Habashi v. Gates: Doc. 103-2

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BENJAMIN MOHAMMED AL HABASHI, ) (Binyam Mohamed) ) ) Petitioner, ) ) v. ) Civil Action No. 05-00765 ) Hon. Emmet G. Sullivan ROBERT GATES, ) ) Respondent. ) __________________________________________)

NOTICE OF SERVICE OF DISCOVERY Petitioner Binyam Mohamed, through his undersigned attorneys, respectfully notifies the

Court that he has served the attached discovery requests today on Respondent’s counsel:

1) Amended Requests for Admissions, per FRCP 36;1

2) 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;2

1 Mr. Mohamed is willing to toll the response deadline on the updated Requests for Admissions to today’s service date, provided Respondent represents that, at long last, he will make a good faith response. 2 Lt. Col. Vandeveld resigned over the same issue now confronting this Court: Respondent Secretary Gates’ efforts to 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 he went from being a “true believer” in the military commissions to feeling “truly deceived” about them. His deep ethical qualms hinged foremost on the fact that potentially critical evidence had been withheld from the defense by the 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 several months Vandeveld has had various conversations with counsel for Petitioner, as well as other counsel, where he has revealed – always strictly respecting the obligations of secrecy imposed upon him – some of the species of favorable evidence available in Petitioner’s case. His statements have made it very clear that the disclosures made to date in Petitioner’s case fall woefully short of compliance with the Court’s order. The questions in the proposed deposition are carefully tailored to prove the existence of additional evidence that remains undisclosed.

Case 1:05-cv-00765-EGS Document 103-2 Filed 10/28/2008 of 43

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b) “Jane Payne,”3 one of two female members of Mr. Mohamed’s rendition crew from

Morocco 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 notes

that Respondent’s counsel with the Office of Military Commissions – Prosecution (OMCP) have

spent months and months poring over the documents in his case. If this Court doubts that for one

second, then allow the deposition of Lt. Col. Darrell Vandeveld to proceed immediately, and

Petitioner can assure the Court that the former military prosecutor will confirm the truth of the

matter.

Thus, Respondent cannot take the position that the materials are somehow difficult to

obtain, 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 flatly

refused. Thus, as the clock ticks down to disclosure, Respondent is the one who has run the

time.

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 less

than a day to reply. These admissions, if honestly made, should settle most of the case in

Petitioner’s favor.

3 This is a pseudonym. If Respondent suggests for one moment that he does not know who Jane Payne is, we are happy to furnish her US passport number and her home address (which out of respect for her privacy we have omitted from this pleading) – notwithstanding the fact that “Payne” was working for the government at all times relevant 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 names used by the other US personnel on the flight.


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Petitioner then submits a limited number of interrogatories, which again should take little

time for a response.

Petitioner has requested specific documents and tangible things. To date, Respondent has

only provided documents specifically identified by the British authorities, after an exhaustive

search of the files by the British.4 Surely, Respondent cannot claim to have a lesser duty than

our allies across the ocean. If the British are willing to live up to their legal obligations, then the

US must surely do the same.

Finally, Petitioner suggests two preliminary depositions on written questions. He is

making the task easy on Respondent by providing the questions in writing, and not insisting on

an oral deposition. The deposition of Lt. Col. Darrell Vandeveld will prove to this Court just

how obstructionist Respondent is being now – to be sure, Respondent will not like the honest

answers that come from his former military prosecutor. Petitioner is confident what the answers

will be to many of the questions, and confident that this testimony will identify just how

contemptuous 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 on

the 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.

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


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Furthermore, this is not a one-way street. Within the bounds of what is ethically

permissible,5 Petitioner is perfectly willing to provide subsequent disclosures to Respondent to

show how he was tortured, and to provide documentary proof of such matters as the torture that

was going on in Morocco, and what he knows about the US personnel who took part in his

rendition to torture.

All Petitioner wants is a fair and open evaluation of all the evidence. Once that is in, he

can return to his home in the UK, and everyone can get on with the business of prosecuting the

real culprits in this case – those who ordered and carried out his rendition to torture.

Respondent’s obstinate refusal to comply with this Court’s disclosure order

Today, Mr. Mohamed simply re-requests the evidence that would help him prove his

innocence that, by order of this Court, he should have received three weeks ago. Five weeks

have passed since the Court held that he was entitled to evidence favorable to his case. In that

time he has received just seven documents, not one of which even mentions where he was held

for two years.6 It is now plain that, despite that unambiguous order, the government will balk at

5 There are, obviously, issues surrounding the ongoing efforts to charge Petitioner with some kind of criminal offense. 6 As Petitioner has previously shown, this kind of statement may be made without relying on classified evidence – since all the documents come from the British list, and the British have repeatedly stated that, despite repeated requests, they were never informed by Respondent where the British resident Mr. Mohamed had been taken for those two years.


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handing over “all exculpatory information”7 until specifically directed to comply with specific

and targeted discovery requests by this Court.8

Mr. Mohamed has already sent the government some of these requests by letter. In his

motion to compel compliance, he set out further requests and outlined the principles that should

guide Respondent’s, and this Court’s, approach to discovery. To date, the government has

shrugged off Petitioner’s requests as “excessively broad and otherwise objectionable.”

Respondent’s Letter of Oct. 17, 2008. Under Mr. Mohamed’s theory of the case and the law of

habeas corpus, this cannot be so.

The discovery Mr. Mohamed seeks here is exculpatory, is in the possession of Respondent, and goes to the heart of his case

Where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is the duty of the courts to provide the necessary facilities and procedures for an adequate inquiry.

Bracy v. Gramley, 117 S.Ct. 1793 at 1799. “Denial of an opportunity for discovery is an abuse

of discretion when the discovery is necessary to fully develop the facts of a claim.” Teague v.

7 As Mr. Mohamed has previously noted in passing, while he is far more concerned with proving his innocence than with seeking punishment of any description on anyone, the government’s flagrant violation of this Court’s order is fair grounds for sanctions to be imposed on Respondent. The government’s gamesmanship would be improper in a run-of-the-mill case. It is vastly more offensive here, where the foot-dragging aims to conceal evidence of Mr. Mohamed’s brutal torture, authorized at the highest levels of the US government. 8 Petitioner fully expects that Respondent’s next halfhearted attempt to avoid full compliance with this Court’s disclosure order will involve handing over the remainder of the 42 exculpatory documents identified in The Queen on the Application of Binyam Mohamed, Claimant v. Secretary of State for Foreign and Commonwealth Affairs, Defendant, No. CO/4241/2008. That Court’s judgment of Oct. 22, 2008 has made clear that in the unlikely event that this Court does not order the disclosure of the remainder of those documents, the British Courts will. Disclosure having thus been made inevitable at the UK end, the government can readily be anticipated to use that “revelation” before this Court as a fig leaf for its ongoing refusal to comply. But with each passing day, surely, it grows more difficult for Respondent to state with a straight face that he has not withheld, and is not continuing to withhold, masses of exculpatory evidence in this case. Indeed, it is plain silly for Respondent to pretend that all exculpatory evidence has been revealed when Respondent will not even admit which continent Mr. Mohamed was on for two years of his detention.


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Scott, 60 F.3d 1167, 1172 (5th Cir. 1995). 9 At the risk of repeating his terrible ordeal in US

custody ad nauseam, Mr. Mohamed will remind Respondent once again of a few basic facts.

These should make it obvious, even to Respondent, why Mr. Mohamed needs what he has

requested in order to prove his innocence.

