IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 1099

RESPONSE re (36 in 1:08-cv-01238-RWR, 36 in 1:08-cv-01238-RWR, 36 in 1:08-cv-01238-RWR, 1004 in 1:08-mc-00442-TFH, 1004 in 1:08-mc-00442-TFH, 1004 in 1:08-mc-00442-TFH) MOTION for Reconsideration MOTION for Certification for interlocatory appeal MOTION to Stay filed by GUANTANAMO BAY DETAINEE LITIGATION, SHAWKI AWAD BALZUHAIR. (Attachments: # 1 Exhibit A)(Gunn, Carlton)

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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 MAAGEMENT 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 puroses in order to serve the interests of Petitioners,

the public, and the Government, in providing prompt habeas corpus review, as urged by the Supreme

Cour in Boumediene v. Bush, 128 S.C!. 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 retus 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 ofthis

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 6,2008.2 In order to alert counsel to these

changes, the Court wil note any provision which differs significantly from Judge Hogan's Order.
1.
A. Factual Returns.' In accordance with Judge Hogan's Order of July 29, 2008, as

amended by his Order of September 19, 2008, the Governent 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 Governent's justification for detention is the Petitioner's status as an enemy combatant, the
Government shall provide the definition of enemy combatat on which it relies. In this case, where
the Governent has already fied a factual return, the legal justification is due within 14 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.
2 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 ofthis Order. In all other cases, the Governent shall include the legal justification with the
factual return.4

C. Unclassifed 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 Governent can obtain through reasonable diligence that tends

materially to undermine the information presented to support the Governent'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

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

reliabilty of evidence being offered. In this case, where the Government has already fied a factual
return, disclosure of such exculpatory evidence shall occur within 21 days of the date of

this Order.

By the date on which disclosure is to occur under this paragraph, the Governent 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 dilgence 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

4
Note changes from Judge Hogan's Order of

November 6, 2008.
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certifying either that it has disclosed the exculpatory evidence or that it does not possess any
exculpatory evidence.5

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.6

E. Discovery.
1. If

requested by a Petitioner, the Governent shall disclose to him: (1) any

documents or objects in its possession that are referenced in the factual return; (2) all statements, in

whatever form, made or adopted by the Petitioner that relate to the inforration contaied in the
factual return; and (3) inforration about the circumstances -- whether coercive or not -- in which
such statements of

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

n.7 (1969) ("(D)istrct courts have power to require discovery when essential to render a habeas
corpus proceeding effective."); Bismullah v. Gates, 501 F.3d 178 (D.C. Cir. 2007) ("we presume

counsel. . . has a 'need to know' all Government Inforration concerning his (or her) client. . . ."),
reh'gdenied, 503 F.3d 137 (D.C. Cir. 2007), reh'g. denied!' banc, 5 14 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 par, Case No. 06-1197 (D.C. Cir. Nov. 5,
2008) ~ curam) and deferred in par, Case No. 06-1197 (D.C. Cir. Nov. 5, 2008) ~ curiam).

Note changes from Judge Hogan's Order of

November 6,2008.

6
Note changes from Judge Hogan's Order of

November 6, 2008.
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In this case, where the Governent has already fied a factual return, 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: (1) 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 inquir."); and (4) explain why the requested discovery wil enable

the Petitioner to rebut the factual basis for his detention without unfairly disrupting or unduly
burdenig 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 1. D and 1. E of

this Order.'

,

Note changes from Judge Hogan's Order of

November 6, 2008.
November 6,2008.
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Note changes from Judge Hogan's Order of

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F. Classified Information. If any information to be disclosed to a Petitioner under
Sections 1. 0 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 inforration 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 Governent shall move for an exception to disclosure and

provide the inforration to the Cour, in camera, for a deterrination as to whether the inforration
should be disclosed and, ifnot disclosed, whether the Governent wil be perritted to rely on the

information to support detention. See Bourediene, 128 S.Ct. at 2276 ("(T)he Government has a
legitimate interest in protecting sources and methods of intelligence gathering; and we expect that

the District Court wil use its discretion to accornodate 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 inforration 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.C!.

at 2271 ("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

rebuttable presumption of authenticity, and only authenticity, to any statements or documenta

evidence the Government presents as justification for a Petitioner's detention if the Government
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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 milita

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 forrebuttl were provided."); Boumediene, 128 S.Ct. at 2276 ("Certain accommodations

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

impermissibly diluting the protections of the writ."). Any motion to rebut the presumption of
authenticity must be fied within 21 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 Government'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 reliability 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 10 days prior

to the date on which the initial briefs for judgment on the record are due under Section II. A 1 of
.

Note changes from Judge Hogan's Order of

November 6, 2008.
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this Order. The par opposing admission shall respond to the motion within 3 days of its fiing. If

the hearsay evidence is admitted, the party opposing admission wil have the opportnity to
challenge the credibilty of, and weight to be accorded, such evidence"

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

Section 1. 0 and E, each Petitioner and the Government shall fie a brief in support of judgment on
1 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 sufficient authority to conduct a
meaningfl 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 par 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.12

2. Response Briefs. Withn 7 days of

the fiing of

initial 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 part'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.

" Pares 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.
I'
Note changes from Judge Hogan's Order of

November 6,2008.

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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 filed 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.

1. 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. 1950) ("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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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 protectig classified inforration and national security, the Court wil

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

SO ORDERED.

November 13, 2008

Is! Gladys Kessler

United States District Judge

Copies via ECF to all counsel of record

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