Case 1:05-cv-00329-UNA Document 380 Filed 09/24/15 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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YOUNOUS CHEKKOURI,
(ISN 197)
Petitioner,
v.
BARACK OBAMA, et al.,
Respondents.

Civil Action No. 05-329 (PLF)

EMERGENCY MOTION FOR IMMEDIATE DECLASSIFICATION OF
DOCUMENTS THAT TEND TO SHOW PETITIONER’S INNOCENCE
AND WHICH HE NOW REQUIRES TO DEFEND HIMSELF IN MOROCCO
Petitioner Younous Chekkouri respectfully submits this emergency motion for an
order requiring Respondents to produce publicly-releasable versions of evidence on this
Court’s docket that would help Petitioner prove his innocence.1
Counsel regrets the need to submit this motion on an emergency basis, but learned late
yesterday, at 4:56 P.M. in London, of Mr. Chekkouri’s transfer to Salé, one of Morocco’s
most notorious prisons, near Rabat.2 The widespread use of torture in Moroccan prisons is
well-documented. This Court has described in detail the gruesome torture of Binyam
Mohamed at the behest of the CIA in a Moroccan prison:

1

Per LCvR 7(m), Undersigned counsel conferred with counsel for the Government. Government counsel
indicated that the first three motions could be produced within a week; upon review of prior correspondence in
which the Government indicated it was ‘nearly finished’ with these three documents on November 17, 2014,
however, Counsel replied that this was not good enough, and asked the Government to indicate by noon EST
whether it would oppose the relief as framed in this motion. Again, counsel regrets the emergency filing, but
with Petitioner in Salé prison, there is simply no time to spare.
2
The Salé detention facility is notorious for the torture of its prisoners, using methods such as “rape using
bottles, beatings, suspension by the knees in the 'roast chicken' position, electric shocks, pulling out fingernails,
and throwing cold water and urine on detainees." AMNESTY INTERNATIONAL, SHADOW OF IMPUNITY: TORTURE
IN MOROCCO AND WESTERN SAHARA, 81 (2015) (quoting HUMAN RIGHTS WATCH, JUST SIGN HERE: UNFAIR
TRIALS BASED
ON
CONFESSIONS
TO
THE
POLICE
IN
MOROCCO (2013)),
available
at https://www.amnesty.org/download/Documents/MDE290012015ENGLISH.PDF.

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Binyam Mohamed's trauma lasted two long years. During that time, he was
physically and psychologically tortured. His genitals were mutilated. He was
deprived of sleep and food. *** All the while, he was forced to inculpate
himself and others in plots to imperil Americans. The government does not
dispute this evidence.
Mohammed v. Obama, Civ. No. 05-1347 (GK), Memorandum Opinion at 64 (Nov. 19, 2009).
Salé in particular is infamous for torturing prisoners. This was where the Moroccans tortured
Noureddine Nafia, Petitioner’s brother-in-law, creating the false evidence about the fictive
GICM (Groupe Islamique Combattant du Maroc) – the supposedly Islamist group with the
colonial French name.
At that time counsel learned that Mr. Chekkouri now faces possible prosecution on
the basis of the same spurious allegations that were withdrawn against him in this very case
half a decade ago. For reasons that will be explained in a separate motion to be filed
simultaneously under seal, this is inconsistent with the course of events that Petitioner
reasonably expected when he decided, with counsel, not to challenge his refoulement to
Morocco. None of this was meant to be necessary. Urgent action to ensure that Petitioner’s
reasonable expectations are met, along with urgent release of exculpatory information that is
on record with this Court, is now Mr. Chekkouri’s only chance of avoiding torture and years
more of prison based on false allegations.
In support of his motion, in this his open pleading, Petitioner states as follows:3
1. Respondents have made no meaningful effort to release filings which tend to
show Petitioner’s innocence to the public
Petitioner requests declassification of three pleadings (with all exhibits) immediately.4
He also requests declassification of the seven further pleadings (with all exhibits) within 7
days.5

3

Petitioner notes that this open pleading should not be necessary at all. Obviously if Petitioner had had the
slightest inkling that his reasonable expectations would not be fulfilled, he would have challenged his
refoulement and would also have insisted on the relief sought in this motion prior to his being sent to Morocco.
4
They are: Petitioner’s Motion to Strike, Dkt. No. 330, filed June 29, 2011; Petitioner’s Traverse, Dkt. No. 279,
filed Aug. 19, 2010; and Petitioner’s Motion for Judgment on the Record, Dkt. No. 293, filed Sept. 30, 2010.