Pakistan

After he was arrested for passport violations in Karachi in April 2001, Binyam Mohamed

was taken into Pakistani custody and seriously abused there. These abuses included, inter alia,

his being hung in the strappado position and having a gun pointed at him, execution style, by

one Pakistani agent. These are, of course, forms of torture. Petitioner was threatened repeatedly

by US agents – for instance, he was told he would be rendered (a threat which was later carried

out). Statements exacted by coercion are inadmissible in US law, see Brown v. Mississippi, 297

U.S. 278 (1936), as is evidence derived from its bitter fruit, see Wong Sun v. United States, 371

U.S. 471 (1963).

Materials from Pakistan will also help Petitioner prove why the US went to such illegal

extremes to force him to talk. CIA agents questioned Mr. Mohamed in Pakistan and found him

“uncooperative” or “combative”. UK agents questioned him as well and found that he was “a

nobody”. Mr. Mohamed’s “failure to cooperate,” combined with faulty intelligence from the

waterboarding of Abu Zubaydah and a spoof website—“How to Build an H-Bomb”—gave

Respondent the notion Mr. Mohamed had something to do with, or knew something about, a plan

9 Respondent may object that Teague, like the vast majority of case law addressing factual development in habeas, concerns a post-conviction case under 28 U.S.C. §2254. If anything, however, this militates in favor of more generous discovery here, as the post-conviction petitioner has already had one opportunity to develop the facts before a real court. Mr. Mohamed has had none. The Bracy court also noted that pre-hearing discovery is particularly appropriate in a capital case, as this case may well become if Mr. Mohamed is charged a third time before the Military Commissions. See Bracy v. Gramley , 520 U.S. 899, 117 S.Ct. 1793 (1997). Military prosecutors have represented to the defense that he would, indeed, be re-re-charged within thirty days.


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to attack the United States with a so-called “dirty bomb.” The fear engendered by this mythical

plot was the provocation for everything that later happened.

Mr. Mohamed was first threatened with rendition; discussions as to whether actually to

render him then proceeded, and went all the way up to the White House. Ultimately, the

decision was made, and he was rendered to Morocco on or about July 21, 2002.

Once this had happened, Respondent had a whole new problem: How to cover up the

evidence of his own criminality, and that of his colleagues in government. Hence the

increasingly desperate efforts to prevent Petitioner and this Court from obtaining evidence of the

truth.

Mr. Mohamed therefore seeks discovery that will prove his allegations of mistreatment in

Pakistan; of the questioning agents’ bias; of the involvement of the United Kingdom in his

interrogations; of the mistreatment of others that led to the decision to render him; of the

decisionmaking process itself; and of the fact and conduct of the flight to Morocco.

Morocco

To date, nothing provided to Mr. Mohamed by the government of the United States

concedes the core fact of his case: he was rendered to Morocco and savagely tortured there. Mr.

Mohamed’s Moroccan torturers specifically told him that the purpose of this abuse was to

condition him to say “whatever the Americans wanted him to”, much as a most cruel canine

handler might condition Pavlov’s dog. Mr. Mohamed alleges that he was being “prepared” as a

witness against “high-level” al Qaida suspects, such as Abu Zubaydah and Khalid Sheikh

Mohammed (KSM). And Mr. Mohamed, of course, said whatever his Moroccan torturers told

him to say.


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Mr. Mohamed therefore seeks discovery that will prove his allegations of torture in

Morocco; of the purpose of the questioning; of UK involvement, witting or unwitting, in that

questioning; of the abuse of others in Morocco (demonstrating the fact that CIA-sponsored

torture there was then part of a US pattern or practice); of the transmission of reports from his

abuse up the US chain of command; of documentation taken of his injuries (such as

photographs); of the subsequent decision to take him to the CIA’s Dark Prison in Kabul; and of

the fact and conduct of the flight to Kabul.

It is important to note, once again, that evidence identifying those responsible for this

horror is relevant for several reasons, not least of which is to demonstrate the motive behind the

government’s on-going efforts to dissemble.

Dark Prison

In the Dark Prison, Mr. Mohamed was for five months subjected to the full panoply of

“enhanced interrogation techniques”: sleep deprivation; temperature extremes; hours of ear-

splitting noise; starvation; and so on. He was repeatedly interrogated by the CIA during this

period. Mr. Mohamed similarly made the statements to his CIA interrogators that he had been

conditioned to make in Morocco.

Mr. Mohamed therefore seeks discovery that will prove his allegations of torture in the

Dark Prison; of the purpose of the questioning; of the abuse of others in the Dark Prison

(demonstrating the fact that CIA-sponsored torture there was then part of a US pattern or

practice); of the transmission of reports from his abuse up the US chain of command; of the

subsequent decision to take him to Bagram; and of the fact and conduct of the transit to Bagram.

Bagram


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This is where the public documentation supporting Respondent’s case begins, with the

long “confession” that Mr. Mohamed wrote out under US instruction in Bagram. Obviously,

Respondent would have his Court blithely accept these documents as being voluntary, ignoring

the months and years of abuse that led up to these examples of Petitioner-as-lap-dog. Equally

obviously, Petitioner has the right to explore not only the previous coercion, but also the highly

dubious contention that a few weeks of incommunicado detention in Afghanistan somehow

serves to dissolve the taint of the many months of torture.

Mr. Mohamed maintains that the agents questioning him were briefed on his prior

coerced statements and used them against him. He states that he was subjected to mistreatment

in Bagram, though it did not match the torture of the prior two years. The events of those two

years, and the conditions in Bagram, are self-evidently relevant to the admissibility of any

inculpatory statement Mr. Mohamed made in Bagram.


Bagram; of the use by his interrogators in Bagram of the faulty “intelligence” from the prior

torture sessions; of the purpose of the questioning; of the subsequent decision to take him to

Guantánamo; and of the fact and conduct of the flight to Guantánamo on or about September 19,

2004.

Guantánamo Bay

Again, Respondent seeks to rely on various inculpatory statements made by Mr.

Mohamed in Guantánamo Bay. These, too, stemmed directly from his prior abuse. Moreover,

Respondents cannot claim in open Court that Mr. Mohamed was “doing well” in Guantánamo

(cf. the repeated invocation of these words in the JTF-GTMO interrogation reports), as various of

Mr. Mohamed’s counsel have seen photographic evidence of his abuse in Guantánamo. If


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Respondent cares to deny that photographic evidence exists of Petitioner’s abuse in Guantánamo,

then Petitioner will gladly call his counsel as witnesses to prove, emphatically, that this is false.


Guantánamo; of the use of his interrogators in Guantánamo of faulty “intelligence” from prior

torture sessions; of the efforts to discourage his cooperation with counsel; of the efforts to

withhold exculpatory evidence from his counsel in the military commissions process; and of the

resulting dissent within the ranks of the US military regarding the mistreatment of Mr. Mohamed

and the subsequent cover-up.

CONCLUSION

Mr. Mohamed feels that, in light of the extravagant abuse he has suffered, the discovery

requests he submits today are well within reason. Developing a full picture of his abuse, and of

the mistaken reasons for it, before this Court will be essential to proving to this Court that he is

not, and never was, an “enemy combatant.”

Respectfully submitted,

Cori Crider Ahmed Ghappour Zachary P. Katznelson Clive A. Stafford Smith Reprieve PO Box 52742 London EC4P 4WS United Kingdom 011 44 207 353 4640 Counsel for Petitioner Mohamed

October 27, 2008


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CERTIFICATE OF SERVICE I hereby certify that on October 27, 2008, I electronically filed and served the foregoing document: Notice of Service of Discovery.

