Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 1 of 78 UNCLASSIFIED//FOR PUBLIC RELEASE IN THE UNITED STATES DISTRlCT COURT FOR THE DIS1R1CT OF COLUMBIA x ZAYN AL ABIDIN MUHAMMAD HUSAYN> Petitioner, v. No: 08-cv-1360 ROBERTM. GATES, Respondent. MEMORANDUM OF LAW IN SUPPORT OF PETITIONER'S MOTION FOR SANCTIONS FOR THE SPOLIATION OF EVIDENCE Petitioner Zayn Al Abidin Muhammad Husayn ("Petitioner"). by and through his undersigned counsel, hereby moves the Court to impose sanctions against Respondents for the deliberate destruction of material evidence relevant to Petitioner's habeas corpus action. PRELIMINARY STATEMENT Eighty-three times, the United States government strapped Petitioner horizontally to a board, covered his face in cloth, and emptied bottles of water into his nose, mouth, and lungs, in order to create the incipient panic of death. The government subjected Petitioner to the waterboard. as well as to "walling," prolonged sleep and food deprivation. confinement in the "dog box," and a host of other "enhanced interrogation techniques," purportedly in order to ring truthful responses from Petitioner regarding his then-assumed association with al Qaeda or terrorist plots against the United States. Indeed, so certain were Respondents of the truth-seeki.ng function of their novel interrogation methods, they memorialized Petitioner's interrogation sessions on, at least, ninety UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 2 of 78 UNCLASSIFIED//FOR PUBLIC RELEASE videotapes. These videotapes, however. not only revealed the unlawful interrogation techniques employed by U.S. officials, but also contained Petitioner's persistent, repeated, and categorical denials of wrongdoing. As fully described below, these videos-littered as they were with denials of guilt under pressure of torture and abuse-contain valuable exculpatory evidence that is critical in assisting Petitioner in proving himself innocent of many of the charges currently forming the basis of hls detention. Yet, no doubt concerned about the legality of its conduct, in 2005, the CIA destroyed these ninety videotapes; and, it did so at a time when litigation about CIA conduct and about the legality of Petitioner's detention was most certainly foreseeable. The CIA 's actions currently are the subject of a criminal investigation. The conduct also is unlawful in the civil context: it constitutes spoliation of material evidence for which Petitioner is entitled to a remedy. Under well established law, this Court is authorized to require the government to produce in the next best available form mate.rial evidence that the government has unlawfully destroyed. Indeed, Petitioner respectfully submits that this Court is obligated to do so, both to protect Petitioner from being prejudiced by the government's actions and to ensure that the government does not obtain a great strategic benefit in court from its serious wrongdoing and criminal conduct. FACTUAL BACKGROUND A. Petitioner's Torture United States and Pakistani officials arrested Petitioner on March 28, 2002. immediately, he was transferred to CIA custody Almost Although the govenunent has now largely backed down from their profoundly mistaken assumptions, 1 r. 1 See Scott Shane, "Divisions Arose on Rough Tactics for Qaeda Figure," N. Times, Apr. 18, 2009, at Al (reponing that, far from being a top al Qaeda operative, Petitioner was little more than "a helpful training camp persormel clerk"). 2 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 3 of 78 UNCLASSIFIED//FOR PUBLIC RELEASE government officials suggested at the time of his caprure that they had "one of the top three leaders" in al Qaeda who was "involved in every major terrorist operation [al Qaeda has] carried 2 out." Accordingly, government officials speciaily approved a menu of"cnhanced interrogation techniques" whlch included, among other things, slamming him again and again into a wall, stripping him naked and suspending him for hours from hooks in the ceiling, repeatedly confining him in a coffin or jamming him into a tiny "dog box," depriving h.im of sleep for days on end, and, of course, strapping him to an inclined board, wrapping his face in cloth, and pouring water over his mouth and nose to create the panic of imminent death. These "enhanced" techniques were administered against Petitioner frequently, and for a period of months. Respnodents claim that in one month alone, Petitioner was waterboarded 83 times. 3 Despite the torture he endured, Petitioner repeatedly denied all activity that would have justified his detention, including membership in or support for al Qaeda or participation in or knowledge of terrorist actions against the United Sta1es. See Exhibit 1, Declaration of Petitioner First quote: President Bush, R~marks by the President at Thaddeus McCorter for Congress Dinner (Oct. 14, 2002), http;//www.whitehouse.gov/newslreleases/2002/10/20021014·3.html; see also President Bush, Remarks by the President in Address to the Nation (June 6, 2002), http://www.whitehouse.gov/news/releascs.''2002/06/20020606&.html {describing Petitioner as "al Qaeda's chief of operations"); second quote: Abu Zubaydah Memo at 7; sec also Psychological Assessment of Zain a! Abedin Muhammed Hassan a.k.a. Abu Zubaydah (fax copy to John Yoo, dated July 25, 2002) (stating that Petitioner was a "senior Bin Laden lieutenant," was "involved in every major Al Qa'ida terrorist operation" and rose to «third or fourtl! man in Al Qa'ida"). 2 3 Petitioner's interrogation has now been described in a number of official documents. See, e.g.• ICRC Report on the Treatment of Fourteen ''High Value Detainees" in CIA Custody, Feb. 2007. http://www.nybooks.com/icrc· report.pdf, at 15 ("ICRC Report"); with Jay Bybee. Memorandum for John Rizzo. Acting General Counsel of the Central Intelligence Agency, Interrogation of al Qaeda Operative, Aug. l, 2002 ("Abu Zubaydah Memo"); Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees, Office of Legal Counsel, Department of Justice, March 30, 2005, at 37 ("March 30, 2005 Memorandum"); see also Jane Mayer, "The Black Sites," The New Yorker, Aug. 13, 2007; Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American ideals, 164 (2008); Scott Shane & Mark Mazzetti, Tapes by C.I.A. Lived and Died To Save Image," NY. Times, Dec. 30, 2007, at Al. It has also been described in a number of pleadings filed with the Court. See, e.g.