Abdallah Al Ansi v. Bush ( 2009 )

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FILED It/'''H
CCURT sr-<
MUHAMMAD AHMAD ABDALLAH
AL-ANSI, et al.,
Petitioners,
v. Civil Action No. 08- 192 3 ( GK)
BARACK H. OBANA, et al.,
Respondents.
ORDER
A Motions Hearing was held in this case on August 17, 2009,
which took place in a sealed courtroom due to the discussion of
classified information. Upon consideration of Petitioner AI-Ansi' s
Motion to Compel Discovery and Production of Classified Information
[Dkt. Nos. 99/100J, the Opposition, Reply, representations of the
parties, and the entire record herein, it is hereby granted in part
and denied in part.
Because of the very large number of discovery requests made by
Peti tioner, counsel were asked to focus their arguments on the
following major substantive issues in dispute: 1) the status of the
Guantanamo Review Task Force ("GRTF") I 2} the scope of
certifications of provision of exculpatory information provided by
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the Government, 1 -
3) medical records of Petitioner and his accusers,
4) bounties, 5) two depositions sought by Petitioner, 6) statements
of Petitioner as well as his accusers, 7) photographs of
Petitioner, and 8} the relevance of Petitioner's allegations of
torture, and documentation relevant to those allegations. Counsel
fully addressed these issues and were given the opportunity to
raise any other issues, including those which had been covered in
their pleadings.
Based upon the arguments of counsel, the Case Management Order
("CMO") of February 12, 2009, the persuasive decisions of other
judges on this District Court, and the applicable case law from the
Supreme Court and our Court of Appeals for this Circuit, the Court
reaches the following conclusions.
T. Automatic Discovery
As to Petitioner's requests under § I.E.1 of the CMO, it is
hereby
ORDERED, that Request No. 1 is denied. Petitioner requests
" raJ ny documents or obj ects in the Government's possession that are
referenced in the factual return. II The request sweeps far too
Despite the Government's representations at the hearing
about the completeness of its certifications, it is still less than
clear to the Court whether it has certified that it has complied
with many of the discovery requests made by Petitioner. The
Government should feel free to inform the Court as to any of the
orders contained herein which it believes it has already certified
compliance with.
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is further
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broadly, and does not fit under the parameters of § I.E.l; and it
ORDERED, that Request No. 2 is denied as formulated.
Petitioner requests "[alll statements, in whatever form, made or
adopted by Petitioner that relate to the information contained in
the factual return." Petitioner is entitled to all statements, "in
whatever form," that he made or adopted, which relate to any
information contained in the Factual Return upon which the
Government relies to justify his detention. See Zaid v. Bush, 596
F. Supp. 2d 11 (D.D.C. 2009) i and it is further
ORDERED, that Request No. 3 is denied as formulated.
Peti tioner requests" [i] nformation about the circumstances - -whether
coercive or not--in which such statement[s] of the Petitioner were
made or adopted." The Government is required to produce
"circumstances information" only for those statements upon which
the Government relies.
II. Additional Discovery and Requests for Additional EXC\llpatory
Evidence
As to Petitioner's requests under §§ I.D.l and I.E.2 of the
CMO, it is hereby
ORDERED I that Request No. 4 is granted in part a.nd denied in
part. Petitioner requests " [a] 11 reports [, ] interviews,
interrogations, and statements (including tapes, transcriptions[,]
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referenced in the factual
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and original notes) referring to or discussing Petitioner, whether
return or not." The Government is
required to disclose all reports, interviews, interrogations, and
statements--including tapes, transcripts, and original notes--that
refer to or discuss Petitioner, provided that these items contain
information that the Government relies on to justify detention.
This requirement covers negative identifications provided by
any other detainees who could not identify Petitioner as an al­
Qaida bodyguard, a participant in battle at Tora Bora or elsewhere,
or an individual who fled or was captured with a group of alleged
al-Qaida bodyguards. Such fai lures to identi fy, if made, would
constitute exculpatory information under § I.D.l; and it is further
ORDERED f that Request No. 5 (" raj 11 prior and subsequent
reports, interviews f interrogations f and statements (including
tapes, transcriptions[,] and original notes) of any witness
identified in response to Request No. 4 (whether referenced in the
factual return or not)") is denied as over-broad; and it is further
ORDERED f that Interrogatory No. 1 and Request No. 6 are
denied, as Petitioner has withdrawn them; and it is further
ORDERED, that Request No. 7 is denied. Petitioner requests
"[alII information concerning whether the declarants in the
interviews and statements sought in Requests No[s]. 4 and 5 have
been released or are subject to plans for release." Under § 1.E.2,
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demonstrate that his detention is unlawful.
