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Speaking of Guantanamo habeas litigation, which one of us was yesterday, there's been an interesting development in the Al-Nashiri habeas case. This particular habeas case out of Guantanamo has been a sleepy one, since all the action in the Abd al Rahim Al-Nashiri matter has been in his military commission trial and related federal court litigation.
But about a month ago, it seems, Nashiri filed a motion to have a copy of the Senate Intelligence Committee's interrogation report filed under seal with the court. The mammoth committee report on CIA interrogation, as readers already know, has been the subject of back and forth machinations as the committee under Republican control has sought to reclaim copies of the document, which was produced under Democratic control. This has sparked fear in human rights advocates, because in addition to being classified, the report is only ambiguously subject to FOIA, since it is technically a congressional document, not a document belonging to the various agencies that may have copies of it. So the fear is that it may never see the light of day.
Nashiri’s legal team filed a similar motion with the military commission in 2015, arguing that the military judge should preserve a copy of the report under seal in the absence of providing the defense with access to the full, unclassified document; in that instance, the judge rejected the request. Defense counsel in the 9/11 military commissions case also filed a motion asking the military judge to produce a full copy of the report for the defense when the report was released in April 2014, and a motion requesting that the defense either be provided with access to the report or that the report be preserved under seal in 2015, when the committee requested the return of additional copies of the document.
This request for a copy to be preserved featured prominently during last week’s pretrial hearings in the 9/11 case at Guantanamo, in which defense counsel for Ammar al Baluchi argued that President-elect Donald Trump’s promise to renew waterboarding and “a hell of a lot worse” gives the defense motion a new urgency. Argument during the hearing may have bolstered anxieties among human rights advocates over the status of existing copies of the report: when questioned by the military judge as to whether the Pentagon had maintained its copy of the document, Military Commissions Chief Prosecutor Brigadier General Mark Martins repeatedly refused to answer.
The Obama White House, for its part, recently announced that it was archiving a copy of the report, the executive summary of which has been declassified and released in redacted form. But whether the public will ever see more of it than has emerged remains unclear.
So Nashiri's request is potentially significant, since if the District Court in D.C. were to grant it, it would not merely require preservation of the document but would actually physically take custody of a copy and store it under seal in case it later becomes relevant to litigation. The request thus appears not merely to be an effort to preserve evidence for the litigation in question, but to ensure that at least one copy of it resides outside of the political branches that may not have much interest in keeping it around.
We have not managed to get our hands on a copy of Nashiri's motion itself, but you can get a flavor of what he's seeking from the combination of the government's brief in opposition to it, and Nashiri's reply brief in response. Nashiri's counsel describes his argument as follows in the reply brief:
Petitioner filed a routine motion for a preservation order to ensure that records, which are indisputably in Respondents’ possession, whose whereabouts are known, and that are self-evidently relevant to various aspects of Petitioner’s habeas case, are not destroyed. Comparable preservation orders have been issued in numerous other cases involving Guantanamo detainees. The need for a preservation order specific to this case is necessary because those other preservation orders may expire before Petitioner can litigate his claims on the merits and because of Petitioner’s status as a so-called “high-value detainee.” Given his prior custody in the Central Intelligence Agency’s Rendition, Detention, and Interrogation Program, the universe of relevant materials is likely to be broader than what is covered by this Court’s other habeas preservation orders. Petitioner therefore asks for a preservation order to ensure his right to habeas corpus is meaningful and that those records will remain available for discovery purposes at an appropriate time in the future. Such a routine order should not be controversial.
The only thing that is beyond routine about Petitioner’s motion is the request to have Respondents file a copy of one of those records, the Senate Select Committee on Intelligence Report entitled “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program” (“SSCI Report”), under seal with the Court. This request was not made lightly. Petitioner nevertheless is compelled to request this relief because of the real risk that this specific record will be destroyed before Petitioner can litigate the merits of any number of claims which are available to him via habeas corpus. Similar evidence, documenting Petitioner’s illegal torture at the hands of the government, has already been improperly destroyed and the requested preservation order does nothing more than prevent this from happening again.
Here's the document:
The government is opposing this request on largely procedural grounds:
Procedurally, Petitioner’s Motion should be denied for two related reasons. First, this habeas matter challenges only the legality of Petitioner’s continued detention under the Authorization for Use of Military Force (“AUMF”), Pub. L. 107-40, 115 Stat. 224 (2001). Consequently, this Court, through then-Chief Judge Richard W. Roberts, held this matter in abeyance under the abstention doctrine articulated in Schlesinger v. Councilman, 420 U.S. 738 (1975), to avoid interfering with Petitioner’s ongoing prosecution before a military commission. See ECF No. 251; see also Al-Nashiri v. Obama, et al., 76 F. Supp. 3d 218, 221 (D.D.C. 2014). Petitioner appealed this stay, but the Court of Appeals affirmed, explicitly endorsing the Court’s decision to abstain from exercising its equitable jurisdiction during the pendency of Petitioner’s military commission proceedings. In re Al-Nashiri, 835 F.3d 110, 118 (D.C. Cir. 2016). Accordingly, this stayed habeas case provides no vehicle by which Petitioner may seek a preservation order. Second, and perhaps more fundamentally, jurisdiction over this habeas matter still lies with the Court of Appeals, for the mandate from Petitioner’s unsuccessful appeals has yet to issue (Petitioner’s time to file a petition for certiorari runs until mid-January 2017). This Court, therefore, currently lacks jurisdiction to entertain Petitioner’s motion.
Here's the government's brief: