IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 338

RESPONSE re (17 in 1:08-cv-01360-RWR) Notice (Other) Opposition to Motion for Preservation Order, Order Requiring Government Agencies to Identify Existing and Destroyed Documents and Other Reliefs filed by ROBERT GATES. (Attachments: # 1 Exhibit A)(Lin, Jean)

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HANI SALEH RASHID ABDULLAH, et al., Petitioners, v. GEORGE W. BUSH, et al., Respondents. ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 05-00023 (RWR)

RESPONDENTS' REPORT FILED IN CONNECTION WITH ORDER OF JANUARY 24, 2008 Respondents respectfully submit this Report focusing on the recent steps they have taken to ensure the preservation of material relating to all detainees detained by the Joint Task Force ­ Guantanamo("JTF­ GTMO") at Guantanamo Bay, Cuba. In the wake of the recent revelation of the destruction of certain tapes by the Central Intelligence Agency ("CIA"), both the Department of Defense ("DOD") and the CIA have taken new and additional steps to ensure that material relating to all Guantanamo Bay detainees is being preserved. The Court is respectfully directed to the attached declarations of General Michael Hayden, Director of the Central Intelligence Agency ("CIA"), Rear Admiral Mark Buzby, Commander of JTF­ GTMO, and Karen Hecker, a DOD attorney responsible for overseeing litigation in which DOD is involved. Those declarations describe such steps, as well as additional information regarding a preservation issue. In particular, General Hayden's declaration describes the directive he issued on December 20, 2007, to all CIA personnel, which requires them to preserve and maintain all documents, information, and evidence relating to any detainee ever held at Guantanamo Bay and

any detainee held by the CIA, including any detainees who may be held in the future. As the directive makes clear, it "is a continuing obligation that applies to future as well as past and present detainees." Hayden Declaration, ¶ 4.1 Ms. Hecker's declaration describes a directive that the DOD Office of General Counsel disseminated within the Department of Defense on December 19, 2007, and that obligates "all relevant DoD components reasonably likely to have information regarding current or former Guantanamo Bay detainees" "to preserve and maintain all documents and recorded information of any kind (for example, electronic records, written records, telephone records, correspondence, computer records, e-mail, storage devices, handwritten or typed notes) that is or comes within their possession or control." Id., ¶¶ 2, 3. Under standard DOD practice, each component receiving the directive was to ensure that all relevant personnel were made aware of it. Id., ¶ 3. In addition to the formal communication of the directive of December 19, 2007, Ms. Hecker personally communicated to a large number of DOD contacts with whom she regularly works on Guantanamo Bay matters that the formal directive would be arriving through regular channels and that they should disseminate it as appropriate. Id., ¶ 4. Real Admiral Buzby's declaration, in addition to describing his efforts to assure continued preservation of material in accordance with DOD's December 19, 2007, directive, describes aspects of security monitoring systems that were used at several of the detention camps

Even though the CIA is not a named respondent in this matter, and would not be a proper respondent in any event, see Rumsfeld v. Padilla, 542 U.S. 426, 436 n.9, 447 n.16 (2004) (discussing identity of proper respondent in habeas cases under rule limiting proper respondent to custodian and citing cases involving extraterritorial detention, where although rule is somewhat more relaxed proper respondent is head of military department holding detainee), the CIA's efforts to preserve material are described here because it was the CIA's actions on which the Court focused in issuing its January 24, 2008, order. 2

