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UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA ) SHARGOWI LNU (ISN 1457), ) ) 

### Petitioner, ) ) 

### v. ) Civil No. 09-745 (RCL) ) BARACKOBAMA, 

### eta/., ) ) 

### Respondents. ) ) MEMORANDUM OPINION Petitioner is challenging the legality ofhis 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 inpart and denied in part for the reasons set forth below. I. BACKGROUND This Court is operating underthe Case Management Order ("CMO") issued byJudge Hogan ofthis Court in the consolidated Guantanamo habeas cases (Misc. No. 08-442)on November 6, 2008, as amended onDecember 16,2008. 1 Section I.E ofthe Amended CMO provides rules for discovery. SectionI.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 petitionermust satisfy in orderto obtain additional discovery. Specifically,

I Judge Walton ofthis Court further amended the Amended CMO. Gherbi v. Bush, Civ. No. 04-1164, Order [797] (D.D.C. Dec. 19,2008) (Walton, J.). AfterJudge Walton's Order, petitioner's case was transferred to the undersigned member ofthe Court. As a result, that Order is binding onpetitioner's case, and any deviations from the Amended CMO will be noted.

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SectionI.E.2. states that: [t]he Merits Judge may, for good cause, permit the petitionerto obtain limited discovery beyondthatdescribed in [Section I.E. 1.]
....Discoveryrequests shall
..

. (1) be narrowly tailored, not open-ended; (2) specifythe discovery sought; (3) explain whythe request, ifgranted, is likelyto 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 orundulyburdening the government. Amended CMO 

### § I.E.2. (citations omitted). Pursuantto 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 meetthe 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 orunduly burden the government, "the Court will only considerpetitioner's discovery requests insofar as they seek reasonablyavailable 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 ofthis 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 orany 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 DISCOVERYREOUESTS A. Records and Reports ofInterrogations ofPetitioner (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 relyto support his detention. Specifically, request No. 

### I
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seeks "[a]ll records or reports ofinterrogations of Petitioner after his capture in Pakistan" (perr's Mot. Ex. A at 1.), and requestNo.3 seeks "[a]ll records orreports pertaining to Petitioner inhis 'hard file' after his capture in Pakistan." (Id. at 3.) Bothrequests are limited to include ''video and/or audio ofall interrogations upon which Respondents rely, any transcripts or original notes ofall interrogations upon which Respondents rely, any reports related to any interrogations upon which Respondents rely otherthan 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 satisfythe "goodcause" requirement ofSection I.E.2. Moreover, even ifthese requests did not satisfy the" good cause" requirement ofSection I.E.2., respondents would have to produce all forms ofpetitioner'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 petitionerthat the government relies ontojustify detention; and (3) information about the circumstances in which such statements ofthe petitioner were made or adopted"). Indeed, as this Courtrecently held, "[i]fthe government wishes to use petitioner's statements against him, it must produce all forms ofthat statement to the petitioner as well as the circumstances in which the statements were made or adopted, which would include interrogation logs." BinAttash 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 petitionerthus far are insufficient (Pet'r's Mot. Ex. A at 1.), and respondents must disclose all forms ofthe statements included in the factual return, notjust 3

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summaries ofhis statements. Accordingly, to the extent that petitioner's requests Nos. 1 and 3 seek "reasonably available" records and reports ofinterrogations in which petitioner made or adopted statements uponwhichrespondents rely tojustifyhis 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 ordescribe the date, time, place, or circumstances ofinterrogations of Petitioner." (Pet'r's Mot. Ex. A at 2.) In his reply, petitionerlimits this request "to information related to the circumstances ofinterrogations that produced the statement upon which Respondents rely tojustifyPetitioner'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 tojustifyhis detention onFebruary 13,2009. As stated above, however, ifthe government wishes to use statements made or adopted bypetitioner against him, the government must also produce not only the circumstances in which the statements were made oradopted, but also the interrogation logs. BinAttash, 05­ 1592, Mem. [215] at 14. Accordingly, respondents must produce the circumstances in which petitioner's statements were made or adopted, including anyinterrogation logs orplans, which
were not produced onFebruary 13,2009. C. 

### Documents Related to ExtraordinaryRendition ofPetitioner (Pet'r's Req. No.4) Petitionerrequests all documents related to his extraordinaryrendition "priorto his
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detention in Baghram [sic] and Guantanamo, including all statements made or adopted by petitioner during this process." (Pet'r'sMot. Ex. A at 4.) Petitioner fails to showthat these documents would likely showthat his detention is unlawful. Moreover, to the extent that respondents rely upon any statements made during extraordinaryrendition tojustifypetitioner's detention, information regarding such statements are covered bythe Court's order ofthis date requiring respondents to produce all reasonably available records and reports ofinterrogations in whichpetitioner made or adopted statements upon whichrespondents rely tojustifyhis detention. Accordingly, this request shall be denied. 

