United States District Court, District of Columbia
DONALD J. TRUMP, et al., Respondents. SAIFULLAH PARACHA, Petitioner, v.
MEMORANDUM OPINION AND
L. FRIEDMAN United States District Judge.
matter is before the Court on respondents' June 29, 2018
motion to exclude portions of three documents from the
discovery obligations imposed by the Amended Case Management
Order in this matter, see Dkt. No. 219, and by the May 24,
2018 Memorandum Opinion of this Court, see Dkt. No. 492. The
motion is ex parte, in camera, and under
seal; it is reflected in a notice of filing on the public
docket. See Dkt. No. 494. For the reasons described below,
respondents' motion is granted.
I.D of the Case Management Order, as amended, requires
respondents to disclose to petitioner all reasonably
available exculpatory information; Section I.E. imposes
obligations to disclose certain other documents when
requested by petitioner. See Case Management Order, Dkt. No.
204, at 2-3; Amended Case Management Order, Dkt. No. 219, at
2-3; Order, Dkt. No. 308, at 3-4 (revising certain provisions
in the Case Management Order). Under the Amended Case
Management Order, respondents must provide these disclosures
to petitioner's appropriately cleared counsel even if the
information is classified. There is one exception, set forth
in Section I.F: "If the government objects to providing
the petitioner's counsel with the classified information,
the government shall move for an exception to
disclosure." See Dkt. 219 at 3.
present motion requests such an exception. It arises from a
May 24, 2018 Memorandum Opinion and Order of this Court, in
which the Court granted in part respondent's motion to
compel production of 21 documents identified by Mr. Paracha.
The Court ordered the United States to "produce
unredacted versions of the 21 documents requested by Mr.
Paracha's counsel disclosing any arguably exculpatory
material, or move for an exception from disclosure under
Section I.F. of the Amended Case Management Order." See
Dkt. No. 492 at 5.
represent that only three of the 21 documents subject to this
Court's May 2018 Order still remain at issue. Respondents
reviewed the redactions in each of the 21 documents, and now
explain that most contain "no redactions of any arguably
exculpatory information that has not already been disclosed
to Petitioner's counsel in other forms." Mot. at 3,
n. 2. The redactions obscure only "information that is
either irrelevant, immaterial, or inculpatory information
that Respondents do not intend to rely upon," and which
is therefore "not subject to the disclosure
obligations" of the Amended Case Management Order. Mot.
at 3, n. 2. With respect to the remaining
documents, respondents represent that
Only five of these 21 documents, as previously disclosed,
contain redacted, arguably exculpatory information that has
not already been produced to Petitioner's counsel in
other forms. For two of those five documents, referred to as
XXXXX and XXXXX Intelligence Report No. 74, Respondents'
counsel have worked with the relevant client agencies that
have recently been able to lift the redactions of the
arguably exculpatory information in those two documents.
Accordingly, Respondents produced a revised, less-redacted
version of XXXXX to Petitioner's counsel . . . on June
27, 2018, and produced a revised, less-redacted version of
XXXXX Intelligence Report No. 74 ... on June 29, 2018.
Mot. at 2. After these additional disclosures, respondents
report that "only three of the twenty-one documents at
issue contain redacted information that is arguably
exculpatory and that has not already been produced to
Petitioner's counsel in other forms." Id.
at 2-3. Respondents' motion seeks an exception to
disclosure for this redacted information, and confirms that
plaintiffs have received each of these three documents in
redacted form. Mot. at 3, n. 4.
United States Court of Appeals for the District of Columbia
Circuit has determined when a court may order production of
classified information in a civil matter over the
government's objection. See Al Odah v. United
States, 559 F.3d 539 (D.C. Cir. 2009). To order
production of such information, the Court must find (1) that
"the information is both relevant and material" -
in the sense that it is at least helpful to the
petitioner's habeas case, Id. at 544; (2) that
"access by petitioner's counsel ... is necessary to
facilitate [meaningful habeas] review," Id. at
545; and (3) that "alternatives to disclosure would not
effectively substitute for unredacted access,"
Id. at 547. The materiality requirement is met only
for "information that is exculpatory, that undermines
the reliability of other purportedly inculpatory evidence, or
that names potential witnesses capable of providing material
evidence." Id. at 546. In a previous Memorandum
Opinion on the Case Management Order that applies to this
matter, Judge Hogan ruled that "the Al Odah framework
... is applicable" to all of the Guantanamo habeas
petitions consolidated in this District. See In re
Guantanamo Bay Detainee Litigation, 634 F.Supp.2d 17, 24
Court has scrutinized the unredacted versions of the three
documents at issue here, and finds that none of redactions
contains information that meets the Al Odah standard for
compelled disclosure of classified information. With respect
to the document disclosed to petitioner's counsel as
XXXXX Intelligence Report No. 49 and Classified
Substitute," the substantial majority of the redactions
concern information that is neither relevant nor material to
this case. Of the information that is potentially relevant
and material, the Court finds that the classified substitutes
provided to petitioner's counsel convey the substance of
the redacted information and provide an adequate substitute
for full access to that information.
respect to the document disclosed to petitioner's counsel
as XXXXX Intelligence Report No. 75," the substantial
majority of the redactions concern information that is
neither relevant nor material to this case. Only a single
category of the potentially relevant and material information
has been redacted. The Court finds that the classified
substitute provided to petitioner's counsel conveys the
substance of the redacted information and provides an
adequate substitute for full access to that information. The
Court makes the same findings with respect to the document
disclosed to petitioner's counsel as XXXXX Intelligence
Report No. 72," which contains redactions and
substitutions similar in character to those in XXXXX
Intelligence Report No. 75." Accordingly, it is hereby
that respondents' June 29, 2018 ex parte motion
[Dkt. No. 494] is GRANTED; and it is
ORDERED that respondents need not produce any further
information with respect to the three documents that are the
subject of the motion.