Mousovi v. Obama

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
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ALI SHAH MOUSOVI, et al., )
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Petitioners, )
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v. ) Civil Action No. 05-1124 (RMC)
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BARACK H. OBAMA, et al., )
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Respondents. )
)
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IN RE PETITION of WALI )
MOHAMMED MORAFA (ISN 560) )
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___________________________________ )
OPINION
On a petition for a writ for habeas corpus filed by a detainee at Guantanamo Bay,
may the Respondents rely on Top Secret source-identifying information for which there is no
adequate substitute and that cannot be released to Petitioner’s counsel, even if it might assist his
petition? After lengthy argument, briefing, and consideration, this Court answered the question
in the affirmative and now writes to explain its conclusions.
I. FACTS
Petitioner Wali Mohammed Morafa, an Afghan citizen, is a detainee at
Guantánamo Bay Naval Station in Cuba. Respondents contend that he “used the cover of []
otherwise legitimate money-changing activities to provide financial services support to the
operations of the Taliban, [Al Qaida, Usama Bin Laden], and other terrorist organizations,”
including “financ[ing] . . . operations and terror attacks.” Notice of Public Filing of Factual
Return [Dkt. 242], Narrative [Dkt. 242-1] ¶ 01. With a group of other detainees, he filed his
petition for a writ of habeas corpus on June 7, 2005. See Pet. [Dkt. 1]; see also Am. Pet. [Dkt.
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22]. On January 27, 2006, this Court ordered the case held in abeyance pending a ruling from
the D.C. Circuit on whether the Court had jurisdiction to entertain the petition. See Order dated
Jan. 27, 2006 [Dkt. 33]. Thereafter, in events whose intricate details are not directly relevant to
the issues presently before the Court, the case was effectively stayed for a lengthy period
pending various rulings from the D.C. Circuit and the Supreme Court addressing what vehicle, if
any, Guantánamo detainees could use to challenge their detention. In addition, during that time
period, procedural and logistical matters in this case were consolidated for coordination and
management with other Guantánamo cases before the Honorable Thomas F. Hogan in Case
Misc. No. 08-442. See Order dated July 2, 2008 [Dkt. 85].
On November 25, 2008, respondents filed their classified Factual Return
regarding Mr. Morafa, see Notice of Filing of Factual Returns, Dkt. 143, and they served an
unclassified version on Mr. Morafa’s counsel shortly thereafter, see Notice of Service of
Unclassified Protected Factual Return, Dkt. 170. See also Notice of Public Filing of Factual
Return. In January 2009, after President Barack Obama took office, Respondents notified the
Court that they had identified additional documents, possibly relevant to Mr. Morafa, that were
undergoing clearance review. See Supp. Notice Prod. Exculp. Info. [Dkt. 183] at 1. In
December 2009, Respondents sought leave to amend the factual return, see Notice of Classified
Filing dated Dec. 1, 2009, Dkt. 257; Mr. Morafa consented, see Revised Notice dated Dec. 7,
2009, Dkt. 260, and the Court granted the motion and set a briefing schedule, Minute Order
dated Dec. 11, 2009. Mr. Morafa filed his traverse on January 15, 2010. See Notice of Filing
[Dkt. 264]. The parties filed a number of additional motions and briefs, and the Court held a
closed merits hearing over several days in May and June 2010.
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Although the case’s dénouement seemed nigh, matters were not so simple.
Following a November 5, 2010, telephone conference, the Court reopened the record and
approved additional briefing to accommodate ongoing document review by Respondents,
necessary for Respondents to ensure full compliance with their disclosure obligations. See
Minute Orders dated Nov. 5, 2010 & Nov. 23, 2010. See generally Am. Case Mgmt. Order [Dkt.
154] §§ 1.D, 1.E. Respondents filed a Supplemental Factual Return on March 25, 2011. See
Notice of Filing [Dkt. 331].
The discovery fights then renewed. Contending that he was entitled to additional
materials from Respondents, Mr. Morafa filed a motion for additional discovery. See Notice of
Filing dated July 18, 2011 [Dkt. 339]. Following status conferences on October 18 and
November 3, 2011, the Court granted the motion in part and directed Respondents to conduct
five additional searches on terms set forth in an Order dated November 15, 2011. See Order on
Pet’r Mot. Add’l Disc. (Redacted Version) [Dkt. 356]. Respondents located additional
information inculpating Mr. Morafa, and they filed a motion to add this information to the
Supplemental Factual Return, see Notice of Classified Filings [Dkt. 366], which the Court
granted, see Order dated July 23, 2012 [Dkt. 372] at 2.
