IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 1084

RESPONSE re (1004 in 1:08-mc-00442-TFH, 1004 in 1:08-mc-00442-TFH, 1004 in 1:08-mc-00442-TFH, 36 in 1:08-cv-01237-RMC, 36 in 1:08-cv-01237-RMC, 36 in 1:08-cv-01237-RMC, 92 in 1:05-cv-02385-RMU, 92 in 1:05-cv-02385-RMU, 92 in 1:05-cv-02385-RMU) MOTION for Reconsideration MOTION for Certification for interlocatory appeal MOTION to Stay Of This Court's November 6, 2008 Case Management Order filed by ABD AL RAHMAN ABDULLAH AL HALMANDY, GUANTANAMO BAY DETAINEE LITIGATION, HAMOUD ABDULLAH HAMOUD HASSAN AL WADY. (Attachments: # 1 Exhibit A thru D)(Gunn, Carlton)

EXHIBIT A

Case 1 :05-cv-00280-GK Document 201

Filed 11/13/2008 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MOHAMMED AL-ADAHI, et aL,

Petitioners,
v.

Civil Action No. 05-280 (GK)

GEORGE BUSH, et aL,

Respondents.
ORDER #1

CASE MANAGEMENT ORDER
On November 6, 2008, Judge Hogan issued a Case Management Order in In re: Guantanamo

Detainees Litigation, Miscellaneous No. 08-442. That Order applied to those cases which individual

Judges had transferred to him for procedural purposes in order to serve the interests of Petitioners,
the public, and the Governent, in providing prompt habeas corpus review, as urged by the Supreme

Cour in Boumediene v. Bush, 128 S.Ct. 2229, 2275 (2008). This Judge, along with others on this

bench, agreed to transfer cases for that purpose. Pursuant to that transfer, on November 6, 2008,
Judge Hogan issued a generic Case Management Order. Consistent with the time frames set out in

Judge Hogan's Order, amended factual returs and traverses have been fied for the five Petitioners
in this case. Therefore, it appears that the case is now in a posture to move forward as expeditiously

as possible.
Having reviewed Judge Hogan's Case Management Order, this Court is now, by virte of

this

Order, adopting it in large part. i Counsel should be mindful of those portions of this Order which

This Judge wishes to thank Judge Hogan for the enormous amount of painstaking
work that he undertook reviewing the many cases that were transferred to him, determining the status
(continued... )

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differ somewhat from Judge Hogan's Order of

November 6, 2008.' In order to alert counsel to these

changes, the Court wil note any provision which differs significantly from Judge Hogan's Order.

i.
A. Factual Returns.' In accordance with Judge Hogan's Order of July 29, 2008, as

amended by his Order of September 19, 2008, the Government shall fie returns and proposed
amended returns containing the factual basis upon which it is detaining each Petitioner. See Hamdi

v. Rumsfeld, 542 U.S. 507, 533 (2004) (holding that a "citizen-detainee seeking to challenge his
classification as an enemy combatant must receive notice of

the factual basis for his classification").

This requirement appears to have been satisfied in this case.

B. Legal Justifcation. The Government shall fie a succinct (one or two paragraph)
statement explaining the specific legal grounds upon which it relies for detaining each Petitioner. If

the Government's justification for detention is the Petitioner's status as an enemy combatant, the
Governent shall provide the definition of enemy combatant on which it relies. In this case, where
the Governent has already fied a factual return, the legal justification is due within i 4 days of the

'(...continued) of all those cases, identifying the Petitioners, and ruling on a number of procedural motions, so that the cases would be ready for final hearings by the respective Judges to whom they had initially been assigned.

Since Judge Hogan's Order was intended to apply to all the cases which had been transferred to him, it was anticipated that each "Merits Judge" might make changes appropriate to the facts and circumstances of their individual cases when their cases were transferred back to them. To the extent there are differences between the two Case Management Orders, the provisions of this Order shall govern.

When used in this Order, the term "factual return" refers to factual returns and proposed amended factual returns fied pursuant to Judge Hogan's Order of July 29, 2008, as
amended by his Order of September 19, 2008.
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date of this Order. In all other cases, the Governent shall include the legal justification with the
factual return.'

