IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 1733

NOTICE Of Filing Of Status Report Addressing Information Gathering Efforts Of Guantanamo Review Task Force by BARACK OBAMA, ROBERT M. GATES (Attachments: # 1 Exhibit)(Warden, Andrew)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA GHEREBI v. OBAMA MOHAMMAD v. OBAMA BOSTAN v. OBAMA NASRULLAH v. OBAMA AL-KHALAQI v. OBAMA AMON v. OBAMA ZAID v. OBAMA AL-SOPAI v. OBAMA KHANDAN v. OBAMA AL JAYFI v. OBAMA AL SANANI v. OBAMA WASIM v. OBAMA KHAN v. OBAMA NASSER v. OBAMA DOKHAN v. OBAMA KHAN v. OBAMA AL QYATI v. OBAMA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 04-1164 (RBW) Civil Action No. 05-0879 (RBW) Civil Action No. 05-0883 (RBW) Civil Action No. 05-0891 (RBW) Civil Action No. 05-0999 (RBW) Civil Action No. 05-1493 (RBW) Civil Action No. 05-1646 (JDB) Civil Action No. 05-1667 (RBW) Civil Action No. 05-1697 (RBW) Civil Action No. 05-2104 (RBW) Civil Action No. 05-2386 (RBW) Civil Action No. 06-1675 (RBW) Civil Action No. 06-1690 (RBW) Civil Action No. 07-1710 (RBW) Civil Action No. 08-0987 (JDB) Civil Action No. 08-1101 (JDB) Civil Action No. 08-2019 (RBW)

RESPONDENTS' STATUS REPORT ADDRESSING INFORMATION GATHERING EFFORTS OF GUANTANAMO REVIEW TASK FORCE

Pursuant to the Court's Orders of February 9, 2009, March 4, 2009, March 27, 2009, and April 10, 2009, Respondents hereby submit a status report regarding the efforts undertaken by the Guantanamo Review Task Force to assemble information in accordance with Section 4(c)(1) of Executive Order 13,492, 74 Fed. Reg. 4897 (Jan, 27 2009). See Order, Civ. No. 05-1646, Feb 9, 2009 (Dkt. No. 146) at 4-5; Order, Civ. No. 08-987, Mar. 4, 2009 (Dkt. No. 89) at 2; Order, Civ. No. 08-1101, Mar. 4, 2009 (Dkt. No. 85) at 2; Order, Civ. No. 04-1164, Mar. 27, 2009 (Dkt. No. 207) at 6; Order, Civ. No. 081101, Apr. 10, 2009 (Dkt. No. 104) ("the Court's Orders"). Collectively, the Court's Orders direct Respondents to advise whether the process outlined in Section 4(c)(1) has been completed, providing an estimated completion date if it has not, and also inform the Court whether the process has yielded additional information -- including specific categories of information1 -- regarding 45 petitioners in the above-captioned cases. As explained in the attached declaration of Matthew G. Olsen, Executive Director of the Guantanamo Review Task Force, dated April 15, 2009, the Guantanamo Review Task Force was created pursuant to Executive Order 13,492, in which President Obama directed the Attorney General and other senior officials to conduct "a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at [Guantanamo Bay]," so as to make a determination whether each detainee can be transferred or released, prosecuted for criminal conduct, or provided

See Order, Civ. No. 08-987, Mar. 4, 2009 (Dkt. No. 89) at 2 ("whether respondents have obtained additional information responsive to Sections I.D or I.E of the CMO and whether all such information has been produced to petitioner"); Order, Civ. No. 08-1101, Mar. 4, 2009 (Dkt. No. 85) at 2 (same); Order, Civ. No. 05-1646, Feb 9, 2009 (Dkt. No. 146) at 5 ("whether respondents have obtained additional versions of statements . . . made or adopted by the petitioner that the government relies on to justify detention."); Order, Civ. No. 08-1101, April 10, 2009 (Dkt. No. 104) ("advise how long they estimate it would take to search the information gathered pursuant to the Executive Order for evidence regarding bounties paid in petitioners' case ­ either bounties for petitioner's apprehension or bounties for information about petitioner").

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another lawful disposition consistent with "the national security and foreign policy interests of the United States and the interests of justice." Olsen Decl., ¶ 4 (quoting Exec. Order No. 13,492, § 2(d)). To this end, the Attorney General established the Task Force (less than two months ago) to assemble and examine "relevant information" and make recommendations "regarding the proper disposition of each individual currently detained at Guantanamo Bay." Id., ¶ 6. However, because the government has no preexisting, consolidated repository of information concerning Guantanamo Bay detainees, the Task Force initiated an effort, soon after its formation, to make available for its members' use the disparate information that various national-security, law-enforcement and intelligence agencies maintain on the detainees. While the Task Force has made substantial progress with this endeavor, it has not compiled this information into a uniform, text-searchable database ­ contrary to what has been reported in the media ­ and it is not reasonably practicable to do so. Id., ¶¶ 9-11; see also id., ¶ 13. Although some information has been uploaded directly into the Task Force's computer network, in some cases agencies have simply given the Task Force access to pre-existing databases that they maintain on their own systems, and which must be searched separately. Id., ¶ 11. Other agencies seeking to provide detainee-related information that can be uploaded directly into the Task Force's network must first search for it and segregate it from broader collections of intelligence in their databases, a resource-intensive process that a number of agencies are conducting on a rolling basis in accordance with the review priorities of the Task Force. Id., ¶ 12. In short, while the Task Force has assembled significant amounts of detainee-related information, the effort remains ongoing, and, even when completed, it is not expected to result in a consolidated

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database of all information concerning Guantanamo Bay detainees in the government's possession. Id., ¶ 13. Making available information that the Task Force has gathered could be highly problematic for the additional reason that much of it is classified at very high levels, meaning that it is not readily accessible by persons outside the Task Force, even by most of the Justice Department counsel involved in the Guantanamo habeas litigation. The Task Force itself has only a limited number of staff responsible for collecting and reviewing detainee information, many of whom are not attorneys, who are generally unfamiliar with the scope of outstanding discovery orders and obligations in particular cases, and whose time and attention cannot be diverted to discovery searches pertaining to more than 200 habeas petitioners without running the risk of seriously compromising the progress of the review the President has ordered. Moreover, inasmuch as the classified information that the Task Force possesses originates from other agencies, the Task Force cannot authorize its release to persons outside the government, including detainees' counsel, without obtaining required clearances from these agencies. Olsen Decl., ¶¶ 15-17. For these reasons, Respondents cannot provide an estimated date by which the Task Force will complete its information gathering efforts. The process is expected to remain ongoing for the foreseeable future. Olsen Decl., ¶ 13. Further, although the Task Force has collected information concerning many detainees to date that typically would not have been included in the information made available to the habeas litigators, it would be a burdensome and time-consuming process to compare the information the Task Force has collected about individual detainees to information previously made

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available to the Department of Justice habeas litigation team. Id., ¶ 14. Accordingly, it cannot readily be ascertained at this time whether the Task Force has yet gathered "additional" information about each of the petitioners in the above-captioned cases (or any other particular detainees) that has not already been made available to Justice Department counsel in the habeas cases.2 Id. Respondents are continuing to work with the Task Force and affected agencies concerning the information collection efforts and will provide the Court with a further submission on or before May 1, 2009.

Dated: April 16, 2009

Respectfully submitted, MICHAEL F. HERTZ Acting Assistant Attorney General TERRY M. HENRY JAMES J. GILLIGAN Assistant Branch Directors /s/ Andrew I. Warden ANDREW I. WARDEN (IN Bar 23840-49) PAUL E. AHERN FREDERICK S. YOUNG CHRISTOPHER HARDEE Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 Tel: [phone] Fax: [phone] Email: [e-mail] Attorneys for Respondents

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This includes whether the Task Force has specific "additional" information responsive to the various case management and discovery orders.

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