Case 1:08-cv-01360-UNA Document 441 Filed 11/18/16 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ZAYN AL ABIDIN MUHAMMAD
HUSAYN (ISN # 10016),
Petitioner.
v.
ASHTON B. CARTER,
Respondent.

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No. 08-CV-1360 (EGS)

PETITIONER’S MOTION TO COMPEL THE RESPONDENT TO PRODUCE FOR
THE COURT A COMPLETE AND UNREDACTED COPY OF THE SSCI REPORT ON
THE CIA DETENTION AND INTERROGATION PROGRAM
On September 30, 2009, the Court entered an order directing Respondent to “preserve
and maintain all evidence, documents and information, without limitation, now or ever in his
possession, custody, or control, or that of his agents, servants, employees and confederates, and
of any governmental agencies and private contractors ever acting in concert with him concerning
the Petitioner, relevant to any claim and/or defense related to the basis for Petitioner’s continued
detention.” ECF No. 357.
On December 9, 2014, the Senate Select Committee on Intelligence (“SSCI”) published
the redacted Executive Summary of its Report on the CIA’s Detention and Interrogation Program
(“SSCI Exec. Summ.” and in footnotes “SSCI ES”). But this summary is not the Senate Torture
Report. It is only a small fragment of the report, and a redacted fragment at that.1 The complete
and unredacted report runs to 6,963 pages, and includes several volumes of supporting

1

See http://www.nytimes.com/2014/12/11/us/politics/us-tells-court-that-documents-fromtorture-investigation-should-remain-secret.html?_r=0
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documentation. It is “the most comprehensive review ever conducted of the CIA’s Detention
and Interrogation Program... The document production phase lasted more than three years, [and]
produced more than six million pages of material... The [SSCI] Study is based primarily on a
review of these documents, which include CIA operational cables, reports, memoranda,
intelligence products, and numerous interviews conducted of CIA personnel by various entities
within the CIA, in particular the CIA’s Office of Inspector General and the CIA’s Oral History
Program, as well as internal email and other communications.”2
It is clear the preservation order applies to this report. Yet in light of the extraordinary
tensions surrounding the creation and dissemination of the document, the prior destruction of
material evidence in this case, and the possibility that the Executive Branch may not be
sufficiently mindful of its obligations, Petitioner respectfully moves this Court for an Order
requiring Respondent to turn over to the Court a complete and unredacted copy of the entire
report, with supporting volumes. In support of this request, Petitioner would observe the
following:
1. To justify his torture and detention, the CIA variously claimed that Petitioner was “one
of the highest ranking members of...Al Qaeda,” that he “had been involved in every major
terrorist operation carried out by Al Qaeda,” and that he “wrote Al Qaeda’s manual on resistance
techniques...[and] his experience in Al Qaeda makes him well-acquainted with and well-versed
in such techniques”3 Yet the Executive Summary establishes that these and other comparable
allegations were knowingly false. As importantly, the Summary cites to literally scores of

2

SSCI ES, at 9.

3

See, e.g., OLC Memo, at 1, 7; SSCI ES, at 410, 430.

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internal CIA documents attesting to the true state of affairs. Indeed, the Executive Summary
makes clear that these underlying records reveal far more than is contained in the Summary. The
relevance and materiality of these underlying records cannot be open to serious question.
2. Unfortunately, there is a substantial risk that these records, in whole or in part, may be
destroyed, despite the existence of the Protective Order. To begin with, there have already been
material destructions in this case—conduct that is the subject of Petitioner’s Motion for
Sanctions for Spoliation of Evidence, ECF 217. In October 2003 and May 2004, the ACLU and
others submitted FOIA requests for videotapes taken by the CIA of its interrogation and torture
of Petitioner. When those requests were not honored, they filed a FOIA suit. Southern District
of New York Judge Alvin Hellerstein repeatedly ordered the CIA to search for and either
identify or produce responsive records, which the judge deemed subject to disclosure. But
instead of complying with the court’s orders, the CIA destroyed the videotapes.4 Then Chief of
the CIA’s Counterterrorism Center (“CTC”) Jose Rodriguez confessed his motive for flouting
the law by ordering the destruction. The “heat from destroying [the tapes] is nothing compared
to what it would be if the tapes ever got into the public domain...; it would be devastating to us...
All in the room agreed.”5 As consummate proof of guilty knowledge of wrongdoing, the CIA
destroyed the tapes on the morning of November 9, 2005, yet the Agency delayed announcing