• Petitioner's Emergency Motion for Immediate Disclosure of Petitioner's Medical Records and for Related Relief [diet 26] 2-6. 3 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 4 of 78 UNCLASSIFIED//FOR PUBLIC RELEASE Zayn al Abidin Muharrunad Husayn, dated July 23, 2009. Over and over again, as agents pulled him from the dog box, or returned him to the coffin, or released him from the hooks in the ceiling, or raised his body to vertical so he could vomit and gasp after another session strapped to the board-after they applied all the "enhanced" techniques that they insisted would produce truthful information-Petitioner maintained his innocence. Id. at i!il' 4-7, 13-17. 4 Eventually, even Petitioner's interrogators admitted to him that they had been mistaken-that he was not the person they thought he was when they began the interrogation, that he was not affiliated with al Qaeda, and that he had nothing to do with the attack of9/l l. Id. at ~ii 5. 24-26. B. The Government's Unlawful Destruction of Material Evidence The CIA videotaped these interrogations. These tapes-90 in all-contained both Petitioner's protestations and a number of his interrogators' admissions. In 2005, however, the CIA destroyed the tapes. It did so despite repeated warrungs from senior officials in every branch of government that the tapes should be preserved. 5 As early as 2002, for instance, Robert Muller, then the CIA 's top attorney, warned against destroying the tapes. Muller brought the issue to the House Intelligence Committee and consulted Republican Chairman Porter Goss and the Committee's ranking Democrat, Jane Harman, both of whom opposed, destruction. 6 In 2004, Goss became the Director of the CIA, where he again urged his subordinates to maintain the tapes. For her part, Harman has since openly condemned the Agency's decision. "I think what 4 Indeed, in the May 2005 memorandum by the OLC, the author concedes the CIA continued to torture Petitioner even after his interrogators at the blaclc site told officials in Langley that he was fully "compliant." The officials in Langley ordered the torture to continue, and questioned whether the torturers on the ground had "Jost their spine." See Memorandum from Steven G. Bradbury, Principal Deputy Attorney General, to John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency at 31 n. 28 (May 30, 2005); see also Joby Warrick & Peter Pinn, "Internal Rifts on Road to Torment," Wash. Post, July 19, 2009, at A I. 5 See, e.g., Scott Shane &. Mark Mazzetti, "Tapes by CJ.A. Lived and Died To Save Image," N. Y. Times, Dec. 30, 2007. 4 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 5 of 78 UNCLASSIFIED//FOR PUBLIC RELEASE was done was 'Wrong," she said. ''It may well have violated the Jaw."7 The Agency also consulted Harriet Miers, then the deputy Whlte House Chief of Staff, and John D. Bellinger, former cruef counsel for the National Security Council. Both advised against destruction. 8 The Executive and Legislative Branch officials who warned against destruction were joined by the many federal judges who likewise ordered that such evidence be preserved.9 John Durham, the federal prosecutor charged with investigating the tapes' destruction, has identified at least seventeen court orders that may have been violated by the destruction. 10 At least one of those was issued by this Court. In Abdullah v. Bush, 534 F. Supp 2d 22 (D.D.C. 2008), the petitioner had made a colorable showing that abu Zubaydah had supplied information about him in 2002, which compelled an order requiring the government to "preserve and maintain all evidence, documents and information, without limitation, now or ever in respondents' possession, custody or control, regarding the individual detained petitioner[ ] in th[is] case[ ]." Id. at 22~23. 11 Judge Leonie Brinkerna of the Eastern District of Virginia likewise issued an order seeking documentation of Petitioner's interrogation while she presided over the trial of 'Morning Edition: House Committee to Probe Rui/'1 ofCIA Tapes (NPR radio broadcast Jan. 16, 2008). ~ Mark Mazzetti, "CIA Was Urged to Keep Interrogation Videotapes," N. r. Times, Dec. lS, 2007, at Al. 9 See Mark Mazzetti & Scott Shane, "Tapes' Destruction Hovers Over Detainee Cases," N. Y. Times, Mar. 28, 2008, at Al. 10 Id.; CIA Destroyed Interrogation Videotapes Despite Court Orders, FOX News, Dec. 12, 2007, available at http://www.foxnews.com/story/O,293 3 ,316516,00.html. 11 On September 2, 2009, in connection with Petitioner's outstanding Motion and Supplemental Motion for a Preservation Order in this case, the government filed a "Notice," alerting Petitioner an this government filing and reiterates bis request that the Court order the relief requested in that filing and in Petitioner's pending motions for a preservation order. Respondent's revelation confirms that the CIA does not mke seriously its legal obligations to this Court. It also entitles Petition.er to seek sanctions for such spoliation at a future date, when the government clarifies what in particular it has destroyed. 5 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 6 of 78 UNCLASSIFIED//FOR PUBLIC RELEASE Zacarias Moussaoui in 2005. 12 The Bush Administration assured her that no such tapes existed and, later the same month, destroyed th~ tapes. 13 Judge Brinkema bemoaned the government's conduct in a speech at Colby College in 2008: "One of the saddest realities I've had to face," she lamented, "has been the reality that my government didn't always tell me the truth." 14 This same reality confronted the members of the 9/11 Commission. who requested documentation regarding detainee interrogations. The CIA failed to provide Petitioner's tapes, falsely claiming that no such evidence existed. 15 Upon learning of the tapes' destruction, the Commission's general colll1sel, Daniel Marcus, fumed that the Agency "knew we wanted to see those guys ... we made clear we wanted the best available evidence of what happened." 16 Despite the chorus calling for the tapes to be preserved, in November 2005, the clandestine operations director Jose A Rodriguez ordered that they be destroyed. Apparently his order was followed. 17 The Agency maintains it acted solely to protect the identities of i1s interrogators. 18 But this argument is unpersuasive; available technology allows agent identities to be obscured wh.ile keeping video footage intact; even a redacted, verified, transcript from the lapes could have been created and provided to counsel. 