C. Unclassified Factual Returns. Within 14 days of the date of this Order, the
Governent shall fie an unclassified version of each factual return it has fied to date.
D. Exculpatory Evidence.
1. The Government shall disclose to each Petitioner all reasonably

available

evidence in its possession or that the Government can obtain through reasonable diligence that tends

materially to undermine the information presented to support the Government's justification for
detaining that Petitioner. See Boumediene, 128 S.Ct. at 2270 (holding that habeas court "must have
the authority to admit and consider relevant exculpatory evidence that was not introduced during the

(CSRTi proceeding"). The term "exculpatory evidence" includes any evidence of abusive
treatment, tortre, mental incapacity, or physical incapacity which could affect the credibilty and/or

reliability of evidence being offered. In this case, where the Government has already fied a factual
return, disclosure of such exculpatory evidence shall occur within 2 i days of

the date of this Order.

By the date on which disclosure is to occur under this paragraph, the Government shall notify each
Petitioner of the existence of

any evidence within its actual knowledge but not within its possession

or capable of being obtained through reasonable diligence that tends materially to undermine the
information presented to support the Governent's justification for detaining the Petitioner. By the

date on which disclosure is to occur under this paragraph, the Government shall fie a notice

,

Note changes from Judge Hogan's Order of

November 6, 2008.
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Filed 11/13/2008 Page 4 of 10

certifying either that it has disclosed the exculpatory evidence or that it does not possess any
exculpatory evidence.'
2. If evidence described in the preceding paragraph becomes known to the

Governent after the date on which the Government is required to disclose exculpatory evidence

in a Petitioner's case, the Government shall provide the evidence to that Petitioner as soon as
practicable. The Governent bears a continuing obligation to update and supplement the evidence
described in the preceding paragraph.'

E. Discovery.
1. Ifrequested by a Petitioner, the Government shall disclose to him: (i) any

documents or objects in its possession that are referenced in the factual retum; (2) all statements, in
whatever form, made or adopted by the Petitioner that relate to the information contained in the
factual retu; and (3) information about the circumstances -- whether coercive or not -- in which

such statements of

that Petitioner were made or adopted. See Hars v. Nelson, 394 U.S. 286, 300

n.7 (i 969) ("(D)istrct courts have power to require discovery when essential to render a habeas
corpus proceeding effective."); Bismullah v. Gates, 501 F.3d i 78 (D.C. Cir. 2007) ("we presume
counsel. " has a 'need to know' all Government Information concerning his (or her) client.. . ."),
reh'gdenied, 503 F.3d 137 (D.C. Cir. 2007), reh'g. denied en banc, 514 F.3d 1291 (D.C. Cir. 2008),

cert. granted, vacated, Gates v. Bismullah, 128 S.Ct. 2960 (2008), reinstated, Case No. 06-1197
(D.C. Cir. Aug. 22, 2008) ~curiam), reh'g. granted in part, Case No. 06-1 197 (D.C. Cir. Nov. 5,
2008) ~ curiam) and deferred in par, Case No. 06-1 i 97 (D.C. Cir. Nov. 5, 2008) ~ curiam).

Note changes from Judge Hogan's Order of

November 6,2008.

.

Note changes from Judge Hogan's Order of

November 6, 2008.
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Filed 11/13/2008 Page 5 of 10

In this case, where the Govemment has already fied a factual retum, requested disclosure shall occur
within 21 days of

the date on which a Petitioner requests the disclosure.'
2. A Petitioner may, for good cause, obtain limited discovery beyond that

described in the preceding paragraph. Cf. Bracy v. Gramley, 520 U.S. 899, 904 (1997) ("A habeas

petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of
ordinary course. "). Such discovery requests shall be presented by written motion and must: (i) be
narowly tailored, not open-ended; (2) specify the discovery sought; (3) explain why the request, if
granted, is likely to produce evidence that demonstrates that the Petitioner's detention is unlawful,

see Haris, 394 U.S. at 300 ("(W)here 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 confined
ilegally and is therefore entitled to relief, it is the duty of

the court to provide the necessary facilities

and procedures for an adequate inquiry."); and (4) explain why the requested discovery wil enable
the Petitioner to rebut the factual basis for his detention without unfairly disrupting or unduly
burdening the Governent. See Hamdi, 542 U.S. at 533 (holding that "a citizen-detainee seeking

to challenge his classification as an enemy combatant must receive. . . a fair opportnity to rebut the

