UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

ZAYN AL ABIDIN MUHAMMAD 

HUSAYN (ISN #10016), 

Petitioner, 

v. 

LLOYD AUSTIN, et al., 

Respondents. 

Civil Action No. 08-1360 

(EGS) 

MEMORANDUM OPINION AND ORDER

 

Pending before the Court is Petitioner’s Motion for Access 

to Respondents’ Ex Parte Filings, or in the Alternative for 

Respondents’ Ex Parte Filings to be Stricken, see generally Mot. 

for Access, ECF No. 348;1 which Respondents oppose, see Resp’ts’ 

Opp’n, ECF No. 339. Upon careful consideration of Petitioner’s 

motion, Respondents’ opposition, the reply thereto, the 

applicable law, and for the reasons explained below, the Court 

DENIES Petitioner’s motion. 

I. Background 

Petitioner seeks access to three ex parte filings by 

Respondents. The first filing accompanied Respondents’ 

Opposition to Petitioner’s Motion for Relief for Improper 

Classification. See Notice, ECF No. 183. Respondents’ notice of 

1 When citing electronic filings throughout this opinion, the 

Court cites to the ECF header page number, not the original page 

number of the filed document. 
2

filing stated that the opposition was accompanied by a 

supporting Declaration of Wendy M. Hilton, and that an 

additional compartmented Declaration of Wendy M. Hilton was 

filed with the Court for ex parte, in camera review. Id. 

Petitioner’s motion was granted in part and denied in part. See

Memorandum Order, ECF No. 273. 

The second filing accompanied Respondents’ Supplement to 

Its Opposition to Petitioner’s Emergency Motion to Produce CIA 

Medical Records and Allow In-Person Medical Evaluation. 

Respondents’ notice of filing stated that redacted versions of 

the Supplemental and accompanying declaration had been filed 

with the Court Security Officers, and that the unredacted 

declaration had been filed with the Court ex parte, for in 

camera review. See Notice, ECF No. 186. Petitioner’s motion was 

granted. See Memorandum Opinion and Order, ECF No. 549. 

The third filing accompanied Respondents’ Notice in 

Connection with Respondents’ Motion for Stay of Respondents’ 

Filing of Response to Petitioner’s Motion. Respondents’ notice 

of filing stated that it was filing a document with the Court 

for ex parte, in camera review. Notice, ECF No. 208. 

Respondents’ notice of filing further stated that through the 

Court Security Officers, it was also filing with the Court and 

serving on Petitioner’s counsel a second classified document 

that describes Respondents’ ex parte, in camera submission in 
3

greater detail. Respondent’s motion was found as moot. See

Minute Order (Feb. 4, 2010). 

II. Analysis 

A. The Protective Order Permits Ex Parte Submission of 

Sensitive Information for In Camera Review By the Court 

Paragraph I.F.49.b of the Protective Order in this case 

specifically permits the ex parte submission of classified 

information by Respondent: 

Nothing herein requires the government to 

disclose classified information. 

Additionally, nothing herein prohibits the 

government from submitting classified 

information to the Court in camera or ex parte

in these proceedings or entitles petitioners 

or petitioners’ counsel access to such 

submissions or information. Except for good 

cause shown in the filing, the government 

shall provide petitioners’ counsel or 

petitioners with notice served on petitioners’ 

counsel on the date of the filing. 

Protective Order for Habeas Cases Involving Top Secret/Sensitive 

Compartmented Information, ECF No. 78 ¶ I.F.49.b. Furthermore, 

A petitioner’s counsel is presumed to have a 

“need to know” all the information in the 

government’s possession concerning the 

detainee or detainees whom that counsel 

represents. This presumption is overcome to 

the extent the government seeks to withhold 

from a petitioner’s counsel highly sensitive 

information or information concerning a highly 

sensitive source that the government presents 

to the Court ex parte and in camera. Except 

for good cause shown, the government must 

provide notice to petitioner’s counsel the 

same day it files such information with the 

Court ex parte. 
4

Id. ¶ I.D.28.2

Petitioner contends that Protective Order “in no way 

provides that Respondents may unilaterally determine when ex 

parte submissions are appropriate.” Mot. for Access, ECF No. 348 

at 9. Petitioner provides no support for this assertion. And 

petitioner is mistaken—the only procedure required by the 

Protective Order is that Respondent provide notice of the ex 

parte submission to Petitioner’s counsel or demonstrate to the 

Court that there is good cause not to provide notice to 

Petitioner’s counsel. See id. Here, Respondent complied with the 

procedure by providing notice of each ex parte filing. See ECF 

Nos. 183, 186, 208. 

B. Respondent Was Not Required to Seek Leave to File the 

Three Ex Parte Submissions3 

Section I.F of the Case Management Order entered November 

6, 2008, ECF No. 48; as amended on December 16, 2008, ECF No. 