12 Mark Mazzetti & Scott Shane, "CIA Destroyed Tapes as Judge Sought Interrogation Data," N. Y. Times, Feb. 7, 2008, at A8. 13 Jd. 14 Matthew Barakat, "Judge to Moussaoui Jury: You got it right." Richmond Times Dispatch (Viiginia), July 24, 2008, at B5. is Mark Mazzetti, "CIA Destroyed 2 Tapes Showing Interrogations," N. r. Times, Dec. 7, 2007, at Al. 16 Richard B. Schmit1, "Lost tapes may entangle CIA," L.A. Times, Dec. 11, 2007. 17 Scott Shane & Mark Mazzetti, "Tapes by C.l.A. Lived a.nd Died To Save Image," N. Y. Times, Dec:. 30, 2007, at Al. 11 Press Release, Gen. Mike Hayden, Director's Statement on the Taping of Early Detainee Interrogations (Dec. 6, 2007), available at https://www.cia.gov/news-infonnation/press-releases-statements/press-release-archive· 2007 /taping-of-ear)y-detainee· interrogations.htrn I. 6 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 7 of 78 UNCLASSIFIED//FOR PUBLIC RELEASE One former CIA agent has put forward a more plausible explanation for the CIA's actions: "(The footage] would definitely have shocked the conscience of the country ... (T]he effect would have been unrnanageable." 19 His claim is especially compelling in light of the scandal and legal consequences that followed the exposure of prisoner abuse at Abu Ghnub in 2004. Days after the Abu Ghraib photos became public, Bush administration officials held secret meetings to discuss the fate of the abu Zubaydah tapes. 20 The tapes, however, are not the only record of what took place during these interrogations. The CIA also kept meticulous, contemporaneous logs and notes and drafted detailed reports which described the content of the interrogations in great detail. In addition, the Agency cabled almost daily updates on the progress of the interrogations to headquarters and other locations. These documents still ex.ist.21 ARGUMENT I. THIS COURT SHOULD IMPOSE SANCTIONS FOR THE GOVERNMENT'S DELIBERATE SPOLIATION OF EVIDENCE. Spoliation is "the destruction or significant alteration of evidence> or failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999) (citing Black's Law Dictionary 1401 (6th ed.1990)). It is elementary that spoliators should not benefit from their wrongdoing. I Sir T. Willes Chitty, et al., Smith's Leading Cases, 404 (13th ed.1929) (all things are presumed 19 Mayer, The Dark Side! at 333. 20 Scott Shane &. Mark Mazzetti, Tapes by C.LA. Lilled and Died To Save Image, N. Y. Times, Dec. 30, 2007, at A 1. ii See P.ress Release, Gen. Mike Hayden, Director's Statement on the Taping of Early Detainee Interrogations {Dec. 6, 2007), available at https://www.cia.gov/news-information/press-releases-statementsfpress-release-archive2007/taping-of-early-detai.nee-interrogations.html. 7 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 8 of 78 UNCLASSIFIED//FOR PUBLIC RELEASE against a spoliator).22 Accordingly, courts possess ample authority to sanction a party for its destruction of relevant evidence. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-45 (1991) Shepherd v. Amer. Broadcasting Co., Inc., 62 F.3d 1469, 1472 (D.C. Cir 1995) (courts have "inherent power to punish litigation misconduct"). Because this authority derives from the court's "inherent power to protect its integrity and prevent abuses of the judicial process," Webb v. Dist. of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998), it may be exercised even in the absence of a discovery or preservation order. Shepherd, 62 FJd at 1474-75 (D.C. Cir 1995). 23 Likewise, the Court has broad equitable power to craft an appropriate sanction. See West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) ("{A] district court has broad discretion in crafting a proper sanction for spoliation .... "); see also Davis v. U.S. 641 A.2d 484, 494 (D.C. a. App. 1994) ("[T]he matter of what sanction, jf any, is appropriate is within the discretion of the trial court.))). In this context, courts use sanctions to deter future destruction) to redress past spoliation, and to minimize prejudice to the harmed party. See Vodusek v. Bayliner Marine Corp.• 71F.3d148, 156 (4th Cir. 1995) (explaining that spoliation sanctions are aimed at "leveling the evidentiary playing field') as well as "sanctioning the improper conduct").24 22 See also Holmes v. Amerex Rent-A-Car, 710 A.2d 846, 848 n.2 (D.C. Ct. App. 1998); U.S. v. Graham, 102 F.2d 436, 442 (2d. Cir. 1939); Davison v. Cole Sewell Corp., 231 Fed. Appx. 444, 451 (6th Cir. 2007); Appleton Elec. Co. v. Advance-United F.xpressways, 494 F.2d 126, 129 n.24 (7th Cir. 1974); Berthold-Jennings Lumber Co. v. St. Louis, I. M & S. Ry. Co.,80 F.2d 32, 36-37 (8th Cir. 1935). ,, See also Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Carp., 982 F.2d 363, 368 (9th Cir. 1992); Telecom Intern., 189 F.R.D. at 81 (citing Chambers, 501 U.S. at 43-45); Blinzler v. Marriott Intern., Inc., 81 F.3d 1148 (1st Cir. 1996) {finding that spoliation sanctions ace justified when "a party is.aware of circumstances that ace likely to give rise to future litigation.") Turnerv. Hudson Transit Lines, inc., 142 F.R.D. 68, 74 (S.D.N.Y.1991);Skeete v. McKinsey & Co., No. 91 Civ. 8093, 1993 WL 256659, at *S (S.D.N.Y. July 7, 1993); see also National Hockey League v. Melro. Hockey Club, 2A inc., 427 U.S. 639, 643 (1976) (sanctions for spoliation under Rule 37 penalize past conduct and deter future wrongdoing). 