Abdullah v. Bush ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
HANI SALEH RASHID ABDULLAH )
et al., )
Petitioners, )
)
v. ) Civil Action No. 05-23 (RWR)
)
GEORGE W. BUSH et al., )
)
Respondents. )
)
MEMORANDUM ORDER
Petitioner Hani Abdullah, a detainee at Guantanamo Bay, has
moved [195] for an order requiring the respondents to provide him
with
(1) all video and/or sound recordings of any statement
made by [Abdullah] upon which the government relies to
justify detention; (2) any original notes or
transcripts thereof, including any translation from the
Arabic; and (3) any other records or reports of those
statements, including records or reports made by
persons other than the person who prepared the report
attached to the factual return.
(See Pet’r’s Mot. to Compel (“Pet’r’s Mot.”) at 5-6.) The
respondents oppose, arguing that the text of the Case Management
Order (“CMO”), as amended by Judge Hogan’s order of December 16,
2008, does not require the government to disclose the documents
requested by Abdullah because the respondents only rely on the
translations of Abdullah’s statements that have already been
provided to him as part of the amended factual return. The
respondents also argue that requiring them to respond to
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Abdullah’s request would impose an undue burden on the
government. (See Resp’ts’ Opp’n at 4-5, 7.)
Section I.E.1. of the CMO in this case provides, in relevant
part:
If requested by the petitioner, the government 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.
(See Case Management Order, November 6, 2008, Docket Entry # 142;
Supplemental Amended Case Management Order, December 16, 2008,
Docket Entry # 170.)
The respondents’ interpretation of the CMO is faulty. That
reading and their complaints about the administrative burden they
would bear by complying with Abdullah’s request, have been
rejected already on several occasions in decisions rendered in
this district. Zaid v. Bush, 596 F. Supp. 2d 11 (D.D.C. 2009),
granted a petitioner’s motion to compel the same kinds of items
as are sought here. The respondents argued, as they do here,
that they had complied with section I.E.1 of the CMO by providing
the petitioner with the statements attached to the amended
factual return. The court disagreed:
the Court rejects respondents' argument that they have
already complied with section I.E.1(2) of the Case
Management Order. The phrase “in whatever form” is
plainly meant to expand respondents' obligation, not to
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cabin it. As written, section I.E.1(2) requires that
if respondents rely on one of petitioner's statements
to justify detention, then they must produce all forms
of that statement. Producing only statements in the
particular form that the government has chosen to use
is contrary to the plain language of section I.E.1(2)
and defies common sense. Therefore, respondents have
not complied with the Case Management Order by
producing only that which was already appended to the
Factual Return.
Id. at 12. The respondents moved for reconsideration, arguing
again that the language of the amended CMO indicated that they
were required to supply only the statements that were attached to
the amended factual return. The court again disagreed:
Under respondents' reading, section I.E.1(2) requires
only that they produce petitioner's statements in the
form already included in the factual return. This
interpretation is incorrect. First, the phrase “in
whatever form” in section I.E.1(2) plainly modifies
“all statements.” The sentence would have to be
rewritten to support respondents' reading, to wit: “all
statements made or adopted by petitioner in whatever
form that the government relies upon to justify
detention.” Second, respondents' interpretation would
obviate section I.E.1(2) because under their reading
section I.E.1(2) would be satisfied by production of
the factual return itself, with its attached
statements. But production of the factual return is a
separate requirement in these habeas cases. See
July 11, 2008 Scheduling Order at 3-4. Hence, the
Court has not misconstrued its own Case Management
Order and to the extent respondents claim otherwise,
their motion for reconsideration is DENIED.
Id. at 14. Similarly, Al-Ghizzawi v. Obama, 600 F. Supp. 2d 5(D.D.C. 2009) rejected the “respondents’ cramped interpretation
of Section I.E.1(2)” of the CMO, and ordered the respondents to
produce all versions of the petitioner’s statements found in the
files kept by the Joint Intelligence Group (JIG) and the Office
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of Administrative Review of the Detention of Enemy Combatants
(OARDEC). See id. at 7; see also Al Odah v. United States, Civil
Action No. 02-828 (CKK), 2009 WL 382098, at *1 (D.D.C.
February 12, 2009) (ordering respondents to provide to the
petitioner “all statements, in whatever form (including audio or
video), whether cumulative or not, that have not previously been
disclosed, made by Petitioner . . . relating to the statements
attributed to them in the Factual Returns”); Anam v. Obama, Civil
Action No. 04-1194 (TFH), 2009 WL 1322637, at *1 (D.D.C. May 11,
2009) (requiring respondents to disclose “all forms of the
statements made or adopted by the petitioner,” including any
audio or video recordings, transcripts, translations, and
contemporaneous notes or records); Ghanem v. Obama, 598 F. Supp.
2d 41, 44-45 (D.D.C. 2009) (ordering respondents to produce all
reasonably available forms of the statements on which the
government relies).
Respondents’ arguments here are no more justified than they
were in the cases rejecting them cited above. The respondents’
interpretation of the CMO will be rejected, and they will be
ordered to comply with Abdullah’s request in full by searching
the files of the JIG and OARDEC. Accordingly, it is hereby
ORDERED that the petitioner’s motion [195] to compel
compliance with section I.E.1 of the CMO be, and hereby is,
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GRANTED. The respondents are DIRECTED to provide the items
sought in his motion by November 2, 2009.
SIGNED this 28th day of September, 2009.
/s/
RICHARD W. ROBERTS
United States District Judge