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Petitioner has not adequately explained how such evidence would
Second, under § I.D.I,
the link between the information sought and the justification for
Petitioner's detention is too attenuated to constitute exculpatory
evidence. Finally, under § I.E.2(4), the requested discovery would
unduly burden the Government and very possibly interfere with
delicate negotiations with other countries; and it is further
ORDERED, that Request Nos. 8-10 are granted in part and denied
in part. 2 Request Nos. 8 and 9, and the portion of No. 10 that
refers to audio or video tapes of CSRT and ARB proceedings, are
denied. Under § I.E.2, the disclosure sought is too broad, and not
narrowly tailored. Moreover, Petitioner has already been given a
significant number of documents pertaining to the CSRT and ARB
proceedings. While the Government is absolutely required to
disclose, under § I.D.l, any exculpatory evidence to be found in
those proceedings, comprehensive disclosure of all of those
proceedings is unjustified because the conclusions reached in those
proceedings are not relevant to what must be decided in this
Request No.8: "All classified information reviewed by
the Combatant Status Review Tribunal in making the determination
that Petitioner was an 'Enemy Combatant.'"
Request No.9: "All classified information reviewed by
the Administrative Review Board in making the determination that
the continued detention of Petitioner is necessary."
Request No. 10: "Any audio or video tapes of Petitioner's CSRT
proceeding, Administrative Review [BJoard Proceedings, and
interviews or interrogations of Petitioner."
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As to the requested
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litigation, namely the lawfulness of his continued detention.
interviews or interrogations of
Petitioner, the request is granted, but only as to statements in
the Factual Return upon which the Government relies; and it is
further
ORDERED, that Request No. 11 is granted in part. Petitioner
requests "(aJ 11 documents concerning the medical treatment of
Petitioner since he has been in United States custody, including
but not limited to all medical records and psychological records,
following his torture in Kandahar, and all medical records
Petitioner is entitled to medical and psychological records
from 2001-2004, because they may provide exculpatory information
relating to torture, whose continuing impact may have affected the
seven statements given by Petitioner upon which the Government
relies; and it is further
ORDERED, that Request Nos. 12 and 14-21 are granted in part
and denied in part. With some minor variations, the requests seek
information about nine witnesses 3 relied upon by the Government,
including "all medical records showing mental instability or
physical illness from the time of capture through the present (or
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date of release) ; all -
statements, interviews,
recordings, and interrogation reports of [the witness] ; all records
memoranda,
of or memoranda concerning the torture or use of harsh
interrogation tactics on [the witness]; any documents concerning
incentives, rewards or plans for release for [the witness] i and all
documents concerning the credibility of [the witness'] accusations
against other detainees, including but not limited to statements
made by other detainees."
As formulated, the request is far too broad, open-ended, and
not narrowly tailored under § I.E.2. The Government is required to
produce all medical records showing mental instability or physical
illness from the time of capture through the time that the witness
gave his most recent inculpatory statement upon which the
Government relies. The Government must also produce all records or
memoranda of torture concerning abusive interrogation tactics for
that period, and all documents concerning the credibility of the
witnesses' accusations against Petitioner or any other detainees;
and it is further
ORDERED I that Interrogatory No. 2 4 and Reques t No. 13 are
denied. Petitioners ask that the Government "describe the
circumstances under which made an 'in person'
4 This interrogatory was mis-labeled as "Interrogatory No.
1" in Appendix A to Petitioner's Motion.