8 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document PUBLIC 356 Filed 06/29/16 Page 9 of 78 UNCLASSIFIED//FOR RELEASE In this circuit, sanctions are appropriate if: (1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a 'culpable state of mind'; and (3) the evidence that was destroyed or altered was 'relevant' to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defense of the party ~at sought it." Mazloum v. District of Columbia Metropolitan Police Dept., 530 F.Supp.2d 282, 291 (D.D.C. 2008) (these three elements materially state the standard for the District of Columbia). Based on this standard, the Court should impose sanctions against the government for spoliation of evidence. A. The Government Had an Obligation to Preserve the Tapes. The government was under .a duty to preserve the videotapes of abu Zubaydah's interrogation. A legal duty exists "when a party should have known that the evidence may be relevant to future litigation." Mazloum, 530 F. Supp.2d at 290 (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998), overruled on other grounds by Rotella v. Wood, 528 U.S. 549 (2000)). In Kronisch, the defendants destroyed records about a controversial CIA program in which CIA agents administered lysergic acid diethylamide (LSD) to unsuspecting persons in an effort to evaluate LSD's usefulness in interrogations. Id. at 118. The court found that defendants were under a duty to preserve the records even though "no litigation, administrative action, or congressional investigation had commenced" because defendants should have reasonably anticipated litigation as a result their controversial conduct. Id. at 12627. The government's duty to preserve evidence was even greater in this case. Unlike documents in Kronisch, the videotapes of abu Zubaydah' s interrogation were specifically the 9 UNCLASSIFIEDl/FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 10 of 78 UNCLASSIFIED//FOR PUBLIC RELEASE subject of the investigation by the 9/11 Commission, as well as discovery orders and preservation motions from numerous federal judges, including this Court.25 In addition, the in 2004, the Supreme C this litigation is a matter that need not be resolved by this m9tion. Petitioner invokes the inherent power of the Court to sanction the deliberate spoliation of evidence-a power that exists independent of the Fifth Amendment. Regardless of the legal standard applied by these courts, the cases cited in the text bear on the spoliation inquiry because they reveal a judicial consensus that the deliberate destruction of a defendant's taped statements can deprive the accused of relevant and material evidence. 13 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 14 of 78 UNCLASSIFIED//FOR PUBLIC RELEASE as he was subjected to the most ingenious interrogation techniques ever conceived by the United ' ' States Government, the very brutality of which were calculated to wring admissions from Petitioner's mouth, Petitioner denied membership in al Qaeda, denied support for bin Laden and his twisted version of jihad, and denied any role in unlawful acts against the United States. See id. Under these unique circumstances, the tapes were literally the best evidence of Petitioner's innocence. The extraordinary sight of Petitioner, straining against the straps that bound him to the board, gasping for air as he vomited the water poured up his nose and down his throat, yet still insisting upon his innocence, would have been the quintessential-indeed, iconic-image of a man whose detention is unlawful. While the very nature of the Government's behavior in this case means that no prior judicial decision presents precisely the same spectacle of a bound, shackled, and tortured prisoner protesting his innocence on tape, courts have repeatedly held that tapes of a defendant's in-custody statements are material and must be disclosed when the circumstances surrounding those statements confirm their truthful or exculpatory character. In Williamson v. Reynolds, 904 F. Supp. 1529 (E.D. OK 1995), aff'd on other grounds sub nom. Williams v. Ward, 110 F. 3d 1508 (10th Cir. 1997), for instance, the government failed to disclose a videotape of the defendant's statements to government officials made following a polygraph examination. As in this case, the government in Williamson introduced inculpatory statements he supposedly made· to other prisoners, but did not rely on defendant's. statements to law enforcement but introduced. After viewing the tape, which contained "Petitioner's emphatic denial of participation in the murder," id. at 1565, the court held that it represented material evidence that should have been disclosed. "If the videotape had been accessible during trial, defense counsel could have 14 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 FiledRELEASE 06/29/16 Page 15 of 78 UNCLASSIFIED//FOR PUBLIC COW1tered the prosecution's testimony regarding alleged oral admissions with the powerful tool of visual evidence of Petitioner' s denials." Id. at 1564 (emphasis in original). Likewise, in Reasonover v. Washington, 60 F. Supp. 2d 937, 950-54 (E.D. Mo. 1999), the Government failed to disclose the tape of a surreptitiously recorded conversation between the defendant and another suspect. On the tape, the two speakers protest their innocence and express their "bewilderment over their arrests, their shock and disgust about the murder ... , and their efforts to help police." Id. at 954. Because the defendant did not realize he was being taped, the · court found her statements " a candid, reliable account of .. . his actions before, during, and after the murder." Id. Because the circumstances in which the statements were made tended to corroborate the defendants protestation of innocence, the tape was obviously material and exculpatory, and .should have been disclosed. Id; see also Nickerson v. Texas, 69 S.W. 3d 661 (Tex. Ct. App. 2002) (error to withhold videotape of defendant's aberrant behavior in jail). The principle recognized in these cases is not limited to instances where the defendant's statement has been memorialized on tape. Courts have often held that, when the circumstances surrounding the creation of a defendant's statement tend to confirm its truthful or exculpatory character, that statement is material to the defense. In United States v. Severdija, 790 F.2d 1556 (11th Cir. 1986), for instance, a federal jury convicted the captain of a commercial vessel of narcotics offenses based on evidence that the Coast Guard found four tons of marijuana aboard his ship. Long before his arrest, however, the defendant had given a statement to a Coast Guard officer warning of his suspicions that the ship' s crew was smuggling marijuana and encouraging the Coast Guard to remain in the area. The Government failed to disclose this statement. The defendant certainly knew what he had said to the Coast Guard and could himself describe such statements at trial. Nevertheless, just as in Reasonover, the significance of his statement arose 15 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 16 of 78 UNCLASSIFIED//FOR PUBLIC RELEASE not solely from its content, but from the circumstances under which it was made. Given under conditions that strongly suggested candor and truthfulness, the statement powerfully corroborated Sevcrdija's trial defense and was therefore