The present issue arises from certain source-related information located by
Respondents during their searches after November 2011. The information in question is
classified at the “Top Secret” level, the highest of the three levels of national security
classification—Top Secret, Secret, and Confidential. 1 Throughout the Guantánamo proceedings,
1
See “Classified National Security Information,” Exec. Order 13526, 75 Fed. Reg. 707, 707–08
(Dec. 29, 2009) (“‘Top Secret’ shall be applied to information, the unauthorized disclosure of
which reasonably could be expected to cause exceptionally grave damage to the national security
. . . . ‘Secret’ shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause serious damage to the national security . . . .”).
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counsel for petitioners, including Mr. Morafa’s attorneys, have only held clearance at the Secret
level, making them ineligible to access to Top Secret information. See Am. Case Mgmt. Order
§ 1.F (“If any information to be disclosed under Sections I.D or I.E of this Order is classified, the
government shall, unless granted an exception by the Merits Judge, provide the petitioner’s
counsel with the classified information, provided the petitioner’s counsel is cleared to access
such information.” (emphasis added)). Accordingly, Respondents filed a motion ex parte and in
camera, Dkt. 374, for an exception to their disclosure duties with respect to certain information,
including the source-related information at issue here. See Am. Case Mgmt. Order § 1.F (“If the
government objects to providing the petitioner’s counsel with the classified information, the
government shall move for an exception to disclosure.”).
Thereafter, pursuant to a procedure used by other judges of this Court in
Guantánamo cases and endorsed by the D.C. Circuit in Khan v. Obama, 655 F.3d 20 (2011), the
Court reviewed Respondents’ ex parte materials in camera. The Court also reviewed proposed
substitutes, classified below the Top Secret level, that Respondents intended to provide to Mr.
Morafa’s counsel. These substitutes are a unique device to balance national security needs with
the need for “meaningful” habeas review. See Khan, 655 F.3d at 32 (quoting Boumediene v.
Bush, 553 U.S. 723, 779 (2008)). They generally describe, in less detail or with certain
omissions or redactions, the classified information that could not be disclosed. If approved by
the court, they are referred to as “adequate substitutes.” A court’s inquiry when reviewing
proposed substitutes is, essentially, to determine if all “relevant and material” information from
the Top Secret document has been conveyed in the Secret substitute. See Al Odah v. United
States, 559 F.3d 539, 544 (D.C. Cir. 2009) (applying “relevant and material” standard to
disclosure of Secret classified information to petitioner’s counsel in Guantánamo case). If so, the
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petitioner has access to “meaningful” habeas review, and the fact that there is some information
to which petitioner’s counsel does not have access is irrelevant because that information falls
short of being “relevant and material.” See id.The problem arises when there is “relevant and material” evidence, classified as
Top Secret, for which no adequate substitute is available. This is an issue that, to the knowledge
of the Court and the parties, has never been directly resolved—likely owing in large part to the
good faith shown by Respondents in working with stakeholder agencies and with judges during
ex parte, in camera review to reach agreement as to adequate substitutes that petitioners’ counsel
can access. Despite the commendable and professional efforts of Respondents’ counsel, this
case presented that problem: there is no adequate substitute available for certain relevant and
material source-related information, classified at the Top Secret level. Accordingly, although the
Court has reviewed that information in camera, Mr. Morafa’s counsel is unable to review it. Mr.
Morafa objects to this outcome, arguing that the unavailability of such evidence to counsel must
both preclude Respondents from relying on it to support his detention and preclude the Court
from considering it in ruling on his habeas petition.
After oral arguments held during closed hearings on August 24, 2012 and
September 18, 2012, the Court issued oral rulings that Respondents were not required to disclose
the Top Secret materials for which no adequate substitute could be prepared and had, subsequent
to some additional substitute disclosures to which Respondents agreed, satisfied their disclosure
obligations. 2 At Mr. Morafa’s request, the Court allowed the parties to file further memoranda
2
The Court completed an additional in camera review of ex parte documents on November 14,
2012. These documents are the unredacted versions of the documents underlying the
Supplemental Factual Return. After comparison with the redacted versions, the Court again
concluded that, subject to additional minimal disclosures to which they agreed, Respondents had
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regarding these matters. See Minute Order dated Sept. 27, 2012. The parties filed their
memoranda, see Resp’t Mem. [Dkt. 378] & Pet’r Mem. [Dkt. 383], and the matter is now ready
for disposition. 3
II. ANALYSIS
Boumediene v. Bush, 553 U.S. 723 (2008), examined the rights of detainees at
Guantánamo Bay to habeas proceedings and invalidated § 7 of the Military Commissions Act of
2006, 4 which had cut off detainee access to habeas relief in federal courts. Id. at 792 (“MCA § 7
thus effects an unconstitutional suspension of the writ.”). It found:
Where a person is detained by executive order, rather than, say,
after being tried and convicted in a court, the need for collateral
review is most pressing. . . . In this context the need for habeas
corpus is more urgent. The intended duration of the detention and
the reasons for it bear upon the precise scope of the inquiry.
