Zayn AL Abidin Muhammad Husayn v. Austin

1

ZAYN AL ABIDIN MUHAMMAD HUSAYN ISN # 10016, Petitioner, v. LLOYD J. AUSTIN, III, in his official capacity as Secretary of Defense, Respondent.

Civil Action No. 08-1360 (EGS)

United States District Court, District of Columbia

October 8, 2024

MEMORANDUM OPINION AND ORDER

Emmet G. Sullivan United States District Judge.

I. Introduction

Petitioner Zayn al Abidin Muhammad Husayn (“Petitioner”) moves for sanctions against Respondent Lloyd J. Austin, III in his official capacity as Secretary of Defense (“Respondent”) based on allegations that in 2005 the Central Intelligence Agency (“CIA” or “the Agency”) engaged in the intentional spoliation of video evidence that would have supported Petitioner's position that his ongoing detention at the Guantanamo Bay Naval Base is unjustified. See Pet'r's Superseding Mot. for Sanctions for Spoliation of Evidence (“Pet'r's Mot.”), ECF No. 661 at 1, 9.^[1] Petitioner initially moved for sanctions against Respondent in 2009, but the Court denied those motions without prejudice so that Petitioner could file a “single, consolidated, superseding briefing on this issue[.]” Min. Order (June 27, 2023). Accordingly, pending before the Court is Petitioner's Superseding Motion for Sanctions for the Spoliation of Evidence, see Pet'r's Mot., ECF No. 661; which Respondent opposes, see Resp't's Opp'n, ECF No. 665. Respondent has also filed a sur-reply in opposition to Petitioner's pending motion. See Resp't's Sur-Reply in Opp'n to Pet'r's Mot. (“Resp't's Sur-Reply”), ECF No. 667-2.

Upon careful consideration of Petitioner's pending motion, Respondent's opposition, and the reply thereto; Respondent's sur-reply and Petitioner's response thereto; the applicable law; and for the reasons discussed below, the Court GRANTS IN PART AND DENIES IN PART Petitioner's motion for sanctions.

II. Background

A. Factual Background

1. Petitioner's Capture and His Early Cooperation

On September 17, 2001, following al-Qaeda's 9/11 terrorist attacks on the United States (“U.S.”), President George W. Bush authorized the CIA to “undertake operations designed to capture and detain persons who pose a continuing, serious threat of violence or death to U.S. persons and interests or who are planning terrorist activities.” Ex. A to Resp't's Opp'n, CIA Office of Inspector General (“OIG”), Special Review: Counterterrorism Detention and Interrogation Activities September 2001 - October 2003 (May 7, 2004) [hereinafter “CIA OIG Special Review Report”], ECF No. 665-1 at 9 ¶ 1.^[2]Pursuant to this directive, the CIA established a program in the Counterterrorist Center to detain and interrogate terrorists at sites abroad (the “CTC Program”). Id. ¶ 2. In March 2002, Petitioner became the first person to be detained at a foreign CIA site pursuant to the CTC Program following his capture in a combined Pakistani authority and CIA raid of a safehouse in Faisalabad, Pakistan, during which he sustained serious gunshot wounds. Id. at 10 ¶ 4; Senate Select Committee on Intelligence (“SSCI”), Committee Study of the CIA's Detention and Interrogation Program, S. Rep. No. 113-288 [hereinafter “SSCI Report”], at 21 (2014).^[3]News reports suggest that the covert CIA detention facility to which Petitioner was rendered was located in Thailand, ACLU v. U.S. Dep't of Def., 827 F.Supp.2d 217, 222 (S.D.N.Y. 2011); but official reports only refer to this facility as “Detention Site Green,” SSCI Report at 23. Upon his arrival there and in response to questioning by agents from the Federal Bureau of Investigation (“FBI”) who spoke Arabic, Petitioner “confirmed his identity to the FBI officers, informed [them] he wanted to cooperate, and provided background on his activities.” Id. at 24-25.

However, on the evening of his arrival, Petitioner's medical condition rapidly deteriorated, causing him to require immediate hospitalization. Id. at 25. Although largely unable to communicate because of a breathing tube, Petitioner “continued to provide information to FBI and CIA officials at the hospital using an Arabic alphabet chart.” Id. On April 8, 2002, Petitioner's breathing tube was removed, following which he “provided additional intelligence and reiterated his intention to cooperate.” Id. Two days later, in the hospital's intensive care unit, Petitioner told FBI officers that an individual named “Mukhtar” was the “mastermind” of al-Qaeda's 9/11 attacks, and he identified a picture of this man-Khalid Shaykh Mohammad (“KSM”)-from the FBI's Most Wanted list. Id. Petitioner told the FBI officers that “Mukhtar” had trained the 9/11 hijackers and provided additional information on KSM's background-disclosures which the CIA described as “important” and “vital.” Id.

While Petitioner was hospitalized, senior agency officials at CIA Headquarters began discussing the possible use of coercive interrogation techniques against him upon his transfer back to Detention Site Green because they believed he “was withholding information that could not be obtained through then-authorized interrogation techniques” and that “a more robust approach was necessary to elicit threat information from” him. Id. at 25-26; CIA OIG Special Review Report, ECF No. 665-1 at 11 ¶ 4. On April 15, 2002, Petitioner was returned to Detention Site Green and placed in conditions which aimed to ensure that he was “at his most vulnerable state.” SSCI Report at 28. He was placed in handcuffs and leg shackles, locked in a white cell typically “naked and sleep deprived,” and subjected to either loud rock music or noise generators. Id. at 28-29. The focus of the CIA's questioning at this time was on “impending future terrorist plans against the [U.S.],” but Petitioner “denied any knowledge related to specific targets for a pending attack.” Id. Instead, he provided generalized background information on al- Qaeda, his past travel to the U.S., and extremists in Pakistan, including KSM. Id. at 29.

Petitioner continued to provide interrogators with information throughout April 2002 “but not information on pending attacks against the [U.S.]” Id. He provided information on al-Qaeda's “activities, plans, capabilities, and relationships, in addition to information on its leadership structure, including personalities, decision-making processes, training, and tactics.” Id. at 31. However, his inability to provide information on any next attack on the U.S. or the locations of al-Qaeda operatives there “served as the basis for CIA representations that [he] was ‘uncooperative,' as well as for the CIA's determination that [he] required the use of what would later be known as the CIA's ‘enhanced interrogation techniques [(“EITs”)]' to . . . reveal the information the CIA believed he was withholding.” Id. However, Petitioner “never provided this information, and CIA officers later concluded this was information [he] did not possess.” Id.

2. The Decision to Use Enhanced Interrogation Techniques Against Petitioner

Beginning on June 18, 2002, through August 4, 2002, Petitioner “spent 47 days in isolation without being asked any questions.” Id. at 30-31. During this period, on July 13, 2002, the CIA's then-acting general counsel, John Rizzo (“Mr. Rizzo”), met with attorneys from the National Security Council and the Department of Justice's (“DOJ”) Office of Legal Counsel (“OLC”), among others, to provide an overview of the CIA's proposed EITs to be used against Petitioner and to ask for a formal DOJ opinion regarding the lawfulness of doing so. Id. at 33. In response to this request, that same day OLC's Deputy Assistant Attorney General John Yoo wrote to Mr. Rizzo that “the criminal prohibition on torture would not prohibit the methods proposed by the interrogation team because of the absence of any specific intent to inflict severe physical or mental pain or suffering.” Id. at 34. On July 24, 2002, then-Attorney General John Ashcroft verbally approved the use of ten interrogation techniques against Petitioner, which included: (1) the attention grasp; (2) walling; (3) the facial hold; (4) the facial/insult slap; (5) cramped confinement; (6) wall standing; (7) stress positions; (8) sleep deprivation; (9) use of diapers; and (10) use of insects. Id. at 36. Two days later, he also verbally approved the use of the waterboard. Id. at 36-37.

On August 1, 2002, OLC finalized its written legal opinion in which it determined that these specific EITs would not violate the torture prohibition pursuant to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as implemented in the U.S. criminal code, 18 U.S.C. §§ 2340-2340A. Id. at 37; CIA OIG Special Review Report ECF No. 665-1 at 12 ¶ 6, 24 ¶ 36; see DOJ OLC, Memorandum for John Rizzo Acting General Counsel of the CIA: Interrogation of al Qaeda Operative (Aug. 1, 2002), available at https://www.justice.goV/sites/default/files/olc/legacy/2010/08/0 5/memo-bybee2002.pdf [hereinafter “DOJ OLC Memorandum”]. “This OLC opinion was based upon specific representations by [the] CIA concerning the manner in which EITs would be applied in the interrogation of [Petitioner].” CIA OIG Special Review Report, ECF No. 665-1 at 28 ¶ 43.^[4]OLC also relied on the CIA's representations “to support its conclusion that no physical harm or prolonged mental harm would result from the use on [Petitioner] of the EITs, including the waterboard.” Id. at 29 ¶ 43. In addition, to gain approval for using the EITs, the CIA represented that it believed that Petitioner “continue[d] to withhold critical threat information[,]” and that therefore, “the use of more aggressive techniques was required.” SSCI Report at 37. However, cables from that time indicate that “CIA interrogators at the detention site had not determined that ‘the use of more aggressive...