MUHAMMAD HUSAYN v. GATES

Filing 671

MEMORANDUM OPINION AND ORDER denying 540 Motion to Compel. Signed by Judge Emmet G. Sullivan on 1/22/2024. (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.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Petitioner’s Motion to Compel
Respondent to Produce for the Court Complete and Unredacted
Copies of all CIA Documents, Records and Things Referenced in or
Otherwise Relied Upon by the Full Senate Select Committee on
Intelligence Torture Report and for Related Relief (“Pet’r’s
Mot.”), see generally ECF No. 540 1; which Respondents oppose, see
generally Resp’ts’ Opp’n, ECF No. 566; and to which Petitioner
has replied, see generally ECF No. 650. Upon careful
consideration of Petitioner’s motion, Respondents’ opposition,
the reply thereto, and for the reasons explained below, the
Court DENIES Petitioner’s motion.

When citing electronic filings throughout this Opinion, the
Court refers to the ECF header page numbers, not the page
numbers of the filed documents.
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Petitioner moves the Court to compel Respondent to deposit
with the Court Information Security Officer (CISO) “complete and
unredacted copies of all [Central Intelligence Agency (“CIA)]
documents, records and things referenced or relied upon by the
full [Senate Select Committee on Intelligence Committee Study of
the CIA’s Detention and Interrogation Program (“SSCI Report”)],
plus the electronic ‘search tool’ provided by the CIA to the
SSCI, and all CIA documents, records and things comprising the
Panetta Review.” See Pet’r’s Proposed Order, ECF No. 540-1. The
Court will refer to the subject of Petitioner’s motion
collectively as “materials.”
Petitioner contends that: (1) the records will be lost or
destroyed for political purposes, see Pet’r’s Mot., ECF No. 540
at 30; (2) “there is ‘a significant risk that the relevant
evidence will be destroyed,’” id. at 30-31 (citing Pueblo of
Laguna v. United States, 60 Fed. Cl. 133, 138 (2004) and
Capricorn Power Co., Inc. v. Siemens Westinghouse Power Corp.,
220 F.R.D. 429 (W.D.Pa. 2004)); and that the request is not
unduly burdensome, see id. at 31-33.
The persuasive authority Petitioner cites in support of his
motion sets forth a two-pronged standard. First, Petitioner
“must show that absent a court order, there is significant risk
that the evidence will be lost or destroyed—a burden often met
by demonstrating that the opposing party has lost or destroyed
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evidence in the past or has inadequate retention procedures in
place.” Pueblo of Laguna v. U.S., 60 Fed. Cl. 133, 138 (2004).
Second, Petitioner must show that the request is not overlybroad. Id. For the reasons explained below, the Court concludes
that Petitioner has failed to satisfy this standard.
First, Petitioner has not demonstrated that there is a
significant risk that the materials will be lost or destroyed,
nor that they will be lost or destroyed for political purposes.
The materials are subject to a number of preservation orders,
including the following. Since December 20, 2007, there has been
“an Agency-wide preservation directive [in place] which required
the preservation of all documents, information, and evidence
relating to any detainee held at the United States Naval Station
Guantanamo Bay, Cuba, and any detainee held by the CIA.” Decl.
of Milton R. Downs, Chief Data Officer (“CDO”), CIA (“Downs
Decl.”), ECF No. 566-1 at 23-24 ¶ 5. Additionally, since
“January 11, 2008 [there has been] a directive for the
preservation of any and all records, including media containing
video and/or audio recordings of detainee interrogations and all
documentation concerning the preservation or destruction of
recordings of detainee interrogations.” Id.
Mr. Downs attests to the following regard the materials:
All information and materials produced and
preserved in accordance with the data calls
and preservation directives and orders were
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collected and, except with respect to archived
materials and audio and video files addressed
below that are maintained at an off-site CIA
facility, were stored in a repository called
the Rendition, Detention and Interrogation
Network (“RDINet”).
Id. at 25 ¶ 6. He further attests that
These materials are considered to be permanent
federal records under the Federal Records Act
(FRA) and scheduled as P-11b, Significant
Litigation Cases or Investigation Matters,
under CIA’s Flexible Records Control Schedule
(FRCS). The CIA, therefore, has a duty under
the FRA to maintain the materials in the RDI
data collection until they are transferred to
the
National
Archives
and
Records
Administration
(NARA)
for
indefinite
retention. RDINet is a compartmented standalone
electronic
computer
database
that
contains
millions
of
highly
classified
documents, including emails, memoranda, and
other sensitive records . . . .
Id. Finally, he attests that
I ensure CIA compliance with the records
preservation requirements of the Federal
Records Act, as explained above, and any
existing preservation directives and orders
and directive pertaining to the entire RDI
data collection, which includes millions of
documents . . . (contained within RDINet), as
well as audio and video files associated with
the RDI program. Under the authority of the
CDO, the RDI data collection is preserved as
a discrete and unedited dataset which is
routinely backed up on stable media.
Id. at 26 ¶ 7. In sum, the Chief Archivist of the CIA has sworn
under oath that the CIA has preserved, and will continue to
preserve, the materials Petitioner seeks.

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Rather than rebut Respondents’ explanation for why it is
unnecessary for the documents to be produced, Petitioner argues
that the risk of loss or destruction should be assessed with
reference to the importance of the evidence to the Petitioner.
Reply, ECF. No. 650-1 at 1-2. Petitioner points to the CIA’s
prior destruction of the videotapes of his “brutal detention,
interrogation, and torture.” Id. at 2. Petitioner also points to
the CIA’s “spying” on legislative staffers working on the
“Torture Report.” Id. at 4. Petitioner concludes his response
stating “[w]ith all due respect to Mr. Downs, given the CIA’s
checkered history where the RDI Program is involved, having a
CIA official as the chief custodian of the evidence that is so
vitally important to Petitioner, does cause him a certain sense
of unease.” Id. at 6. Petitioner’s argument fails to rebut
Respondents’ explanation for why it is unnecessary for the
documents to be produced in light of “the statutory requirements
of the Federal Records Act and current applicable preservation
directives and orders.” Downs Decl., ECF No. 566-1 at 27 ¶ 9. As
Respondent points out, “Petitioner has not posited any scenario
that would lead to the intentional or accidental destruction of
th[e] materials, which are regularly backed up to stable storage
media.” Opp’n, ECF No. 566-1 at 13. Petitioner has therefore
failed to satisfy the standard that he himself cited—that “there

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is significant risk that the evidence will be lost or
destroyed.” Pueblo of Laguna, 60 Fed. Cl. at 138.
Second, Petitioner has not shown that the request is not
unduly burdensome. Respondent has explained the “significant
logistical difficulties and administrative and security burdens
on both the CIA and the Court” were the Court to compel
production of the materials. Downs Decl., ECF No. 566-1 at 27 ¶
9. Respondent also points out that it is not possible for the
CIA to fully comply with Petitioner’s proposed order, stating
that “[t]hese gaps would render Petitioner’s requested order
ineffective as a means of preservation, and the alternative
methods of submitting the materials to the CISO would be unduly,
indeed, enormously burdensome.” Opp’n, ECF No. 566-1 at 13-14.
Petitioner again fails to rebut Respondents’ explanation,
responding to Respondents’ explanation as follows:
Petitioner’s counsel has reviewed carefully
Respondent’s classified, redacted Opposition,
especially the Declaration of CIA CDO Milton
R. Downs. While counsel might quarrel with
various points asserted by Mr. Downs, a single
reality exists that both parties very likely
agree upon. Plainly, and this comes as no
surprise, the CIA has vast resources at its
disposal, including intellectual resources.
Reply, ECF No. 650-1 at 6. Petitioner has failed to rebut
Respondents’ explanation for why producing the materials would
be unduly burdensome therefore has failed to satisfy the
standard that he himself cited. See Pueblo of Laguna, 60 Fed.
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Cl. at 138. The Court has reviewed the classified portions of
Respondents’ briefings and of Mr. Downs’ Declaration and is
satisfied that Respondent has adequately explained the
“significant logistical difficulties and administrative and
security burdens on both the CIA and the Court” were the Court
to compel production of the materials.
For the reasons stated above, it is hereby
ORDERED that Petitioner’s Motion to Compel Respondent to
Produce for the Court Complete and Unredacted Copies of all CIA
Documents, Records and Things Referenced in or Otherwise Relied
Upon by the Full Senate Select Committee on Intelligence Torture
Report and for Related Relief, ECF No. 540, is DENIED.
SO ORDERED.
Signed:

Emmet G. Sullivan
United States District Judge
January 22, 2024

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