UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ZAYN AL ABIDIN MUHAMMAD
HUSAYN (ISN #10016),
Petitioner,
v. No 08-cv-1360 (EGS)
PETE HEGSETH, in his official
capacity as Secretary of
Defense, 1
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Respondent’s motion to withhold
from disclosure certain categories of sensitive classified
information in documents created by the Central Intelligence
Agency (“CIA”) that contain Petitioner’s medical information
that Respondent has produced to Petitioner. See Resp’t’s Mot. to
Withhold from Disclosure Sensitive Classified Information in CIA
Documents containing Petitioner’s Medical Information (“Mot. to
Redact CIA Records”), ECF No. 672-1. 2 Respondent seeks to
withhold this information from Petitioner’s security-cleared
counsel. Id. at 1.
1 Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes as Respondent the current Secretary of Defense. 2 When citing electronic filings throughout this Opinion, the
Court cites to the ECF header page number, not the page number of the filed document. The Court has reviewed the classified materials but does not discuss classified information in this Opinion and Order so as to make it publicly available.
1
Upon careful consideration of Respondent’s motion, the
Petitioner’s response, Respondent’s reply, and the supplementary
filings; the applicable law; and for the reasons discussed
below, the Court GRANTS Respondent’s motion.
I. Background
A. Respondent’s Productions of the Medical Records
The Court has ordered Respondent to produce records from
the time Petitioner was detained by the CIA, both related to his
medical treatment and in response to certain discovery requests.
See Mem. Op. & Order, ECF No. 549; Mem. Op. & Order, ECF No.
573.
First, in June 2020, the Court granted Petitioner’s request
for the government to produce his “medical and mental health
records, including all radiographic films, relating to [Mr.
Husayn’s] condition and care during the period he was held
captive by the CIA, from his capture in or around March 2002
until his custody was transferred by the CIA to the DOD in or
around September 2006.” Mem. Op. & Order, ECF No. 549 at 20. In
response, Respondent disclosed over 3,800 pages of classified
documents to Petitioner’s counsel, “limit[ing] production to
only those parts of the documents that contained the responsive
medical information, redacting all non-medical portions of the
documents.” Mot. to Redact CIA Records, ECF No. 672-1 at 2-3.
2
Then, in May 2021, the Court issued a Memorandum Opinion
and Order requiring the production of additional categories of
information. See Mem. Op. & Order, ECF No. 573. Respondent had
been producing Petitioner’s CIA records to his counsel prior to
this ruling, so it proposed to re-review the documents it
already produced to determine whether there was additional
responsive information in the documents. See Joint Status Report
(“JSR”), ECF No. 604 at 3. As a result of that re-review,
Respondent identified approximately 1,800 pages that needed to
be re-processed for additional disclosures. Id. Respondent
stated that re-reviewing the documents could “avoid having the
parties litigate unnecessary disputes about redactions that
might ultimately be lifted” and proposed “produc[ing] a sample
of the different types of the re-reviewed CIA medical documents
to Petitioner’s counsel . . . [which] would consist of a
representative subset of the different type of documents
containing Petitioner’s medical information, such as operational
CIA documents, emails, and more traditional medical records.”
Id. at 3. The Court agreed and set deadlines for the government
to “produce a sample of the different types of redactions [to
the re-reviewed CIA and DOD documents containing Petitioner’s
medical records] . . . [and] file a motion explaining the basis
for redactions not already approved by the Court . . . .” Minute
3
Order (May 18, 2022). 3 Respondent provided the sample set to
Petitioner’s counsel in September 2022. See Mot. to Redact CIA
Records, ECF No. 672-1 at 5 n.1.
B. Respondent’s Motion
Respondent initially filed his sealed Motion to Redact CIA
Records on an ex parte basis, see Mot. to Redact CIA Records,
ECF No. 672-1; but subsequently filed a redacted version
classified at the SECRET/NOFORN level for Petitioner’s review,
see Notice of Filing of Redacted Secret/NOFORN Version of
Respondent’s Ex Parte Motion for Exception from Disclosure, ECF
No. 625. Thereafter, the Court entered scheduling orders
governing briefing on the Motion to Redact CIA Records. See
Minute Order (June 9, 2023); Minute Order (July 25, 2023).