Habeas corpus proceedings need not resemble a criminal trial, even
when the detention is by executive order. But the writ must be
effective. The habeas court must have sufficient authority to
conduct a meaningful review of both the cause for detention and
the Executive’s power to detain.
. . . What matters is the sum total of procedural protections
afforded to the detainee at all stages, direct and collateral.
not improperly limited any information—inculpatory or exculpatory—released to Mr. Morafa’s
lawyers.
3
Respondents argue that the Court should refrain from deciding this matter until “submission of
all the evidence in this case, including Petitioner’s Supplemental Traverse and any testimony by
Petitioner.” Resp’t Mem. at 15. The Court disagrees. It has already ruled and writes now only
to amplify its reasoning. Moreover, as set forth in this Opinion, the Court concludes that
Respondents are entitled to an exemption to their disclosure obligations for the limited category
of Top Secret, source-related information at issue here. Deciding the matter after the fact would
only invite post hoc, backwards-looking analysis and would contravene both sound principles of
judicial decision-making and the essential purpose of the habeas proceeding: the Court’s
independent review of the detention decision.
4
Pub. L. 109-366, 120 Stat. 2600 (Oct. 17, 2006), as codified at 28 U.S.C. § 2241(e).
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Id. at 783. To conduct a proper habeas proceeding, the court must have “some authority to
assess the sufficiency of the Government’s evidence against the detainee.” Id. at 786. “It also
must have the authority to admit and consider relevant exculpatory evidence . . . .” Id. The
detainee must have an “opportunity . . . to present relevant exculpatory evidence . . . .” Id. at
789. For emphasis, the Court reiterated: “If a detainee can present reasonably available evidence
demonstrating there is no basis for his continued detention, he must have the opportunity to
present this evidence to a habeas corpus court.” Id. at 790. And again, “[i]n this context,
however, where the underlying detention proceedings lack the necessary adversarial character,
the detainee cannot be held responsible for all deficiencies in the record” and must be allowed to
present evidence to the court even if such evidence were not available earlier, when the military
detention decision was made. Id. at 791.
Nonetheless, “it does not follow that a habeas corpus court may disregard the
dangers the detention in these cases was intended to prevent.” Id. at 795. “Certain
accommodations can be made to reduce the burden habeas corpus proceedings will place on the
military without impermissibly diluting the protections of the writ.” Id. Indeed, one of the
reasons all Guantánamo habeas cases are venued in the District of Columbia is to “avoid the
widespread dissemination of classified information.” Id.We make no attempt to anticipate all of the evidentiary and access-
to-counsel issues that will arise during the course of the detainees’
habeas corpus proceedings. We recognize, however, that the
Government has a legitimate interest in protecting sources and
methods of intelligence gathering; and we expect that the District
Court will use its discretion to accommodate this interest to the
greatest extent possible.
Id; see also id. (“These and the other remaining questions are within the expertise and
competence of the District Court to address in the first instance.”). Given these imprecise
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instructions from the High Court, the judges of this Bench and Circuit have developed
precedents which aid the analysis on the immediate point.
Applying Boumediene, the D.C. Circuit has held that “[t]he Suspension Clause
protects only the fundamental character of habeas proceedings, and any argument equating that
fundamental character with all the accoutrements of habeas for domestic criminal defendants is
highly suspect.” Al-Bihani v. Obama, 590 F.3d 866, 876 (2010). It added, “Detention of aliens
outside the sovereign territory of the United States during wartime is a different and peculiar
circumstance, and the appropriate habeas procedures cannot be conceived of as mere extensions
of an existing doctrine.” Id. at 877. The D.C. Circuit has found that Guantánamo detainees
receive only “limited procedural entitlement,” id. at 878, which does not include a right to
confront a detainee’s accusers, guaranteed to criminal defendants under the Sixth Amendment,
because it “is not directly relevant to the habeas setting,” id. at 879 (citation omitted). Rather,
[I]n a detainee case, the judge acts as a neutral decisionmaker
charged with seizing the actual truth of a simple, binary question:
is detention lawful? This is why the one constant in the history of
habeas has never been a certain set of procedures, but rather the
independent power of a judge to assess the actions of the
Executive.
