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Ameziane v. Obama

United States District Court, District Circuit

June 5, 2013

BARACK H. OBAMA, et a/., Respondents.


ELLEN SEGAL HUVELLE United States District Judge.

Now before the Court is respondents' motion to deem protected information highlighted in the proposed public factual return for ISN 310 and petitioner's cross-motion to compel compliance with the protective order. Upon consideration of respondents' motion (May 9, 2012 [ECF No. 285] ("Mot.")), petitioner's opposition and cross-motion (June 15, 2012 [ECF No. 289] ("Opp'n")), respondents' reply and opposition (Sept. 14, 2012 [ECF No. 294] ("Reply")), petitioner's reply (Sept. 21, 2012 [ECF No. 295] ("Cross-Motion Reply")), and petitioner's notice of supplemental authority (Apr. 17, 2013 [ECF No. 299] ("Supp.")), the Court will grant in part and deny in part both motions.


The Protective Order governing the Guantanamo Bay habeas corpus cases provides that the government must prepare redacted versions of all pleadings "appropriate for filing on the public record." (Protective Order, No. 08-mc-442 (D.D.C. Sept. 11, 2008) [ECF No. 409] ¶ 47(a). 48(a), 49(a).) In addition to classified information, the government may withhold from public disclosure information that is unclassified but nevertheless "protected, " subject to the approval of the Court. (Protective Order ¶ 34.)

A. Respondents' Motion to Deem Protected Information

The relevant law governing the standard for "protected" information was reviewed in great detail in Judge Hogan's May 12. 2011 Opinion, In re Guantanamo Bay Detainee Litig., 787 F.Supp.2d 5, 9-13 (D.D.C. 2011), so this Court will only briefly summarize it here to provide the necessary background for deciding the instant motions.

Because the public ordinarily has the right to inspect and copy judicial records, the government must provide a valid basis for withholding non-classified information. Bismullah v. Gates, 501 F.3d 178, 188 (D.C. Cir. 2007), vacated on other grounds. Gates v. Bismullah, 554 U.S. 913 (2008). Such a basis requires, "at a minimum, a 'specific, ' 'tailored, ' rationale for protecting a general category of information, and a precise designation of each particular item of information that purportedly 'falls within the category] .. . described.'" Ameziam v. Obama, 620 F.3d 1, 6 (D.C. Cir. 2010) (quoting Parhat v. Gates, 532 F.3d 834, 853 (D.C. Cir. 2008)). This has been framed as a two-part test: "the government first must demonstrate what kind of information requires protection and why, and then must show exactly what information in the case at hand it seeks to protect." Id.

On November 6, 2008, Judge Hogan ordered the government to file unclassified versions of the factual returns in each of the Guantanamo Bay habeas cases. (Case Management Order, No. 08-mc-442 (D.D.C. Nov. 6, 2008) [ECF No. 940] ¶ I.C.) The government initially attempted to designate all of the unclassified factual returns as "protected" under the Protective Order, but the Court denied that request. Instead, Judge Hogan required that the parties first meet and confer regarding the government's proposed redactions, and if an agreement could not be reached, "the government must file with the appropriate Merits Judge a motion to designate as protected each highlighted portion of the return." (Memorandum Opinion, No. 08-mc-442 (D.D.C. June 1, 2009) [ECF No. 1780] at 10.)

On July 29, 2009, the government filed unclassified factual returns in over 150 cases, including this case, in which it redacted not only classified but also protected information. (See Reply at 4.) Judge Hogan later ruled that in so doing they had violated his June 1, 2009 Order, and gave them until April 14, 2010 to come into compliance. (Order, No. 08-mc-442 (D.D.C. Jan. 14, 2010) [ECFNo. 1896].)

On that date, respondents filed a motion seeking a ruling that information falling within six discrete categories could be designated as "protected information" under the Protective Order. {See Motion to Amend and for Clarification of the Court's January 14, 2010 Order Regarding Public Returns, No. 08-mc-442 (D.D.C. Apr. 14, 2010) [ECF No. 1942].)[1] Judge Hogan agreed that the government had sufficiently demonstrated the need to protect the type of information contained in each of the six categories and thus had satisfied Step One of the Parhat/Ameziane test. In re Guantanamo Bay Detainee Lilig., 787 F.Supp.2d at 25 ("[T]he government has satisfied the first step ofParhat by demonstrating, with respect to each proffered category, what kind of information requires protection and why.")- However, he noted that "the question of whether information the respondents actually designate for protection satisfies step two ofParhat will have to be determined by the merits judges presiding over the cases in which the government has or will file a proposed public factual return that contains such designated information." Id. at 26.