Cori Crider


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EXHIBIT A


BENJAMIN MOHAMMED AL HABASHI, ) (Binyam Mohamed) ) ) Petitioner, ) ) v. ) Civil Action No. 05-00765 ) Hon. Emmet G. Sullivan GEORGE WALKER BUSH, et al. ) ) Respondent. ) __________________________________________)

REQUESTS FOR ADMISSIONS UNDER RULE 36 Definition of terms: The term “agent” of the US is intended in its broadest sense possible, to include any person who purports in any way to act under color of the government, from law enforcement personnel taking part in foreign operations to members of the Bush Administration in the White House. When used in connection with other governments, the term has a similarly broad sense. The term “rendition,” or any variant on the word “render,” describes the process of transferring a prisoner from one country to another without a judicial order. The terms “torture” and “cruel, inhuman and degrading treatment” should be understood as they are applied in the Convention Against Torture. Petitioner asks Respondents to respond within 14 days to these requests by admitting, for purposes of this action only and subject to objections to admissibility at any hearing the truth of each of the following statements:

1. Binyam Mohamed is not, and never has been, a member of al Qaida. 2. Binyam Mohamed is not, and never has been, a member of the Taliban.

3. Binyam Mohamed is not, and never has been, a member of any extremist group.

4. Binyam Mohamed was detained by the Pakistani authorities for an alleged


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passport violation on or about April 10, 2002, in Karachi.

5. Binyam Mohamed had a passport in the name of Fouad Zouaoui.

6. Mr. Zouaoui had voluntarily given this passport to Binyam Mohamed to facilitate his travel.

7. Binyam Mohamed was not provided with a false passport by Khalid Sheikh

Mohamed.

8. Binyam Mohamed, when detained, was attempting to board an aircraft for Zurich, and had an on-connection to London.

9. There is no physical evidence whatsoever that Binyam Mohamed planned to

travel beyond the UK.

10. On or about April 13, 2001, Binyam Mohamed was taken by the Pakistani authorities to the Landi Prison.

11. On or about April 22, 2002, Pakistani authorities moved Binyam Mohamed at an

ISI detention center in Karachi.

12. Sometime in mid-April 2002, Abu Zubaydah was being held in Thailand.

13. Sometime in mid-April 2002, Abu Zubaydah was being interrogated by US agents.

14. Sometime in mid-April 2002, Abu Zubaydah told his interrogators about Jose

Padilla, a US citizen.

15. Sometime in mid-April 2002, Abu Zubaydah told his interrogators about a possible plot to build a radioactive bomb for use against the U.S.

16. Pakistani officials abused Binyam Mohamed while he was in their custody.

17. At least one Pakistani official held a gun to Binyam Mohamed.

18. Binyam Mohamed was held in Pakistan until mid-July 2002, during which time

he was denied access to counsel, and was never charged with any criminal offense.

19. Binyam Mohamed’s detention in Pakistan violated Pakistani law.

20. US agents paid a “bounty” for Binyam Mohamed to a person or persons in

Pakistan.


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21. Binyam Mohamed was repeatedly interrogated by US agents while in Pakistan.

22. Binyam Mohamed was reported to be “combative” with US agents in Pakistan.

23. Binyam Mohamed asked the US agents for a lawyer.

24. US agents told Binyam Mohamed words to the effect that the “rules had changed” and that he had no right to a lawyer.

25. US agents threatened Binyam Mohamed while he was in Pakistan with rendition

to another country.

26. A British Intelligence officer was permitted to interview Binyam Mohamed for roughly three hours at 10 a.m. on May 17, 2002.

27. This interview was recorded by US agents.

28. Two US agents entered the room at various times during the interview.

29. The British agent told Binyam Mohamed that “he would get more lenient

treatment if he cooperated” with US agents.

30. The British agent told Binyam Mohamed that the agent would “explore what could be done for him with my US colleagues” if Binyam Mohamed convinced the agent that he was cooperating fully.

31. One of the US agents indicated to Binyam Mohamed that he would be rendered to

an Arab country if he did not cooperate.

32. Binyam Mohamed informed his interrogators that he never attended the “Algerian training camp” in Afghanistan.

33. The “Algerian training camp” had been closed prior to Binyam Mohamed’s

arrival in Afghanistan.

34. The following description by the British Intelligence agent of Binyam Mohamed’s May 17, 2002, statement about a radiological bomb is accurate: “Mohammed said the idea of a radiological or dirty bomb was ‘the FBI’s perception – I didn’t tell them that.’ The real story was about the construction of a hydrogen bomb. Mohammed said he had seen a file on a computer in the house in Labore called something like ‘How to Build an H-Bomb.’ He read it and decided it was clearly a joke – part of the instructions included adding bleach to Uranium-238 in a bucket and rotating it around one’s head for 45 minutes. Mohammed said that anyone who took this seriously knew nothing about the most elementary physics – and that clearly included Abu Zubaida (who was very ‘excited’ about the H-Bomb idea) and other residents in the Lahore safe house.”


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35. In 2002, US agents checked out Binyam Mohamed’s story about the website

described in the paragraph above, and found it to be accurate.

36. Binyam Mohamed stated that he thought another attack would take place after September 11, 2001.

37. The following description by the British Intelligence officer of Binyam

Mohamed’s May 17, 2002, statement is accurate: “I asked Mohammed to clarify his remarks about an impending attack. Mohammed downplayed this as his assessment. He said ‘this won’t go away’ and said it was clear from his statements that UBL and his group were determined to continue their campaign. Mohammed said the ‘FBI’ appeared to think he had information about dates, times, locations, etc. He didn’t. But it remained his opinion that another attack or attacks would follow.”

38. US agents agreed with the assessment that “another attack or attacks would

follow.”

39. US agents in Pakistan were very concerned about the possibility of a radiological attack on the US.

40. Senior US officials in Washington were very concerned about the possibility of a

radiological attack on the US.

41. Binyam Mohamed periodically attended the Regents Park Mosque in London.

42. Prince Charles has attended the Regents Park Mosque in London.

43. Respondent has no evidence that the Regents Park Mosque is associated with Islamic extremism.

44. Respondent has no evidence that Binyam Mohamed ever talked in person to Abu

Hamza.

45. Respondent has no evidence that Binyam Mohamed ever talked in person to Abu Qatada.

46. The British reported to the US that Binyam Mohamed was a “nobody”.

47. The British confirmed to the US that Binyam Mohamed had a drug problem when

he lived in London.

48. Binyam Mohamed explained to US agents that he left Britain in part because he wanted to kick his drug habit.


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49. The British reported to the US that they could find no evidence that Binyam Mohamed had planned or committed any act of terrorism while he lived in the UK.

50. The British reported to the US that in 2001, Binyam Mohamed worked as a

janitor at the Muslim Heritage Centre in London.

51. The British reported to the US that Binyam Mohamed had only the most superficial education in engineering.

52. Binyam Mohamed insisted that discussions concerning a supposed radiological

bomb centered on a website that he considered a joke.

53. Abu Zubaydah reportedly believed that the website description of how to build a radiological bomb was serious.

54. That US and British intelligence agreed that there were “glaring inconsistencies in

the stories provided by Abu Zubaydah and Binyam Mohamed” about the supposed ‘Dirty Bomb’.

55. British intelligence passed information to the US intelligence to facilitate the

interrogation of Binyam Mohamed in Pakistan.