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operated by JTF ­ GTMO. As described in Real Admiral Buzby's declaration, those systems recorded information on a routine basis of largely mundane day-to-day activities. Some of that information was overwritten automatically by virtue of the routine operation of the equipment. In light of the possibility that some of that information might have related to petitioners in this and other cases, respondents are providing the description in Real Admiral Buzby's declaration of those systems and the recent steps taken concerning them. In particular, Real Admiral Buzby describes the steps taken to preserve all available information on the recording systems he discusses. Certain material in the Buzby declaration, specifically paragraph 9, has been and is hereby designated as protected information and redacted from the attached declaration for public filing in accordance with the Protective Order permitting such designation that has been entered in this case. An unredacted version of the declaration will be provided to the Court and to counsel in accordance with the Protective Order. Contemporaneously with this Report, respondents are filing a motion for reconsideration or, in the alternative, for a stay of this Court's order of January 24, 2007, insofar as it requires a report on any other matters not set forth in this Report and its accompanying declarations. That motion explains why any further report threatens to undermine and compromise the criminal investigation being conducted by specially-appointed Acting United States Attorney John Durham of the Department of Justice.2

Respondents intend to provide the information contained in this Report in the various other habeas cases brought in this Court on behalf of Guantanamo Bay detainees as soon as a filing in that large number of cases can reasonably be effected. (The protected information in the Buzby declaration will not, of course, be provided in those cases in which orders governing the filing of protected information are not in effect.) 3

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Dated: February 8, 2008

Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General CARL J. NICHOLS Deputy Assistant Attorney General DOUGLAS N. LETTER Terrorism Litigation Counsel /s/ Andrew I. Warden JOSEPH H. HUNT (D.C. Bar No. 431134) VINCENT M. GARVEY (D.C. Bar No. 127191) JUDRY L. SUBAR (D.C. Bar No. 347518) TERRY M. HENRY ANDREW WARDEN JAMES C. LUH Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 Tel: [phone] Attorneys for Respondents

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APPROVED FOR PUBLIC FILING PROTECTED INFORMATION REDACTED DECLARATION OF REAR ADMIRAL MARK H. BUZBY 5, Mark Ho Buzby, am a Rear Admiral in the United States Navy w~th 28 years of active duty service. I currently serve as the Commander of Joint Task Force .Ouantanamo (JTF-GTMO), at Guantanamo Bay: Cuba (Guantanamo.). I have held this position since May 22, 2007. As such, I am directly responsible for the successful execution of the JTF-GTMO mission to conduct detention, and interrogation operations and exploit intelligence in support of the (}!obal War on Tenor, coordinate and impIement detainee screening operations, and support law enforcement and war crimes investigations. In my capacity as Commander, I oversee all personnel assigned to, and all ' operations of, JTF-GTMO., "*"mformat~on provided herein is true and correct to the he " best of my knowledge, information, and belie£ !. On 19 December 2007, the Office of DoD General. Counsel reiterated Dot) guidance to preserve all information relating to detainees. Alter receipt of that reiterated guidance, i directed that th.is command confirm 1.00% compliance. As a result of actions undertaken in connection with. my direction.. [ have iearned the information contained herein wi~ regard to digital recording systems that exist at the detention facilities operated by JTF~GTMO. 2. "iFne detainees at JTF-GTMO are housed in various detention camps. Activities taking place in Camps 4, 6, Echo, and tguana have been recorded 24 hours per day, seven days per week (hereafter referred to as '~full-time") by means of digital video recording (DVR) systems that are part of the video monitoring systems that guards use to ensure good order and discipline v~J~:hin the camps, In Jan-c~ary 2008, i.t was brought to my attemion that such DVR systems may i~ave been automatica!Iy overwriting video data