material. Id. at 1557-60.29 11. This Court Should Compel the Government to Produce Evidence and Submit to Depositions in an Attempt to Reconstruct the Spoliated Evidence. Although nothing can be done to fully remedy the government's malfeasance here the Court has broad authority to devise alternative remedial measures. Most importantly, the court should "restor[e] the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.') Kronisch, 150 F.3d at 126. In addition, the court's remedy should attempt at least in part to deter future destruction and punish the spoliating party for its misconduct. SeeAdkins v. Wolever. No. 03-00797, slip op. at 3 (6th Cir. Feb. 4, 2009); Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155-56 (4th Cir. 1995); Nation- Wide Check Corp. v. Forest Hills Dist., Inc.. 692 F.2d 214, 218 (1st Cir. 1982). When deciding upon an appropriate sanction for parties that have destroyed evidence, courts should 'tbc guided by the 'concept of proportionality' between offense and sanction." United States v. Phillip 29 In Virgin Islands v. Marlinez, the Third Circuit confirmed the possibility that a defendant might himself he said to authorities in no way obviates the government's responsibility to tum over its records remember what memorializing those statements: The police account of the confession is not information which the defendant already has or, with any reasonable diligence, he can obtain himself. The assumption that a. defendant has access to his own confession or statement overlooks both the possibility that a defendant may nol have tQtal recall ofwhat he said to the police, especially if the statement was made under pressured circumstances, and the reality that a lkfendant cannot, absent disclosure, know what the authorities recorded or retained of what he said 780 F.2d 302, 309 (3d Cir. 1985) (empbasis added); see also United States v. Spagnuaulu, 960 F.2d 990 (11 lb Cir. 1992) (govemment must disclose psychiatric evaluation of defendant with mental health problems "because we will not presume that Spagnuolo had the mental ability to know that the report existed...." 16 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 FiledRELEASE 06/29/16 Page 17 of 78 UNCLASSIFIED//FOR PUBLIC Morris US.A. Inc., 327 F.Supp.2d 21, 25 (D.D.C. 2004) (quoting Shea v. Donohoe Construction Co., 795 F.2d 1071, 1074 (D.C. Cir. 1986)). The government' s behavior in this case has been egregious, demonstrating a total disregard for its legal duties. As a result of such conduct this Court would be justified in entering a default judgment against the government. See Shea, 795 F .2d at 1074-75 (discussing dismissal or default judgment as a sanction for spoliation); cf Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988) (finding that dismissal may be appropriate where the government has violated a defendant's due process rights by destroying evidence in bad faith); Shepherd, 62 F.3d at 147475 ("The inherent power encompasses the power to sanction attorney or party misconduct, and includes the power to enter a default judgment"). It would also justify dismissal of particular charges or an adverse inference. See id. ("other inherent power sanctions available to courts include fines, awards of attorneys' fees and expenses, contempt citations, disqualifications or suspensions of counsel, and drawing adverse evidentiary inferences or precluding the admission of evidence") (internal citations omitted). But abu Zubaydah asks this Court only to compel the government to reconstruct the evidence that it destroyed. Prescribing such measures falls within this Court's power to fashion remedies and to impose sanctions for the loss or destruction of evidence. See Chambers, 501 U.S. at 50 (1991) (finding that a court's inherent power to impose sanctions for bad-faith conduct during litigation was not displaced by, and went beyond, sanctioning mechanisms such as the Federal Rules of Civil Procedure); Battocchi, 581 A.2d at 765-66; Cotton, 388 A.2d at 869 ("Absent an abuse of discretion, the decision of what sanctions, if any, to impose [for loss of evidence] is committed to the trial court."). Indeed, it is well established that "federal courts enjoy a zone of implied power incident to their judicial duty, and that this inherent power is 17 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 18 of 78 UNCLASSIFIED//FOR PUBLIC RELEASE governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs." F.D.lC. v. Maxxam, Inc., 523 F.3d 566, 590 (5th Cir.2008) (quotation and citation omitted); see, e.g., Adkins, slip op. at 2-3. Specifically, courts have repeatedly recognized that reconstruction of destroyed evidence is a remedial measure available to the Court. See Africa v. Digiilielmo, 2004 WL 236041, •5 (E.D. Pa 2004); WR. Grace & Co.-Conn. v. Zotos Intern., Inc., 2000 WL 1843258, * 10 (W.D.N.Y., 2000) (citing Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y.1991)); see also Jefferson v. Reno, 123 F. Supp. 2d 1, 2 (D.D.C. 2000) (describing court orders issued following a status conference with the parties that required reconstruction of destroyed records and discovery into the circumstances surrounding the destruction); !Andmark Legal Found v. EPA, 272 F. Supp. 2d 59, 67 (D.D.C. 2003).30 Despite the destruction of the video docwnentation, much evidence related to abu Zubaydah's interrogations still exists. As detailed in the Declaration of John Sifton, attached as Exhibit 2, there are voluminous documents in the government's possession that would assist in reconstructing the content of the destroyed tapes. Specifically, in the Freedom of Infonnation Act {FOIA) litigation in the Southern District of New York, ACLU v. Department of Defense, the government acknowledged that it has hundreds of documents relating to the content of the videotapes of Petitioner's interrogations. Among other, those include: • A "133-page log book relating to Petitioner's detention and interrogation, dated April 13, 2002, and near-daily cables and other communications between the CIA bases at which Petitioner was held and CIA headquarters at Langley, Virginia, beginning April 13, 2002 and continuing through much of 2003." Deel. Sifton at if 14. 30 Remedial measures mny also include discovery into the destruction or removal of rhe relevant evidence. Judicial Watch, Inc. v. U.S. Dep 't of Commerce, 34 F. Supp. 2d 2&, 46 (D.D.C. 1998) (Judicial Watch I)~ Judidal Watch. Inc. v. U.S Dep't of Commerce, No. 95·133 (RCL), 2000 WL 33243469, at •1-•2 (D.D.C. Dec. 5, 2000) (Judicial Watch/!). . 