Al Odah v. USA

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UNITED STATES DISTRICT COURT
FOR THE DIS'I``RICT OF COLUMBIA
FAWZI KHALID ABDULLAH
FAHAH AL ODAH, et al.
Petitioners,
v, Civil. Action No. 02-828
UNITED S'I``ATES, et al., l
Respondents.
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1 128 S. Ct. 2229, 2277 (2008); Hamdi v. Rumsfeld,
542 U.S. 507, 533 (2004)). Respondents produced declassified factual returns on February 6,
2009, and filed Oppositions arguing that the Executive had the legal authority to decide not to
declassify the Documents. See Resp’ts’ Feb. 18, 2009 Opp’n at 3-14; Resp’ts’ Mar. 13, 2009
Opp’n at 2-12. Respondents’ legal analysis focused on whether the Executive had properly
exercised its authority classify these documents. [a’.
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Petitioners’ focus shifted in their Replies. Having received declassified factual returns
that drastically limited the number of documents that remained in dispute, Petitioners clarified
that they did not continue to dispute Respondents’ exercise of their classification authority with
respect to the Documents, but that they wanted the Couit to exclude from consideration any
evidence that had not been declassified by Respondents:
The government’s basic legal position is that the Court does not have the power to
order it to declassify information that it deems to be classified Petitioners do not
necessarily dispute that a decision to classify government information belongs to
the Executive branch. However, the Executive cannot be allowed to use its
classification authority to deprive Petitioners of their constitutional right to
challenge the government’s basis for their detentions in a habeas corpus hearing.
Ifthe government wants to keep information classified it may do so, but it cannot
rely in these habeas corpus cases on any allegation or evidence that the
Petitioners do not have a meaningful opportunity to rebut.
Pet’rs’ Feb. 25, 2009 Reply at l-Z (emphasis added). See also Pet’rs’ Mar. l9, 2009 Reply at l
(clarifying that Petitioners do "not necessarily dispute the govemment’s principal proposition
that a decision to classify government information belongs to the Executive branch . . . However,
the government should not be allowed to rely upon evidence and allegations that Petitioners have
not had a meaningful opportunity to rebut,").
Based on the parties’ briefing, there appears to be no remaining disputes as to
Respondents’ decision not to declassify the Documents and their related decision not to provide
adequate substitutes for the same, but rather only a putative dispute as to whether the Documents
should be excluded from future merits proceedings (an issue Respondents have not yet fully
briefed in context). Accordingly, Petitioners’ Motion-which was initially filed to obtain the
declassification of meaningful factual returns-has now become akin to a Motion in Li)nine
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seeking the exclusion of certain evidence.z
After thoroughly considering the parties’ submissions, the Court finds nothing in the
record to suggest that Respondents have improperly classified the Documents. As Respondents’
correctly argue, the Executive has "authority to classify and control access to information bearing
on national security," Dep ’t of the Navy v. Egan, 484 U.S. 518, 527 (1988), and the Supreme
Court has explained that "‘[f]or reasons . . . too obvious to call for enlarged discussion,’ the
protection of classified information must be committed to the broad discretion of the agency
responsible, and this must include broad discretion to determine who may have access to it"), id.(quoting C]A v. Sz``ms, 471 U.S. l59, 170 (1985) (internal citation ornitted)). This classification
authority has been repeatedly recognized in this Circuit. See, e.g., Fitzgz``bbon v. Central
Inlelligence Agency, 91 1 F.Zd 755, 762 (D.C. Cir. 1990) ("[t]he Supreme Court has
unequivocally held that the Director of the Central Intelligence may protect all intelligence
sources, regardless of their provenance"). Respondents have submitted two Oppositions and two
ex parte, in camera declarations that comprehensively identify all of the Documents and include
an explanation justifying the Executive’s exercise of its discretion to classify thern.3 Taking into
2 The Cou1't recognizes that Petitioners referenced the exclusion of evidence in their
Motion as an alternative remedy available to the Court (the other remedy was that Respondents
be required to produce completely declassified factual returns). See Pet’rs’ Mot. at 6. "l``his
argument was presented as a remedy and not as a principal argument, however, and it lacked the
necessary legal and factual analysis discussed by the Court below.
3 Although Petitioners object to Respondents’ submission of ex parte information, see
Pet’rs’ Feb. 25, 2009 Reply, “the court has inherent authority to review classified material ex
parte, in camera as part of its judicial review function." Jifry v. Fed. Aviatz'on Admin., 370 F.3d
1 174, 1182 (D.C. Cir. 2004). Petitioners argue that the precedents allowing courts to examine ex
parte information have not involved "a constitutional right to rebut the govemrnent’s factual
assertions justifying detention." Pet’rs’ Reply at 4. While that may be correct, the proceedings
involving detainees such as Petitioners are unprecedented, and courts as well as parties must
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account Respondents’ explanations, the above-cited legal authorities, and the lack of any
argument by Petitioners suggesting that Respondents have improperly classified the Documents,
the Court shall deny Petitioners’ Motion for Production of Complete Declassified Factual
Returns or Adequate Substitutes.
The remaining question is whether Respondents should be permitted to rely on these
classified documents to justify the detention of Petitioners in any future merits proceedings. The
Court declines to decide this issue in the context of a Motion to Declassify Factual Returns rather
than a Motion in Limine brought at a more appropriate time and in a more appropriate context.
The parties’ have not fully briefed the legal arguments associated with the exclusion of evidence
because Respondents, focusing on the arguments in Petitioners’ Motion, briefed issues related to
the Executive’s authority to classify the Documents and not whether the evidence derived from
the Documents could appropriately be used in a future merits proceeding.
Exclusion of evidence on the basis that it has been shared with Petitioners’s counsel but
not Petitioners is a complicated, serious, and fact-intensive determination that deserves full
consideration by the parties and the Court. As the Supreme Court discussed in Hanzdi, there is a
"tension" that exists between providing all of the rights that could potentially be afforded a
detainee with "weighty and sensitive governmental interests in ensuring that those who have in
fact fought with the enemy during a war do not return to battle against the United States." 542
apply the most apposite precedents to these cases. See, e.g., Hamdz`` v. Rumsfelcz', 542 U.S. 507,
524 (2004) ("Quirin was a unanimous opinion. lt both postdates and clarified Mz'lligan,
providing [the court] with the most apposite precedent that we have on the question of whether
citizens may be detained in such circumstances Brushing aside such precedent . . . is unjustified
and unwise."). Accordingly, the Court has considered the ex parte, in camera declarations
supplying Respondents’ reasons for classifying certain of the Documents.
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U.S. 507, 532 (2004). The Court finds that this inquiry must not only balance these and other
competing interests, but also involve an assessment of the significance of the evidence in the
context of the parties’ merits arguments, and a determination as to whether Petitioners’ counsel
could seek to rebut the allegations levied against Petitioners based on evidence otherwise
available. The Court finds that it cannot balance these multiple factual and legal considerations
on the record as it presently exists. Accordingly, the Court shall grant Petitioners leave to file a
Motion in Lz``mine in accordance with a schedule to be set by the Court in the context of further
proceedings.
Accordingly, it is, this 2nd day of April, 2008, hereby
ORDERED that Petitioners’ [436] Motion for Production of Complete Declassified
Factual Returns or Adequate Substitutes is DENIED; it is further
ORDERED that Petitioners are granted leave to file a Motion in Limine to exclude
evidence derived from the Documents at issue in Petitioners’ Motion for Production of Complete
Declassified Factual Returns or Adequate Substitutes.
S0 ORDERED.
Date: April 2, 2009
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge