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UNITED STATES DISTRICT COURT
 

FOR THE DISTRICT OF COLUMBIA
 

) 

SHARGOWI LNU (ISN 1457), ) 

) 

Petitioner,	 ) 

) 

v.	 ) Civil No. 09-745 (RCL) 

) 

BARACK OBAMA, et a/., ) 

) 

Respondents.	 )
 

)
 

MEMORANDUM OPINION 

Petitioner is challenging the legality of his detention at the United States Naval Base in 

Guantanamo Bay, Cuba ("Guantanamo"). Before the Court is petitioner's Motion [1217] for 

Leave to Take Discovery. Upon consideration ofthe motion, respondents' opposition, and 

petitioner's reply, the motion shall be granted in part and denied in part for the reasons set forth 

below. 

I. BACKGROUND 

This Court is operating under the Case Management Order ("CMO") issued by Judge 

Hogan ofthis Court in the consolidated Guantanamo habeas cases (Misc. No. 08-442) on 

November 6, 2008, as amended on December 16,2008.1 Section I.E of the Amended CMO 

provides rules for discovery.	 Section I.E. 1. sets forth the discovery materials that the government 

must provide to petitioner upon his request. See Amended CMO § I.E. 1. Section I.E.2. provides 

a four part test that petitioner must satisfy in order to obtain additional discovery. Specifically, 

I Judge Walton of this Court further amended the Amended CMO. Gherbi v. Bush, Civ. 

No. 04-1164, Order [797] (D.D.C. Dec. 19,2008) (Walton, J.). After Judge Walton's Order, 

petitioner's case was transferred to the undersigned member of the Court. As a result, that Order 

is binding on petitioner's case, and any deviations from the Amended CMO will be noted. 

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Section I.E.2. states that: 

[t]he Merits Judge may, for good cause, permit the petitioner to obtain limited 

discovery beyond that described in [Section I.E. 1.].... Discovery requests shall .. 

. (1) be narrowly tailored, not open-ended; (2) specify the discovery sought; (3) 

explain why the request, if granted, is likely to produce evidence that 

demonstrates that petitioner's detention is unlawful ...; and (4) explain why the 

requested discovery will enable the petitioner to rebut the factual basis for his 

detention without unfairly disrupting or unduly burdening the government. 

Amended CMO § I.E.2. (citations omitted). 

Pursuant to Amended CMO § I.E.2., petitioner seeks this Court's approval often 

additional discovery requests and authorization to conduct limited written discovery. (pet'r's 

Mot. at 1, 6, Ex. A.). The Court will only grant those discovery requests that meet the standard 

set forth in the Amended CMO. In addition, because petitioner does not specify where any ofthe 

discovery he seeks is located, and because Section I.E.2. requires that requests must not unfairly 

disrupt or unduly burden the government, "the Court will only consider petitioner's discovery 

requests insofar as they seek reasonably available evidence." Alsa 'ary v. Obama, Civ. No. 09­

745, Mem. Op. [1251] at 2 (D.D.C. June 22,2009) (Lamberth, C.J.). In the context of this 

opinion and the accompanying order, '''reasonably available' evidence means evidence contained 

in any information reviewed by attorneys preparing factual returns for all detainees held at 

Guantanamo Bay or any other United States military facility; it is not limited to the evidence 

discovered by attorneys preparing factual returns for this petitioner." Id 

II. PETITIONER'S DISCOVERY REOUESTS 

A. Records and Reports of Interrogations of Petitioner (pet'r's Reqs. Nos. 1 and 3) 

In requests Nos. 1 and 3, petitioner seeks the records and reports pertaining to his 

interrogation upon which respondents rely to support his detention. Specifically, request No. I 

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seeks "[a]ll records or reports of interrogations ofPetitioner after his capture in Pakistan" (perr's 

Mot. Ex. A at 1.), and request No.3 seeks "[a]ll records or reports pertaining to Petitioner in his 

'hard file' after his capture in Pakistan." (Id. at 3.) Both requests are limited to include ''video 

and/or audio of all interrogations upon which Respondents rely, any transcripts or original notes 

of all interrogations upon which Respondents rely, any reports related to any interrogations upon 

which Respondents rely other than the one who prepared the particular reports cited by 

Respondents in the Amended Factual Return." (Id. at 1,3.) As a result, petitioner's requests are 

narrowly tailored to include only the evidence upon which respondents' rely, and petitioner's 

access to the evidence sought will likely demonstrate petitioner's detention is unlawful. 

Accordingly, these requests satisfy the "good cause" requirement of Section I.E.2. 

Moreover, even if these requests did not satisfy the" good cause" requirement of Section 

I.E.2., respondents would have to produce all forms of petitioner's statements included in the 

factual return pursuant to Amended CMO § I.E. I. See Amended CMO § I.E. 1. (stating that "the 

government shall disclose ... (2) all statements, in whatever form, made or adopted by the 

petitioner that the government relies on to justify detention; and (3) information about the 

circumstances in which such statements ofthe petitioner were made or adopted"). Indeed, as this 

Court recently held, "[i]fthe government wishes to use petitioner's statements against him, it 

must produce all forms of that statement to the petitioner as well as the circumstances in which 

the statements were made or adopted, which would include interrogation logs." Bin Attash v. 