Id. at 880 (emphasis added).
Al Odah v. United States, 559 F.3d 539 (D.C. Cir. 2009), which preceded Al-
Bihani, addressed the disclosure of information classified as Secret to a Guantánamo petitioner’s
counsel. By reference to criminal proceedings, the D.C. Circuit held that “before the district
court may compel the disclosure of classified information, it must determine that the information
is both relevant and material—in the sense that it is at least helpful to the petitioner’s habeas
case.” Id. at 544. In the context of a habeas proceeding, this means that “the court must further
conclude that access by petitioner’s counsel (pursuant to a court-approved protective order) is
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necessary to facilitate such review.” Id. at 545. For this purpose, Khan v. Obama, 655 F.3d 20(D.C. Cir. 2011), accepted a process by which the District Court judge reviewed certain materials
ex parte and in camera and petitioner’s counsel, who had suggested the procedure, received a
only a substitute declaration—“still classified, but with less sensitive information”—describing
the evidence. Id. at 31.
As summarized above, in the instant matter, the Court adopted the process
endorsed in Khan. It has reviewed all Top Secret evidence ex parte and in camera to ensure that
Mr. Morafa’s counsel received Secret versions that are adequate substitutes. See Khan, 655 F.3d
at 31 (noting that “highly sensitive” information “can be shown to the court . . . alone” (internal
quotation marks and citation omitted)). Indeed, Khan concluded that “the combination of the
government’s declaration [shared with Mr. Khan’s counsel] and the in camera submission [to the
court but not counsel] constitute[d] an ‘effectiv[e] substitute for unredacted access’ that ensures
Khan the ‘meaningful review of both the cause for detention and the Executive’s power to
detain’ required by Boumediene.” Id. (citation omitted).
This case presents a new wrinkle. In reviewing all Top Secret information and
redacted documents provided to Mr. Morafa’s counsel, the Court has found that redactions were
entirely proper as relevant here and that Respondents did a highly professional job preparing
Secret substitutes—with the exception of substitutes for some source information. Respondents
insist that such source information is much too highly sensitive to be disclosed to Mr. Morafa’s
lawyers, who are cleared to see only Secret information. Respondents rely on Boumediene’s
recognition that “the Government has a legitimate interest in protecting sources and methods of
intelligence gathering,” Resp’t Mem. at 12 (quoting 553 U.S. at 795); clearly, revelation of one
may perforce constitute revelation of both. Because of the nature of some of the source
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information, the Court has also concluded that it might be relevant and material, i.e., “helpful to
the petitioner’s case.” Al-Odah, 559 F.3d at 544; see also id. at 546 (“Information that . . . names
potential witnesses . . . may . . . be material.”). Counsel for Mr. Morafa most emphatically
neither suggest nor agree that it is sufficient for the Court alone to review relevant and material
Top Secret information that is not disclosed in any fashion to them. They argue that the Court
should “use its discretion to accommodate [Respondents’] interest to the greatest extent
possible.” Pet’r Mem. at 7 (quoting Boumediene. 553 U.S. at 795). According to Mr. Morafa’s
counsel, this means that Respondents have a choice in this case: either disclose the relevant and
material source information to them or refrain from reliance on any document that stems from
such a source. E.g., id. at 1–2. In the circumstances of this habeas petition, years after Mr.
Morafa was transferred to Guantánamo, his counsel contend that his rights to contest
Respondents’ reasons for detention prevail over Respondents’ need to secure source information,
when revealed under a court protective order.
There is no doubt that the habeas proceedings for Guantánamo detainees
constitute a special form of habeas for which a court must ensure an objective and neutral
decisionmaker. As with all petitions for habeas corpus, these are not criminal proceedings, and
simply analogizing to the rights of criminal defendants is inapt. Boumediene made clear that a
Guantánamo detainee must have the right to present “reasonably available evidence,” id. at 790,
and that the District Court must exercise its discretion in difficult evidentiary matters. This case
presents such an occasion.
Some source information contained in Top Secret documents reviewed in camera
and ex parte could be relevant and material to Mr. Morafa’s case. However, Respondents have
argued persuasively that source and method information are particularly critical within the
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Intelligence Community and the nation’s security and, thus, cannot be revealed to Mr. Morafa’s
counsel. The Court agrees. It is true that this ruling will have a minor detrimental impact on Mr.