### D. Information Regarding OtherIndividualsAssociated With GuestHouses in Pakistan Who Were NotEnemy 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 ofAmended CMO §J.E.2. The request is narrowly tailored, but it will not likelyproduce 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' positionthatpetitionerwas captured at an al-Qaida associated guest house. 

### Ifthis evidence is reasonably available, it should have been turned overto petitionerpursuant to Amended CMO § J.D. I. See Amended CMO §LD.1, as amendedby 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 materiallyto undermine the informationpresented to support the government's justification for detaining the petitioner"). 

### E. Information Relating to the Use ofBounties (Pet'r's Req. No.6) Petitionerrequests all informationpertaining to the United States' use ofbounties 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 ofSection I.E.2. Whether bounties were used is irrelevant to petitioner's detention. Accordingly, this request shall be denied. 

### F. Information Relating to Evidence ofTorture and Abuse (pet'r's Req. No.7) Petitioner seeks all information about his treatment from the date he was captureduntil he
was transferredto Guantanamo, "including information regarding the circumstances surrounding any statement upon which Respondents rely, such as evidence ofabusive treatment, torture, mental orphysical incapacity which could affect the credibility and/or reliability ofevidence being offered." (Pet'r'sMot. Ex. A at 5.) Through a declaration ofhis attorney as to petitioner's recollection ofhis experiences, petitioner alleges he was subject to physical and psychological coercion in Jordan, in a secretprisonin Afghanistan, and in Bagram prior to his transferto Guantanamo Bay in _2004. (Id Ex. B.) These allegations and those contained in the exhibits ofpetitioner's reply have enough specificity, which respondents do not deny, that the Court finds that petitionerhas 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 ofthe circumstances

.surrounding the statements he made in orderto attackthe reliability ofthe statements upon which 6

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respondents rely tojustifyhis detention is unpersuasive. As this Court stated inBinAttash, "[a]ssuming that the physical or psychological coercion occurred priorto or simultaneously to the time that the petitioner gave the
... statements that the government relies on inthe factual return, evidence ofthat 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 withprevious orders ofothermembers and the undersigned member ofthis Court, the Court shall orderthe government to produce all reasonably available evidence ofabusive treatment, torture, or mental orphysical incapacitypriorto or contemporaneous with the time that petitioner gave any statements that are included in the factual return. See BinAttash, Civ. No. 05-1592, Mem. [215] at 18 (orderingproduction ofany 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 ofany document indicating that petitioner was a victim ofabuse, torture,
or coercion byeither foreign ordomestic government authorities);Al Odah v. UnitedStates, 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 ofabuse, torture, or mental orphysical incapacity"). Respondents' failure to deny petitioner's allegations orproduce evidence ofcoercion will result in respondents' being precluded from using any ofpetitioner's statements in the merits ofthis litigation. BinAttash, Civ. No. 05-1592, Mem. [215] at 19. 

### G. Information Showing Knowledge ofPromises 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 ofpromises or representations made to Petitionerthat ifPetitioner 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 ormental condition since he has been held in Guantanamo, including
... all medical records, or any otherrecords describing his treatment." (pet'r'sMot. Ex. A at 6.) Petitionerfails to demonstrate that the documents would likely showthat his detention was unlawful. Furthennore, to the extent that records detail alleged "abusive treatment, torture, ormental orphysical incapacity," the records will be produced pursuant to the order accompanying this memorandum that requires the government to produce all reasonably available evidence ofabusive treatment, torture, or mental orphysical incapacityprior to or contemporaneous withthe 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 ofPetitioner'sDetention 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 Courthas previously stated, the Task Force's materials are readily available

2Executive OrderNo. 13,492 at 

### §4(c)(l), 74 Fed. Reg. 4897 (Jan. 22,2009). 8

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and may produce newexculpatory information. BinAttash, Civ. No. 05-1592, Mem. [215] at 16. Only upon respondents' production ofexculpatory Task Force materials will this Court be able to give petitioner a "meaningful opportunity to demonstrate thathe is beingheld pursuant to the
erroneous application ofinterpretation ofrelevant law." Boumediene v. Bush, 128 S. Ct. 2229, 2266 (2008). Accordingly, this Court shall orderrespondents to produce any exculpatory materials assembled by the Executive Task Force. J. Written Discovery Requests Finally, petitioner seeks permission to issue a limitednumber ofwritten discovery requests. (pet'r'sMot. at 6.) Petitionerhas not shown how these requests would likely showthat his detention is unlawful. Accordingly, the Court shall denythis request. III. CONCLUSION Forthe 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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