4

October 5, 2011, Opinion and Order, ACLU, et al. v. Department of Defense, et al., Case 1:04cv-04151 (Doc. 472), at 13. Moreover, at the time when the CIA destroyed them, military
commission defense attorneys were exerting increased pressure to obtain the videotapes.
Further, the CIA had kept secret the tapes’ existence from the 9/11 Commission, which had
asked the Agency for records of its interrogations. M. Mazzetti and C. Savage, No Criminal
Charges Sought Over C.I.A. Tapes, http://www.nytimes.com/2010/11/10/world/10tapes.html.
5

October 5, 2011 Opinion and Order, supra at n. 20, at 15; see also, M. Mazzetti and C. Savage,
supra at n. 20.
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the destruction for five years and one day—until November 10, 2010—after the applicable
statute of limitations had run.6
Nor is destruction of evidence in this case a feature of the distant past. In May 2016,
reports emerged that the Acting Inspector General of the CIA “accidentally destroyed” the IG’s
only copy of the report.7 On May 13, 2016, former Chair Feinstein wrote to John Brennan “to
request that as Director of the CIA you provide a new copy of the Study to the office of the CIA
IG immediately. Your prompt response will allay my concern that this was more than an
“accident.”8 The same day, Senator Feinstein wrote to Attorney General Lynch, pointing out
that “[t]he CIA IG should have a copy of the full Study because the report includes extensive
information directly related to the IG’s ongoing oversight of the CIA.” She closed with the same
wish for a “prompt response” that would “allay [her] concern that this was more than an
‘accident.’”9 However, according to published accounts, the CIA has not sent a new copy to the
IG.10
3. Other dangers threaten the report. In the ACLU’s FOIA case, “the CIA told [the
ACLU] through government counsel month-after-month that it did not possess the [Full Report],
until finally it turned out that the CIA did, in fact, have the report, and the government lawyer

6

M. Mazzetti and C. Savage, supra at n. 20.

7

http://thehill.com/policy/national-security/280002-cia-watchdog-accidentally-destroyed-onlycopy-of-torture-report
8

https://assets.documentcloud.org/documents/2834606/Feinstein-to-Brennan.pdf

9

https://www.scribd.com/doc/312766027/160513-Letter-to-AG-Loretta-Lynch-From-ViceChairman-Feinstein-Re-CIA-IG
10

The Hill article, supra at n. 7.
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had to explain: ‘there was a miscommunication apparently within the Agency as to what we were
looking for...they didn’t realize that they had it.’”11
Indeed, the full report has been controversial—to put it gently—since the publication of
the Executive Summary. In the month following publication, Senator Richard Burr (R-NC), who
had just ascended to the chair of the SSCI, wrote President Obama to ask that executive branch
agencies transfer their copies of the report back to the Senate. Indeed, Burr demanded that the
report “not be entered into any Executive Branch system of records.”12 This prompted the
ACLU to assert that “[t]he timing and content of Sen. Burr’s request strongly suggest some
degree of coordination with Executive Branch agencies to avoid producing the report” in the
ACLU’s FOIA suit seeking its release.13 Former SSCI Chair Dianne Feinstein (D-CA) wrote to
the president on January 16, 2015, stating: “[I]t was clear that the final, updated classified
version of the report was the official version of the Study and that it would be transmitted to
appropriate Executive Branch agencies. There was never any objection to providing the full,
official report to the Executive Branch, consistent with appropriate limitations due to
classification.”14
4. In light of this unfortunate history, the Court should take custody of the entire report.
At bottom, the Court is called upon to determine the lawfulness of Petitioner’s detention. The
full report demonstrates, in excruciating detail, that the CIA manufactured a deliberately false