Morafa’s ability to contest the basis for his detention. However, the Court concludes that the
incremental value to the Court of considering that evidence, in tandem with the “exceptionally
grave damage to the national security” that could result from the unauthorized disclosure of Top
Secret information, see 75 Fed. Reg. at 707–08, 5 outweighs the marginal impact of withholding
the information in question. See Khan, 655 F.3d at 31 (“[T]he government may offer alternatives
to providing classified information, as long as they suffice to provide the detainee with a
meaningful opportunity to demonstrate that he is being held pursuant to the erroneous
application or interpretation of relevant law.” (internal quotation marks and citations omitted)).
Of the three components to the habeas proceeding—(1) Mr. Morafa’s ability to
present affirmative evidence or, as relevant here, to attack Respondents’ evidence;
(2) Respondents’ ability to protect highly sensitive information; and (3) the Count’s ability, as a
neutral decisionmaker, to seize “the actual truth of a simple, binary question: is detention
lawful?,” Al-Bihani, 590 F.3d at 880—the third is by far the most important aspect, as the D.C.
Circuit and Supreme Court have both emphasized in Guantánamo cases. The primacy of the
Court’s independent review of the evidence is the defining feature of these proceedings precisely
because “the one constant in the history of habeas has never been a certain set of procedures, but
rather the independent power of a judge to assess the actions of the Executive.” Al-Bihani, 590
F.3d at 880; see also Boumediene, 553 U.S. at 739–46 (surveying history of habeas proceedings).
What matters most is that the Court “have sufficient authority to conduct a meaningful review of
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The Court’s opinion is not intended to cast aspersions on the ability of Mr. Morafa’s counsel to
guard Top Secret information from disclosure. The nature and extent of security clearances
granted to Guantánamo petitioners’ counsel is neither within this Court’s jurisdiction nor subject
to its review.
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both the cause for detention and the Executive’s power to detain.” Boumediene, 553 U.S. at 783.
In this context, the ultimate question is whether access by Mr. Morafa’s counsel to Top Secret
information is necessary to facilitate the Court’s own meaningful review of the evidence. Al
Odah, 559 F.3d at 545. Under these circumstances, the Court concludes that it is not.
The Court recognizes that its ruling necessarily impacts counsel’s ability to access
evidence that is relevant and material (but not necessary to facilitate review) and does not
dismiss lightly the arguments counsel to Mr. Morafa have made or the frustration they
experience in trying to expand the universe of “reasonably available evidence,” Boumediene, 553
U.S. at 790, from which to argue for their client. Top Secret source information is not
reasonably available to those with Secret clearances. However, the value of this specific
evidence is, at best, marginal: The underlying information provided by any source has been
revealed to Mr. Morafa’s counsel, by way of a properly redacted document or a proper adequate
substitute. Thus, Mr. Morafa’s counsel already can argue its accuracy and present his side. See
Khan, 655 F.3d at 29 n.7 (“The relevant question is not the number of independent sources but
rather the reliability of their evidence . . . .”). Disclosure of source-identifying information might
allow Mr. Morafa’s counsel to sharpen any attack on a source’s credibility but, to be frank, the
nature of the classified information already revealed immediately lends itself to such an attack.
Finally, in considering Respondents’ interest in protecting classified information
from unauthorized disclosure, the information at issue here—source-identifying information—is
one that courts have recognized as deserving special protection both inside and outside the arena
of Guantánamo litigation. See, e.g., Fitzgibbon v. CIA, 911 F.2d 755, 762 (D.C. Cir. 1990)
(“[A]long with sources, methods constitute ‘the heart of all intelligence operations.’ It is not the
province of the judiciary . . . to determine whether a source or method should be disclosed . . . .”
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(quoting CIA v. Sims, 471 U.S. 159, 167 (1985))); see also Al Odah v. United States, 608 F.
Supp. 2d 42, 45 (D.D.C. 2009) (citing Fitzgibbon). Especially where, as here, a Guantánamo
prisoner has access to the substance of the information provided by such sources, the Court
recognizes the strong national security interest in protection of the identity of those sources.
Habeas petitions from Guantánamo detainees have continually presented courts
with unique challenges, requiring development of new doctrines and procedures. See Al-Bihani,
590 F.3d at 877 (describing these cases as “a whole new branch of the tree”). Boumediene did
not decide the instant issue, leaving it to the discretion of the district court. The D.C. Circuit has
not addressed it with specificity but indicated its opinion in Khan. Without negative direction
from superior courts, this Court concludes and finds that Top Secret information of the kind at
issue here must be available to the neutral decisionmaker even if not disclosed to Mr. Morafa’s
counsel. With respect to the excellent lawyering from both parties, the Court ultimately finds
that this is not a difficult question.
DATE: January 9, 2013
/s/
ROSEMARY M. COLLYER
United States District Judge
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