UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNITED STATES DISTIUCT COURI'
 

FOR THE DISTRICT OF COLlr:vIBIA
 

) 

l'\ADIR OMAR ABDlJl...LAJI BIN ) 

SA ',,(DOliN :\.LSA'AIO' (ISN 030). ) 

) 

PelitiIHH'r,	 ) 

) Civil :'in. 09-i45 (l~CL)

v.	 )
 

I
 

BARACK H. OBAMA, et al., )
 

)
 

Respondents. )
 

--------------) 

l'vlEM.ORA.NDUM OPINION 

Petitioner is challenging the legality of his detention at the United States ;-.Javal Base in 

Guantanamo Bay. Cuba ("Guantanamo"). Before the Court is petitioner's J

7 irst i\1otion 11096] 

for Leave to Take Discovery,	 As explained herein. petitioner's motion shall be granted in pali 

and denied in pan. 

I. BACKGROUND 

The Court is operating under the Case Jv1anagcment Order ("C1\.10") issued by Judge: 

Hogan of this Court in the consolidated Guantanamo habeas cases (!'.Iisc. ND. 08-442) on 

November 6, 2008. as a.mended on Decemher 16,2008. 1 Petitioner seeks discovery under 

I'The l\.mended ('1\,10 was later amended further by Judge \\ralton ofthis Court Gherebi 

v Bush, (iv. No. 04-1164, Order l797] ('O.D.C. Dec. 19,2008) (V/alton, J). Because that Order 

was issued before petitioner's case was transferred from JUdge \Valton to the undersigned 

member of the Court, it is binding on petitioner's case. However. Judge 'Walton's amendments 

do not affect Amended eMO § I.E, which is the only section at issue for most of petitioner's 

requests. 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

Am',~mled C~lO S1.E.1, (tvlo!. at 3,) !vlast (\fpeI'ltioner's requests stem from stl1CI"llen!s made 

by p:spondents in t.heir Factual ,Return ('·Return"). in \:vhich respondents set forth their 

pcritiol,er"s detenli()\). Section LE.1 states that 

[tlbe lv'lerits Judge nUIY, for good cause, permit the petitioner to obtain limited 

discoverY beyond that described in [Section 1.E.I. which deab with dOCUl11cnts 

thaI arc themselves cited in the Return and the petitioner" s o\\"n staIernen~sl,

Discover'y reguc:sts shall ... (1) he narrowly tailored. not open-ended: t,1) spc::ify 

the discovery s()ught: (3) explain \vh) the request, if granted, is likely to lxoduce 

evidence that demonstrates that petitioner's detention is unlawful: and (4) explain 

,:vhy the requested discovery will enable the petitioner to rebut thcf~lctual b,~sis f"f 

his deh:ntion without unfairly disrupting or unduly burdening the governrnem. 

Amended CMO § I.E.2 (citations omitted). The Court will consider each of petitioner's requests 

and wilt only grant those which comply with the Amended CMO, 

Before moving on to petitioner' s individual discovery requests, the Court \v.il1 address the 

,1.mended CivIO § 1.E.2 requirement that requests not be unfairly disruptive or unduly 

burdensome to the government. Petitioner does not specify \vhere any of the discovery he is 

seeking is located. In order to avoid undue burden on the government. the Court will (ml~i

consider petitioner's discovery requests insofar as they seek reasonably available' evidence. In 

the context of this opinion, "reasonably available" evidence means evidence contained in any 

information rcvie'wed by attorney's preparing factual returns for all detainees held at Ciuantanamo 

Bay or any other United Stales military facility; it is not limited to the evidence discovered by 

al.l()rneys preparing factual returns fl.)r this petitioner. See Gherebi 1'. Bush, C1\. No. (14-1164, 

()rder (7971 (D.D.C. Dec, 19,2008) (Walton, l) (amending sl1ghtly :\mended CI"\'1.O § 1.D.1). 

2 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

II. PETlTlO:"iEJl'S DISCOVERY REQl.~ESTS

A.	 Circumstances Sunounding Pctitiollerls Statements Cited in Return (Pet'r Req. # 19) 

Pelitlclner seeks "un~' and documents discussing Ih~ circmnstances sUrf(lunding" 

pctltioncr\; statcnlcnls ci Lcd in the I\.ctllrn. including "the location of the in1cnogalion and any 

reports of abuse. coercion[,J or inhmnan or degrading trcarmelll [petitioner] may have suffered," 

Respondel]!.." recognize tbat ill formation as to the circumstances of petitioner' 5 sUllements J~lJls

clearly within the discovery allowed by Amended CI'v10 § IT .1. Howcver. resp:Hldents argm~

that they have already conlp1ied \"lith their SI.E.] obligation by discIc\sing ".information about the 

circumstances" surrounding all such statements. Petitioner offers no reason to believe that the 

g()vernment has not fulfi lied its obligation here, nor does he allege abuse. coercilm. or inhuman 

or degrading treatment. Accordingly. petitioner's request shall be denied as mon1. 

