrowly tailored, specific or likely to produce exculpatory
information so as to warrant disclosure under § I.E.2 of the CMO. If, however, following the
govermnent's additional search for exculpatory infonnation and the filing of the required
declaration, the petitioner submits evidence that the government has failed to comply with the
CMO, the court may reconsider its denial of the petitioner's requests.
B. All Medical and Psychological Records for •
Pursuant to § LD.I of the CMO, the petitioner seeks the production of all medical and
psychological records f o r _ Petr's Mot. at 10-11. The petitioner states that although the
government has produced some evidence regarding _ m e d i c a l and psychological
condition, there is exculpatory information in this area that was not produced in this case but was
disclosed in other cases and obtained independently by counsel. Id.
The government responds that the requested infonnation exceeds the scope of § LD.!,
and that the petitioner has not demonstrated good cause justifying the disclosure of all of
_ m e d i c a l and psychological records under § I.E.2. Govt's Opp'n at 9-10.
Nonetheless, the government represents that it will disclose all of_medical and
psychological records to the petitioner, so long as the court enters an order prohibiting the
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sharing of these records with other habeas counselor the use of such records in other habeas
cases. Id. at 10.
In light of this representation, the court will issue the nondisclosure order requested by
the government and directs the government to produce the medical and psychological records
sought by the petitioner. See Hatim v. Obama, No. 05-1429 (Aug. 13,2009) (Mem. Order).
C. All Information Regarding _Criminal History
The petitioner contends that although the government has provided some infonnation
regarding_prior criminal history, its production has been incomplete. Petr's Mot. at
11-12. Pursuant to § LO.l, the petitioner requests the production of all information in the
government's possession in all forms regarding _ criminal record. Id.
The government responds that the undisclosed evidence of~riminal history
that the petitioner cites concerns arrests for motorcycle and car theft in 1994 and 1995, when
_ was twenty-one years old, and a report that _ was apprehended for trying to
enter Saudi Arabia illegally the following year. Govt's Opp'n at 11. The government contends
that these incidents, which took place long before the petitioner made the statements on which
the government now relies, are not probative of~redibility and are therefore not
materiallyexculpatory.s Id. The government argues that the petitioner's request for all
infonnation regarding_criminal records is a fishing expedition that should not be
allowed absent good cause. Id. at 12.
Although evidence ofW[·• • • •prior convictions is probative of the issue of his
credibility, cf FED. R. EVlD. 609, the petitioner's request for all evidence regarding_
criminal history, unqualified by any date or subject-matter restrictions, seeks infonnation that is
The government draws an analogy to Federal Rule of Evidence 609, which provides that a prior
criminal conviction may be used to impeach a non-party witness ifthe crime was punishable by
more than one year of imprisonment or involved a false statement. FED. R. EVID. 609.
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not materially exculpatory and thus falls beyond the scope of § I.D.1. Accordingly, absent a
showing of good cause under § I.E.2, the petitioner's request for all evidence regarding
_ criminal history is denied. The parties are directed to meet and confer in a good faith
effort to reach a compromise on this issue.
D. Evidence Regarding Bounties or Fees
Pursuant to § J.D. 1, the petitioner requests all evidence regarding any bounties or fees
paid in connection with the petitioner's apprehension, transfer or investigation. Petr's Mot. at
13-14. The government asserts that such evidence is not material, but acknowledges that this
court has previously rejected that position in other litigation. Govt's Opp'n at 13.
As this court and others have ruled, § I.D.1 of the CMO demands the production of any
such evidence. See Rabbani v. Obama, 2009 WL 995797, at *3 (D.D.C. Apr. 7,2009); Hatim v.
Obama, No. 05-1429 (Jan. 7,2009) (Mem. Order); accord A/-Ansi v. Obama, 2009 WL
2600751, at *4 (D.D.C. Aug. 20, 2009) (Kessler, J.); Bin Sa 'Ado un A/sa 'ary v. Obama, 631 F.