On June 25, 2010, respondents served petitioner's counsel with a copy of their proposed public factual return, in which they indicated the information that they sought to deem protected. (Reply at 6.) After a meet-and-confer process in which respondents made some changes to address petitioner's concerns, respondents filed their proposed factual return with this Court on May 9, 2012. (Mot. Ex. 3.) In their motion, respondents claimed that "[t]he six categories that have been approved by Judge Hogan cover all of the information highlighted within the factual return for ISN 310 that Respondents seek to deem protected" with one exception; the government also seeks to protect the category consisting of "detainee health-related information." (Mot. at 4-5.) Petitioner has objected to several of the government's proposed redactions. (Opp'n at 3-11.)

B. Petitioner's Motion to Compel Compliance with Protective Order

As mentioned above, the Protective Order requires that when petitioner files a document that may contain classified or protected information, the government must prepare a redacted version of the document '"appropriate for filing on the public record." (Protective Order ¶¶ 47(a), 49(a).) This classification review must be done "[a]s soon as practicable following the original filing date." (Id. ¶ 49(a).)

In order to deal with the large number of filings in need of such a classification review, the government instituted a "prioritized review process" in August 2011. (See Reply al 29.) As part of that process, respondents contacted counsel for all petitioners in the Guantanamo habeas cases, and requested that they submit a prioritized list of filings that they wanted to have reviewed. (See id.) The government then proposed to review all of the first-listed filings in the order they were received before moving on to any of the second-listed filings. (See id.) Although fifty-four petitioners had submitted priority lists as of the date of respondents' Reply, petitioner was not one of them. (See id.) Petitioner admits that he has not participated in the government's priority review process, arguing that he requested review of several filings in April 2011, before any such procedure was instituted, and does not want his request to move to the back of a very slow-moving line. (See Opp'n at 15-17.) Indeed, respondents acknowledged that as of September 14, 2012, the date of respondents' Reply, the classification review team had finalized only nineteen case filings through the priority review process. (Reply at 29.)

Petitioner now seeks an Order from this Court compelling the government to produce public versions of three of his pleadings in this case: his preliminary traverse and motion for summary judgment, filed on February 14, 2009; his reply memorandum, filed on March 3, 2009; and his closing memorandum, filed on April 2, 2009. ([ECF Nos. 165, 174, 193].) Petitioner requests an order that production be made within 30 days, or, at a minimum, concurrently with the public factual return, so that the public can evaluate both the government's and petitioner's versions of the underlying facts at the same time. (See Opp'n at 1-2, 12.) He further requests that the Court order the government to process his requests for declassification of certain materials in his tactual return and in various hearing transcripts. (See Opp'n at 13.)


A. Motion to Deem Protected Information

Petitioner initially raised eight objections to respondents' proposed public factual returns. However, several of those grounds are now moot or need not be addressed. For example, petitioner's first objection serves solely to "preserve the record of [petitioner's] objections" to the six categories of protected information approved by Judge Hogan in his May 12, 2011 Order. (See Opp'n at 3; Reply at 9 n. 1.) The Court will not revisit Judge Hogan's well-reasoned opinion, and therefore it declines petitioner's request for reconsideration of that opinion. Additionally, respondents have agreed to lift the redactions addressed by petitioner's objections 2, 4, and 5, thereby rendering those objections moot. (See Reply at 9-10.) And finally, in petitioner's eighth objection, he complains that because he opposes certain of the proposed designations, "the government is obligated to file a memorandum justifying each designation, " but "has not done so." (Opp'n at 10.) However, in their Reply, respondents have done that; they have addressed each of petitioner's objections and justified their requested designation for each disputed piece of information. Thus, petitioner's request that the government "be required to file a proper memorandum explaining its designations" is now moot.

The Court also notes that petitioner did not object to the government's redaction of certain medical information that does not fall into any of the six pre-approved categories of information, and thus, the Court will deem that information protected. See Bane v.Obama, 2013 WL 1180300, at *3 & n.4 (D.D.C. Mar. 8, 2013) (deeming certain ...

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