56. British intelligence provided questions to US intelligence to ask of Binyam Mohamed in Pakistan.

57. British intelligence provided photographs to US intelligence to show to Binyam

Mohamed in Pakistan in an effort to secure information about various Muslim people.

58. Some of the photographs were readily identifiable as coming from Britain (by the

inclusion of recognizable landmarks or shops, etc.).

59. That when FBI Agent Joe Ennis’ affidavit of May 8, 2002, refers to Subject-1, he means Binyam Mohamed.

60. That Agent Ennis accurately quotes Abu Zubaydah as stating that Binyam

Mohamed is not, nor has he ever been, a member of al Qaida.

61. That Binyam Mohamed is not, nor has he ever been, married.

62. That Agent Ennis falsely attributes a statement to Binyam Mohamed’s wife.

63. The following description in a British Intelligence report that “[d]uring the [July 15] briefing [of UK intelligence by US intelligence, a US agent] indicated that Binyam Ahmed Mohammed was due to be moved from Pakistan to Afghanistan,


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upon which a second debrief by our service could be facilitated,” is accurate.

64. Respond to the following as appropriate:

a. The decision to render Binyam Mohamed was not finally taken until after July 15, 2002.

b. US agent misled the UK as to whether Binyam Mohamed was to be

moved to Afghanistan.

65. US authorities rendered Binyam Mohamed from Pakistan to Morocco on or about July 21, 2002.

66. The rendition was conducted without any application to a court.

67. The rendition was conducted without any judicial sanction.

68. There is no legal distinction between this act of “rendering” by the US and the

common law crime of kidnapping, defined as that “taking and carrying a person away by force, without the consent of the person taken, and without lawful right.”

69. At or around twenty-five minutes to six in the evening of 21 July 2002,

Gulfstream V N379P left Islamabad carrying Binyam Mohamed.

70. Two other prisoners were also on the same plane.

71. These two prisoners (herein designated John Doe 1 and John Doe 2) were also rendered to Morocco.

72. John Doe 1 was not a Moroccan citizen.

73. John Doe 2 was not a Moroccan citizen.

74. John Doe 1 was rendered to Morocco for interrogation by the Moroccans.

75. John Doe 2 was rendered to Morocco for interrogation by the Moroccans.

76. The aircraft landed in Rabat at or around eighteen minutes to four in the morning

on 22 July 2002.

77. The Gulfstream V N379P is a plane that was then owned by a company called Premier Executive Transport.

78. Premier Executive Transport was a CIA front company.

79. The Gulfstream V N379P has frequently been associated with several other cases


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of rendition.

80. Some time around the beginning of 2004, the plane was re-registered as N8068V.

81. Sometime around December 2004 the plane was re-registered again as N44982.

82. This re-registration was done by Bayard Foreign Marketing, a CIA front company “registered in Oregon … since August 2003.”

83. On or about 22 July 2002, Binyam Mohamed was turned over to Moroccan

intelligence for interrogation.

84. The US authorities were aware of the US State Department reports on Human Rights abuses by the Moroccan authorities.

85. The US authorities took Binyam Mohamed to Morocco so that harsh techniques

could be used against him that US personnel would not perform themselves.

86. During the time that Binyam Mohamed was held in Morocco, US agents periodically visited the country to meet with Moroccan agents who were involved in Mr. Mohamed’s interrogation.

87. Binyam Mohamed was held in Morocco for approximately 18 months.

88. Binyam Mohamed was held in the Temara prison.

89. Binyam Mohamed was regularly beaten by the Moroccans.

90. Binyam Mohamed was regularly cut with razor blades by the Moroccans.

91. Binyam Mohamed was involuntarily given drugs by the Moroccans.

92. Binyam Mohamed was regularly denied food by the Moroccans.

93. Binyam Mohamed was subjected to sleep deprivation by the Moroccans.

94. Binyam Mohamed was subjected to loud music and other noise abuse by the

Moroccans.

95. Binyam Mohamed was held in isolation for the entire time he was held in Morocco.

96. Binyam Mohamed was not permitted outside for the entire time he was held in

prison Morocco.

97. The conditions under which Binyam Mohamed was held in Morocco were


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“harsh”.

98. The conditions under which Binyam Mohamed was held in Morocco were significantly worse than any conditions permitted in a US jail or prison.

99. Binyam Mohamed was subjected to cruel, inhuman and degrading treatment

during the time he was held in Morocco.

100. Binyam Mohamed was subjected to torture during the time he was held in Morocco.

101. Since October 2001, the US has rendered other prisoners to Morocco for

interrogation.

102. The US rendered Khalid Sheikh Mohamed to Morocco for interrogation.

103. US authorities are aware of reports of such people being tortured.

104. One such victim described the same perpetrator of his torture as “Marwan” – the same person described by Binyam Mohamed.10

105. That the US authorities had specifically requested that the Moroccans

interrogate Binyam Mohamed to obtain statements from him.

106. That the US provided questions to be used in the questioning of Mr. Mohamed while he was being tortured by the Moroccans.

107. That the US provided photographs to be used in the questioning of Mr.

Mohamed while he was being tortured by the Moroccans.

108. That the US provided questions and photographs from British Intelligence to the Moroccans to be used in his interrogation.

109. On September 30, 2002, US agents met with UK agents at Thames House

in London.

110. On September 30, 2002, US agents met with UK agents, and:

10 See Taieb Chadi, « Qui est le tortionnaire Marouani ? » Le Journal (May 2003) describing Marwan [‘Marouani’] as being “in his thirties, overweight, tall and smoked a lot”; claiming that “Marouani was in charge of the interrogations and told me that he was part of the DST. He tortured me by slapping, insulting and hitting me. *** He tried to convince me to go back to live in Italy so that I could work as an informer and infiltrate the networks of Islamists; he often came to where I lived … He drove an olive green Fiat Uno.”).


10

a. Failed to inform them that Binyam Mohamed had already been rendered to Morocco.

b. Informed them that Binyam Mohamed would not be taken to Afghanistan.

c. Informed them that Binyam Mohamed had been rendered to an Arab

country.

d. Informed them that Binyam Mohamed had been rendered to Morocco.

111. On September 30, 2002, US agents met with UK agents and promised to submit additional questions to Binyam Mohamed on behalf of the UK agents.

112. US intelligence reported to UK intelligence on September 30, 2002, that

Binyam Mohamed had “recent[ly]” begun to “cooperate” with questioning.11

113. On or about October 25, 2002, US intelligence received correspondence from UK intelligence with questions to be submitted to Binyam Mohamed.12

114. This included questions about Fouad Zouaoui.

115. This also included the following specific questions:13

“General questions: Who did Mohammed train with in Afghanistan? Were these individuals also of West Indian extraction? Does Mohammed know Martin Mubanga? (show photo) When and where did Mohammed associate with Mubanga? Did Mohammed associate with Mubanga in the UK? When did Mohammed begin attending a Mosque in the UK? Which Mosque and why did he choose that specific one? Who radicalised Mohammed? Does Mohammed know [REDACT]. Who facilitated Mohammed’s travel?

11 From the UK materials referencing the September 30, 2002 meeting: “We feel in light of Mohammed’s recent co-operation further debriefs by these same officers [REDACT one line] may have a positive effect on our intelligence gathering into this subject area. However we are grateful for the opportunity to provide material to be used in the current debriefing at this stage.” (0040Ex) (emphasis supplied) 12 We know that this happened from UK materials (UK telegram). These questions are important as they corroborate Petitioner’s pre-existing statements concerning what happened to him in Morocco. 13 See UK materials, 0046Ex – 0047Ex (Sept. 30, 2002, telegram).


