Razak v. Bush ( 2009 )

UNCLASSIFIEOIIFOR PUBLIC USE ONLY
FILED WITH THE
-
COURT SECURITY OFfiCER
esO: dJZ~:tt(,~"
DATE: : ~ 7Z,/(~;!
,/
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HAMID AL RAZAK, et al.,
Petitioners,
v. Civil Action No. 05-1601 (GK)
BARACK H. OBAMA, et al.,
Respondents.
ORDER
A Motions Hearing was held in this case on July 21, 2009,
which took place in a sealed courtroom due to the discussion of
classified information. Upon consideration of Petitioner Razak's
Motion to Compel Compliance With the Court's Case Management Order
[Dkt. No. 206], the Opposition, Reply, representations of the
parties, and the entire record herein, it is hereby granted in part
and denied in part.
As to Section IV of Petitioner's Motion, it is hereby
ORDERED, that Request No. 1 is granted in part. The
Government is required to search for the names of the anonymous
sources,l and then search for exculpatory evidence related to those
names, including credibility assessments pertaining to the
Said names are not required to be produced to Petitioner.
UNCLASSIFIEOIIFOR PUBLIC USE ONLY
UNCLASSIFIED/IFOR PUBLIC USE ONLY
.­
statements they gave upon which the Government relies; and it is
further
ORDERED, that Request No.2 is denied without prejudice. The
document request must be viewed in the context of the Government's
certification that it has complied with its obligations under §
I.D.1 of the Court's Case Management Order ("eMO"). Given this
fact, the request sweeps too broadly, creates a substantial burden
on the Government, and is based on a premise of pure speculation.
This request is properly brought, if at all, under § I.E.2 of the
CMO; and it is further
ORDERED, that Request No. 3 is denied without prejudice; and
it is further
ORDERED, that Request No. 4 is denied without prejudice. The
timeline requested, if it exists, does not tend to materially
undermine allegations brought by the Government. This request is
properly brought, if at all, under § I.E.2 of the CMO; and it is
further
ORDERED, that Request No. 5 is denied without prejudice. The
requested information does not fall within the confines of § I. D.1;
and it is further
ORDERED, that Request No.6 is granted, pursuant to § I.D.l of
the CMO. See Order at 3-4, Abdah v. Obama, Civ No. 04-1254 (HHK)
(D.D.C. Apr. 8, 2009) [Dkt. No. 477]; and it is further
-2­
UNCLASSIFIEDIIFOR PUBLIC USE ONLY
UNCLASSIFIEDIIFOR PUBLIC USE ONLY
-
ORDERED, that Request No.7 is denied without prejudice.
request is properly brought, if at all, under § I.E.2 of the CMO;
This
and it is further
ORDE.RED, that Request No. 8 is denied. The requested
information does not tend to materially undermine allegations
brought by the Government, and therefore does not fall within the
confines of § I.D.I; and it is further
ORDERED, that Request No. 9 is granted, pursuant to the
Court's Order with respect to Request No.1; and it is further
ORDERED, that Request No. 10 is granted in part. The
Government shall first determine whether any such "action reports"
were created regarding Petitioner's arrest. If they were, the
Government shall then conduct a search of such reports for
exculpatory evidence, pursuant to § I.D.1 of the CMO.
As to Section V of Petitioner's Motion, it is hereby
ORDERED, that Request Nos. 1-52 are granted. These requests
all deal with the issue of what information the Government actually
"relies" on to justify Petitioner's detention. The Petitioner
maintains that particular underlying documents referenced in
already-produced intelligence reports are the foundation of certain
2 Petitioner erroneously double-designated Request No.4.
The request pertaining to "records of interrogations where
Petitioner allegedly provided inconsistent information" is properly
designated as No . 5. The Court will re-number this and subsequent
requests appropriately.
-3­
UNCLASSIFIEDIIFOR PUBLIC USE ONLY
UNCLASSIFIEDIIFOR PUBLIC USE ONLY
claims against the Petitioner. The Government argues that those
underlying documents are not the "documents or objects," under §
I.E.l(l), that it relies on to justify detention; rather, it
argues, the already-produced intelligence reports are being relied
on, and any internal references to other documents are not
automatically discoverable.
The CfJlO requires the Government to produce, if requested, "any
documents or objects in its possession that the Government relies
on to justify detention." CMO at § 1.8.1(1). These five requests
involve scenarios where the Government has produced an intelligence
report that references the substance of another particular document
or object (e.g. an intelligence report that references a photograph
identified by the Petitioner) in order to justify its detention of
the Petitioner. In these scenarios, therefore, the Government does
indeed rely on the substance of the underlying documents and
objects. It is not enough that the Government produce intelligence
reports that merely describe or reference the underlying items; it
must produce the particUlar documents relied on in those
intelligence reports; and it is further
ORDERED, that Request No.6 is granted, pursuant to § I.8.1(2)
of the CMO. See Order, Zaid v. Bush, 596 F. Supp. 2d 11 (D.D.C.
2009) (JDB); and it is further
-4­
UNCLASSIFIEDIIFOR PUBLIC USE ONLY
UNC-LASSIFIED/IFOR PUBLIC USE ONLY
ORDERED, that Request No. 7 is denied. In light of the
Government's representation that the referenced intelligence report
does not contain any statement by Petitioner upon which the
Government relies to justify his detention, the request does not
fall within the confines of § 1.8.1(1) of the CMO; and it is
further
ORDERED, that Request No. 8 is denied. The requested
information does not fall within the confines of § I. E.1 of the
CMO; and it is further
ORDERED, that Request No. 9 is denied. The requested
information does not fall within the confines of § I.E.l(2) of the
CMO.
As to Section VI of Petitioner's Motion, it is hereby
ORDERED, that Petitioner's request that the Court review
redacted documents in camera and ex parte is denied. The
Government has certified that none of the documents in question
support "a determination that Petitioner is not an enemy
combatant." Gov. Opp'n to Pet's. Mot. to Compel at 38. Moreover,
the Government also represents that it does not rely upon any
information redacted from those documents. Consequently, the
information does not fall within the confines of § I.E.1(1) of the
CMO. In addition, Al Odah v. United States, 559 F.3d 539 (D.C.
Cir. 2009) / upon which Petitioner relies, addressed a very
-5­
UNCLASSIFIEDIIFOR PUBLIC USE ONLY
UNCLASSIFIEDIIFOR PUBLIC USE ONLY
different factual and
distinguishable from this case.
-
legal scenario, and is therefore
July bi'A' 2009 Kessle~
States District Judge
Copies to: Attorneys of Record via ECF
-6­
UNCLASSIFIEDIIFQR PUBLIC USE ONLY