IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 1315

ORDER granting in part and denying in part government's Motion for Clarification and Reconsideration of this Court's November 6, 2008 Case Management Order andSupplemental Amended Orders or, in the Alternative, Motion for Certification for Appeal Pursuant to 28 U.S.C. § 1292(b) and to Stay Certain Obligations Pending Resolution of the Motion and any Appeal (docket # 1004, 08-mc-442). Signed by Judge Thomas F. Hogan on 12/16/08. (lctfh1)

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IN RE: GUANTANAMO BAY DETAINEE LITIGATION Doc. 1315 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN RE: GUANTANAMO BAY DETAINEE LITIGATION Misc. No. 08-0442 (TFH) Civil Action Nos. 02-cv-0828, 04-cv-1136, 04-cv-1164, 04-cv-1194, 04-cv-1254, 04-cv-1937, 04-cv-2022, 04-cv-2046, 04-cv-2215, 05-cv-0023, 05-cv-0247, 05-cv-0270, 05-cv-0280, 05-cv-0329, 05-cv-0359, 05-cv-0392, 05-cv-0492, 05-cv-0520, 05-cv-0526, 05-cv-0569, 05-cv-0634, 05-cv-0748, 05-cv-0763, 05-cv-0764, 05-cv-0877, 05-cv-0883, 05-cv-0889, 05-cv-0892, 05-cv-0993, 05-cv-0994, 05-cv-0998, 05-cv-0999, 05-cv-1048, 05-cv-1189, 05-cv-1124, 05-cv-1220, 05-cv-1244, 05-cv-1347, 05-cv-1353, 05-cv-1429, 05-cv-1457, 05-cv-1458, 05-cv-1487, 05-cv-1490, 05-cv-1497, 05-cv-1504, 05-cv-1506, 05-cv-1555, 05-cv-1592, 05-cv-1601, 05-cv-1607, 05-cv-1623, 05-cv-1638, 05-cv-1645, 05-cv-1646, 05-cv-1678, 05-cv-1971, 05-cv-1983, 05-cv-2010, 05-cv-2088, 05-cv-2104, 05-cv-2185, 05-cv-2186, 05-cv-2199, 05-cv-2249, 05-cv-2349, 05-cv-2367, 05-cv-2371, 05-cv-2378, 05-cv-2379, 05-cv-2380, 05-cv-2384, 05-cv-2385, 05-cv-2386, 05-cv-2387, 05-cv-2444, 06-cv-0618, 06-cv-1668, 06-cv-1684, 06-cv-1690, 06-cv-1758, 06-cv-1761, 06-cv-1765, 06-cv-1766, 06-cv-1767, 07-cv-1710, 07-cv-2337, 07-cv-2338, 08-cv-0987, 08-cv-1101, 08-cv-1104, 08-cv-1153, 08-cv-1185, 08-cv-1207, 08-cv-1221, 08-cv-1223, 08-cv-1224, 08-cv-1228, 08-cv-1230, 08-cv-1232, 08-cv-1233, 08-cv-1235, 08-cv-1236, 08-cv-1237, 08-cv-1238, 08-cv-1360, 08-cv-1440, 08-cv-1733, 08-cv-1789, 08-cv-1805 ORDER Pending before the Court is the government's Motion for Clarification and Reconsider ation of this Court's November 6, 2008 Case Management Order and Supplemental Amended Orders or, in the Alternative, Motion for Certification for Appeal Pur suant to 28 U.S.C. 1292(b) and to Stay Certain Obligations Pending Resolution of the Motion and any Appeal (docket # 1004, 08-mc-442). Upon consideration of the Motion, the petitioners' responses, the government's reply, and the arguments presented at the hearing on December 10, 2008, the Court ORDERS that the Motion is GRANTED Dockets.Justia.com in part and DENIED in part. Specifically, the Court ORDERS that the Case Management Order entered on November 6, 2008, is AMENDED as follows: 1. Section I.C is amended to state: C. Unclassified Factual Returns. By January 9, 2008, the gover nment shall file an unclassified version of each factual return it has filed to date. In cases in which the government has yet to file a factual return, the government shall file an unclassified version of the return within 21 days of the date on which the government files the factual return. 2. Section I.D.1 is amended to state: 1. The government shall disclose to the petitioner all reasonably available evidence in its possession that tends materially to under mine the information presented to support the government's justification for detaining the petitioner. See Boumendiene, 128 S. Ct. at 2270 (holding that habeas court "must have the authority to admit and consider relevant exculpatory evidence that was not intr oduced during the [CSRT] proceeding"). In this context, the ter m "reasonably available evidence" means evidence contained in any information reviewed by attorneys preparing factual returns for all detainees; it is not limited