**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 in3 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 Submissions 3**  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 review8 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**