Zemiri v. Bush

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AHCENE ZEMIRI,
Petitioner,
v. Civil Action No. 04-2046 (CKK)
BARACK H. OBAMA, et al.,
Respondents.
MEMORANDUM OPINION
(September 9, 2015)
Presently before the Court are Respondents’ [236] Consent Motion to Deem Protected
Information Highlighted in the Accompanying Proposed Factual Finding Return for ISN 533, and
Respondents’ [252] Renewed Motion to Deem Protected the Designated Information in
Respondents’ Proposed Public Version of Petitioner’s Traverse. Respondents seek to have certain
portions of the factual return, originally filed under seal on September 27, 2011, 1 and the
Petitioner’s Traverse, filed under seal on March 20, 2013, deemed protected. Petitioner consents
in part and takes no position in part to Respondents’ motions.
Respondents previously filed a motion requesting that certain information within the
Petitioner’s Traverse be deemed protected. With respect to that motion, the Court requested that
Respondents answer three specific questions regarding the proposed protected material in the
Traverse. Respondents provided responses to those questions in two pleadings, their Supplement
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Respondents filed a revised version of the proposed factual return in this matter alongside
its Ex Parte, In Camera Supplement to Respondents’ Consent Motion to Deem Protected
Information in the Accompanying Proposed Public Factual Return for ISN 533, on March 20,
2013. See Notice of Ex Parte, In Camera Filing, ECF No. [251].
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to Respondents’ Consent Motion to Deem Protected the Designated Information in Respondents’
Proposed Public Version of Petitioner’s Traverse and their Ex Parte, In Camera Supplement to
Respondents’ Consent Motion to Deem Protected the Designated Information in Respondents’
Proposed Public Version of Petitioner’s Traverse. See Notice of Filings, ECF No. [249].
However, after reviewing these documents, the Court denied Respondents’ motion without
prejudice and indicated that it would consider both supplements when reaching its determination
on Respondents’ renewed motion which is currently pending. Moreover, Respondents also filed
an Ex Parte, In Camera Supplement to Respondents’ Consent Motion to Deem Protected
Information in the Accompanying Proposed Public Factual Return for ISN 533, supplementing its
motion to request that additional information in the Public Factual Return be deemed protected.
See Notice of Ex Parte, In Camera Filing, ECF No. [251]. The Court has reviewed and considered
both motions as well as the supplemental information provided by Respondents. Upon
consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court
shall grant both motions for the reasons set forth below.
DISCUSSION
Judge Thomas F. Hogan previously held that the six categories of protected information
relied upon by Respondents in the present motions provide a valid basis for withholding sensitive
but unclassified information from the public under the framework established by the United States
Court of Appeals for the District of Columbia Circuit in Parhat v. Gates, 532 F.3d 834 (D.C. Cir.
2008). In re Guantanamo Bay Detainee Litig., Misc. No. 08-442, ECF No. [1981] (D.D.C. May
12, 2011) (“Hogan Opin.”). In addition to relying on these six categories, the Respondents propose
categorizing certain types of medical information and certain information that describes force-
protection measures taken by the Department of Defense at Guantanamo Bay as protected. Resps.’
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Mot., Ex. 1 at ¶ 6, ECF No. [236-1]; Resps.’ Renewed Mot., Ex. 2 at ¶ 7, ECF No. [252]. The
Court finds that the Respondents have proffered a sufficiently tailored rationale for protecting these
two general categories of information from public disclosure. Hogan Opin. at 14; see generally
Parhat, 532 F.3d 834.
The Court shall first address Respondents’ Motion to Deem Protected Information
Highlighted in the Accompanying Proposed Factual Finding Return for ISN 533, to which
Petitioner consents. Respondents also made additional requests for specified information to be
deemed protected in its Ex Parte, In Camera Supplement to the Motion. Petitioner takes no
position as to the requests in the Supplement. Upon review of the Proposed Public Factual Return,
attached as Exhibit 3 to Respondents’ Motion and the revised version attached to Respondents’ Ex
Parte, In Camera Supplement, the Court finds the information highlighted in green or gray in the
Proposed Public Factual Return properly falls within the six categories of protected information
previously found to establish a valid basis for withholding, or within the category of medical
information proffered by Respondents, and is therefore protected pursuant to paragraphs 10 and
34 of the Protective Order governing this proceeding. Accordingly, the Court shall grant
Respondents’ Consent Motion to Deem Protected Information Highlighted in the Accompanying
Proposed Factual Finding Return for ISN 533 as well as Respondents’ additional request to deem
protected certain information identified in the Ex Parte, In Camera Supplement to Respondents’
Consent Motion.
The Court shall next address Respondents’ Renewed Motion to Deem Protected the
Designated Information in Respondents’ Proposed Public Version of Petitioner’s Traverse.
Petitioner consents to the Court’s designation of the majority of the information identified by
Respondents as protected. However, Petitioner takes no position as to Respondents’ request to
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deem information in Paragraphs 11 through 16 of the Appendix to the Traverse as protected. Upon
review of the Proposed Traverse, attached as Exhibit 1 to Respondents’ Renewed Motion, the
Court finds the information highlighted in the dash-line boxes in the Proposed Public Traverse
properly falls within the six categories of protected information previously found to establish a
valid basis for withholding, or within the category of medical information or information that
describes force-protection measures proffered by Respondents, and is therefore protected pursuant
to paragraphs 10 and 34 of the Protective Order governing this proceeding. Moreover, the Court
has reviewed the information provided by Respondents in their supplements to the pending
motions and is satisfied that the designated information falls within the purviews of protected
information based on the explanations provided. As such, the Court shall also grant Respondents’
Renewed Motion to Deem Protected the Designated Information in Respondents’ Proposed Public
Version of Petitioner’s Traverse.
CONCLUSION
For the foregoing reasons, the Court GRANTS Respondents’ [236] Consent Motion to
Deem Protected Information Highlighted in the Accompanying Proposed Factual Finding Return
for ISN 533, and GRANTS Respondents’ [252] Renewed Motion to Deem Protected the
Designated Information in Respondents’ Proposed Public Version of Petitioner’s Traverse.
Accordingly, Respondents shall file on the electronic docket a public version of the factual return
from which the information highlighted in green or gray in the Proposed Public Factual Return has
been redacted, and a public version of the Traverse from which the information highlighted in the
dash-line boxes has been redacted.
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An appropriate Order accompanies this Memorandum Opinion.
____/s/______________________________
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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