Obama, Case No. 05-1592, Mem. [215] at 14 (D.D.C. June 12,2009) (Lamberth, C.J.). The 

third-party reports provided to petitioner thus far are insufficient (Pet'r's Mot. Ex. A at 1.), and 

respondents must disclose all forms of the statements included in the factual return, not just 

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summaries of his statements. 

Accordingly, to the extent that petitioner's requests Nos. 1 and 3 seek "reasonably 

available" records and reports of interrogations in which petitioner made or adopted statements 

upon which respondents rely to justify his detention, petitioners' request shall be granted. 

Respondents' obligation includes producing any video, audio, transcripts, notes, and/or reports of 

all petitioner's statements upon which respondents rely. 

B. Circumstances oflnterrogations (Pet'r's Req. No.2) 

Petitioner seeks "[a]ny documents, including but not limited to any interrogation logs or 

interrogation plans that list or describe the date, time, place, or circumstances of interrogations of 

Petitioner." (Pet'r's Mot. Ex. A at 2.) In his reply, petitioner limits this request "to information 

related to the circumstances of interrogations that produced the statement upon which 

Respondents rely to justify Petitioner's detention." (pet'r's Reply at 3.) Respondents claim that 

they produced all reasonably available information about the circumstances in which petitioner 

made or adopted the statements that respondents rely upon to justify his detention on February 

13,2009. As stated above, however, if the government wishes to use statements made or 

adopted by petitioner against him, the government must also produce not only the circumstances 

in which the statements were made or adopted, but also the interrogation logs. Bin Attash, 05­

1592, Mem. [215] at 14. Accordingly, respondents must produce the circumstances in which 

petitioner's statements were made or adopted, including any interrogation logs or plans, which 

were not produced on February 13,2009. 

C.	 Documents Related to Extraordinary Rendition of Petitioner (Pet'r's Req. No.4) 

Petitioner requests all documents related to his extraordinary rendition "prior to his 

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detention in Baghram [sic] and Guantanamo, including all statements made or adopted by 

petitioner during this process." (Pet'r's Mot. Ex. A at 4.) Petitioner fails to show that these 

documents would likely show that his detention is unlawful. Moreover, to the extent that 

respondents rely upon any statements made during extraordinary rendition to justify petitioner's 

detention, information regarding such statements are covered by the Court's order ofthis date 

requiring respondents to produce all reasonably available records and reports of interrogations in 

which petitioner made or adopted statements upon which respondents rely to justify his 

detention. Accordingly, this request shall be denied. 

D. Information Regarding Other Individuals Associated With Guest Houses in Pakistan 

Who Were Not Enemy Combatants (Pet'r's Req. No.5) 

Petitioner seeks "information showing that there were individuals associated with the 

guest house where Petitioner was captured who were not enemy combatants." (Pet'r's Reply at 

7.) This request does not satisfy the "good cause" requirements of Amended CMO § J.E.2. The 

request is narrowly tailored, but it will not likely produce evidence that demonstrates petitioner's 

detention is unlawful. The fact that others may not have been detained at petitioner's guest house 

does not show that petitioner's detention is unlawful. Accordingly, this request shall be denied. 

Nevertheless, this Court agrees with petitioner's assertion that such information tends to 

materially undermine respondents' position that petitioner was captured at an al-Qaida associated 

guest house. Ifthis evidence is reasonably available, it should have been turned over to 

petitioner pursuant to Amended CMO § J.D. I. See Amended CMO § LD.1, as amended by 

Gherbi v. Bush, Civ. No. 04-1164, Order [797] (DD.C. Dec. 19,2008) (Walton, 1.) (requiring 

the government to "disclose to the petitioner all reasonably available evidence in its possession 

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that tends materially to undermine the information presented to support the government's 

justification for detaining the petitioner"). 

E. Information Relating to the Use of Bounties (Pet'r's Req. No.6) 

Petitioner requests all information pertaining to the United States' use of bounties to 

capture individuals in Pakistan after September 11,2001. (Pet'r's Mot. Ex. A at 5.) Petitioner 

fails to explain how this request satisfies any ofthe requirements of Section I.E.2. Whether 

bounties were used is irrelevant to petitioner's detention. Accordingly, this request shall be 

denied. 

F. Information Relating to Evidence of Torture and Abuse (pet'r's Req. No.7) 

Petitioner seeks all information about his treatment from the date he was captured until he 

was transferred to Guantanamo, "including information regarding the circumstances surrounding 

any statement upon which Respondents rely, such as evidence of abusive treatment, torture, 

mental or physical incapacity which could affect the credibility and/or reliability of evidence 

being offered." (Pet'r's Mot. Ex. A at 5.) Through a declaration of his attorney as to petitioner's 

recollection of his experiences, petitioner alleges he was subject to physical and psychological 

coercion in Jordan, in a secret prison in Afghanistan, and in Bagram prior to his transfer to 

Guantanamo Bay in _2004. (Id Ex. B.) These allegations and those contained in the 

exhibits of petitioner's reply have enough specificity, which respondents do not deny, that the 

Court finds that petitioner has made a sufficient claim that he was subject to these conditions 

from his capture in 2002 until he was rendered to Guantanamo in 2004. 

