MUHAMMAD HUSAYN v. GATES

Filing 639

ORDER finding as moot 512 Motion for Order. Signed by Judge Emmet G. Sullivan on 5/31/2023. (lcegs1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ZAYN AL ABIDIN MUHAMMAD
HUSAYN (ISN #10016),
v.

Petitioner,

LLOYD AUSTIN, et al.,

Civil Action No. 08-1360
(EGS)

Respondents.
ORDER
Pending before the Court is Petitioner’s Motion to Order
the Director of National Intelligence to Search for the Tapes
and Drawings Depicting Petitioner’s Torture, to Report the
Results of that Search Under Oath, and to Deliver Any Responsive
Material to Court Security (“Pet’r’s Mot.”), see generally ECF
No. 512; which Respondents oppose, see generally Resp’ts’ Opp’n,
ECF No. 534. Upon careful consideration of Petitioner’s motion,
Respondents’ opposition, the reply thereto, and for the reasons
explained below, the Court FINDS AS MOOT Petitioner’s motion.
Petitioner’s counsel state that they were informed that the
videotapes of Petitioner’s interrogation have not been destroyed
and Petitioner’s drawings have not been lost. See Pet’r’s Mot.,
ECF No. 512 at 3. In response to the Motion, Respondents
conducted searches for the tapes and “no evidence of them or
their continued existence was found.” Resp’ts’ Opp’n, ECF No.

534 at 4. Respondents also state that the drawings have not been
lost, but rather have already been produced to Petitioner. Id.
at 5.
In view of the searches that were conducted, Petitioner, in
his Reply briefing, acknowledges that “[t]he only question that
remains for the Court is whether the search undertaken and
declarations submitted by Respondent are sufficient to moot this
Motion” and “suggests” that they are insufficient for two
reasons. Reply, ECF No. 535 at 1.
First, Petitioner argues that “Respondent has conducted a
search and has reported that the search did not yield any tapes
of Petitioner’s interrogation. But that is not what Petitioner
sought. That is, we do not know the results of the search . . .
Respondent should report what the search did uncover, rather
than what it did not, and let the interpretation of that answer
be resolved by the adversarial process.” Reply, ECF No. 2. The
Court rejects this request. Petitioner asked the Court to order
a search for the videotapes. Respondents conducted searches,
found no videotapes, and provided appropriate declarations
describing the searches. Petitioner is not entitled to more.
Second, Petitioner requests that the personnel who actually
conducted the searches submit affidavits. See Reply, ECF No. 535
at 2-3. The Court rejects this request.

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Attached to Respondents’ opposition briefing are two
declarations. The first concerns the searches conducted of the
Central Intelligence Agency’s (“CIA”) Rendition, Detention &
Interrogation network (“RDINet”) which contains all information
and materials produced and preserved concerning the CIA’s
Rendition, Detention and Interrogation (“RDI”) Program. Resp’ts’
Opp’n, ECF No. 534 at 5. The declaration describes preservation
directives and orders issued by CIA Directors in 2007, 2008 and
2009, CIA Decl., ECF No. 534 at 37-38 ¶¶ 5-6; and explains that
the information and materials were collected and stored in the
RDINet. Id. at 39 ¶ 7. Respondent states that the search of the
RDINet did not result in any videos of Petitioner. Resp’ts’
Opp’n, ECF No. 534 at 8.
Second is the Declaration of Patricia Gaviria, Director,
Information Management Division, Office of the Director of
National Intelligence, which describes the searches conducted of
materials archived with that office. See generally Gaviria
Decl., ECF No. 534 at 44-50. Ms. Gaviria first describes the
search request issued in December 2007 for any records regarding
the destruction of the videotapes. Id. at 49 ¶ 11. She then
describes the search directive issued in June 2009 “requiring
all staff employees, detailees and contractors to locate,
preserve and maintain all records, information and other
materials relating to the detention and interrogation program
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conducted by the CIA.” Id. With regard to these two searches,
Ms. Gaviria attested “I understand, based on information that
has been provided to me, that no videos depicting Petitioner’s
time in CIA custody or depicting the treatment of any detainee,
were located in response to these requests.” Id.
Next, Ms. Gaviria attests to the following with regard to
the searches conducted in response to the instant motion: “in
May 2018, [Information Management Division] personnel, in
consultation with the Office of General Counsel, completed an
electronic search of its archived database index with the
queries repeated within several iterations, each time refining
the search terms in order to produce the most responsive search
results. [This] search did not result in any responsive records,
including videos of Petitioner’s treatment while in CIA custody
or records indicating that copies of such videos exist.” Id. at
49 ¶ 12.
Petitioner has provided no legal authority that would
compel the Court to depart from the well-established practice of
accepting declarations from the appropriate official with close
knowledge of the information and relevant records systems, and
of the searches that were conducted, as were provided here.
For the reasons stated above, it is hereby
ORDERED that Petitioner’s Motion to Order the Director of
National Intelligence to Search for the Tapes and Drawings
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Depicting Petitioner’s Torture, to Report the Results of that
Search Under Oath, and to Deliver Any Responsive Material to
Court Security, ECF No. 512 is FOUND AS MOOT.
SO ORDERED.
Signed:

Emmet G. Sullivan
United States District Judge
May 31, 2023

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