B.	 Statemt~nts hy Otbt'r Detainees RcHed Upon in the Return (Pet'r Reqs, # 2, 6,8, 10, 13, 

15, 17) 

Respondents' Return relies upon statements by other Guantanamo detainees in setting 

fonh its legal basis /()r petitioner's detention. Respondents have disclosed those statements (or 

smnlllaries thereof) but only in the forms in which the RetuIl1 relied upon them. Petitioner now 

seek s "any audi(lOr video tapes, transcripts [.] or original repOlis of interrogations" for seven of 

these other detainees::-·tha.t is, all other forms of the relied-:"lpOl1 statements. In support of these 

requests petitioner citcs an opinion by another judge of this Court ordering production of 

3 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLA.SSIFIEDIIFOR PUBLIC RELEASE 

statements, in various f"lmns, relied upon in a factual retum, Zaid v, ()bamo. Civ, "\;0. 1646, 

Order [I 16J (Jan, 14,2009) (Bates, 1). But Judge Bates' Order dealt 'with additional f()nns of 

no,ftll,t'.IU,"· 's st3temeJl!~, relied upon on the Return, a maHer add:essed by Amended ('\10 LE.l , 

IIere petitioner 5e,::1';:5 additional forIns of statements made not by him but by other detainees, 

which would fall under .\melKled C:-"IO 1.1:.2. Petitioner's request fails 1.1 [nee! the 

requirements of § I.E.2 in at kasl one imp(}l·l.ant respect: petitioner docs not explain "the 

recues!., ,; if L'Tanted, is like/r to p.. roduce evidence that demonstrates that petitioner' s dett~ntion is , "".' .. 

unlawfuL" Amended CvtO § LE.2 (emphasis added). Petitioner speculates that the statements 

may have been recorded or translated incorrectly. Such speculation. though possible. does not 

indicate a likelihood that additional l;:mns (lfthe statements will sho'\' that petitioner's detention 

is unlawful. Acc()rcling.ly, petitioner's requests fCll' additional forms of detainee stalements shall 

h-: denied. 

C. Circumstances of Stah:~.ments by Various Other Detainees 

Petitioner also requests the circumstances surrounding tbe detainee statements discussed 

in the previous subsection. Again, these requests will be evaluated under Amended CvlO § 

J.E.2, 

1. C'lrcumslaJlces ((lSratemctlls by DeTainee (l'ct'rReq. i; 1) 

Petitiol1<1:!1' requests the circumstances surrounding statements by 

_ Petitioner supports this request with evidence ol_harsh treatment. 

Jpetitioner's motion requests ;'all documents discussing the circumstances surrounding 

the statements aggressive and harsh treatment [sic] at Guantan~mo through A.pril 14,2003" of'. 

_ Although petitioner's requc.~st appears to be missing severa.! \vords, the Court shall 

4 

UNCLA.SSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

Petition:.:r draws extensively from a report by tbe Department of Justicc's ()ffice of InspectOJ 

Genera! (hereinafter "OIG report") provided by respondents in discovery. (PetYs :'-.101. <It 3-12; 

set a/so IZesp' Is' (fPf,"r, at 6 (noting respcindc:11S' produ~:li(ln oC the ()1 Ci repOrli. According to 

",.!,I, '"...... the rcp,.',t dl~scrihl.'d rdiginus insults, the use dogs. sleep is~>lati em. 

other tactics thaI could reasonably be ex!)ecte(! to result in coercion. Petitioner did not allach 

relevam portions of' the Ole; reporlto his filings, but respondents did not contradict his SUlllmary. 

The OTG report suppons plaintiff's claim that it is likely Ihm documents exist that w(luJd coniiTm 

or expand upon rhe harsh treatment_has endured. If_has endured harsh 

treaunen: that \veakens the credibility of his statements, respondents' case that petitioner is being 

legally detained is \veakened. Accordingly, any reasonably available evidence of abuse, 

coercion, or inhuman or degrading treatment suffered by_after his c,:pllU'C but before 

any statement llf his relie~d upon in the Return must be disclosed to petitioner. 

