UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 WALEED SAID BN SAID ZAID,

Petitioner,

v.

Civil Action No. 05-1646 (JDB)

 

BARACK H. OBAMA, et al.,

 Respondents.

ORDER

Before the Court are petitioner's motions to compel compliance with § I.D of the Case

Management Order in this case and for an order requiring respondents to show cause regarding

the use of information designated as "protected." The motions are fully briefed and were

addressed at a status conference before the Court on May 7, 2009. 

I. Motion to Compel Compliance with § I.D of the CMO

Section I.D of the CMO requires respondents to produce exculpatory evidence as follows:

The government shall disclose to the petitioner all reasonably

available evidence in its possession that tends materially to

undermine the information presented to support the government's

justification for detaining the petitioner. In this context, the term

"reasonably available evidence" means evidence contained in any

information reviewed by any attorney preparing factual returns for

any detainee; it is not limited to evidence discovered by the

attorneys preparing the factual return for the petitioner. The term

also includes any other evidence the government discovers while

litigating habeas corpus petitions filed by detainees at Guantanamo

Bay. 

Petitioner argues that "reasonably available evidence" should be interpreted to include materials

gathered pursuant to Executive Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 27, 2009), which
 Petitioner also seeks production of exculpatory evidence that has been withheld on the 1

basis that it is cumulative. Respondents recognize that the CMO does not contain an exception

for "cumulativeness" and represent that they are producing exculpatory evidence even if it is

cumulative. Resps.' Opp. to Pet'r's Am. Mot. to Compel at 11 n.10. The parties appear to have

resolved this dispute, and hence the Court will not address this issue further here.

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required the Attorney General to assemble "all information in the possession of the Federal

Government that pertains to any individual currently detained at Guantanamo and that is relevant

to determining the proper disposition of any such individual." Petitioner also contends that

"reasonably available evidence" should be interpreted to include certain evidence available to

counsel representing detainees at military commission proceedings. Finally, petitioner seeks to

compel the production of "negative responses to interrogators' efforts to place [petitioner] at Tora

Bora." Pet'r's Am. Mot. to Compel at 5.1

The Court will not, at this time, construe "reasonably available evidence" to include

information gathered pursuant to Executive Order 13,492. Respondents have filed a separate

motion seeking to establish how information gathered pursuant to the Executive Order may be

used in these Guantanamo habeas proceedings. See Resps.' Mot. for Order Regarding Task

Force Discovery, May 12, 2009 (dkt. ent. # 221). Briefing and argument on this motion have

been consolidated before Judge Hogan and a hearing is currently scheduled for June 8, 2009. A

ruling by this Court on this issue would be premature. Accordingly, the Court will defer ruling

on this aspect of petitioner's motion.

The next question is whether "reasonably available evidence" under § I.D should be

construed to include information accessible through use of a tool known as "IntelLink." 

Petitioner avers that IntelLink is available to counsel representing Guantanamo detainees in

military commission proceedings. See Pet'r's Am. Mot. to Compel at 3-4. According to
 The Court previously interpreted the "automatic discovery" provisions of the CMO (i.e., 2

discovery available under § I.E.1) to require searches of only the "consolidated assemblages of

information" created by the Joint Intelligence Group ("JIG") of the Joint Task Force-Guantanamo

("JTF-GTMO") and the Office for the Administrative Review of the Detention of Enemy

Combatants ("OARDEC"). See Feb. 9, 2009 Order at 3-4 (dkt. ent. # 146). 

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petitioner, searches using IntelLink have yielded exculpatory evidence that cannot be obtained

through searches of OARDEC or JTF-GTMO materials. Respondents explain that IntelLink is a 2

tool used to search the Secret Internet Protocol Router Network ("SIPRNET"). Resps.' Opp. to

Pet'r's Am. Mot. to Compel at 7-8. SIPRNET hosts several intelligence databases, one of which

(the Joint Detainee Information Management System) was searched to compile JTF-GTMO

materials. Although SIPRNET and IntelLink have a web-based interface, respondents maintain

that SIPRNET cannot be searched like a conventional internet search engine. Rather, access has

to be granted to search each database within SIPRNET and hence "[i]n many instances . . .

several separate searches would be necessary." See Declaration of James C. King II, Mar. 12,

2009, at 2. Thus, respondents conclude, SIPRNET (as made available through IntelLink) is not

"reasonably available" for purposes of § I.D of the CMO.

Respondents' interpretation of § I.D is too narrow. That respondents would be required to

conduct "several" IntelLink searches to plumb SIPRNET for exculpatory evidence does not mean

that such evidence is not "reasonably available." Respondents appear to misinterpret § I.D to

require the production of "easily available," not "reasonably available," exculpatory evidence. 

Moreover, respondents do not provide any rationale why military commission defense counsel

should receive access to resources -- and, correspondingly, exculpatory evidence -- to which

habeas counsel do not have access. Accordingly, to the extent petitioner's motion seeks to

require respondents to search SIPRNET for exculpatory evidence pursuant to § I.D, petitioner's
 The Court, of course, is unaware of what records respondents have in their possession. 3

These examples are intended to be illustrative only.

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motion is GRANTED.

Finally, petitioner requests that respondents produce "records of any negative responses to

interrogators' efforts to place [petitioner] at Tora Bora." Pet'r's Am. Mot. to Compel at 5. 

Respondents argue that "[t]he information Petitioner requests is simply not exculpatory, and

Petitioner has made no attempt to explain how or why any responsive evidence would be." 

Resps.' Opp. to Pet'r's Am. Mot. to Compel at 10. But several kinds of "negative responses"

would plainly fall within the scope of § I.D because respondents justify petitioner's detention, in

part, on the assertion that he was present in the Tora Bora region of Afghanistan before his

capture. For example, if other detainees were asked whether petitioner was present at Tora Bora

and responded that he was not, and if records of such negative responses are reasonably available

to respondents, then such records "tend[] materially to undermine the information presented to

support the government's justification for detaining the petitioner." See CMO § I.D. Similarly, if

other detainees were shown photograph arrays that included petitioner and were asked to identify

which individuals were at Tora Bora, and if petitioner then was not positively identified, the

records of such a response (if reasonably available) would fall within the scope of § I.D. 

But to the extent petitioner seeks to use § I.D to compel production of evidence unlike the

examples above, or to the extent petitioner seeks to require searches beyond what the Court has 3

construed as "reasonably available," his request falls outside of the scope of § I.D. Requests for

additional discovery are governed by the four-part standard set forth in § I.E.2 -- a standard

petitioner does not attempt to meet here -- and in any event the date for discovery requests under
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§ I.E.2 has long since passed. 

II. Motion for Order Concerning Use of "Protected" Information

Petitioner seeks an order requiring respondents to show cause why a certain methodology

discussing declassified information with non-resident third parties is not workable. Pet'r's Mot.

for Order at 5-6. In their opposition, respondents note that they intended to "produce declassified

public versions [of petitioner's statements] on or before May 14, 2009, that will be available to

petitioner to use with third-party and expert witnesses who are outside the United States." 

Resps.' Opp. to Pet'r's Mot. for Order at 8. Thus, it appears that the parties have resolved this

issue. Accordingly, it is hereby ORDERED that the parties submit a joint status report -- by not

later than June 3, 2009 -- informing the Court whether this motion may be denied as moot.

SO ORDERED.

 /s/ 

JOHN D. BATES

 United States District Judge

Date: May 27, 2009