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The documents at issue have been on this Court’s docket for years. The oldest of the
documents is nearly six years old. Petitioner requested processing of these documents years
ago, and has asked on multiple occasions for swift declassification. As the Court is aware, the
Government is automatically and legally obliged to produce publicly-releasable versions of
filings under the Amended Protective Order that governs all Guantánamo cases. (See
Protective Order, dated Sept. 11, 2008 (Dkt. No. 107) , ¶29 (obligating the government to
process petitioner’s requests to declassify classified information); , ¶47.a (obligating the
government to prepare redacted versions of classified filings for public release); see also In re
Guantanamo Bay Detainee Litig., 630 F. Supp. 2d 1, 13 (D.D.C. 2009) (recognizing the
public’s interest in viewing the government’s evidence in habeas proceedings, and ordering
the government to “either publicly file a factual return or file under seal a marked copy of the
unclassified factual return highlighting the specific information for which it seeks protected
status”).
For example, with Petitioner’s pleading of November 17, 2009 – now almost six years
ago - a notice of filing was entered on the public docket wherein Petitioner specifically
requested that “the Court Security Office conduct an expedited declassification review of
these pleadings so that they may be placed in some form on the public docket as soon as
possible.” (See Notice of Filing, dated Nov. 17, 2009 (Dkt. No. 232).)
As another example, on October 3, 2011, Petitioner submitted a ‘Priority List’ for
declassification of his pleadings, which is attached as Exhibit A.6 In the 1,452 days that have
elapsed since Petitioner submitted this ‘priority declassification list’, the Government has

5

They are: Second Classified Supplement, Dkt. No. 255, filed May 10, 2010; Motion to Strike, Dkt. No. 278,
filed, Aug. 19, 2010; Objection to Respondents’ ‘Notice & Motion for an Injunction, Dkt. No. 232, filed Nov.
17, 2009; Classified Supplement, Dkt. No. 232, filed Nov. 17, 2009; Second Supplement, Dkt. No. 239, filed
Nov. 24, 2009; Motion for Limited Discovery, Dkt. No. 267 filed July 13, 2010; and Petitioner’s Post-hearing
Brief, Dkt. No. 349, filed Nov. 17, 2011.
6
The post-hearing brief Petitioner later requested, and requests again today (Dkt. No. 349) does not appear on
this list because it was filed subsequent to this Priority list. The others do.

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processed a total of one pleading.7 It is safe to say that at current rates the Government will
only comply with its legal duty to declassify versions of these documents when global sea
levels are rather higher, and when Petitioner has died of old age in a Moroccan cell after a
lifetime of torture.
In the intervening years since Petitioner submitted his list, the declassified Abuse
Brief has been virtually the only court document Petitioner and counsel have been able to use
to advocate for Petitioner’s innocence in public, with potential host states, civil society allies,
the public or, now, the government of Morocco. That lone document is woefully insufficient
to explain the underlying truth: that when tested in this Court, the original ‘case’ against
Petitioner collapsed.
The only possible explanation for this delay is that Respondents have devoted
effectively no resource to the declassification of these pleadings. The Government is entirely
able to process a public version of these documents on the necessary time frame; it is simply
a question of prioritization. With Petitioner now in a Salé cell facing, effectively, an unfair
retrial of the same allegations, it is vital that he have access to as much defense material as
possible as soon as possible.
2. Petitioner raised requests for pleadings with Respondents multiple times
The Court will be aware that this is not an issue of first impression. Respondents
should not now be heard to complain that speedy declassification of this material is unduly
burdensome – Respondents have made the rod for their own backs. The ‘priority list’ was
neither the first nor the last time Petitioner sought declassification of exculpatory documents.
To give just one further example, on June 24, 2013, Petitioner refreshed his request
for expedited declassification of essential exculpatory documents (Petitioner’s Response to
Respondent’s Motion to Deem Protected Information Highlighted in the Accompanying
7

This was Petitioner’s Reply to Respondents’ Supplemental Brief Concerning New Allegations of Abuse,
Coercion, and Mistreatment of May 27, 2011, Dkt. 332 (‘Petitioner’s Abuse Brief’).