18 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 FiledRELEASE 06/29/16 Page 19 of 78 UNCLASSIFIED//FOR.PUBLIC • Three cables dated August 4, 2002: the first, containing "strategies for interrogation sessions; .the use of interrogation techniques to elicit information on terrorist operations against the U.S.; reactions to interrogation techniques; raw intelligence; a status of threat information; and medical information"; the second, containing an "overall status update"; and the third, containing "a 59-page notebook" of "handwritten notes concerning treatment and conduct of interrogations [and] reactions to the interrogations techniques." Id at, 17. • "A host of documents" provided to the Office of Legal Counsel (OLC) by the CIA to assist the OLC in drafting legal memoranda regarding CIA interrogation techniques, including documents from the CIA's Office of Medical Services, letters and faxes from CIA's General Counsel, and CIA "Interrogation Guidelines." Id. at~ 19. • "Reports or transcripts about the Petitioner's interrogations" on at least twenty-three individual occasions that were provided to the 9/11 Commission in 2002 and 2003. Id. at ~21. • A "CIA analytic report: Clandestine Travel Facilitators: Key Enablers of Terrorism," dated December 31, 2002 and a "CIA analytic report: Al Qaeda Travel Issues," dated January 2004, both of which were prepared in reliance on information obtained from Petitioner's interrogations. Id. at if 22. • "A CIA report prepared for the White House in late 2002, and finalized in January 2003, entitled Iraqi Support to Terrorism," which the Senate Select Committee on Intelligence (SSCI) has reported was prepared in reliance on information from Petitioner's interrogations, as well as ''four reports detailing the debriefings of abu Zubaydah" that were provided by the CIA to the SSCI. Id. at if 23. Mr. Sifton also explains that there are likely other documents that would reconstruct information from the videotapes, including, e.g., "[n]otes made during interrogation by analysts, interrogators, supporting psychologists, and other CIA and FBI personnel," as well as reports written by those personnel about Petitioner and/or Petitioner's interrogations. Id at~ 26(b). Furthermore, then CIA director Michael Hayden has admitted that "[abu Zubaydah's) interrogation sessions [were] exhaustively detailed in written channels."31 Those involved in abu Zubaydah's interrogation can disclose exculpatory evidence discussed during those · interrogations. Cf Abdullah v. Bush, 534 F.Supp.2d 22, 23-25 (2008) (ordering the government 19 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 20 of 78 UNCLASSI FIED//FOR PUBLIC RELEASE to disclose the "nature of any evidence specific to petitioner Abdulla" that the spoliated videotapes of abu Zubaydah's interrogations contained). Similarly, other detainees who were interrogated can offer evidence discussed during their interrogations that would exculpate abu Zubaydah. Cf id. at 22-23 (implying that information discussed in one interrogation was likely also relevant to another detainee's case). Thus, this Court can remedy the CIA's spoliation of evidence by compelling the government to (i) produce any remaining video, audio, written, or other documentation of abu Zubaydah's interrogations---including the CIA cables transmitted to and from CIA Headquarters and notes taken during the interrogations which detail all of the events therein; (ii) pennit 1:111dersigned counsel to depose all parties present during or otherwise observing Petitioner's interrogations; and (iii) permit undersigned counsel to depose all other persons detained or interrogated at any time ai Guantanamo Bay or as part of the CIA program for the purpose of cross-corroborating their accounts of their respective interrogations to abu Zubaydah's. This will allow Petitioner to collect and present the remaining pieces of the evidence destroyed by the government. While there is simply no equal substitute for the video documentation destroyed by the government, compelling the government to produce the evidence described above will begin to repair the damage caused by the government's spoliation. Moreover, compelling the government to produce evidence will afford this Court the opportunity to hear all relevant evidence in this case. This remedy will also put parties on notice that this Court will not permit such disregard for one~s legal duty not to destroy evidence, thus deterring future spoliation. n Dan Eggen & Joby Wanick, CJA Destrayed Videos Shvwing Jnterrogah·ons, Wash. Post, Dec. 7, 2007, at Al. available athttp://www.washingtonpost.com/wp-dyn/con1entlarticlel2007/12/06/AR2007120601828_pf.html 20 UNCLASSI FIED//FOR PUBLIC RELEAS E Case 1:08-cv-01360-UNA Document 356 FiledRELEASE 06/29/16 Page 21 of 78 .UNCLASSIFIED//FOR PUBLIC Conclusion For the foregoing reasons, in order to punish the government for its spoliation of evidence, to reconcile the harm done to Petitioner, and to deter future spoliation, the Court should impose sanctions on the government, compel the goverrunent to produce any and all remaining documentation of abu Zubaydah's interrogations, and allow abu Zubaydah's counsel to conduct depositions to reconstruct the evidence destroyed. Dated: September 19, 2009 Washington, D.C. Respectfully submitted, ~-- Joseph Margulies MacArthur Justice Center Northwestern University School of Law 357 East Chicago Avenue Chicago, IL 60611 (312) 503- 0890 George Brent Mickum IV (Bar No. 396142] Amanda L. Edwards Spriggs & Hollingsworth 1350 I Street NW Washington. District of Columbia 20005 Telephone: (202) 898~5800 Facsimile: (202) 682-1639 Baher Azmy Seton Hall Law School Center for Social Justice One Newark Center Newark, NJ 07102 (973) 642-8700 21 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 FiledRELEASE 06/29/16 Page 22 of 78 UNCLASSIFIED//FOR PUBLIC CERTIFICATE OF SERVICE I hereby certify that the foregoing was served on the Court Security Officer for clearance and filing this 19th day of Septernber 2009. My understanding is that the Court Security Officer ~ill serve the Government. Once Petitioner's counsel bas been notified ihat the document has been cleared and filed> copies will be served on the following via first class mail: James Luh, Esquire Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenuet N.W. Washington, D.C..20530 George Brent Mickum IV UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 FiledRELEASE 06/29/16 Page 23 of 78 UNCLASSIFIED//FOR PUBLIC EXHIBIT 1 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 24 of 78 UNCLASSIFIED//FOR PUBLIC RELEASE 1JN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA x ZAYN AL ABJOJN MUHA.