11

Who altered the passport in the name of Fouad Zouaoui? Who is involved in recruitment at the mosque?”

116. On or around November 5, 2002, the UK submitted additional questions to

the US concerning possible plans for an attack on the UK, to be put to Binyam Mohamed.14

117. On or about November 8, 2002, the UK sent the US another telegram

about Binyam Mohamed.15

118. The US did not, at the time (between July and December 2002) disclose to the UK authorities that Binyam Mohamed was then in Morocco.

119. The US has:

a. Never admitted to the UK authorities that Binyam Mohamed was taken to

Morocco.

b. Admitted to the UK authorities that Binyam Mohamed was taken to Morocco.

120. At some time around February 2003, the US provided the UK with a

report on the questioning of Binyam Mohamed in Morocco.16

121. The US obtained a number of other reports from the Moroccans regarding the statements made by Binyam Mohamed while in the Moroccan prison.

122. The Moroccans who were interrogating Binyam Mohamed told him that

their aim was to ensure that he always did or said what the Americans demanded of him.

123. As of August 2002, US intelligence had already determined that Jose

Padilla was a “small fish”.17

124. By mid-August 2002, a significant focus of US intelligence with respect to

14 See UK Materials, Statement of Witness A (“Additional questions resulting from a separate strand of reporting suggesting current plans for an attack in the UK, about which it was thought Mr Mohamed might have relevant information, were forwarded to the US authorities on 5th November 2002.” (005-006 para. 13) (Sec.Wit.A)). 15 See UK Materials, Statement of Witness A (“a response was chased by a telegram dated 8th November 2002.” (005-006 para. 13) (Sec.Wit.A)). 16 See UK Materials: “In February 2003 the Service received from the US authorities reports of an interview with Mr Mohamed…” (006 para. 13) (Sec.Wit.A) 17 See CBS Evening News, August 13, 2002 (Headline: “FBI official calls Jose Padilla a small fish among the al-Qaida” (0319)).


12

Binyam Mohamed was to try to make him into a witness against members of al Qaida.

125. A US agent told the Moroccans to try to prepare Binyam Mohamed as a

witness against Abu Zubaydah.

126. A US agent told the Moroccans to try to prepare Binyam Mohamed as a witness against Khalid Sheikh Mohammed.

127. A US agent told the Moroccans to try to prepare Binyam Mohamed as a

witness against Jose Padilla.

128. US authorities rendered Binyam Mohamed from Morocco to Afghanistan on or about January 21, 2004.

129. The US aircraft N313P left Larnaca at around twenty-one minutes to

seven on the evening of 21 January 2004.

130. N313P arrived in Rabat, Morocco, at or about twelve minutes to midnight that night.18

131. Binyam Mohamed was turned over to US agents by Moroccan agents.

132. No judge or other legal process was involved in the transfer of Binyam

Mohamed from the Moroccan prison to the US aircraft.

133. There were two other prisoners who were turned over at the same time, John Doe 3 and John Doe 4.

134. The US agents were dressed in black and grey, with face masks, and with

Timberland-type boots.

135. The US agents cut off Binyam Mohamed’s clothes.

136. The US agents on this rendition flight gave their names (falsely) on the documents filed regarding the flight as follows:

a. James O’Hale, pilot b. Eric Fain, pilot c. Kirk James Bird, pilot d. James Fairing, pilot

18See “Flight Logs related to the Successive Rendition Operations of Binyam Mohamed and Khaled El-Masri in January 2004,” Parliamentary Assembly of the Council of Europe, “Alleged Secret Detentions and Unlawful Interstate Transfers Involving Council of Europe Member States”, AS/Jur (2006) 16 Part II, at appendix 1.


13

e. Lyle Edward Lumsden, III, medic special forces f. Jane Payne g. Patricia O’Riley h. Michael Grady i. Jason Franklin j. Walter Richard Greensbroe k. John Richard Decker l. Hector Lorenzo m. Bryam Charles/Charles Goldman Bryson

137. One of the US agents involved in this rendition was a white female who

used the false name Jane Payne.19

138. ‘Jane Payne’ took pictures of Binyam Mohamed.

139. ‘Jane Payne’ took photographs that identified some aspects of Binyam Mohamed’s abuse at the hands of the Moroccans.

140. When she saw the injuries Binyam Mohamed had suffered, she made a

statement to the effect of: ‘Oh, my God, look at that!’

141. N313P left Rabat at or around five minutes past two in the morning of 22 January 2004.

142. N313P arrived in Kabul at or around two minutes to ten the same morning.

143. N313P stayed in Kabul for a little over two hours.

144. N313P then took three Algerian detainees who were to be transferred to

Algiers.

145. N313P left for Algiers at around nine minutes past midday on 22 January 2004.

146. N313P arrived in Algeria at around six minutes to eight on 22 January

2004.20

147. N313P left Algiers at about thirty-six minutes past nine in the evening of

19 While presumably the US knows the names of its own agents, if it will facilitate Respondent’s expeditious reply to his discovery request, Petitioner knows her real name. He does not include it in this document, which he intends to be filed publicly. 20 See “Flight Logs related to the Successive Rendition Operations of Binyam Mohamed and Khaled El-Masri in January 2004,” Parliamentary Assembly of the Council of Europe, “Alleged Secret Detentions and Unlawful Interstate Transfers Involving Council of Europe Member States”, AS/Jur (2006) 16 Part II, at appendix 1.


14

22 January 2004 and arrived in Palma de Mallorca at about eight minutes past ten.

148. N313P left Palma de Mallorca for Skopje, Macedonia at about twenty minutes to six in the evening of 23 January 2004, arriving seventy-six minutes later, at four minutes to eight in the evening.

149. N313P then rendered German citizen Khaled El-Masri to Afghanistan.21

150. Binyam Mohamed was held in the so-called “Dark Prison” in the environs

of Kabul, from January to May 2004.

151. The “Dark Prison” was technically run by Afghan guards.

152. The “Dark Prison” was funded by the US.

153. US agents had ultimate control over who was held at the “Dark Prison”.

154. Binyam Mohamed was subjected to abuse in the “Dark Prison”.

155. Binyam Mohamed was subjected to cruel, inhuman and degrading treatment in the “Dark Prison”.

156. Binyam Mohamed was subjected to torture in the “Dark Prison”.

157. Binyam Mohamed was not permitted access to the International

Committee of the Red Cross (ICRC) in the “Dark Prison”.

158. Binyam Mohamed was not permitted access to his family in the “Dark Prison”.

159. Binyam Mohamed was not permitted access to a lawyer in the “Dark

Prison”.

160. At no time was Binyam Mohamed charged with any offense while he was in the “Dark Prison”.

161. Binyam Mohamed was detained in the “Dark Prison” in violation of

Afghan law.

162. There was no pretense of legal justification for Binyam Mohamed’s detention in the “Dark Prison”.

21 See declaration of Khaled El-Masri in support of Plaintiff’s Opposition to the United States’ Motion to Dismiss, in El-Masri v. Tenet et al, Eastern District Court of Virginia in Alexandria, 6 April 2006, at p8


15

163. Binyam Mohamed was held in a very cold, dark cell for days on end in the “Dark Prison”.

164. Binyam Mohamed was not allowed to see daylight for weeks on end in the

“Dark Prison”.