Respondents' argument that petitioner is free to state his knowledge of the circumstances 

.surrounding the statements he made in order to attack the reliability of the statements upon which 

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respondents rely to justify his detention is unpersuasive. As this Court stated in Bin Attash, 

"[a]ssuming that the physical or psychological coercion occurred prior to or simultaneously to the 

time that the petitioner gave the ... statements that the government relies on in the factual return, 

evidence of that coercion would be exculpatory." Civ. No. 05-1592, Mem. [215] at 17. 

Respondents are required to produce such exculpatory evidence under Amended CMO § I.D.l. 

Accordingly, consistent with previous orders of other members and the undersigned 

member of this Court, the Court shall order the government to produce all reasonably available 

evidence of abusive treatment, torture, or mental or physical incapacity prior to or 

contemporaneous with the time that petitioner gave any statements that are included in the 

factual return. See Bin Attash, Civ. No. 05-1592, Mem. [215] at 18 (ordering production of any 

reasonably available evidence that "petitioner was subjected to abuse, torture, coercion, or 

duress"); AI-Mithali v. Bush, Civ. No. 05-2186, Order [138] at 2 (D.D.C. Jan. 9, 2009) (Huvelle, 

J.) (ordering production of any document indicating that petitioner was a victim of abuse, torture, 

or coercion by either foreign or domestic government authorities); Al Odah v. United States, Civ. 

No. 09-828, Order [474] at 2 (D.D.C. Feb. 12,2009) (Kollar-Kotelly, 1.) (ordering the 

government to produce "evidence that indicates a statement is unreliable because it is the product 

of abuse, torture, or mental or physical incapacity"). Respondents' failure to deny petitioner's 

allegations or produce evidence of coercion will result in respondents' being precluded from 

using any of petitioner's statements in the merits of this litigation. Bin Attash, Civ. No. 05-1592, 

Mem. [215] at 19. 

G. Information Showing Knowledge of Promises or Representations Made to Petitioner 

That Resulted in His Confession (Pet'r's Req. No.8) 

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This request seeks "[a]ll infonnation showing Respondents' knowledge of promises or 

representations made to Petitioner that if Petitioner confessed he would be released." (Pet'r's 

Mot. Ex. A at 5.) Petitioner has not provided any assertions that respondents promised his 

release ifhe confessed. Accordingly, this request fails to fulfill the "good cause" requirements 

and shall be denied. 

H. Petitioner's Medical Records (Pet'r's Req. No.9) 

Petitioner requests all documents concerning his "physical or mental condition since he 

has been held in Guantanamo, including ... all medical records, or any other records describing 

his treatment." (pet'r's Mot. Ex. A at 6.) Petitioner fails to demonstrate that the documents 

would likely show that his detention was unlawful. Furthennore, to the extent that records detail 

alleged "abusive treatment, torture, or mental or physical incapacity," the records will be 

produced pursuant to the order accompanying this memorandum that requires the government to 

produce all reasonably available evidence of abusive treatment, torture, or mental or physical 

incapacity prior to or contemporaneous with the time that petitioner gave any statements that are 

included in the factual return. Accordingly, the Court shall deny this request. 

I. Documents Generated by Review of Petitioner's Detention Ordered by President Obama 

(Pet'r's Req. No. 10) 

Petitioner seeks all documents and facts generated by the Executive Task Force created 

by President Obama's January 22, 2009 Executive Order.2 (pet'r's Mot. Ex. A. at 6.) 

Respondents' assertion that searching the Task Force's materials would be too burdensome is 

unavailing. As this Court has previously stated, the Task Force's materials are readily available 

2 Executive Order No. 13,492 at § 4(c)(l), 74 Fed. Reg. 4897 (Jan. 22,2009). 

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and may produce new exculpatory information. Bin Attash, Civ. No. 05-1592, Mem. [215] at 16. 

Only upon respondents' production of exculpatory Task Force materials will this Court be able to 

give petitioner a "meaningful opportunity to demonstrate that he is being held pursuant to the 

erroneous application ofinterpretation ofrelevant law." Boumediene v. Bush, 128 S. Ct. 2229, 

2266 (2008). Accordingly, this Court shall order respondents to produce any exculpatory 

materials assembled by the Executive Task Force. 

J. Written Discovery Requests 

Finally, petitioner seeks permission to issue a limited number of written discovery 

requests. (pet'r's Mot. at 6.) Petitioner has not shown how these requests would likely show that 

his detention is unlawful. Accordingly, the Court shall deny this request. 

III. CONCLUSION 

For the reasons stated above, petitioner's Motion for Discovery shall be granted in part 

and denied in part. A separate Order shall issue this date. 

~C#ruU?ta- ROYCE C. LAMBERTH 

CHIEF JUDGE 

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