11

https://www.aclu.org/blog/speakeasy/no-senator-you-cant-have-torture-report-back-updated;
italics original.
12

ACLU v. CIA, Case 1:13-cv-01870, Doc. 39-8 filed on 01/21/15, D.C.D.C.

13

https://www.aclu.org/blog/speakeasy/no-senator-you-cant-have-torture-report-back-updated

14

ACLU v. CIA, supra at n. 5, Doc. 39-9, filed on 01/21/15.
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narrative about Petitioner and his connection to al Qaeda and terrorism.15 The relevance of the
report, therefore, is not open to serious question. Indeed, there is probably no more important
piece of evidence to the Court and Petitioner than this report. Yet the risk that Respondent will
destroy or transfer away from its custody the full report is palpable. If it should come to pass,
the damage to Petitioner would be irreparable. As much to the point, should Petitioner be
deprived by chicanery, misadventure or accident of this invaluable resource, the Court would be
unable to provide “a meaningful review of both the cause for detention and the Executive’s
power to detain,” as required by the Supreme Court in Boumediene v. Bush, 553 U.S. 723, 783
(2008).
5. Fortunately, a remedy is close at hand. A court may take steps to preserve evidence
when there is “a significant risk that relevant evidence will be lost or destroyed.” Pueblo of
Laguna v. United States, 60 Fed.Cl.133, 138 (2004); see also Capricorn Power Co., Inc. v.
Siemens Westinghouse Power Corp., 220 F.R.D. 429 (W.D.Pa. 2004); Preservation of
Documents in the Electronic Age—What Should Courts Do?, Federal Courts Law Review, 2005
Fed. Cts. L.Rev. 5, 11 (“Pueblo of Laguna and Capricorn Power are the latest word on the
standards for the issuance of preservation orders”). To be sure, Pueblo of Laguna addresses a
preservation order. But we have already learned—to Petitioner’s detriment—that a preservation
order is not sufficient to preserve evidence in this matter. A court order was in place when Jose
Rodriguez destroyed the tapes of Petitioner’s interrogation; the Preservation Order entered by the
Court was in place when the CIA IG destroyed its only copy of the Senate Torture Report. The
CIA has demonstrated that it cannot be trusted with the Report and its underlying documentation.

“Much of the information the CIA provided to the OLC (about petitioner) was inaccurate in
material respects.” SSCI ES, at 409; see also id. at 4-5.
15

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The only foolproof solution is for the Court to take custody of the entire report, along with all
supporting documentation.
Undersigned counsel has conferred with Respondent, who opposes this motion.

Dated: November 18, 2016

Respectfully submitted,

_____/s/_________________________
Joseph Margulies
Professor of Law and Government
Cornell University
238 Myron Taylor Hall
Ithaca, NY 14850
George Brent Mickum IV [Bar No. 396142]
5800 Wiltshire Drive
Bethesda, Maryland 20816
Mark P. Denbeaux
Denbeaux & Denbeaux
366 Kinderkamack Road
Westwood, NJ 07675
Amanda L. Jacobsen
University of Copenhagen, Faculty of Law
Studiestraede 6
Copenhagen, Denmark 1455 K
Charles R. Church
Denbeaux & Denbeaux
366 Kinderkamack Road
Westwood, NJ 07675

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CERTIFICATE OF SERVICE
I hereby certify that the foregoing was served on opposing counsel, below, by electronic
court filing this 18th day of November, 2016.
James Luh
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530

______/s/____________________
Joseph Margulies

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