165. US agents interrogated Binyam Mohamed several times while he was at the “Dark Prison”.

166. US agents were aware of the abuse that was being inflicted on Binyam

Mohamed in the Dark Prison.

167. US agents threatened Binyam Mohamed in the Dark Prison.

168. US agents wrote reports of their interactions with Binyam Mohamed in the Dark Prison.

169. At no time did the US inform the UK that Binyam Mohamed was being

held in the ‘Dark Prison’.

170. Binyam Mohamed was taken to Bagram Air Force Base in May 2004.

171. Binyam Mohamed was held in a cage in Bagram Air Force Base.

172. Binyam Mohamed was subjected to additional mistreatment in Bagram Air Force Base.

173. Binyam Mohamed was not permitted access to a lawyer in Bagram Air

Force Base.

174. Binyam Mohamed was not provided with the right to contact his family while he was in Bagram Air Force Base.

175. Binyam Mohamed was not permitted access to the International

Committee of the Red Cross (ICRC) until late May 2004.

176. The ICRC told Binyam Mohamed that they were barred from reporting anything about him or his case under the rules governing their access, and that they could do nothing to help him get legal assistance.

177. Binyam Mohamed was rendered to Guantánamo Bay on or about

September 19, 2004.

178. When he arrived in Guantánamo Bay, he was classified as level four.

179. Most of the time he has been in Guantánamo Bay, he has been held in


16

Camp V or VI.

180. Most of the time he has been in Guantánamo Bay he has been in a tan or orange uniform.

181. Binyam Mohamed was not permitted access to a lawyer until April 2005.

182. While he has been in Guantánamo Bay, US personnel have attempted to

convince Binyam Mohamed that having habeas counsel was not in his best interests.

183. While in Guantánamo Bay, Binyam Mohamed has never been permitted

access to any member of his family.

184. While in Guantánamo Bay, Binyam Mohamed has never been permitted a telephone call to any member of his family.

185. While in Guantánamo Bay, Binyam Mohamed did not have a visit from

any country purporting to represent his interests until a British embassy officer came in 2008.

186. Binyam Mohamed has been further abused in Guantánamo Bay.

187. The authorities in Guantánamo Bay have photographs of Binyam

Mohamed after he has been beaten by JTF personnel on or about May 22, 2006.

188. The authorities in Guantánamo Bay have a video of Binyam Mohamed as he is being beaten by JTF personnel on or about May 22, 2006.

189. The authorities in Guantánamo Bay have a video of Binyam Mohamed

after he is being beaten by JTF personnel on or about May 22, 2006.

190. As of February 2008, the US government had made no effort to investigate the allegations made by Binyam Mohamed that he had been tortured.

191. “The US informed [the UK government] in Washington in February that

they were not looking into the allegations of mistreatment [of Binyam Mohamed].”22

192. All the statements made by Binyam Mohamed that are submitted in

support of his factual return were taken from him between July 21, 2004, and October 29, 2004.

22 See Extract of submission – Foreign & Commonwealth Office Officials to Foreign Secretary David Miliband (20 March 2008) (underlining in original).


17

193. The statements made by Binyam Mohamed between July 21 and July 27, 2004, were made at Bagram Air Force Base.

194. The statements made by Binyam Mohamed between September 24 and

October 29, 2004, were made in Guantánamo Bay.

195. In Bagram Air Force Base, Binyam Mohamed was informed that he could not have access to a lawyer.

196. In Guantánamo Bay, between his arrival in September and the end of

October, Binyam Mohamed was informed that he could not have access to a lawyer.

197. All the statements made by Binyam Mohamed that are relied upon by

Respondent in the Amended Factual Return were made prior to his having access to anyone who was not either a government agent or a member of the ICRC.

198. No statement made by Binyam Mohamed that is relied on in his factual

return could reasonably be considered to be voluntary under US domestic law.

199. There is no evidence in the Amended Factual Return linking Binyam Mohamed to any activity as an “enemy combatant” that could reasonably be considered to be voluntary under US domestic law.


/s/ Clive A. Stafford Smith Cori Crider Ahmed Ghappour Zachary P. Katznelson Clive A. Stafford Smith Reprieve PO Box 52742 London EC4P 4WS United Kingdom 011 44 207 353 4640 Counsel for Petitioner Mohamed

October 27, 2008


18

EXHIBIT B



INTERROGATORIES UNDER RULE 32 Definition of terms: The term “agent” or “personnel” of the US is intended in its broadest sense possible, to include any person who purports in any way to act under color of the government, from law enforcement personnel taking part in foreign operations to members of the Bush Administration in the White House. When used in connection with other governments, the term has a similarly broad sense. The term “rendition” or and variant on the word “render” describes the process of transferring a prisoner from one country to another without a judicial order. The terms “torture” and “cruel, inhuman and degrading treatment” should be understood as they are applied in the Convention Against Torture. The terms “document”, “report”, or “statement” should be understood to include any documentation or recording of any kind, whether a hard copy or an electronic copy. Requested responses:

1. Please provide the real names for all of the US personnel who interviewed, or were present for an interview of, Binyam Mohamed while he was in Pakistan; in the alternative, provide a pseudonym and details of the method by which Petitioner may take the deposition of each one.


19

2. Please provide all dates on which any US personnel were involved in any way in

questioning Binyam Mohamed while he was in Pakistan, from April 10 to July 21, 2002.

3. Please provide the real names for each of the US personnel on the flight that

carried Binyam Mohamed from Pakistan to Morocco in July 2004; in the alternative, provide a pseudonym and details of the method by which Petitioner may take the deposition of each one.

4. Please describe US government policy with respect to rendering prisoners.

5. Please describe US government policy with respect to transferring prisoners from

one country to another for the purpose of coercive interrogation.

6. Please describe in detail how the decision was made to transfer Binyam Mohamed to Morocco.

7. What was the legal basis for transferring Binyam Mohamed to Morocco?

8. When was the British government first informed that British resident, Binyam

Mohamed, had been transferred to Morocco?

9. Which US official was ultimately responsible for the decision to transfer him to Morocco?

10. When was the decision made to transfer him?

11. What were the factors that led to the decision to transfer him?

12. Which US personnel, if any, questioned the appropriateness of transferring him?

13. Please describe any agreements between the US and Morocco regarding the

treatment of Binyam Mohamed while he was being held in Morocco.

14. Please describe any payments made by the US to any source in Morocco regarding the detention and/or interrogation of Binyam Mohamed.

15. Please provide the real names for each of the following personnel on the flight

that carried Binyam Mohamed from Morocco to Afghanistan in January 2004; in the alternative, provide a pseudonym and details of the method by which Petitioner may take the deposition of each one.

a. James O’Hale, pilot b. Eric Fain, pilot c. Kirk James Bird, pilot


20

d. James Fairing, pilot e. Lyle Edward Lumsden, III, medic special forces f. Jane Payne g. Patricia O’Riley h. Michael Grady i. Jason Franklin j. Walter Richard Greensbroe k. John Richard Decker l. Hector Lorenzo m. Bryam Charles/Charles Goldman Bryson

16. Please describe the purpose of each of the following US flights to Morocco by

aircraft used in the “rendition” program during the time Binyam Mohamed was held there; identify whether there were any other prisoners being brought to Morocco and who they were; identify whether any other prisoners were taken away from Morocco, and who they were; and identify any link whatsoever between the flight or the goals of the personnel on board and Binyam Mohamed’s presence in Morocco:

a. Sept. 13-14, 2002. This flight came indirectly from Diego Garcia to

Rabat. It was used to render another prisoner via Diego Garcia, and is one of two flights implicated in recent revelations by British Foreign Secretary David Miliband. It went on to Porto, in Portugal.