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Proposed Public Factual Return for ISN 197, Dkt. No. 363 (June 14, 2013) (‘Return
Motion’), because at that time the Government was seeking to place on the public docket
material prejudicial to Petitioner (a Factual Return consisting of outdated and discredited
allegations it had since withdrawn against Petitioner).8 He asked that a further public return
not be published without simultaneous publication of the documentation that would show
Petitioner’s innocence. No further pleadings have been produced.
Later, counsel corresponded with Respondents’ counsel about the declassification list
in November and December 2014. At that time, Respondents stated as follows regarding
their progress down Petitioner’s list: “document #1 [from the Priority List] is completed and
on the docket. We are currently completing document #2, and most of the review for
documents #3 and #4 has been completed as well.” E-mail from DOJ to Cori Crider of Nov.
17, 2014 (Attached as Exhibit B).9
If Respondents’ summary of the position in November 2014 was correct, then it
seems to Petitioner that at a bare minimum those three pleadings (Skt. Nos. 330, 279, and
293) ought to be made available for release immediately. The others should nonetheless be
produced, however, because of their potentially crucial role in Petitioner’s defense in
Morocco.
3. Respondents have long been aware of the risk of unfair processes in Morocco
against Petitioner
This is also not the first time Petitioner has raised the risk of an unfair trial against
him on the basis of long-disproven allegations. Petitioner and the Government have long

8

See Petitioner’s Return Motion, Dkt. No 363 at 2: “Indeed, the amended factual return that formed the basis of
Respondents’ argument at the merits hearing bears little, if any, resemblance to the amended factual return that
Respondents are now seeking to place on the public docket. If Respondents no longer rely on the allegations
contained in this outdated factual return to justify Petitioner’s detention, then this Court should not allow
Respondents to publicly release this highly prejudicial and inaccurate information against Petitioner.”
9
In the interests of a complete disclosure counsel has attached the full e-mail exchange between herself and
government counsel, including prior and subsequent emails, but the relevant e-mail is from Nov. 17. There was
subsequent exchange about the need to have disclosed an updated version of the Government’s case against
Petitioner, which (because of multiple exhibit withdrawals) exists in no single document, but under the
circumstances Petitioner simply seeks declassification of the ten pleadings named in this motion.

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known of this risk for the simple reason that it happened to another Moroccan man: Said
Boujaadia. Mr. Boujaadia (formerly ISN 150, a former Reprieve client) was repatriated from
Guantánamo Bay to Morocco on April 30, 2008. He was subsequently prosecuted by
Moroccan authorities on the basis of what he reported were near-identical allegations as those
he had faced in Guantánamo. In the subsequent trial he had no meaningful access to any
exculpatory evidence, and a Moroccan court sentenced Mr. Boujaadia to ten years’
imprisonment.
Here the matter is even more stark than it was in Mr. Boujaadia’s case: Mr. Boujaadia
had been a defendant in the flawed military commissions, but had not had the allegations
against him properly tested in federal court. Mr. Chekkouri, however, has tested those
allegations. He has had a full hearing in habeas corpus. That test of evidence essentially
eviscerated every allegation. Petitioner merely seeks this Court’s assistance in making his
case a second time, as he will have to as matters current proceed.
There is something deeply un-American about a process where the government may
level accusations against Petitioner in public, and then insist that all “evidence” that might
refute this nonsense should remain secret. The requirement that any legal process must allow
the finder of facts to hear to the evidence offered by one whose liberty is at stake “derives
from deep-seated notions of fairness and human dignity.” Joint Anti-Fascist Refugee Comm.
v. McGrath, 341 U.S. 123, 170 (1951) (Frankfurter, J., concurring). “[I]t is basic to due
process that an accused person have a fair opportunity to tell his story in a fair trial. . . .”
MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960); see also Holiday v. Johnston, 313 U.S. 342,
352 (1941) (one “of the essential elements of the determination of the crucial facts is the
weighing and appraising" of evidence); Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980)
(the Due Process Clause promotes “participation and dialogue . . . in the decision making
process"). Of course none of these basic goals can be met where the government (by running

