UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
February 14, 2008
HANI SALEH RASHID ABDULLAH ET AL., PETITIONERS,
GEORGE W. BUSH ET AL., RESPONDENTS.
The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Respondents have filed an emergency motion asking that the order dated January 24, 2008 entered in this case ("Order") be vacated or partially stayed. (See Resps.' Emergency Mot. for Reconsideration or, in the Alternative, for Partial Stay of Order Requiring Further Report ("Emergency Mot.") [Dkt. 85] at 1.) Petitioners oppose the motion. Because respondents have not shown sufficient cause to vacate or stay the Order to the extent they request, their motion will be denied in part and granted in part, and the time to respond will be extended.
The Order was issued after respondents admitted that certain videotapes of interrogations of detainee Abu Zubaydah had been destroyed, and petitioner Abdullah made a sufficient showing, unrebutted by respondents,*fn1 of a likelihood that some of the destroyed videotapes were evidence subject to an order entered in this case directing respondents to "preserve and maintain all evidence, documents and information, without limitation, now or ever in respondents' possession, custody or control, regarding the individual detained petitioner in th[is] case." Mem. Order, July 18, 2005 ("Preservation Order"). The Order directed respondents to file by February 14, 2008, a report providing information responsive to the following three questions:
(1) what had they done in the past to ensure compliance with the Preservation Order since the time it was entered in July 2005; (2) what are they now doing to ensure compliance with the Preservation Order; and (3) what is the nature of any evidence potentially subject to the Preservation Order that has been destroyed or otherwise spoliated. See Order, Jan. 24, 2008. Respondents' submission in response to the Order provided no information at all that was responsive to the Order's first question, and they argue that "backward-looking information would interfere with the Department of Justice's pending criminal investigation." (Emergency Mot. at 1.) They provided some information, through declarations describing, but not appending, preservation directives recently issued from the Director of the CIA and the Associate Deputy General Counsel for the Department of Defense. This information addresses the Order's second question. It is possible, but unclear, whether respondents provided any information responsive to the Order's third question. (See Resps.' Report Filed in Connection with Order of January 24, 2008 & Exhibits [Dkt. 84] ("Resps.' Report").)*fn2 The respondents acknowledge that their response is neither specific to the petitioner in this case, as the Order directed, nor comprehensive. (See Resps.' Report at 3 n.2; Emergency Mot. at 1.)
Respondents ask that the Order be vacated to the extent that it requires a more complete response than they have filed.
(Emergency Mot. at 1.) Somewhat confusingly, they also state that they seek a stay only with respect to "those parts of [the] Order that require a report relating to the destruction of various tapes by the CIA." (Id. at 2.) Their emergency motion is based primarily on the premise that compiling the "backward-looking information" required by the Order will interfere with the ongoing criminal investigation into the November 2005 destruction of certain videotapes of certain interrogations. That premise is reflected in a supporting declaration by John H. Durham, Acting United States Attorney for the Eastern District of Virginia, who is in charge of the criminal investigation into the destruction of the videotapes.*fn3 Despite respondents' submission, it is not clear that providing substantial responses to each of the Order's three questions, including the first question which is backward-looking, cannot be accomplished without interfering with the ongoing criminal investigation.*fn4 Nonetheless, to reduce the possibility of interference with the ongoing criminal investigation Dunham is conducting, the respondents will not be required at this time to detail what they did previously to ensure compliance with the Preservation Order. However, because respondents' response to the Order's third question is incomplete, it is hereby
ORDERED that the respondents' emergency motion  be, and hereby is, GRANTED in part and DENIED in part. It is granted to the extent that respondents are not required at this time to detail what they did to ensure compliance with the Preservation Order between its entry in July 2005 and January 24, 2008. It is also granted insofar as respondents will be permitted additional time to respond. It is further
ORDERED that respondents are directed to file by March 17, 2008 a report detailing the nature of any evidence specific to petitioner Abdullah that is potentially subject to the Preservation Order that has been destroyed or otherwise spoliated.