In addition l0 evidence harsh treatment. petitioner also requests the locations in \vhich _was held since his tra.nsfer and generalized information as to "the conditions under 

w.hich he \'las held during that period." (:-1ot. at 9.) But petitioner has not claimed that the 

locntlons in \vhjc~\vas held would negatively affect_credibility or otherwise 

5ho...\ that petitioner is being unlawfuJly detained. Nor has petitioner made such a claim as to the 

generalized conditions in which petitioner was held. Petitioner has rhus failed to meet the 

requirement that the sought discovery be likely to prove his detention is unlawful. 

pelitioner's request must be denied in these two regards. 

construe the request as seeking t.he circumstances surrounding_ statements, as well as
 

evidence Dfaggressive and harsh treatment through April 14, 2003.
 

5 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

], Circul1Istances of'Swfemcnls by Delainc'e i: 51 

Petiti(Hler seeks the \..IJLl'UL""'''.''''.:l of stutenl(~nts detainee 

cited in the Return (including the location of his interrogation), To support his 

claim ()f_'s questJ:,:lnahlc credibility petitioner submits l\VO independent news accounts 

focusing on the harsh trealment alleged visited upon _since his capturc,C (See ]\[01. at 

16-] 7 (citing "F'rum German) to Guanta:lamo: the Career of ]lrisoncr No, .'.Spiegel (()ct. 9, 

2008,; "The Conscience of ColoneL" St, J. (i\lar. 31. 2007)).) Two !l('\VS stories are not 

a.\together consistent with each other, but they both specifically allege harsh treatment against 

_. The two independen.t news accounts from m,\jor periodicals specifically alleging harsh 

lreatmt~nt agains1_ is i.n this case enough to meet the likelihood requir.::menl of the 

and accordingly respondents are ordered to disclose any reasonably available c\'idence of abuse. 

coercion. or inhuman or degrading trean:nenl suffered by_after capture bef;:Jre 

made any the statements relied upon in the Return. 

tImvever, petitioner has not claimed that the Iocation(sl in \l,'hich _was interrogated 

negatively affected credibility or \>,'ould demonstrate that petitioner's detention is unlawful. 

Petitioner's request shall be denied in that respect. 

3. C'ircumS£a17Ct'~S (~f S'lafemenlS bJ' ()ther Delainees (Pct 'r Reqs, i' 7 9. )' 2, 1,J. 

Petitioner seeks the circumstances of statements by other detainees:_ 

"Although media reports cannot, of course, be considered as evidence, tbey can be 

considered here the Court in determining whether to grant petitioner's discovery request under 

the A.mended C~10,

6 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEOIIFOR PUBLIC RELEASE 

P(~titjoner ilnplies that these detainees may have been subjected to harsh 

treatment thal would negatively arrec; their credibility. Bm petitioner offers l1Dthiug that WCILlid 

nise his iInplicarions above mere speculation to the likelihood required by Amended Ch·l(l § 

.:2. Accordingly, petitioner does not meet the requirements of the Amended ClvIO. and his 

requests for the circumstances surrounding the statements these fj Vt: other dc:ainees III US! be 

denied. 

D. ()thcr Information Rehlted to the Credibility of Othcr Dct~lirll~es

1. "Al1y mul./lll Documents" Related 10 fhe Credibility of ond 

('Pel ',. Reqs. #- 3, 4) 

Petiti oner seeks "any and all documents" related to the creeli bi Iity of two detainees \\lhose 

statements arc relied upon in the Return: _(discussed aboy;:1 and 

..For_petitioner also seeks "sp::cifically any assessments related to his credibility 

by the Oft1ce of Adnlinistrative R.eview for the Detention of Enemy Combatants." Again. these 

requests \:vill be evaluated according to /\mended CMO § 1.E.2. 

As au initial matler, the request for "any and all" documents "related" to !hc credibility of 

either detainee is not namnvly tailored as requin:d by § 1.E.2. Considering that § I.E.2 applies by 

its terms only to e\'id'~:nce that is likely to prove that petitioner is unlawfully detained, the Court 

will consider these requests only insoflu as they seek any documents that reflect '·""",.·,I,u,", ,I" upon 

the credihility of either detainee. 

Even after that limitation, petitioner 5ti11111u5t establish that it is in fact likely that the 

discovery request will yield evidence that will sho'>\' that petitioner is unlawfully detained: in 

7
 

UNCLASSIFIEOIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

(Ither woros. thJl such negative assessments of the dellliIH::es' eredibiE!\' arc likeh' . .. .,. ..