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identification
memoranda,
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Petitioner and produce
and documents concerning the same.
all interview notes,
(Factual Return,
Narrative ~ 16j /I
The Government claims that it has already searched for,
located, and produced all reasonably available evidence in response
to this request. The Government is required to file a sworn
certification to that effect, or respond to the request; and it is
further
ORDERED, that Request No. 22 is denied. This request states,
1/ It] he Government relies on the following reports which even in
their classified form remain highly redacted. Please produce
unredacted copies of the following documents relied upon by the
The Government is not relying upon the redacted information,
and therefore need not produce unredacted versions of the reports;
and it is further
ORDERED, that Interrogatory No. 3 and Request No. 23 are
granted. Petitioner requests that the Government "identify the
source of information in the following intelligence reports and
p.roduce any documents or memoranda reflecting on the source's
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credibility: (a) -
(b)
Petitioner is not seeking the redacted information, he is seeking
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the source for that portion of the statements which is not redacted
and upon which the Government does rely; and it is further
ORDERED, that Interrogatory No. '1 and Request No. 24 are
denied. Petitioner requests that the Government "identify the
source(s), author Is) , and translators involved in the creation of
the document appended to the Factual Return:
" and "produce all documents, tapes,
photographs, or interview notes supporting the
and all 'pertinent information collected
concerning source and source family passed to the FBI 1IIIIIIII and
is available on request,' as stated in that document;" and it is
further
ORDERED, that Request No. 25 is gra.nted. Petitioner seeks
production
This
document is the only one on which the Government relies to prove
that Petitioner received combat training. Obviously, any
5 Petitioner mistakenly included two requests for the same
document in Appendix A to its Motion. That duplicative request has
been omitted.
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impeachment of this document could, under § I.E.2, produce evidence
that undermines the Government's claim of lawful detention. The
request is narrowly tailored and specifies the particular discovery
sought; and it is further
ORDERED, that Request No. 26 is denied. Petitioner requests
" [a] 11 information relating to the Uni ted States ['] use of bounties
to capture individuals in connection with the hostilities in
Afghanistan after September 11, 2001." The request sweeps far too
broadly; and it is further
ORDERED, that Interrogatory No. 5.and Request No. 27 are
granted. Peti tioner requests that the Government "identify and
describe any payments or bounties that were made in connection with
the capture of Petitioner and/or the transfer of Petitioner to U.S.
custody. Please describe the circumstances of any such payments,
including the name of the recipient and the amount of the payment
and any supporting documentation of such bounty."
Under § 1. D.1 of the CMO, such information qualifies as
eXCUlpatory evidence. See Order at 3-4, Abdah v. Obama, Civ No.
04-1254 (HHK) (D.D.C. Apr. 8, 2009) [Dkt. No. 477J; and it is
further
ORDERED, that Interrogatory No.6 and Request Nos. 28 and 29 6
6 Request No. 28: "All information and documentation about
the circumstances of Petitioner's 'arrest' or 'capture' (as alleged
in the Factual Return) in Pakistan and the circumstances of
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are denied.
for, located,
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The Government claims that it has already searched
and produced all reasonably available evidence in
response to this request. The Government is required to file a
sworn certification to that effect, or respond to the request; and
it is further
ORDERED, that Request No. 30 is granted in part and denied in
part. Petitioner requests "[aJ ny documents, including but not
limited to any interrogation logs or interrogation plans that list
or describe the date, time, place or circumstances of any
interrogations of petitioner, all Analyst Support Packages for Mr.
al Ansi (including the most up-to-date support package)."
The Government is required to disclose any interrogation logs,
if they exist, that list or describe the date, time, or place of
any interrogations of Petitioner; and it is further
ORDERED, that Request No. 31 is den..i ed. Petitioner requests
that the Government "produce all documentation of the Government's
Petitioner's movement between detention facilities from the date
Respondents contend he was 'captured' until he was transferred to
Guantanamo. This request encompasses, but is not limited to,
documents related to Petitioner's arrest at the Pakistani border,
the Pakistani detention facility, and his detention under U. S.
custody in Kandahar. II
Interrogatory No. 6 and Request No. 29: "Describe the
circumstances of Petitioner's arrest and produce all documents and
evidence that Petitioner was 'captured with approximatelyllllother
members of Usama bin Laden's security detail, including several
bodyguards,' paragraphs 33 and 44 of Respondents' Narrative to the
Factual Return Narrative. II
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in Kandahar and Guantanamo Bay, Cuba."