to evidence discovered by the attor neys preparing the factual return for the petitioner. The term also includes any other evidence the government discovers while litigating habeas corpus petitions filed by detainees at Guantanamo Bay. In cases in which the government already filed a factual r etur n, disclosure of such exculpatory evidence shall occur within 14 days of the date of this Order. In all other cases, disclosure shall occur within 14 days of the date on which the government files the factual return. By the date on which disclosure is to occur under this paragraph, the government shall file a notice certifying either that it has disclosed the exculpatory evidence or that it does not possess any exculpatory evidence. 3. Section I.E.1 is amended to state: 1. If requested by the petitioner, the government shall disclose to the petitioner (1) any documents and objects in the government's possession that the government relies on to justify detention; (2) all statements, in whatever form, made or adopted by the petitioner that the government relies on to justify detention; and (3) information 2 about the circumstances in which such statements of the petitioner wer e made or adopted. Cf. Harris v. Nelson, 394 U.S. 286, 300 n. 7 (1969) ("[D]istrict courts have the power to require discovery when essential to render a habeas corpus proceeding effective."). Disclosure requests shall be in writing. In cases in which the gover nment already filed a factual return, requested disclosure shall occur within 14 days of the date on which the petitioner requests the disclosur e. In all other cases, requested disclosure shall occur within 14 days of the date on which the government files the factual r etur n or within 14 days of the date on which the petitioner requests disclosur e, whichever is later. 4. Section I.F is amended to state: F. Classified Information. If any information to be disclosed under Sections I.D or I.E of this Order is classified, the government shall, unless granted an exception by the Merits Judge, provide the petitioner 's counsel with the classified information, provided the petitioner 's counsel is cleared to access such information. If the gover nment objects to providing the petitioner's counsel with the classified information, the government shall move for an exception to disclosure. 5. Section I.G is amended to state: G. Traverse. In response to the government's factual return, the petitioner shall file a traverse containing the relevant facts and evidence supporting the petition. See Boumediene, 128 S. Ct. at 2273 ("If a detainee can present reasonably available evidence demonstr ating there is no basis for his continued detention, he must have the opportunity to present this evidence to a habeas corpus cour t. " ); cf. Hamdi, 542 U.S. at 533 (holding that a "citizendetainee seeking to challenge his classification as an enemy combatant must receive . . . a fair opportunity to rebut the Gover nment's factual assertions before a neutral decisionmaker"). The traverse is due within 14 days of the date on which the gover nment files notice relating to exculpatory evidence under Section I.D.1 of this Order or within 14 days of the date on which the government files the unclassified factual return, whichever is later . The Merits Judge may, for good cause, permit the petitioner to amend or supplement a filed traverse. The Court further ORDERS that the government's Motion is DENIED in all other 3 respects. The Court further ORDERS that any future motions to amend the Case Management Order be directed to the Merits Judges. The Court further ORDERS that the stay entered by the Court's November 21, 2008, order (docket # 1026, 08-mc-442) is LIFTED. December 16, 2008 /s/ Thomas F. Hogan United States District Judge 4

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