Peliti,Hler bas met hi" burdell as t(__with the ()Ie; rep()rt ddailing_barsh 

lre,urnent Given the lreaHnent described in th,~ ()IG rqxl1"t, it is likely that negative assessment,: 

or_credibilttyexist As fbr_ petilioner attclches as Appendix i'!, 11 classined 

nn'111lP"m by another judge oft111s (ShIi v, Bush, Cis, 05-429 (D,D.C Jan 30,2(09) 

(Ll",J!L .1.») concluding that_lacked credibility, 'That opinion cited a June 2007 v.:arning 

the Office: Admi.l1istrative Review and Detention of Enemy (\'mbatants ((}\RI)EC) at 

(iuantananlO Bay stating thal_"t'irst-hand knowledge in reporting has come into 

question since 2005," (Mot App, /\. at 5,) The finding ofanolherjudge of this Court supported 

by a government st<nement questioning_reliability, establishes that it is likely that 

documents exisl that renee! negatively upon _credibiliry, Accordingly, respondents 

are ordered 10 disclci sc any reasonably 3\'ailable documents that refleclncgativcJy on either. 

credibility. For_respondents are specifically ordered to disclose 

the OARDEC rep(lI1 cited in Judge Leon':; Sliti opinion. 

2. Rea,I'ol1s)!)" Release ofDclQinee (Pet ',. Req, "# 11.1 

Detainee w'hose statements were relied upon in the 

return, has been released from Guantanamo since giving those statements. Petitioner seeks the 

reasons n)r_release, speculating that_may have been released in return for 

providing incriminatory statements about petitioner. Petitioner offers no c\'idence of any kind to 

support his speculation and thus illiIs to establish that his request. ifgranted, would be likely to 

show that he is being unluwfi..lny detained, By the terms of Amended GvfO § 1.E,2, petitioner's 

request must be denied. 

8 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
3, 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

t: Bow1!.! tVa.\' Paid in Relation tu Pelitioner 's ('apTlire )' 

all dCiC rctating to any bounty paid L\

capture, Pcritlclner notes thaI another judge of this Court has held tl1:11 such de,cumenls fall 

Ullder A.nlcnded (:\·10 § I,I),l, requires :lisclosurc of 1rcascl!1ab]~ (l\'aibblc c\'idence in 

its possession that tends material!) til underm inc the infoI1nation presented to supp~m the 

g(y"eml.ll ent' SJttml:lc,H I()11 hoJding the prisoner." (!vlc1t. al ::5 !Cilin\; liro!im , 

05-1429, Doc, [191] (D,D,C. Jan, 7, 2Cl(9) (Urbina. J.)). It appears 10 the Court that such hounty 

information would emly fall under i\.r'!lended ClvfO § LD.l if it undermined theinformarion in 

the Retum, If it did then it \\lould be irrelevant to respondents' case for detention. 

'l'herefore, the governln(~l1t is ordered W disclose any reasollahJy available documents relating to 

any fees, bounties, or other monetary or non-monetary remuneration or consideration given to 

third partiesf())" the apprehension, transfer into the government's custody, continued devemion. or 

investigation ofpelitlclrlcr, inc.luding hUI not limited to payments. gifts, loans. promises of 

leniency, preferential treat111enL release, reduction in charges. or improvements in the conditions 

(\f detention given to third parties, bUI only insofar as the information contained i:1 those 

doclJ.mcnts tends materially to undermine the information provided in the Return. 

E. Depositions of Other Detainees (Pet'" Reqs. # 5,7,9,12,14, 16) 

Finally, petitioner seeks to depose six oftbe seven detainees whose statements are cited 

or relied upon in the Ret urn regarding the circumstances of those statements. Petiticmers' 

requests itH dep()sitions appear lO fali fuUy Outside the bounds of the Amended C\ Ie). 

Petitioner's requests for depositions shalj be denied. 

9 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

HI. CONCLUSION 

The '''''lue::.,,) c~ntained in petitioner's First \101ion [1 (JCJ6] for Lc~;ne wLd:~
 

Disc()\,cry shall b'c granted anc! denied as descrihed herein .t\ separate Order shall issue This dak.
 

cz_ c:. ~._ ~:~TIJ CHIEF JUDGE 

10 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
i •• : • 

11;,\rrl::D STATESD.ISTRICI' cOl11rr 

FC)R DISTRICT OF ('()LL\IBLA 

FILeD WITH 


 

,\AJ)JH OJ\lAR AB[)['iLLAH HI:" 

SA 'AD(nr~1 /\'1,SA 'AR'" (ISI'\ 03ft). 

]It,'1 ilioucr, 

CiyiI ;'\o. 09-7o-t5 (R C' L) 

,. 

BARAeK H. OBA~lA. et al.• 

Responden Is. 

------_._----. --­

ORDER 

UNCLASSIFIEDIIFOR PUBLIC RELEASE