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interrogation techniques and torture of Petitioner while detained
The Government claims that
it has already searched for, located, and produced all reasonably
available evidence in response to this request. The Government is
required to file a sworn certification to that effect, or respond
to the request; and it is further
ORDERED, that Request No. 32 is denied. Petitioner seeks
"[a]ll communications between Government interrogators and their
superiors (whenever located) about the interrogation of
Petitioner." The request is open-ended and sweeps too broadly; and
it is further
ORDERED, that Request No. 33 is gra.nted. Petitioner is
entitled to "[a]ny documentation of Petitioner's travel from Yemen
to Pakistan and Afghanistan, including passport and visa
documentation;" and it is further
ORDERED, that Request No. 34 is denied, for failure to comply
wi th the requirements of § I. E . 2 (3) . In asking for "[a] ny
documentation or items (or a log or inventory of such items) taken
from Petitioner since the time of his capture in 2001," Petitioner
provides no indication of why, if granted, such a request would
produce evidence that his detention is unlawful; and it is further
ORDERED, that Request No. 35 is denied. Petitioner requests
" [a] 11 documents proving or disproving that Petitioner attended the
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Dimaj Institute or personally knew Shaykh Muqbil al Wadi.
Government claims that it has already searched for,
ff
located, and
The
produced all reasonably available evidence in response to this
request. The Government is required to file a sworn certification
to that effect, or respond to the request; and it is further
ORDERED, that Request No. 36 is granted in part. Petitioner
and it is further
ORDERED, that Request Nos. 37 and 38 7 are denied. The
Government claims that it has already searched for, located, and
produced all reasonably available evidence in response to these
Request No. 37: "All documents from the Pakistani police
station that concern the circumstances of Petitioner's \ arrest' and
all documents from the Pakistani detention facility in Peshawar
where he was detained prior to being turned over to U.S. Custody."
Request No. 38: "please produce any agency evaluations of the
credibility of the information contained in any interrogation
report upon which Respondents rely."
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requests. -
The Government is required to file a sworn certification
to that effect, or respond to the request.
To the extent that the Government is arguing that the
information sought under Request No. 37 would not be relevant, and
therefore was not provided, the Petitioner's request is granted,
under § I.E.2; and it is further
ORDERED, that Request No. 39 is denied without prejudice.
Petitioner requests production of "any documentation, including
employment records of termination, concerning the skill and
expertise of the following translators used by Respondents: l1li
Petitioner has not identified any specific words, phrases, or
statements from any evidence upon which the Government relies in
the Factual Return that he alleges was not properly translated,
summarized, or paraphrased. Consequently, the requirement in §
I.E.2(3) of the CMO has not been satisfied; and it is further
ORDERED, that Request No. 40 is denied. Petitioner seeks
production of "the Justice Department's Office of Professional
Responsibility (OPR) investigating the conduct of the Bush
Administration lawyers' torture memos."
The request is over-broad and open-ended, and therefore fails
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to comply with
this information
§ I.E.2 (3).
would
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Petitioner fails to demonstrate why
specifically address the lawfulness of
Petitioner's detention; and it is further
ORDERED, that Request No. 41 is denied. In seeking production
of "Inspector General John L. Helgerson's Report issued on May 7,
2004," Petitioner again fails to demonstrate, under § l.E.2(3), why
this report would specifically address the lawfulness of
Petitioner's detention. The Report spans thousands of pages, and
Petitioner does not explain how the critique of the legality of
certain interrogation methods could rebut the Governments's factual
basis for its case against Petitioner; and it is further
ORDERED, that Request No. 42 is denied, as it is duplicative
of Request No. 40; and it is further
ORDERED, that Request No. 43 is gra.nted in part and denied in
part. Petitioner seeks "any documents drafted by Government
officials, employees, or outside expert consultants that question
the means used or reliability of information obtained as a result
of any 'harsh' interrogation techniques of the types described in
the CIA Torture Memos or which were used on any of the detainees on
whose statements Respondents rely to support the claim that
Petitioner was an enemy combatant or to otherwise justify his
detention for the past eight years."
As formulated, the request is not narrowly tailored, and is
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open-ended. -
The Government is, however, required to disclose what,
if any, requests were made by interrogators to use specific harsh
interrogation techniques for which. explicit permission was required
in interrogating detainees upon whose accusations the Government
relies in this case; and it is further
ORDERED, that Request No. 44-46 are denied, as Petitioner has
withdrawn them; and it is further
ORDERED, that Request Nos. 47-50 6 are denied, under § I.E.2 of
the CMO. They are open-ended and would unduly burden the
Government.
III. Request for Admissions
As to Petitioner's Request for Admissions" ("RFAs"), it is
The requests in this interval were mis-numbered, as there
were two Request No. 48s. The rUling applies to both of those
requests.
Peti tioner asks the Government to admit or deny the
following:
1. Prior to traveling to Afghanistan, Muhammad Ahmed
Abdallah al Ansi lived in Sanaa, Yemen.
2. There is no evidence that Muhammad Ahmed Abdallah al Ansi
ever committed any acts hostile to the United States
during his years in Yemen.
3. There is no evidence that Muhammad Ahmed Abdallah al Ansi
participated in any violent act during his years in
Yemen.
4. There is no evidence that Muhammad Ahmed Abdallah al Ansi
was arrested or convicted of any crime during his years
in Yemen.
5. There is no evidence that Muhammad Ahmed Abdallah al Ansi
was a member of any extremist or anti-United States
organization during his years in Yemen.
6. There is no evidence that Muhammad Ahmed Abdallah al Ansi
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hereby
ORDERED,
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that the Government must respond to RFAs 2-9. The
Government's current responses to RFAs 2-9 are evasive and
disingenuous. The Government is to squarely admit or deny whether
"there is evidence U supporting the particular request for
admission. If there is "no evidence" regarding a specific request
for admission, the Government is to say so.
IV. Supplemental Request for Production
In Appendix B to Petitioner's Motion, he includes an
addi tional request for production .10 It is hereby
ORDERED, that the supplemental request is denied. It would be
inappropriate for this Court to issue any order which could affect
engaged in any act or made statements hostile to the
United States or his allies during his years in Yemen.
7. Muhammad Ahmed Abdallah al Ansi was taken into custody by
the Pakistani police, not the United States military.
8. There is no evidence that Muhammad Ahmed Abdallah al Ansi
had a weapon of any kind at the time he was taken into
custody.
9. No physical evidence was obtained from Muhammad Ahmed
Abdallah al Ansi at the time he was taken into custody
that indicated he was engaged in any unlawful activity or
activity hostile to the United States or its allies.
1.0 Supplemental Request: "Any photographs documenting the
abuse of prisoners in Iraq and Afghanistan by United States
military personnel, which are the sUbject of litigation between the
Government and American civil Liberties Union and which are
referenced in the May 14, 2009, New York Times article attached
hereto, in which the Petitioner, Muhammad Ahmad Abdallah al Ansi
(ISN 29), or any of the detainees upon whose statements Respondents
rely in the Factual Return are depicted. u
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docket. It would be
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or interfere with another judge's handling of a case on his or her
particularly inappropriate as to the
"litigation between the Government and American Civil Liberties
Union," given the complexity and·sensitivity of that litigation,
with which that judge is undoubtedly fully familiar and with which
this Court has no familiarity.
v. Depositions and/or Interviews
As to Petitioner's request to take depositions or conduct
interviews of two central Government witnesses, upon whose
accusations the Government relies to justify detention, it is
hereby
ORDERED, that the request is granted in part and denied in
part. Petitioner has demonstrated restraint in asking for access
to only two of the multiple accusers. Moreover, those two
detainees have already retracted the substance of their accusations
against Petitioner. Petitioner's counsel has already received
permission from counsel for one of these detainees to interview
him, and has been in touch with counsel for the other detainee and
has reason to believe that permission will be given to interview
him. In the context of this request, no detainee may be
interviewed without the permission of his counsel.
Petitioner has assured the Court that his counsel will make
all arrangements to coordinate any procedure allowed by the Court.
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Counsel correctly point out that the only difference between such
an interview and a regular counsel-client meeting at Guantanamo Bay
would be the addition of the detainee's own counsel. There is no
persuasive evidence that the addition of that one individual would
either compromise security or cause undue logistical burdens to the
Government.
Finally, the Court is permitting a witness interview rather
than the deposition that Petitioner prefers. The Court wishes to
make the proceedings as simple and uncomplicated as possible I
rather than adding another individual to the proceeding (i.e., the
court reporter) and additional equipment which could be prove to be
problematic. All counsel will of course remain subject to the
existing requirements and prohibitions contained in the Protective
Orders, meani.ng that no classified information may be shared by any
counsel with the detainee being interviewed. Petitioner's counsel
has assured the Court that she will clear any problematic questions
and/or subject-matter areas with the Government.
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August,,:..;~,, I
Judge
Copies to: Attorneys of Record via ECF
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