contained on recording de~,ices, at predetermined intervals. ~l-hat is, only a specified number of days' worth of recorded data could be retained on the recording devices at a time. The specified interval varies from system to system, as discussed below. Thus, a DVR device on any given day would retain only data ~om the specil~ed inte~,al. On each day, theretk~re, images fi'om dates older fhan the applic~ible interval were automatically overwri~en. After an initial review determined that old data was being overx~q'itten automatical!y, on January ! 6, 2008, t ordered that al! recording on such systems be suspended to ensure that no data currently stored thereon was lost. The inte~a,'al at which recorded data was overwritten was determined by the technological storage capacity of each. recording device and was not deliberately or purposely set by JTF-GTMO. JTF-GTMO has not yet identified technology currently available for use at JTF-GTMO that would allow for the preservation of al! data recorded on a full-time basis. 3. ~n the camp known as Camp 4, a DVR system was u~itized to record the dayto-day activities of detainees and staff within the camp. The system was par~ of the video-only monitoring system that was used by the guard s~affto oversee activities in the camp fbr the purpose of ensuring good order and discipline within the camp. Or~ or about May 18, 2006, the DVR system then in use was disabled to assist with the investigation of a dismrbance in Camp 4. This particular DVR system was not then again ptaced into service in ~he camp. JTF-GTMO has possession of the original DVR system, consisting of ibur separate recording devices, which was instailed in Camp 4. We suspect that the recording dex:ices contain recorded data but we are unab!e techno!ogically to confirm whether data remains on the recording devices. JTF~(.~TMO will continue to preserve the

recording devices and any data thereon. Following the events of May- 18, 2006, a more limited DVR system was installed in Camp 4 to monitor and record data pertaining to Yankee Block in Camp 4, the only block housing detainees following tine disturbance of May 18, 2006. JTF-GTMO is in..possession of the DVR system, consisting of one recording device, used for this pu~ose, but we are unable technologicaIly to confirm whether data remains on the recording device. J~I?F-GTMO will continue to preserve the recording device and any data thereon. 4. On or about February I, 2007, JTF-GTMO irtstatled a new DVR system in Camp 4. This system, like the previous system, recorded video images observed by video-only cameras that were displayed on video monitoring screens in a central control booth. Like the original systems, tlhe images that were recorded with this system consisted of video images of each housing bay and common areas of the camp. The DVR system operated on a full-time basis. Much of the information recorded showed routine or mundane dayto-day activities, such as guards patrolling camp areas, as weIl as detainees eating, praying, or recreating. As v, dth the original systems, the video monitoring was done for security purposes and guard staff monitored the screens upon which the ~ideo images were sho'~. Recorded data was not routinely examined. As noted abo~e, the technical capacities of the DVR sys~.em's recording devices were such that at cexain intervals there was automatic ove_rwriting of previoust:y recorded data. Camp 4 used four such recording devices. Now that those systems have been suspended per my January 16, 2008 order, the information preserved on the four devices consists of data t?om the pe~ods December 29, 2007 through Janua~, 1,~, 2008; January 5, 2008 ~hrough. January i6, 2008; December 29., 2007 thro~gh January I6, 2008; and December

30, 2007 through January 16, 2008. As noted above; the system was disabled on Janua~' 16, 2008, to preserve data that was stored thereon. 5. In the camp known as Camp 6, a video-only DVR system (such. as that used in. Camp 4) was in use fi'om on or about December 7, 2000, the date of the Camp's opening, until Janua~: I6, 2008. The system was part of the video-only monitoring system that was used by the guard .~taffto oversee activities in the camp for the purpose of ensuring good order and discipline within the camp. Th:e Camp 6 DVR system covered common areas within the camp, but not cells. Camp 6 used four recording devices in its DVR system that automatically over~.Tote data in the same way, and under the same conditions that data was overwritten in Camp 4. Now that those systems have been suspended per my January 16, 2008 order, the information preserved on the !.bur devices consists of data tYom the periods December 1, 2007 through Jan.ua~ !6, 2008; December 3, 2008 through Janua~~ t6, 2008; December 4, 2007 through January 16, 2008; and December 21,2007 through Janua~y 16, 2008. As noted above, ~&e system was disabled on January 16, 2008, to preserve data that was stored thereon. 6. In the camp .known as Camp Echo, a DVR system (such as was used in Camps 4 and 6) was utilized to record the day-to-day activities of detainees in the ce!ls within ti~e camp. The system ~vas pm"t of the video-.onty mor~itoring system that was used by the guard skaff to oversee activities in the camp for the p~arpose of ensuring good order a~d discipline within the camp. A DVR system that was installed on an unknown date prior ¯ - zOO6, operated matiI on or about October I, 2006. ~at:s,~em consisted of s to April lz, "~wo DVRs. JTF-GTMO is in possession of the DVR system uaed unti! October I, 2006. JTF-G'rMO is unable te.c.hnotoglcally to con!~.~..,~, whe~er data is stored on the devices