Governent's factual assertions before a neutral decisionmaker"); id. at 534 ("(E)nemy-combatant
proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time

of ongoing military conflict."). Any such motion for limited discovery must be fied no later than
14 days after completion of discovery pursuant to Section i. D and i. E of

this Order.'

,

Note changes from Judge Hogan's Order of

November 6, 2008.
November 6,2008.

Note changes from Judge Hogan's Order of

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Case 1 :05-cv-00280-GK Document 201

Filed 11/13/2008 Page 6 of 10

F. Classified Information. If any information to be disclosed to a Petitioner under
Sections I. D or i. E of this Order is classified, the Government shall provide that Petitioner with an

adequate substitute and, unless granted an exception, provide Petitioner's counsel with the classified

information, provided Petitioner's counsel is cleared to access such information under Section D of
the Protective Order entered in Petitioner's case. If

the Government objects to providing Petitioner's

counsel with the classified information on the basis that, in the interest of national security, the
information should not be disclosed, the Government shall move for an exception to disclosure and

provide the information to the Court, in camera, for a determination as to whether the information

should be disclosed and, ifnot disclosed, whether the Governent wil be permitted to rely on the
information to support detention. See Boumediene, 128 S.Ct. at 2276 ("(T)he Governent has a

legitimate interest in protecting sources and methods of intelligence gathering; and we expect that

the District Court wil use its discretion to accommodate this interest to the greatest extent
possible."); CIA v. Sims, 471 U.S. 159, 175 (1985) ("The Governent has a compelling interest in
protecting. . . the secrecy of

information important to our national security. . . ." (citation omitted)).

II.

A. Burden and Standard of Proof. The Government bears the burden of proving by
a preponderance of

the evidence that each Petitioner's detention is lawfuL. Boumediene, 128 S.Ct.

at 227 i ("The extent of the showing required of the Government in these cases is a matter to be
determined.").
B. Presumption in Favor of the Government's Evidence. The Court wil accord a

rebuttble presumption of authenticity, and only authenticity, to any statements or documentary
evidence the Govemment presents as justification for a Petitioner's detention if the Government
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Case 1:05-cv-00280-GK Document 201

Filed 11/13/2008 Page 7 of 10

establishes that the presumption is necessary to alleviate an undue burden presented by the particular
habeas corpus proceeding. See Hamdi, 542 U.S. at 534 ("(E)nemy-combatant proceedings may be

,

tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing militay
conflict. . .. (For example,) the Constitution would not be offended by a presumption in favor of

the Governent's evidence, so long as that presumption remained a rebuttable one and fair
opportnity forrebuttal were provided. "); Boumediene, 128 S.Ct. at 2276 ("Certin accommodations

can be made to reduce the burden habeas corpus proceedings wil place on the miltary without

impermissibly diluting the protections of the writ."). Any motion to rebut the presumption of
authenticity must be fied within 2 i days from the date of this Order.'
C. Hearsay. Each Petitioner or the Government may move to admit or exclude hearsay

evidence that is material and relevant to the legality of

that Petitioner's detention. In ruling on such

motion, the Court wil consider whether hearsay evidence is reliable and whether provision of
nonhearsay evidence would unduly burden the movant or interfere with the Governent's efforts

to protect national security. See Hamdi, 542 U.S. at 533-34 (noting that, in enemy-combatant
proceedings, "(h)earsay. . . may

need to be accepted as the most reliable available evidence"); Parhat

v. Gates, 532 F.3d 834, 846-47, 849 (D.C. Cir. 2008) (rejecting government intelligence documents

whose reliabilty could not be assessed because they lacked the underlying reporting upon which
their assertions were founded, and emphasizing that hearsay evidence "must be presented in a form,

or with suffcient additional information, that permits (the court) to assess its reliability."). The
proponent of hearsay evidence shall move for admission of

the evidence no later than i 0 days prior

to the date on which the initial briefs for judgment on the record are due under Section II. A i of