b. Sept. 17-18, 2002. This flight came to Rabat from Amman, Jordan. It was

probably implicated in the rendition of two other prisoners to Jordan, Hassan bin Attash and Abdul al Sharqawi, both of whom later appeared on Mr. Mohamed’s “Torture Flight” to Guantánamo Bay on September 19-20, 2004. Both are now in Guantánamo Bay – Hassan bin Attash being the younger brother of Tawfiq Walid bin Attash, who is currently facing capital charges in the military commissions. (Hassan was only a minor at the time he was rendered by the US for torture.) The flight went on from Rabat to Porto, Portugal.

c. Dec. 11-12, 2002. This flight originated in Germany, came to Rabat, and

then went on to Kabul.

d. Feb. 7, 2003. This flight originated in Washington, went to Morocco, and then went on to Poland at the time of the establishment of the secret prison in Poland.

e. May 9-11, 2003. This flight came from Larnaca, to Rabat. It went on to

Marrakech and then on to Washington.

f. June 4-5, 2003. This flight came to Rabat from Tashkent, another site where there have apparently been renditions. It went on to Porto.


21

g. June 6, 2003. This flight came from Poland at the time of the secret

prison there. It went on to Porto.

h. Sept. 22-23, 2003. This flight went from Rabat to Guantánamo, and was likely either carrying prisoners there, or US intelligence personnel.

i. Nov. 19, 2003. This flight came to Rabat from Baghdad.

j. Nov. 21, 2003. This flight came from Kabul to Rabat, and went on to

Guantánamo.

k. Dec. 2-3, 2003. This flight came from Washington to Porto and then to Rabat and went on to Guantánamo.

l. Dec. 28, 2003. This flight came from Guantánamo to Rabat, and then

went on to Jordan at the time of the abuse of rendered prisoners there (see above).

17. Please identify the dates of any other flights by aircraft carrying personnel to or

from Morocco who were related in any way with the Binyam Mohamed case. With respect to each such flight, please describe the purpose of each of the flights; identify whether there were any other prisoners being brought to Morocco and who they were; identify whether any other prisoners were taken away from Morocco, and who they were; and identify any link whatsoever between the flight or the goals of the personnel on board and Binyam Mohamed’s presence in Morocco.

18. Please provide the names of all other prisoners who were not of Moroccan

nationality who have been transferred without a judicial order in an American aircraft to Morocco since September 2001, along with the date of the transfer of each, and a brief description of the purpose of the transfer.

19. Please provide the names of all other prisoners who were of Moroccan nationality

who have been transferred without a judicial order in an American aircraft to Morocco since September 2001, from a country other than the United States, along with the date of the transfer of each, and a brief description of the purpose of the transfer.

20. Please describe any agreements between the US and Morocco regarding the

treatment of prisoners who have been transferred in the manner described in the two paragraphs above.

21. Please provide a description of all the photographs that were provided by the US

to the Moroccans to be shown to Binyam Mohamed.


22

22. Please provide a description of all photographs that were provided by the UK to the US and were subsequently given to the Moroccans to be shown to Binyam Mohamed.

23. Please provide the real names for all of the US personnel who interviewed, or

were present for an interview of, Binyam Mohamed while he was held in the ‘Dark Prison’; in the alternative, provide a pseudonym and details of the method by which Petitioner may take the deposition of each one.


were present for an interview of, Binyam Mohamed while he was in Bagram Air Force Base; in the alternative, provide a pseudonym and details of the method by which Petitioner may take the deposition of each one.


were present for an interview of, Binyam Mohamed while he was in Guantánamo Bay; in the alternative, provide a pseudonym and details of the method by which Petitioner may take the deposition of each one

26. Please provide the real names for all of the US personnel who were present during

the assault committed on Binyam Mohamed in Guantánamo Bay on or around May 22, 2006; in the alternative, provide a pseudonym and details of the method by which Petitioner may take the deposition of each one.

27. Please provide the real names for all of the US personnel who have expressed

concerns about the legality or appropriateness of what has been done to Binyam Mohamed, or who has made an oral or written complaint about it, at any time from April 10, 2002 to present; in the alternative, provide a pseudonym and details of the method by which Petitioner may take the deposition of each person.




23

October 27, 2008


24

EXHIBIT C



REQUESTS FOR PRODUCTION OF DOCUMENTS AND TANGIBLE THINGS UNDER RULE 34

Definition of terms: The term “agent” or “personnel” of the US is intended in its broadest sense possible, to include any person who purports in any way to act under color of the government, from law enforcement personnel taking part in foreign operations to members of the Bush Administration in the White House. When used in connection with other governments, the term has a similarly broad sense. The term “rendition” or and variant on the word “render” describes the process of transferring a prisoner from one country to another without a judicial order. The terms “torture” and “cruel, inhuman and degrading treatment” should be understood as they are applied in the Convention Against Torture. The terms “document”, “report”, or “statement” should be understood to include any documentation or recording of any kind, whether a hard copy or an electronic copy. Requested responses:

1. Please provide all documents relating to any consideration given to anyone in Pakistan in exchange for Binyam Mohamed bring made available to, or turned over to, the US.


25

2. Please provide all documents relating to any agreement between the US and

Pakistan that allowed for US interrogation of Binyam Mohamed while he was held in Pakistan between April 10 and July 21, 2002.

3. Please provide copies of all statements made by or attributed to Binyam

Mohamed to any government agent (from any government) while he was in Pakistan, from April 10 to July 21, 2002.

4. Please provide copies of all reports or recordings of any kind made by any US

agency concerning the case of Binyam Mohamed at any time during his detention in Pakistan, from April 10 to July 21, 2002.

5. Please provide all photographs taken of Binyam Mohamed during his detention in

Pakistan, from April 10 to July 21, 2002.23

6. Please provide copies of any documentation of any and all complaints made by Binyam Mohamed during his detention in Pakistan.

7. Please provide copies of any documentation of any actions taken in response to

any complaints made by Binyam Mohamed during his detention in Pakistan.

8. Please provide copies of documentation of any inconsistencies between the versions of similar events being given by Abu Zubaydah in April through July 2002 compared to those being given by Binyam Mohamed.

9. Please provide all documentation of discussions of any kind between any US

personnel concerning the consideration of whether to recommend or authorize Binyam Mohamed’s transfer from Pakistan to Morocco.

10. Please provide copies of all statements made by or attributed to Binyam

Mohamed to any government agent (from any government) while he was in Morocco, from July 20, 2002, to January 21, 2004.

11. Please provide all photographs taken of Binyam Mohamed during the time he was

in Morocco, including the time he spent arriving at and leaving the airport.

12. Please provide copies of any documentation of any and all complaints made by Binyam Mohamed during his detention in Morocco.


any complaints made by Binyam Mohamed during his detention in Morocco.

23 The British intelligence officer who interviewed Mr. Mohamed in May 2002 reported that he seemed abnormally thin.


26

14. Please provide copies of all US reports concerning Binyam Mohamed in any way that relate his time in Morocco, from July 20, 2002, to January 21, 2004.

15. Please provide copies of all photographs that were provided by the US to the

Moroccans to be shown to Binyam Mohamed.

16. Please provide copies of all photographs that were provided by the UK to the US and were subsequently given to the Moroccans to be shown to Binyam Mohamed.

17. Please provide copies of all questions that were submitted by the US to the

Moroccans to be asked of Binyam Mohamed.

