United States District Court, District of Columbia
Stephen D. Brown, pro hac vice, Brian C. Raphel, pro hac vice, William T. McEnroe, pro hac vice, Alexander Breckinridge, Joseph K. Hetrick, Sheku Sheikholeslami, Dechert, LLP, Abraham J. Rein, Post & Schell, PC, Peter M. Ryan, Cozen O'Connor, Philadelphia, PA, Katherine M. Wyman, Dechert LLP, Washington, DC, for Petitioners.
Daniel Mark Barish, David Chadwick Roby, Scott Michael Marconda, Terry Marcus Henry, Alexander Kenneth Haas, Andrew I. Warden, David Hugh White, Jean Lin, Julia A. Berman, Kathryn Celia Davis, Kristina Ann Wolfe, Lisa Zeidner Marcus, Patrick D. Davis, Robert J. Prince, U.S. Department of Justice, Washington, DC, for Respondents.
ROSEMARY M. COLLYER, District Judge.
On a petition for a writ for habeas corpus filed by a detainee at Guantanamo Bay, may the Respondents rely on Top Secret source-identifying information for which there is no adequate substitute and that cannot be released to Petitioner's
counsel, even if it might assist his petition? After lengthy argument, briefing, and consideration, this Court answered the question in the affirmative and now writes to explain its conclusions.
Petitioner Wali Mohammed Morafa, an Afghan citizen, is a detainee at Guantánamo Bay Naval Station in Cuba. Respondents contend that he " used the cover of [ ] otherwise legitimate money-changing activities to provide financial services support to the operations of the Taliban, [Al Qaida, Usama Bin Laden], and other terrorist organizations," including " financ[ing] ... operations and terror attacks." Notice of Public Filing of Factual Return [Dkt. 242], Narrative [Dkt. 242-1] ¶ 01. With a group of other detainees, he filed his petition for a writ of habeas corpus on June 7, 2005. See Pet. [Dkt. 1]; see also Am. Pet. [Dkt. 22]. On January 27, 2006, this Court ordered the case held in abeyance pending a ruling from the D.C. Circuit on whether the Court had jurisdiction to entertain the petition. See Order dated Jan. 27, 2006 [Dkt. 33]. Thereafter, in events whose intricate details are not directly relevant to the issues presently before the Court, the case was effectively stayed for a lengthy period pending various rulings from the D.C. Circuit and the Supreme Court addressing what vehicle, if any, Guantánamo detainees could use to challenge their detention. In addition, during that time period, procedural and logistical matters in this case were consolidated for coordination and management with other Guantánamo cases before the Honorable Thomas F. Hogan in Case Misc. No. 08-442. See Order dated July 2, 2008 [Dkt. 85].
On November 25, 2008, respondents filed their classified Factual Return regarding Mr. Morafa, see Notice of Filing of Factual Returns, Dkt. 143, and they served an unclassified version on Mr. Morafa's counsel shortly thereafter, see Notice of Service of Unclassified Protected Factual Return, Dkt. 170. See also Notice of Public Filing of Factual Return. In January 2009, after President Barack Obama took office, Respondents notified the Court that they had identified additional documents, possibly relevant to Mr. Morafa, that were undergoing clearance review. See Supp. Notice Prod. Exculp. Info. [Dkt. 183] at 1. In December 2009, Respondents sought leave to amend the factual return, see Notice of Classified Filing dated Dec. 1, 2009, Dkt. 257; Mr. Morafa consented, see Revised Notice dated Dec. 7, 2009, Dkt. 260, and the Court granted the motion and set a briefing schedule, Minute Order dated Dec. 11, 2009. Mr. Morafa filed his traverse on January 15, 2010. See Notice of Filing [Dkt. 264]. The parties filed a number of additional motions and briefs, and the Court held a closed merits hearing over several days in May and June 2010.
Although the case's dé nouement seemed nigh, matters were not so simple. Following a November 5, 2010, telephone conference, the Court reopened the record and approved additional briefing to accommodate ongoing document review by Respondents, necessary for Respondents to ensure full compliance with their disclosure obligations. See Minute Orders dated Nov. 5, 2010 & Nov. 23, 2010. See generally Am. Case Mgmt. Order [Dkt. 154] §§ 1.D, 1.E. Respondents filed a Supplemental Factual Return on March 25, 2011. See Notice of Filing [Dkt. 331].
The discovery fights then renewed. Contending that he was entitled to additional materials from Respondents, Mr. Morafa filed a motion for additional discovery. See Notice of Filing dated July 18, 2011 [Dkt. 339]. Following status conferences
on October 18 and November 3, 2011, the Court granted the motion in part and directed Respondents to conduct five additional searches on terms set forth in an Order dated November 15, 2011. See Order on Pet'r Mot. Add'l Disc. (Redacted Version) [Dkt. 356]. Respondents located additional information inculpating Mr. Morafa, and they filed a motion to add this information to the Supplemental Factual Return, see Notice of Classified Filings [Dkt. 366], which the Court granted, see Order dated July 23, 2012 [Dkt. 372] at 2.
The present issue arises from certain source-related information located by Respondents during their searches after November 2011. The information in question is classified at the " Top Secret" level, the highest of the three levels of national security classification— Top Secret, Secret, and Confidential. Throughout the Guantánamo proceedings, counsel for petitioners, including Mr. Morafa's attorneys, have only held clearance at the Secret level, making them ineligible to access to Top Secret information. See Am. Case Mgmt. Order § 1.F (" If any information to be disclosed under Sections I.D or I.E of this Order is classified, the government shall, unless granted an exception by the Merits Judge, provide the petitioner's counsel with the classified information, provided the petitioner's counsel is cleared to access such information. " (emphasis added)). Accordingly, Respondents filed a motion ex parte and in camera, Dkt. 374, for an exception to their disclosure duties with respect to certain information, including the source-related information at issue here. See Am. Case Mgmt. Order § 1.F (" If the government objects to providing the petitioner's counsel with the classified information, the government shall move for an exception to disclosure." ).
Thereafter, pursuant to a procedure used by other judges of this Court in Guantánamo cases and endorsed by the D.C. Circuit in Khan v. Obama,655 F.3d 20 (2011), the Court reviewed Respondents' ex parte materials in camera. The Court also reviewed proposed substitutes, classified below the Top Secret level, that Respondents intended to provide to Mr. Morafa's counsel. These substitutes are a unique device to balance national security needs with the need for " meaningful" habeas review. See Khan, 655 F.3d at 32 (quoting Boumediene v. Bush, 553 U.S. 723, 779, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008)). They generally describe, in less detail or with certain omissions or redactions, the classified information that could not be disclosed. If approved by the court, they are referred to as " adequate substitutes." A court's inquiry when reviewing proposed substitutes is, essentially, to determine if all " relevant and material" information from the Top Secret document has been conveyed in the Secret substitute. See Al Odah v. United States, 559 F.3d 539, 544 (D.C.Cir.2009) (applying " relevant and material" standard to disclosure of Secret classified information to ...