The opinion of the court was delivered by: Gladys Kessler United States District Judge
On August 20, 2009, the Court entered a lengthy Order ("Discovery Order") [Dkt. No. 129], subsequent to a Motions Hearing on Petitioner's Motion to Compel Discovery and Exculpatory Evidence held on August 17, 2009.
On August 19, 2009, in response to the Court's request [Dkt. No. 123], Petitioner filed a proposed order [Dkt. No. 124] regarding certain rulings made during the Motions Hearing. The Government filed an Opposition to that proposed order [Dkt. No. 126], and the Petitioner filed his Reply [Dkt. No. 127], ending that round of briefing.
On September 30, 2009, the Government filed a Motion to Clarify or Reconsider Certain Discovery Order Provisions ("Mot. for Reconsideration") [Dkt. No. 131]. Petitioner filed his Opposition on October 19, 2009 [Dkt. No. 134], and the Government filed its Reply on October 29, 2009 [Dkt. No. 135]. The Government's Motion, it should be noted, was filed approximately six weeks after the Court ruled on August 17, 2009.
After reviewing all the papers, it is clear that the two sets of filings are interrelated and all of them relate to the substance of the rulings on August 17, 2009. Consequently, the Court will deal with both sets of filings in this Memorandum Opinion.*fn1
The Government is asking for reconsideration or clarification of numerous matters decided at the hearing on August 17, 2009, each of which the Court will now address.*fn2
1. The Government seeks clarification of the scope of its search obligations. In particular, the Government wants to be clear that the Court intended the search order to encompass all reasonably available materials, as that term is used in several different Court Orders, but that the Court did not intend that search to include all Government files. The answer is very simple. The Government is required to search its Consolidated Files. In addition, by Order dated May 11, 2009 [Dkt. No. 68], this Court ruled that the data and documents compiled by the Attorney General in response to Exec. Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009) ("Task Force Data"), is "reasonably available evidence" within the meaning of Section I.D of its Case Management Order, entered in this case on November 17, 2008, and as amended on February 12, 2009 [Dkt. No. 48], and must be produced to the extent that the data or documents are exculpatory, or otherwise covered by the Case Management Order, the May 11, 2009 Order, or other Orders of this Court.
At the hearing on August 17, 2009, the Government objected to being required to search the information being reviewed by the Task Force implementing the President's Executive Order to close the facilities at Guantanamo Bay. The Government explained that review of the Task Force files would require review of more than 50,000 additional documents, and would take, at a minimum, an estimated 60 days for review, plus 30-45 days to clear any responsive documents. Petitioner understands that and is willing to accept the extra time required to produce this information, in exchange for obtaining what he thinks will be valuable information. In addition to the inclusion of Task Force Data in those materials which constitute "reasonably available evidence," this Court has also included in that definition "any evidence discovered by the Government attorneys while preparing the Petitioner's factual return or while litigating habeas corpus petitions filed by other detainees at Guantanamo Bay." Order at 3 (May 11, 2009) [Dkt. No. 68].
The Petitioner asks that the Government also be required to search "evidence in the habeas cases (pending, stayed, or closed) of other Guantanamo detainees, and any other location known to the Government to contain responsive documents or information and potentially exculpatory evidence related to Muhammad al Ansi or any of his accusers." Pet.'s Opp'n to Mot. to Reconsider, at 7. This request is denied. Not only is it far too broad and burdensome, but it is far beyond any definition which this Court has ever adopted for "reasonably available evidence."
Finally, there is no question, and the Government does not deny, that it has a continuing duty to supplement any prior discovery pursuant to the Case Management Order.
2. The Government requests that the Court clarify its Discovery Order granting in part Petitioner's request # 4, to disclose "all reports, interviews, interrogations, and statements . . . that refer to or discuss Petitioner, provided that these items contain information that the Government relies on to justify detention," including "negative identifications provided by any other detainees." Mot. to Reconsider at 8. The Government admits that it is not searching, at this time, "for negative identifications that are included in documents that nowhere mention petitioner by name, alias, or identifying number (e.g., a detainee's failure to identify 'anyone else' as being at a particular location or associated with a particular group)." Id. at 9. In support of its position, the Government relies upon language in the Discovery Order requiring disclosure of various reports that "refer to or discuss Petitioner." Discovery Order at 4. In addition, the Government argues that any such search for negative identifications would be "wholly impracticable or impossible."
Petitioner argues that by searching only for negative identifications that include the Petitioner's name or ISN number, the Government will not be able to locate the most exculpatory negative identifications. Pet.'s Opp'n at 9. Petitioner presents a number of examples to demonstrate instances where the Government has failed to search and disclose, and argues that those examples present precisely the kind of information he is seeking in this case.
Petitioner's arguments are far from frivolous. However, the Government represents in its Reply that its "method of searching will capture the overwhelming majority of negative identifications based upon photobooks." Id. at 7. The Government also represents that a number of different types of negative identifications would be located with a search using Petitioner's name, alias, and identifying number. Id. at 8. Given the Government's representations and the focus in the Discovery Order on disclosure of reports that refer to or discuss Petitioner, as well as the enormous burden that Petitioner's request would place on the Government, the Court concludes that the Government need only search for negative identifications in documents that include references to Petitioner's identity. See Bin Attash v. Obama, 628 F. Supp. 2d 24, 31-32 (D.D.C. 2009) (Lamberth, J.). Therefore, the Government's Motion for Reconsideration is granted on this issue.
3. The Government seeks reconsideration of that portion of the Discovery Order which requires, with regard to certain witnesses, that the Government produce, inter alia, "all documents concerning the credibility of the witnesses' accusations against Petitioner or any other detainees." Discovery Order at 7. The Government argues that in Ahmed v. Obama, No. 05-1678, this Court required production of only those "credibility assessments relating to those specific statements of ...