18. Please provide copies of all questions that were submitted by the UK to the US to be asked of Binyam Mohamed, either when he was being held in Pakistan or when he was being held in Morocco.

19. Please provide copies of all US reports concerning Binyam Mohamed in any way

that relate his time in Afghanistan, from January 20, 2004, to September 21, 2004.

20. Please provide all photographs taken of Binyam Mohamed during his detention in Afghanistan.

21. Please provide copies of any documentation of any and all complaints made by

Binyam Mohamed during his detention in Afghanistan.

22. Please provide copies of any documentation of any actions taken in response to any complaints made by Binyam Mohamed during his detention in Afghanistan.

23. Please provide all photographs taken of Binyam Mohamed during his detention in

Guantánamo Bay. 24. Please provide all documentation of any kind from Guantánamo Bay of

disciplinary actions taken against Binyam Mohamed.

25. Please provide all documentation of any kind from Guantánamo Bay of the classification level applied to Binyam Mohamed at any time during his detention there.

26. Please provide documentation of any provision or recision of “comfort items”

permitted to Binyam Mohamed at any time during his detention in Guantanamo Bay.

27. Please provide copies of any documentation of any and all complaints made by

Binyam Mohamed or his representative during his detention in Guantánamo Bay.



27

any complaints made by Binyam Mohamed or his representative during his detention in Guantánamo Bay.

29. Please provide a complete copy of all available medical records of Binyam

Mohamed during his detention since April 10, 2002.

30. Please provide a complete copy of all available mental health records of Binyam Mohamed during his detention since April 10, 2002.

31. Please provide copies of documentation of any inconsistencies between the

versions of similar events being given by Jose Padilla at any time from May 2002 to the present compared to those being given by Binyam Mohamed.


versions of similar events being given by Abu Zubaydah at any time from his arrest to the present compared to those being given by Binyam Mohamed.


versions of similar events being given by Khalid Sheikh Mohamed at any time from his arrest to the present compared to those being given by Binyam Mohamed.

34. Please provide copies of documentation of any statement by any witness to events

described by Binyam Mohamed that is inconsistent with any version that he has given.

35. Please provide copies of all 42 documents identified to the US as potentially

exculpatory by the British authorities, with only the redactions agreed by the British and the US.

36. Please provide copies of any other exculpatory evidence in the possession of the

US government as it relates to Binyam Mohamed.


/s/ Clive A. Stafford Smith Cori Crider Zachary P. Katznelson Clive A. Stafford Smith Reprieve PO Box 52742 London EC4P 4WS United Kingdom 011 44 207 353 4640


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Counsel for Petitioner Mohamed

October 27, 2008


1

EXHIBIT D-1



DEPOSITION BY WRITTEN QUESTIONS UNDER RULE 31 OF LIEUTENANT COLONEL DARREL VANDEVELD

1. Please confirm the dates you were assigned, as a military prosecutor in the Office

of Military Commissions Prosecution (OMCP), to the case of Binyam Mohamed.

2. Please describe in detail problems you identified with respect to the suppression of potentially exculpatory evidence by the Pentagon or other US agencies, with respect to prisoners held in Guantánamo Bay.

3. Please describe in general terms how the Department of Justice lawyers for

Respondent (Defense Secretary Gates) work with the Department of Defense lawyers for Respondent on the cases of Guantánamo Bay prisoners.

4. Please describe in particular detail any experiences you have had of the DOJ

lawyers overruling, or attempting to overrule, your intention to provide material that you considered exculpatory to the lawyers for any Guantánamo Bay prisoner. Your answer should include the example you have given from the Jawad case, but also include any other examples.

5. Please describe in detail the reasons that have been given by the other lawyers for

Respondent when they have refused to turn over materials that you consider exculpatory – such, for example, as statements from other individuals who confess to the crime that the Mohammed Jawad is alleged to have committed.

6. Please identify very approximately how many “thousands of documents” you


2

have analyzed in Binyam Mohamed's case.

7. Please confirm whether you have reviewed the 42 documents identified by the British authorities as potentially exculpatory in Mr. Mohamed’s case (hereinafter “the 42 British documents”).

8. Please confirm that the 42 British documents do not even identify the country

(hereinafter “third country”) in which Binyam Mohamed was held between July 2002 and January 2004.

9. Please identify that third country.

10. Please identify the prison or prisons in which Mr. Mohamed was held in that third

country.

11. Please identify who made the ultimate decision to transfer Mr. Mohamed to that third country.

12. Please describe the reasons given for his transfer to that third country.

13. Please confirm your prior statement made to counsel for Mr. Mohamed during

discussions on the case that he was held in the third country in conditions that were far worse than any conditions in a prison in the United States.

14. Please describe in detail any mistreatment that he suffered during his time in that

third country.

15. Please confirm that the 42 British documents do not even identify the location where Binyam Mohamed was held in Afghanistan from January to May 2004.

16. Please describe in detail your assessment of the claim currently being made by the

Department of Justice that the only potentially favorable documents among the thousands of documents related to Binyam Mohamed’s case are the 42 British documents.

17. Please describe what is meant by a “prudential search request.”

18. Please identify roughly how many documents were turned up relative to Binyam

Mohamed’s case in such a “prudential search request” from the FBI?

19. Please identify roughly how many documents were turned up relative to Binyam Mohamed’s case in such a “prudential search request” from other agencies?

20. Please identify in terms as specific as you can what other exculpatory material –

material that could be helpful to Mr. Mohamed’s lawyers – you have seen in the case.


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21. Please identify any witnesses who could provide favorable evidence to Mr.

Mohamed.

22. Please identify any photographs that you have seen that would tend to support Mr. Mohamed’s claim that he has been mistreated in any way between April 10, 2002, and the current date.

23. Please identify the existence and location of any file in the hands of Respondent’s

lawyers (either at the DOJ, the DOD or elsewhere) that would assist the court in identifying all the material in government hands that might be considered exculpatory or favorable to Mr. Mohamed.


/s/ Clive A. Stafford Smith Cori Crider Zachary P. Katznelson Clive A. Stafford Smith Reprieve PO Box 52742 London EC4P 4WS United Kingdom 011 44 207 353 4640 Counsel for Petitioner Mohamed

October 27, 2008


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EXHIBIT D-2



DEPOSITION BY WRITTEN QUESTIONS UNDER RULE 31 OF JANE PAYNE

1. Please state your real name.

2. Please describe your qualifications.

3. Please describe how you were employed in January 2004.

4. Please describe what the purpose was of your flight to Morocco in January 2004.

5. Please identify all the other personnel on the aircraft to Morocco, and describe

their role in the operation.

6. Please describe the prisoner or prisoners who you picked up on or about January 21, 2004, in Morocco.

7. At any time did you take photographs of any such prisoner?

8. Please describe in detail how you took the photographs, what you took

photographs of, and what happened to the photographs.

9. Did you see anyone else take photographs of any of the prisoners?

10. Do you have reason to believe from any other source that anyone else took


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pictures of any of the prisoners? Please describe this in detail.

11. Have you learned from any source that one prisoner on the flight was Binyam Mohamed?

12. How did you learn this?

13. When did you learn this?

14. Has anyone discussed his case with you?

15. When?

16. What did they say?

17. Have you heard anything that suggests that any prisoner on the flight may have

been abused while in Morocco?

18. Please describe anything you have heard in detail.



October 27, 2008


Habashi v. Gates: Doc. 103-2

Documents

Transcript of Habashi v. Gates: Doc. 103-2