~ HUSAYN, Petitioner, v. No: 08-cv-1360 (RWR) ROBERT M. GATES, Respondent. x DECLARAT.ON OF ZA YN AL ABIDIN MUHAMMED HUSATh Pursuant to § 1746, I hereby declare as follows: l. I am detained by the Department of Defense in Guantanamo Bay, Cuba. I submit this declaration in connection v.ith my petition for habeas corpus and in support of a motion to obtain record s of my interrogations by U.S. govenunent officials in lieu of video recordings of such interrogations that I understand have been destroyed. 2. This declaration describes some of what I said tluring interrogations, during which time I repeatedly explained that I was not a member of or affiliated with al Qaeda and that I never supported or engaged in any hostilities against the United States. I told my interrogators this information repeatedly, during calm interrogations and even during lhe extreme duress and violence of my most intense period of torture by the CIA. Any videotapes of such interrogations would have. recorded these repeated statements of my innocence. This declaration is not meant to be a comprehensive description of my treatment or my interrogations. Time limitations and logistical difficulties make it difficult for me to do so. UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 25 of 78 UNCLASSIFIED//FOR PUBLIC RELEASE 3. · After I was wounded and apprehended by the U.S. goverrunent in Pakistan and spent time recovering in a hospital. in about March 2002 Interrogations by FBI officials started then. After some period ofrecovery, the FBI moved me to an interrogation room. Here, I endured constant sleep deprivation, was shackled to a chair naked in freezing temperatures for about 2-3 weeks, and bombarded with high-decibel noise, and without solid food. FBI interrogators questioned me for hours each day. 4. They asked me many questions about al Qaeda, which made me think they believed I was a member. As I explained during my CSRT and in my habeas petition, I was not and never was a member of al Qaeda. 5. l was unconnected to al Qaeda, and did not train anyone for operations and did not support violence against the United States or Americans. In fact, people with the CIA later admitted to me that the were wrong to think I was in al Qaeda and apologized to me for my torture. 6. During the early interrogations, the interrogators believed that I was "number 3 in al Qaeda." This was absurd. I explained repeatedly that I was not a m em ber and opposed violence against civilians. I did give them basic information about what I know of al Qaeda, but thls was information that anyone who spent time in Afghanistan could know. .I told the truth to them and gave them whatever information I could give. 7. When I told them I was not in al Qaeda, they said, "don't go there!" They said, "you are al Qaeda, do not deny it. UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 FiledRELEASE 06/29/16 Page 26 of 78 UNCLASSIFIED//FOR PUBLIC You are number 3." I continued to explain why they were wrong. 8. They also asked me repeatedly 3 questions: I kept telling them I can't answer these questions. I do not know any answers because I was not involved with al Qaeda or any of its operations. 9. At some point, the FBI officials who had been interrogating me, stopped. I spent about 1 month in isolation, with no contact with interrogators. Still, I was kept naked, underfed, and freezing. 10. One day guards came into my cell with a man who later told me his name I later learned was I also that he was working with the C met a man who worked wi~d who I later began to c a l l - I believe he was also one of either came into my cell screaming obscenities; he slammed me against the concrete wall, hitting my head repeatedly. He said something like, "Are you ready to talk? Now we are going to tell you how real interrogation is done!" Later, they put me (I was still naked) in a big black box made of wood. They kept nie confined in the black box for hours in extremely uncomfortable positions without adequate air or food and with the extreme noise of a machine nearby. 11. This began a period of my most painful and cruel period of torture, which seemed to be directed by the men who I calle~ This torture included slamming my head and body against a wall while my neck was collared by a towel; UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 FiledRELEASE 06/29/16 Page 27 of 78 UNCLASSIFIED//FOR PUBLIC nights confined in a large box (about 3 feet wide, 3 feet deep and over 6 feet tall) or hours confined in a small "dog box" (about 2 Yz fet wide, by 2 Yz feet long by 2 Yz feet high); sleep deprivation; denial of food; exposure to cold; hanging by arms; prolonged, shackled standing. These methods were used repeatedly during this time in different combinations. The pain, discomfort and humiliation were incredible. Sometimes I would pass out from the pain and stress. 12. For example, the pain in the small box was unbearable. I was hunched over in a contorted way and my back and knees were in excrutiating pain. I began slamming my body and shackled arms against the inside and screaming for help and tried to break the door. The wound in my stomach and leg opened up and I started bleeding, yet I didn't care: I would do anything to stretch my leg and back for 1 minute. 