,

Note changes from Judge Hogan's Order of

November 6, 2008.
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Filed 11/13/2008 Page 8 of 10

this Order. The par opposing admission shall respond to the motion within 3 days of its fiing. If

the hearsay evidence is admitted, the part opposing admission wil have the opportnity to
challenge the credibility of, and weight to be accorded, such evidence. io

II.
A. Judgment on the Record.
1. Initial Briefs. Within 14 days after completion of discovery pursuant to

Section I. D and E, each Petitioner and the Government shall fie a brief in support of judgment on
the record." Each brief shall address both the factual basis and the legal justification for detention,

see Boumediene, 128 S.Ct. at 2269 ("The habeas court must have suffcient authority to conduct a
meaningful review of

both the cause for detention and the Executive's power to detain."), and be

accompanied by a separate statement of material facts as to which the party contends there is no
genuine dispute. The statement of material facts shall cite to the specific portions of

the record that

support the party's contention that a fact is not in dispute and shall not contain argument. Initial
briefs shall not exceed 45 pages, excluding the statement of material facts."
2. Response Briefs. Within 7 days of

the fiing ofinitial briefs, the parties shall

fie response briefs. Each response brief shall be accompanied by a factual response statement that
either admits or controverts each fact identified in the opposing par's statement of

material facts

as one to which there is no genuine dispute. The factual response shall cite to the specific portions

io

Note changes from Judge Hogan's Order of

November 6, 2008.

II Parties are encouraged to fie their briefs at an earlier time, if discovery has been

completed. In that case, an earlier hearing date may be set.

"

Note changes from Judge Hogan's Order of

November 6, 2008.
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Case 1 :05-cv-00280-GK Document 201

Filed 11/13/2008 Page 9 of 10

of the record that support the party's contention that a fact is disputed. The Court may treat as
conceded any legal argument presented in an initial brief

that is not addressed in the response brief

and may assume that facts identified in the statement of material facts are admitted unless
controverted in the factual response. Response briefs shall not exceed 35 pages, excluding the
factual response.
3. Reply Briefs. Reply briefs may be fied only by leave of court and are

discouraged.

4. Hearing. In light of the various deadlines set forth in this Order, oral
argument wil be held on March 25, 2009 at 9:30 a.m."
B. Evidentiary Hearing.

I. Basis for a Hearing. If, after full consideration of the parties' briefs for
judgment on the record and oral argument, the Court determines that substantial issues of

material

fact preclude final judgment based on the record, that Petitioner is entitled to an evidentiary hearing.

Cf. Stewart v. Overholser, 186 F.2d 339, 342 (D.C. Cir. i 950) ("When a factual issue is at the core
of a detention challenged by an application for the writ it ordinarily must be resolved by the hearing

process.").

2. Prehearing Conference. As to each Petitioner seeking an evidentiary
hearing, counsel shall appear for a prehearing conference to discuss and narow the issues to be

resolved at the hearing, discuss evidentiary issues that might arise at the hearng, identify witnesses
and documents that they intend to present at the hearing, and discuss the procedures for the hearing.

"

Note changes from Judge Hogan's Order of

November 6, 2008.
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Case 1 :05-cv-00280-GK Document 201

Filed 11/13/2008 Page 10 of 10

3. Petitioner's Presence. No Petitioner seeking evidentiary hearing wil have

access to classified portions of any such hearing. Through available technological means that are
appropriate and consistent with protecting classified information and national security, the Court wil

make all reasonable efforts to provide each Petitioner with access to unclassified portions of the
hearing affecting him.

SO ORDERED.