that were pan of that old system. The old system was replaced by a new DVR system similar to the systerr~s used in Camp 4 and Camp 6. 2"he new DVR system monitored and recorded, full-time, the inside of detainees' cells and the back gate, but not common areas. As noted above, this new DVR system was disabled on January 16, 2008, to preserve data that was stored thereon. The information preserved on the new DVR system consists of data from the periods December 20, 2007, through January i6, 2008; and November 24, 2007, through January 16, 2008. 7. In the cmnp known as Camp Iguana, a DVR system (such as was used in Camps 4, 6, and Echo) was utilized to record the day-to-day activities of detainees within t.he camp. The system was part of the video-only monitoring system that was used by the guard staff to oversee activities in the camp for the purpose of ensuring good order emd discipline within the camp. This system was replaced on or about October 12, 2007 by a new DVR system. JTF-GTMO is in possession of the old recording device that was replaced, but is unable techno!ogicatly to confirm. ~;aether data is stored thereon. From October 12, 2007, until January 16, 2008, the new DVR system., operated in the camp on a full-time basis w:hen detainees were present in the camp. J'I"F-GTMO has not housed detainees permanently in this camp since the detainees c!assified as being '"No Longer Enemy Combatants" were transferred t?om Guantanamo in November 2006. Since these detainees were transferred, Camp Iguav~a has been used primarily ~o facilitate habeas cou~.seI visits ",~th their detainee clients. As permitted by the Protective Orders applicable in these cases. JTF-GTMO conducted video monitoring of such mee~:ings ensure the safety and security' ~',.oun.se~ and detainees. Video images of such meetings, ~ o..~ ^ .. therefore, wou~d ha~;e been automatically recorded in the same manner as other video

images observed by the system. This system also has a standard overwrite function at a specified interval, but any recordings from December 26, 2007 through January 16, 2008, the date it ~,~:as disabled, have been preserved. Recorded data of counse!-detainee meetings was no~ examined. As noted above, the system was disabled on January 16, 2008, to preserv.'e data that was stored thereon. 8. Following my order on January !6, 2008 suspending operation of the automatic DVR systems, and at the present time, JTF-GTMO has installed an demand" recording capabiliD" in Camps 4, 6, Echo, and Iguana, that is sepm'ate from the recording devices that were used prior to January ! 6, 2008. During this period of suspension, the guard staff has been directed to video record, on an "on-demand" basis, all significam events in. Camp 4, 6, Echo, and Iguana, including: forced cell .extractions; medical emergencies; incidents of suspectedialIeged guard misconduct; incidents of possible self harm or injuries to detainees; signi.~Scant damage to government property; mass disturbances by detait~.ees; and any other similar events. The on-demand recording now used contains data that continues to be preserved and the guard staff has been directed to preserve any such recordings. Although t.he on-demand recording system is connected to the video monitoring system in each camp, it is not connected to the DVR system recording devices that contain previously preserved data, and can in no way jeopardize the da*.a that is curren~!y preserved on. those devices.

10. This declaration i.s not intended to provide a complete catalogue of al! video and/or audio recordings made of detai~aees held at JTF-GTMO, although I am in,brined, and believe, that it is a complete discussion ofth.ose JTF-G~I ~/I0 video and/or audio monitoring systems that included a standard recording feature as m Which recorded data was automatically overwritten at specified intervals. I dectare under penMty of perjury under the laws of the United S~ates of America that the foregoing is true and correct.

MARK H. BUZBY Rear Admiral, United Commander, Joint Task Force Guantanamo