13. During the walling and in between these torture techniques -screamed questions at me, like Over and over I told them, "I don't know! I have nothing to tell you! I don't know al Qaeda or what they are doing!" This was the truth, as they later admitted to me. 14. Other times I would plead, "Tell me what you want me to say, I will say it!" Other times I just said things that were false and that I had no basis to know or believe, simply to get relief from the pain. 15. Another technique the CIA used on me was the waterboard. As best as I can remember, I was waterboarded for a period of six days, but I am not completely certain. As best as I can remember, I would be waterboarded three times in a row, for two sessions per day, over about six d a y s . - e r e present and administered all of the waterboarding sessions. UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 FiledRELEASE 06/29/16 Page 28 of 78 UNCLASSIFIED//FOR PUBLIC 16. I would be strapped to a board by my arms and legs and by my waist (which was very painful because of my wound). Guards with black costumes, masks and black goggles strapped me in. My mouth and nose and eyes were covered by a cloth. The board - and my body - were placed horizontally. My head was immobilized by a board. Someone poured over the cloth, which entered my mouth and nose. I could hear one water bottle empty out by the gurgling noise it made; I hoped that would end the process, then I heard another bottle start to pour. Water would enter into my lungs. It felt like my whole body was filled with water; even my eyes felt like they were drowning. I experienced the panicked sensation of death and my body convulsed in terror and resistance. I thought, "I will die. I will die." I lost control of my functions and urinated on myself. At the last possible moment, the board - and my body - would be made vertical. I instantly vomited water violently but at the same time was still panicked and desperate for air. 17. ~ould ask, "Are you ready to talk?" I told them, "I told you everything! I don't know anything!" Again and again, I tried to explain they were wrong about me. 18. On about the fourth day of the waterboarding, - told me "nobody in Washington believes you" and started the waterboarding again. Also, in between the waterboarding sessions, I would be put in the dog box for hours and spend nights in the large box. 19. In what was the last session of the waterboard, I notice the room (in addition to 1ll and the guards), in the moment before the cloth was put over my face. One I saw again a month later and he introduced himself as a UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 FiledRELEASE 06/29/16 Page 29 of 78 UNCLASSIFIED//FOR PUBLIC doctor. The other I saw the next day - he was a debriefer who interrogated me for a long period after. 20. After the last session of waterboarding, I was put in the big box. After a period of hours took me out, but this time they did not collar me with a towel and slam me against the wall. They told me that Washington still didn't believe me and that I would be talking to new debriefers/interrogators. I was forced to stand naked, in shackles in front of a woman and a man. When I refused to talk with a woman present, ~eat my head agains the wall repeatedly. Eventually, they provided a towel to cover my private parts. 21. These debriefers/interrogators commenced a process of questioning that lasted a shorter period of time than any of the previous debriefings. They questioned me for only one or two hours per day. These debriefers and then their successors interrogated me every day. But after that day, the brutal period of torture stopped. 22. Interrogators did still ask me many of the same questions that the FBI asked. This process continued every day, for only one or two hours each day, until I was transferred to Guantanamo in 2006. 23. For a period of weeks after this most intense time oftorture- m,vould still visit and talk to me in an intimidating manner. By what they said and their manner, I believed they were attempting to remind me that I could be sent to the torture if the CIA ordered it or if the government thought I was not cooperating. Over time, however, they became more civil with me and tried to greet me politely and ask how I was doing. I think they finally realized they were wrong about me, and that they finally accepted the truth about me. In fact,-told me this later, an-did too. UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 FiledRELEASE 06/29/16 Page 30 of 78 UNCLASSIFIED//FOR PUBLIC 24. To take one example, in a conversation with me,-old me about interrogations of al Qaeda members Khaled Sheik Mohammed and Abdel Rahim al Nashiri.~xplained that when these men were asked about me, they each explained that I was never a member of al Qaeda. As-explained it to me, these men seemed to think that the notion that I was a member of al Qaeda was absurd and were surprised the Americans suggested it. To take another example, in a conversation wit~he was bragging to me that the U.S. intelligence operations were so expert at uncovering al Qaeda and deciding who was lying or telling the truth. I joked with him, as we sometimes did when talking about the mistakes in my case, "What about me? What about your fancy satellites and intelligence - and you thought I was al Qaeda." He sort of smiled to acknowledge my point and nodded his head; he said, "well your case was a mistake." I had several other conversations with n which it was acknowledged that I was not a member of al Qaeda. 25. On a particular day, sometime in 2005, I was visited b~We got into a political discussion about my beliefs and my desire for a Palestinian homeland, my opposition to violence against civilians and that I had no interest in hurting Americans or fighting against them. He said he understood this. During this conversation he admitted to me that the U.S. was wrong about me. He said he had no problem doing what he did (torture) to Khaled Sheik Mohammed, but he was very sorry about what had been done to me, because I was not the person they once thought I was. At one point during this conversation, ecame emotional and became unable to speak; he removed his glasses and wiped his eyes. 7 UNCLASSIFIED//FOR PUBLIC RELEASE Case 1:08-cv-01360-UNA Document 356 Filed 06/29/16 Page 31 of 78 UNCLASSIFIED//FOR Pl:JBLIC RELEASE 26. Sometime in 2005 at a location I do not know, I was visited by a high level official in the U.S. government. I was told that this person was the head of the program I was in. I met with him on two occasions to discuss my conditions. During the · first conversatjon, he said that what happened to me was bad, and took personal responsibility for it, even saying it was a mistake. He said he wished to put these events behind us, and make things better for me now and in the future. He agreed to return my diaries, give me exercise equipment, improve the food and cease body cavity searches. I swear under penalty of perjury under the laws of lhe United States of America, that the foregoing is true and correct. 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