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declassification processes in geological time) sets up a rigged system that allows only one
side to be heard.
The same “elemental” principle applies to forbid the United States from obstinately
refusing to process these documents with the intent that Petitioner should face secret evidence
without the tools to prove it false.
4. The documents, taken in total, are highly exculpatory of Petitioner
Perhaps this is a point that needs no belabouring. Although the habeas hearings in
this case were some years ago, the Court may recall that the Government’s original Factual
Return bore as much resemblance to the final case that the government pressed as a bull
mastiff to a Chihuahua. There is no need to debate the obvious fact that the “evolution” of the
evidence would assist any defense of Petitioner to demonstrate that he was no part of any
terrorist group, Moroccan or otherwise.
Time is of the essence. It is apparent that the allegations made against Mr. Chekkouri
in Morocco now, for which he may shortly be forced before a patently unfair trial, will
overlap to a considerable extent with the earlier, disproven case against him. This is precisely
what happened to Mr. Boujaadia. Counsel is urgently seeking to obtain further detail about
the precise nature of the evidence against Mr. Chekkouri from Morocco, but local counsel
have not yet been permitted to see the prosecutorial file. Counsel’s best understanding is that
the file has yesterday been handed by the prosecutor to what is called an investigating judge
(a ‘juge d’instruction’), who will over the coming days be considering the prosecutor’s file
on Mr. Chekkouri and making final decisions around whether to drop (or bring) any charges,
and whether to grant bail.
Local counsel in Morocco also state that, because today is a Muslim holiday (Eid alAdha), he will only be able to seek access to the file this coming Monday. He also advises
that it is possible to seek to have foreign counsel (that is, Reprieve) request to intervene in the

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local proceedings to assist him. Having represented Mr. Chekkouri for some years, counsel
certainly plan to do this, but counsel will be hamstrung from assisting Mr. Chekkouri’s
defense without the documents that are still, and needlessly, kept secret in this record.
Petitioner very much hoped not to need these documents; the unhappy fact is that he
does. Respondents ought rightly to have produced them years ago under the Amended
Protective Order, and Petitioner patiently asked for them on multiple occasions, but patience
is a luxury he can no longer afford.
CONCLUSION
For the following reasons, Petitioner respectfully requests that this Court Order:
1. That the Government produce publicly releasable version of the following pleadings,
on a rolling basis and all by September 25, 2015:
a. Petitioner’s Motion to Strike [dkt. 330]
b. Petitioner’s Traverse [dkt. 279]
c. Petitioner’s Motion for Judgment on the Record [dkt. 293]
2. That the Government produce a publicly releasable version of the following on a
rolling basis and all by October 1, 2015:
a. Petitioner’s Post-hearing Brief [dkt. 349]
b. Second Classified Supplement, Dkt. No. 255, filed May 10, 2010
c. Motion to Strike, Dkt. No. 278, filed, Aug. 19, 2010
d. Objection to Respondents’ ‘Notice & Motion for an Injunction, Dkt. No. 232,
filed Nov. 17, 2009
e. Classified Supplement, Dkt. No. 232, filed Nov. 17, 2009
f. Second Supplement, Dkt. No. 239, filed Nov. 24, 2009
g. Motion for Limited Discovery, Dkt. No. 267 filed July 13, 2010

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3. That there shall be an emergency status conference at which the process for release of
these documents, with minimal redactions, shall be discussed.10

Dated: September 24, 2015
Respectfully Submitted,

/s/ Cori Crider
REPRIEVE
Cori Crider (NY Bar #4525721)
Clive Stafford Smith (LA Bar #14444)
P.O. Box 72054
London EC3P 3BZ
United Kingdom
011 44 207 553 8140
clive.stafford.smith@reprieve.org.uk
cori@reprieve.org.uk
Counsel for Younous Chekkouri

10

Reprieve counsel are currently in the United Kingdom but could appear for any such discussion telephonically
on September 25, 28, and 29. If Respondents insist that some discussion of this matter must be classified
(though counsel does not believe it should), counsel is travelling to the United States next week on other matters
and could be present for a classified discussion by Wednesday, September 30.

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