Supp. 2d 9, 16 (D.D.C. 2009) (Lamberth, 1.). Accordingly, the government is ordered to produce
any such evidence that is reasonably available.
E. All Forms of the Petitioner's Statements on Which the Government Relies
The petitioner contends that under § I.E. 1(2), the government should be ordered to
disclose all forms of any statement by the petitioner on which it relies to justify his detention.
Petr's Mot. at 14. The government asserts that it should only be required to produce those
versions of a statement on which it relies, but acknowledges that this court has previously
rejected this interpretation. Govt's Opp'n at 13. Indeed, this court and others have held that §
I.E.1 (2) demands the production of all forms of any statement made by the petitioner on which
the government relies. See Hatim v. Obama, No. 05-1429 (Feb. 17,2009) (Mem. Order); accord
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Abdullah v. Bush, 2009 WL 3080507, at *2 (D.D.C. Sept. 28,2009) (Roberts, J.); Anam v.
Obama, 2009 WL 1322637, at *1 (D.D.C. May 11,2009) (Hogan, J.); Al Odah v. United States,
2009 WL 382098, at *1 (D.D.C. Feb. 12,2009) (Kollar-Kotelly, J.); Zaid v. Obama, 596 F.
Supp. 2d 11, 12 (D.D.C. 2009) (Bates, J.). Accordingly, the government shall produce all fonns
of any statements made by the petitioners, including any records, transcripts, translations and
contemporaneous notes or records, on which it relies and that are reasonably available.
F. Declarations Regarding the Circumstances of the Petitioner's Statements
The petitioner seeks an order requiring the government to provide declarations from the
individuals who interrogated the petitioner, detailing the circumstances of any such
interrogations. Defs.' Mot. at 16. Noting that this court issued such an order in another case, see
Hatim v. Obama, 05-1429 (May 15, 2009) (Order), the petitioner argues that such an order is
appropriate in this case under § 1.E.l(3) of the CMO, which requires the production of
"information about the circumstances in which ... statements of the petitioner [on which the
government relies] were made or adopted," CMO § 1.E.l(3)). The government points out that
after issuing the aforementioned order in Hatim, the court granted the government's motion for
re1iefupon reconsideration, see Hatim v. Obama, No. 05-1429 (Aug. 3, 2009) (Mem. Order), and
held that an order requiring declarations from government interrogators could be justified only
upon a showing of particularized need under § I.E.2, Govt's Opp'n at 13-14.
The petitioner argues for the first time in his reply brief that his request for declarations
satisfies the requirements of § 1.E.2. See Petr's Reply at 6-7; see generally Petr's Mot. Because
the court will not consider arguments raised for the first time in a party's reply, see Ramer v.
United States, 620 F. Supp. 2d 90, 102 (D.D.C. 2009), the court denies his request for
declarations regarding the circumstances of his statements.
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G. All Statements Made by the Petitioner, Including Those on Which the Government
Does Not Affirmatively Rely and Circumstances Information for Those Statements
The petitioner requests the production of all forms of any of his prior statements,
including those on which the government does not affirmatively rely, as well as circumstances
information for those statements. Petr's Mot. at 17-18. The petitioner contends that the
government should disclose these statements because they may show nuances which would
explain any alleged inconsistencies in the petitioner's other statements on which the government
does rely, and because they may show that the consistencies far outweigh the inconsistencies. Id.The government responds that such an order is not justified by any provision of the CMO.
Govt's Opp'n at 14-15.
This sweeping request seeks infonnation that does not fall under any of the automatic
disclosure provisions of the CMO. See CMO §§ LD.l, LE.l. Nor has the petitioner
demonstrated that the request is narrowly tailored, specific or likely to produce exculpatory
infonnation. See id. § 1.£.2. Accordingly, the court denies this request.
IV. CONCLUSION
For the foregoing reasons, the court grants in part and denies in part the petitioner's
motion for additional discovery. An Order consistent with this Memorandum Opinion is
separately and contemporaneously issued this 19th day ofNovember, 2009.
RICARDO M. URBINA
United States District Judge
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