Attached to Respondent’s Motion to Redact CIA records are:
(1) a declaration; and (2) a sample set of redacted documents.
See Mot. to Redact CIA Records, ECF No. 672-1 at 5 & n.2.
Thereafter, and in response to the Court’s request, Respondent
submitted unredacted versions of the sample set of documents for
3 Pursuant to prior orders of the Court, Respondent also redacts: (1) identifying information about medical treatment providers, see Order, ECF No. 113; (2) information about prior sites at which Petitioner was detained, see Order, ECF No. 549; and (3) the name of a private citizen who sent letters to Petitioner during his detention, see id. Petitioner does not object to the redaction of information that identifies an employee or agent of the U.S. government. ECF No. 409 at 3. These redactions are not at issue in the pending motion.
4
the Court’s ex parte and in camera review. See Notice of
Submission of Classified Documents for Ex Parte and In Camera
Review, ECF No. 693.
The Court also ordered Respondent to provide points and
authorities in support of his position that the Court can
provide adequate review under Court of Appeals for the District
of Columbia Circuit (“D.C. Circuit”) precedent based on
reviewing a sample set of documents instead of reviewing each
proposed redaction and set a briefing schedule on the issue. See
Minute Order (June 13, 2025).
II. Legal Standard
A. Exceptions From Disclosure
Section 1.F of the Modified Case Management Order provides
as follows:
Classified Information. If any information to
be disclosed . . . is classified, the
government shall, unless granted an exception
by the Merits Judge, provide the petitioner’s
counsel with the classified information,
provided the petitioner’s counsel is cleared
to access such information. If the government
objects to providing the petitioner’s counsel
with the classified information, the
government shall move for an exception from
disclosure.
Case Management Order, ECF No. 48; Order Granting in Part &
Denying in Part Mot. to Clarify Case Management Order (“Modified
Case Management Order”), ECF No. 62.
“Respondents must disclose classified information to
5
Petitioners’ cleared counsel if doing so is necessary to allow
the Court ‘to conduct a meaningful review of both the
cause for detention and the Executive's power to detain.’”
Al-Baidany v. Biden, Civil Action No. 05-2380, 2024 WL 5008296,
at *1 (D.D.C. 2024) (citing Al Odah v. United States, 559 F.3d
539, 545 (D.C. Cir. 2009)). “The Court must make three findings
before ordering the disclosure of classified information to
cleared counsel.” Id. “First, the information must be ‘both
relevant and material[ ]in the sense that it is at least helpful
to the petitioner's habeas case.’” Id. (quoting Al Odah, 559
F.3d at 544). “‘Relevant and material’ information includes both
inculpatory and exculpatory material.” Id. (quoting Al Odah, 559
F.3d at 546). “Second, for disclosure to be appropriate, ‘access
by petitioner's counsel’ must be ‘necessary to facilitate the
court's meaningful review of the habeas petition.’” Id. (quoting
Al Odah, 559 F.3d at 546). “Third and finally, the court must
determine that alternatives to disclosure would not effectively
substitute for unredacted access.” Id. (quoting Al Odah, 559
F.3d at 547).
III. Analysis
A. The Court Will Make Its Determination Based on a
Sample of the Records
Respondent and Petitioner agree that the Court can provide
adequate review under D.C. Circuit precedent based on the
6
Court’s review of a sample set of documents instead of reviewing
each proposed redaction on the nearly 4,000 pages of redactions
in the CIA documents. See Resp’t’s Further Resp. to the Court’s
June 13, 2025 Order (“Resp’t’s Further Resp.”), ECF No. 694;
Petitioner’s Resp. to Resp’t’s P. & A. Pursuant to the Court’s
June 13, 2025 Order (“Pet’r’s Response”), ECF No. 696; Resp’t’s
Reply, ECF No. 697. Respondent explains that “much of the
medical information that Respondent produced was embedded within
CIA documents that contain nonmedical, operational information.”
See JSR, ECF No. 604 at 208.
Respondent points to the Freedom of Information Act
(“FOIA”) context where it is well settled that “[r]epresentative
sampling is a appropriate procedure to test an agency’s FOIA
exemption claims when a large number of documents are involved”
because “[i]f the sample is well chosen, a court can, with some
confidence, ‘extrapolate its conclusions from the representative
sample to the larger group of withheld materials.’” Bonner v.
U.S. Dep’t of State, 928 F.2d 1148, 1151 (D.C. Cir. 1991)
(quoting Fensterwald v. U.S. Cent. Intel. Agency, 443 F. Supp.
667, 669 (D.D.C. 1977)).
Respondent has explained why the CIA sample set is a
representative sample. See Mot. to Redact CIA Records, ECF No.
672-1 at 9–20. The Court concludes that the logic of Bonner
applies here, and the Court can extrapolate its conclusions
7
about redactions in the sample set to the redactions within the
same categories of information in the documents produced. The
Court will therefore proceed based on its review of a sample set
of documents.
B. Disclosure of the Information Would Harm National
Security
The declaration attached to Respondent’s motion explains
why disclosure of the information would harm national security.
The Court does not discuss the explanations in detail in this
Memorandum Opinion because Respondent has designated this
information as classified information. The Court has carefully
reviewed Respondent’s description of each category of classified
information in the CIA documents and Respondent’s basis for
withholding each category of information. The Court credits the
declaration and concludes that Respondent has adequately
explained how disclosure of the information to security-cleared
counsel for Petitioner “can reasonably expected to cause
serious, if not exceptionally grave, damage to national
security.” Mot. to Redact CIA Records, ECF No. 672-1 at 9.
Petitioner does not challenge any of the Respondent’s
categories of redacted information. See Pet’r’s Report, ECF No.
653; Pet’r’s Suppl. Report, ECF No. 656-1. Petitioner notes that
his ability to respond is limited as a result of the redactions
remaining in the SECRET version of Respondent’s motion, but
8
states that “[s]ince the matter being dealt with now by the
parties concerns only CIA medical records relating to
Petitioner, his counsel has intentionally refrained from
commenting on the Respondent’s redactions taken on
representative specimens of documents produced.” Pet’r’s Report,
ECF No. 653 at 3-4.
C. Redactions in Sample Set of Documents
The Court has carefully reviewed, in camera, the unredacted
sample set of documents submitted by Respondent. None of the
redacted information is relevant, material, or helpful to
Petitioner’s habeas case. Accordingly, the Court concludes that
disclosure to Petitioner’s cleared counsel of these categories
of information in CIA documents containing Petitioner’s medical
records being produced to Petitioner is not necessary to allow
the Court “to conduct a meaningful review of both the cause for
detention and the Executive's power to detain.” Al Odah, 559
F.3d at 454 (quoting Boumediene v. Bush, 553 U.S. 723, 783
(2008).
In his supplemental report, Petitioner “reject[s] the
government’s suggestion that its mere ‘certification’ is
sufficient to establish” its point because this approach
violates Al Odah. Pet’r’s Suppl. Report, ECF No. 656-1 at 3.
However, as discussed above, the Court has reviewed the
unredacted sample set in camera and so is not relying on a
9
certification by Respondent. Petitioner provides a few
“criticisms” of certain redactions but states that the list of
criticisms is not “exhaustive.” Id. Based on the Court’s review
of the unredacted sample set of documents, the Court concludes
that Petitioner’s criticisms are without merit.
IV. Conclusion and Order
For the reasons set forth above, it is hereby
ORDERED that the government’s motion to withhold from
disclosure sensitive classified information in CIA documents
containing Petitioner’s medical information, ECF No. 672-1, is
GRANTED, and Respondent is authorized to continue to make
similar redactions in CIA documents containing Petitioner’s
medical information.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
October 14, 2026
10