Habashi v. Gates: Doc. 103-2

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIABENJAMIN MOHAMMED AL HABASHI, )(Binyam Mohamed) ))Petitioner, ))v. ) Civil Action No. 05-00765) Hon. Emmet G. SullivanROBERT GATES,

))Respondent. ) __________________________________________)

NOTICE OF SERVICE OF DISCOVERY

Petitioner Binyam Mohamed, through his undersigned attorneys, respectfully notifies theCourt that he has served the attached discovery requests today on Respondent’s counsel:1)

Amended Requests for Admissions, per FRCP 36;

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Interrogatories, per FRCP 32;3)

Requests for Production of Documents and Tangible Things, per FRCP 34;4)

Deposition by Written Questions, per FRCP 31, of a)

Lt. Col. Darrell Vandeveld, prosecutor in the Military Commissions case against Mr.Mohamed until his resignation on or around September 24, 2008;

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Mr. Mohamed is willing to toll the response deadline on the updated Requests for Admissions to today’s servicedate, provided Respondent represents that, at long last, he will make a good faith response.

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Lt. Col. Vandeveld resigned over the same issue now confronting this Court: Respondent Secretary Gates’ effortsto obstruct the disclosure of exculpatory evidence, and particularly evidence that points to the serious abuse of a prisoner. “[N]ow testifying, remarkably, for the defense counsel in one of his own cases…Vandeveld said that hewent from being a “true believer” in the military commissions to feeling “truly deceived” about them. His deepethical qualms hinged foremost on the fact that potentially critical evidence had been withheld from the defense bythe government.”) Stacy Sullivan, “Confessions of a Former Guantánamo Prosecutor,” October 23, 2008, salon.com,

available at

http://www.salon.com/news/feature/2008/10/23/vandeveld/index.html (last accessed October 27, 2008).While many of his public statements have concerned the case against Mohammed Jawad, over the past severalmonths Vandeveld has had various conversations with counsel for Petitioner, as well as other counsel, where he hasrevealed – always strictly respecting the obligations of secrecy imposed upon him – some of the species of favorableevidence available in Petitioner’s case. His statements have made it very clear that the disclosures made to date inPetitioner’s case fall woefully short of compliance with the Court’s order. The questions in the proposed depositionare carefully tailored to prove the existence of additional evidence that remains undisclosed.

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“Jane Payne,”

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one of two female members of Mr. Mohamed’s rendition crew fromMorocco to Kabul, who apparently photographed some of the injuries inflicted on Mr.Mohamed during his abuse in Morocco.

Petitioner’s carefully targeted disclosure requests

Petitioner is at pains to make matters as easy as possible on Respondent. Petitioner notesthat Respondent’s counsel with the Office of Military Commissions – Prosecution (OMCP) havespent months and months poring over the documents in his case. If this Court doubts that for onesecond, then allow the deposition of Lt. Col. Darrell Vandeveld to proceed immediately, andPetitioner can assure the Court that the former military prosecutor will confirm the truth of thematter.Thus, Respondent cannot take the position that the materials are somehow difficult toobtain, or the answers difficult to figure out. Neither can Respondent complain of a lack of time – Petitioner has repeatedly asked Respondent to agree to a timetable, and Respondent has flatlyrefused. Thus, as the clock ticks down to disclosure, Respondent is the one who has run thetime.Petitioner begins with some very simple Requests for Admission. These took counsel for Petitioner only a short time to write, and should take any prepared counsel for Respondent lessthan a day to reply. These admissions, if honestly made, should settle most of the case inPetitioner’s favor.

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This is a pseudonym. If Respondent suggests for one moment that he does not know who Jane Payne is, we arehappy to furnish her US passport number and her home address (which out of respect for her privacy we haveomitted from this pleading) – notwithstanding the fact that “Payne” was working for the government at all timesrelevant to this case. As Respondent surely knows, “Payne” was one of the people on the plane that rendered Mr.Mohamed from Morocco to Kabul on or about January 21, 2004. If she is honest, she will be able to answer most of the questions necessary to prove Mr. Mohamed’s case. If she is not honest, then Petitioner also knows the namesused by the other US personnel on the flight.

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3Petitioner then submits a limited number of interrogatories, which again should take littletime for a response.Petitioner has requested specific documents and tangible things. To date, Respondent hasonly provided documents specifically identified by the British authorities, after an exhaustivesearch of the files by the British.

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Surely, Respondent cannot claim to have a lesser duty thanour allies across the ocean. If the British are willing to live up to their legal obligations, then theUS must surely do the same.Finally, Petitioner suggests two preliminary depositions on written questions. He ismaking the task easy on Respondent by providing the questions in writing, and not insisting onan oral deposition. The deposition of Lt. Col. Darrell Vandeveld will prove to this Court justhow obstructionist Respondent is being now – to be sure, Respondent will not like the honestanswers that come from his former military prosecutor. Petitioner is confident what the answerswill be to many of the questions, and confident that this testimony will identify just howcontemptuous Respondent’s “compliance” with this Court’s order has been to date.With respect to “Jane Payne”, if she testifies honestly then that should resolve many of the questions in the case. Certainly she – as well or better than the other fifteen US personnel onthe plane – can testify to evidence of Mr. Mohamed’s abuse in Morocco. Neither can Respondent pretend that this is some fishing expedition on Mr. Mohamed’s part. Mr. Mohamed knows what happened to him; he simply needs to find either an honest prosecutor who will admit it, or he needs to prove it.

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The British have conducted this review only this year, since being sued. Respondent had supposedly alreadyconducted a full review of the files for discovery in the Commissions process as long ago as June 2006. To pretendthat this process has not been done to date, and cannot be completed in the time proposed, would verge on contempt.

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