2 Petitioner points out that Petitioner’s counsel has top secret 

security clearance and so the use of ex parte submissions is 

unnecessary. Mot. for Access, ECF No. 348 at 13-14. This 

argument ignores that the Protective Order specifically 

contemplates the possibility of the need for Respondent to 

submit filings ex parte. 3 Petitioner’s reliance on a footnote in Allen v. CIA, 636 F.2d 

1287, 1298 n.63 (D.C. Cir. 1980) to assert that Respondent is 

required to demonstrate that the ex parte submissions were 

“absolutely necessary” is entirely misplaced. In Allen, the 

Court stated, in the Freedom of Information Act context, that 

while in camera affidavits may be appropriate, they should be 

employed only where “absolutely necessary” due to the inability 

of the plaintiff to respond. 
5

62; does require Respondents to move for an ex parte exception 

to disclosure when the information to be disclosed to the 

Petitioner is exculpatory evidence pursuant to Section I.D. or 

discovery evidence pursuant to Section I.E of the Case 

Management Order. See Case Management Order, ECF Nos. 48 and 62. 

Here, none of Respondents’ ex parte submissions fall within 

these categories. 

Petitioner acknowledges that ex parte motions may need to 

be filed in this case, see Reply, ECF No. 349 at 1;4 acknowledges 

that ex parte submissions may appropriately be used to protect 

sensitive national security information, see id. at 2; but 

contends that Respondent is required to seek leave of Court to 

make the ex parte submissions. Mot. for Access, ECF No. 348 at 

9. 

Petitioner points to Abourezk v. Reagan, 785 F.2d 1043, 

1061 (D.C. Cir. 1986) to support his position that “ex parte

proceedings are not permissible unless the government has first 

shown: (1) ‘a large risk that an unjust result would eventuate 

if the case proceeded without the privileged material,’ (2) a 

‘proper invocation of the privilege,’ (3) a ‘demonstration of 

4 Accordingly, the Court need not reach Petitioner’s passing 

reference to the Classified Information Procedures Act, Pub. L. 

No. 96-456, 94 Stat. 2025 (1980)(codified as amended at 18 

U.S.C. app.). See Mot. for Access, ECF No. 348 at 11, 12. 
6

compelling national security concerns,’ and (4) ‘public 

disclosure by the government, prior to any in camera 

proceedings, of as much of the material as it could divulge.’” 

Id. (quoting Abourezk, 785 F.2d at 1061). 

However, Abourezk provides no support for Petitioner’s 

position. First, the context in that case was that ex parte, in 

camera evidence had been used by the district court to decide 

the merits of a dispute: “It is . . . the firmly held main rule 

that a court may not dispose of the merits of a case on the 

basis of ex parte, in camera submissions.” Abourezk, 785 F.2d at 

1061. Petitioner does not—and cannot—claim that the ex parte

submissions at issue here relate to the ultimate merits of the 

case,5 but contends that “[a]s long as the information is 

material and relevant to the Court’s decision in ruling on the 

motions at issue, the adversarial process envisions Petitioner’s 

involvement.” Reply, ECF No. 349 at 3. Petitioner provides no 

support for this contention. And Petitioner does not explain how 

this assertion is consistent with his acknowledgment that ex 

parte submissions may need to be filed in this case and may 

appropriately be used to protect sensitive national security 

information. See Reply, ECF No. 349 at 2. Nor does he 

5 Accordingly, Petitioner’s reliance on cases where the ex parte

filings were relevant to the ultimate merits of the case is 

misplaced. 
7

acknowledge that in Abourezk, the Court of Appeals for the 

District of Columbia Circuit (“D.C. Circuit”) noted that courts 

routinely consider ex parte submissions in camera when, for 

example, deciding the applicability of evidentiary privileges. 

Abourezk, 785 F.2d at 1061. 

Second, in Abourezk, the D.C. Circuit did not direct the 

district court to disallow the use of ex parte evidence. Rather, 

the D.C. Circuit directed the district court “to make certain 

that plaintiffs are accorded access to the decisive evidence to 

the fullest extent possible, without jeopardizing legitimately 

raised national security interests.” Id. at 1060. 

Here, with regard to the first two ex parte submissions, 

Petitioner was provided redacted versions of the submissions. 

With regard to the third, Petitioner was provided a second 

classified document that describes Respondents’ ex parte, in 

camera submission in greater detail. Accordingly, any 

disadvantage to Petitioner was minimized to the extent possible. 

Petitioner also points to Al Odah v. United States, 559 

F.3d 539, 547 (D.C. Cir. 2009) to support his argument that “it 

is incumbent on the court to make the determination of whether 

ex parte submissions are appropriate”—specifically invoking the 

D.C. Circuit’s statement in Al Odah that “[t]his court’s opinion 

in Bismullah did not hold that the government’s submission of 

classified materials to the court for in camera, ex parte review 
8

ends that inquiry.” Reply, ECF No. 349 at 2. The inquiry that 

the D.C. Circuit refers to, however, is the district court’s 

“determin[ation of] whether the classified information is 

material and counsel’s access to it . . . necessary to 

facilitate meaningful review, and whether no alternatives to 

access would suffice to provide the detainee with the meaningful 

opportunity required by Boumediene.” Al Odah, 559 F.3d at 548. 

Al Odah neither requires Respondent to seek leave to file ex 

parte submissions nor for the Court “to make the determination 

of whether the ex parte submission is appropriate” in the 

context here. 

III. Conclusion and Order 

For the reasons stated above, it is hereby 

ORDERED that Petitioner’s Motion for Access to Respondents’ 

Ex Parte Filings, or in the Alternative for Respondents’ Ex 

Parte Filings to be Stricken, ECF No. 348, is DENIED.

SO ORDERED. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 May 30, 2023