November 13, 2008

Isl Gladys Kessler United States District Judge

Copies via ECF to all counsel of record

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EXHIBIT B

Canton GunnlCACF/09/FDO
11/14/2008 11 :23 AM

To "Johnson, Timothy (CIV)" ~Timothy.Johnson4¡§usdoj.gov"

cc Craig Harbaugh/CACF/09/FDO¡§FDO

bcc
Subject Re: Meet & Confer wn 08-0442 Motion for Clarification and

Reconsideration ~
Dear Mr. Johnson, We cannot respond to your inquiry about whether we oppose the motion, without a further

explanation about which specific paragraphs of the order you asking to have clarified and/or reconsidered
and in what ways you are claiming the order is legally inappropriate and unworkable. Please provide us with such a further explanation. Thank you.

Carl Gunn
"Johnson, Timothy (CIV)" .aimothy.Johnson4lêusdoj.gov"

..
Counsel:

"Johnson, Timothy (CIV)"

"'Tlmothy.Johnson4¡§usdoj.g oV'
11/14/200810:27 AM

To "Johnson, Timothy (CIV)" ~Timothy.Johnson4¡§usdoj.gov"
cc "Henry, Terry (CIV)" oeerry.Henry¡§usdoj.gov"

Subject Meel & Confer wrt 08-0442 Motion for Clarification and

Reconsideration

In each of your cases in which the parties have not agreed to a stay, the government intends to file a motion for clarification and reconsideration of the Court's November 6, 2008 case management order (and supplemental amended orders, where applicable), or in the alternative, a motion for certification for appeal and to stay certain obligations pending appeal. The basis for this motion is that the November 6, 2008 procedural order is legally inappropriate and unworkable. Please advise if you oppose the motion by noon, ET, on Monday, November 17, 2008. When you respond, please indicate the case number and petitioner to which your response applies. Thank you.

Timothy A. Johnson Trial Attorney U.S. Department of Justice
Civil Division, Federal Programs Branch 20 Massachusetts Ave, NW, Rm 7328 Washington, DC 20530

EXHIBIT C

Car10n GunnlCACF/09/FDO
11/21/200801 :58 PM

To teri.henryl§usdoj.gov
cc Craig Harbaugh/CACF/09/FDOI§FDO

bcc
Subject Unclassifed return in AI Wady case

Dear Mr. Henry, As a follow-up to our conference call with Judge Urbina's law clerk earlier today, i am sending you this e-mail to request that you provide the unclassified return in our case no later than December 1, and earlier if possible. We are making this request in light of your indication during the conference call that the government would be filing the unclassified returns on a rollng basis and in light of our scheduled visit to Guantanamo Bay from December 2 through December 5 to meet with our client, Mr. AI Wady, on December 3. We presently intend to ask Judge Urbina for an order setting this deadline at the status conference on Tuesday, so we are sending you this e-mail now to give you the maximum notice. Please feel free to e-mail me and Mr. Harbaugh or call me at [phone] or Mr. Harbaugh at
[phone] if

you have any questions.
Carl Gunn

EXHIBIT D

Canton GunnlCACF/09/FDO
11/15/2008 12:50 PM

To "Johnson, Timothy (CIV)" aimothy.Johnson4I§usdoj.gov"
cc Craig Harbaugh/CACF/09/FDOI§FDO

bcc
Subject Re: Request for Certain Discovery in AI Wady v. Bush, at ai',

No. 08-c-01237~
Dear Mr. Johnson, Pursuant to Paragraph I.E.1 of Judge Hogan's Case Management Order fied November 6, 2008,

we are formally requesting in the above-entitled case all discovery described in that paragraph.
Specifically, we request (1) all documents or objects in the government's possession that are referenced in the factual return; (2) all statements, in whatever form, made or adopted by the petitioner that relate to the information contained in the factual return the government has filed; and (3) all information about the circumstances in which such statements of the petitioner were made or adopted. We reserve the right to request further discovery as provided for elsewhere in Judge Hogan's order and under all other applicable statutory, constitutional, common law, court supervisory power and other authority.

Thank you for your cooperation.
Carl Gunn