IN RE: GUANTANAMO BAY DETAINEE LITIGATION

Filing 1372

STATUS REPORT Joint Status Report on CMO Re: Abdul Zahir by GEORGE W. BUSH, DONALD RUMSFELD, JAY HOOD, MICHAEL BUMGARNER. (Westby, Jane)

Download PDF
I N RE: GUANTANAMO BAY DETAINEE LITIGATION D o c . 1372 IN THE UNITED STATESDISTRICT COURT F O R THE DISTRICT OF COLUMBIA ABDT]L ZAHIR, Petitioner, v. G E O R G EW. BUSH,et ø1., Respondents. _) ) ) ) ) ) ) Civil Action No. ) ) (RwR) 0s-cv-r623 ì ) J O I N T STATUS REPORT ON CASE MANAGEMENT ISSUES P U R S U A N T TO COURT'S ORDER OF DECEMBER 3. 2OO8 In accordance with this Court's Minute Order dated December3, 2008, the parties respectfully submit this joint statusreport in compliance with that order and to note Petitioner's and the Government'scurrent position concerningthe case proceduresthat should govern this matter. management On November 18. 2008. the Governmentmoved for clarification and r e c o n s i d e r a t i o n JudgeHogan'sNovember6,2008, CaseManagement of Order ("CMO"), or in the alternative, for certification of the CMO for appealpursuantto 28 U . S . C .$ 1292(b). SeeDIc-.940 Civ. No. 08-m-0442. OnNovember21,2008,Judge in Hogan stayedcertain aspectsof the parties' obligations under his preliminary CMO, and JudgeHogan's Order was enteredfor the above-captioned caseon this same date. See Dkt. 160. JudgeHogan conducteda hearing on the Government's motion for clarification and reconsiderationon December 10. Dockets.Justia.com On December16,2008, JudgeHogan issuedan Order grantingin part and denying in part the Government'smotion for clarification and reconsideration ( " D e c e m b e r16 Order"). Dkt. 180. The December16 Order revisedthe CMO's provision regarding disclosureof exculpatoryevidence,modified the required "automatic discovery" disclosures,modified the disclosurerequirementregarding classifiedmaterialsproduced in accordance with the Government's exculpatory evidenceor automaticdiscovery obligations, and modified the deadlinesfor filing the Petitioner's traverse. Seeid. at2-3. JudgeHogan also adjustedthe deadlinesfor filing unclassified factual returns, lifted the stay enteredby his November 2l Order, and ordered that any future motions to amendthe CaseManagementOrder be directedto t h e Merits Judges.Seeid. at2,4. Government's Position The Governmentis reviewing JudgeHogan's December l6 Order and is consulting with its agency clients to determineboth our ability to comply with the revised CaseManagementOrder and whether it is necessary seekfunher to modifications from this Court. The Governmenthad previously statedits concernswith r e s p e c tto the November6,2008 CMO, both in its November 18, 2008 motion for reconsiderationand clarification and in this matter on November 26" 2008 in Respondents'Memorandum in Response Court's Order of November 6, 2008 to ( " R e s p o n d e n t sNovember26 Memorandum"). SeeDI<t.163.Although the December ' l6 Order grantedsome of the relief requested the Government,it deniedother by a requests, and the Governmentis not in a position at this writing to statewhat other modifications, if an¡ may be necessary.We anticipate,however, that after consulting with the affected agenciescounselwill be in a betterposition to discusstheseissuesat the statusconferenceto be scheduledin this matter. The Governmenthas,however, identified two specific issuesthat canbe brought to the Court's attention today. First, the Governmentrespectfully notesthat it is in the processof evaluatingwhether it will be able to comply with the December30 deadline put in place by Judge Hogan's December16 Order for the production of exculpatory evidencein all coordinatedcasesin which factual returns have alreadybeen filed. Second,and on a related point, given JudgeHogan'sorder that further motions to amend the CMO be directed to the Merits Judges,the Governmentanticipatesthat a similar situation may occur frequently in the future -- i.e., that individual casemanagement ordersfrom the Merits Judgesmay lead to significant deadlinesbeing imposedin large numbersof casesessentiallysimultaneously. As explained in Respondents'November 26Memorandum, the imposition of simultaneous, unstaggereddeadlineswill make impracticablethe Government'scompliancewith all of its obligations to all of the judges on this Court. SeeDI<t.163 at 6-7. In order to ensurethat its obligations in all of thesehabeascasesare met without compromisingits interests,the Governmenthad requested that JudgeHogan scheduleproceedingsfor 25 casesper month. Seeid. Given that JudgeHogan did not addresssuch sequencingin the December 16 Order, the -3- Governmentexpectsto requestthat the individual Merits Judgesadopt a sequencing approachto the casespending in their courts. P u r s u a n t this Court's December3,2008, Order,the government available to is f o r statusconference weeksof December29,2008, and January5,2009. the P E T I T I O N E R ' S POSITION AND REPORT. With reference JudgeHogan's to CaseManagementOrder, as clarified on December16, 2008 (as so clarified, the "CMO"), the Petitioner reports that: l. SectionI.A of the CMO reads:"... tlte government shallfile returnsand proposed amendedreturns containing thefactual basis upon whích it ís detaining thepetitioner." The governmenthas filed the amendedfactual return required by SectionI.A. 2. SectionI.B of the CMO reads: "Thegovernment shallfile a succinctstatement explaíning its legaljustificationfor detaining thepetitioner. If the government's justificatìonfor detention is thepetitioner's status as an enemycombatant,the government shall provide the definition of enemycombatanton which it relies." Petitioner'scounsel has on two occasionsreviewed the amendedfactual return, which can only be reviewed at the Court Security Officer's SecureFacility in Arlington, Virginia. Counsel is not allowed to copy the amendedfactual return, nor is he allowed to take notes made in corurectionwith the amendedfactual return with him. Counsel cannot statewith assurance today whether the Legal Justification for Petitioner's detentionwas included with the Amended Factual -4- Return. If it was included, Counseldoes not recall whether thatLegal Justification was petitioner's statusas an enemycombatantand, if it was, whether a definition of "enemy combatant"was included. 3. SectionLC of the CMO reads: "By January 9, 2008, the government shallfile an unclassifiedversion of eachfactual return it hasfiled to date." The governmenthas f,rledan unclassifiedversion of the amendedfactual refurn. 4. SectionI.D of the CMO reads: "The governmentshall discloseto thepetitioner all reasonablyavailable evidencein itspossessionthat tendsmaterially to underrninethe information presented to support the government'sjustìficatíon þr detaining thepetitioner. ... In thís context,the term "reasonably avaílable evidence" meansevidencecontained in any information reviewed by attorneys preparíngfactual returnsþr all detøinees;it is not lìmited to evidence discoveredby the attorneyspreparing thefactual returnfor thepetitioner." The governmenthas not disclosedany exculpatoryevidenceto the petitioner. 5. Section1.E.1of the CMO reads: "If requested thepetitioner, the government by shall discloseto thepetitioner (I) any documentsand objects in the government'spossessionthat the governmentrelies on to justify detention; (2) all statements, whateverform, made or adoptedby thepetitioner that the in governmentrelies on tojustify detention; and (3) information about the circumstancesin which such statementsof thepetitioner were made or adopted." -5- On December 18, 2008 the petitioner requested that the governmentprovide thesedisclosures. The time within which the governmentmust respondto the requesthas not expired. 6. Section1.E.2of the CMO reads:"TheMerits Judge may,þr good cause, permit thepetitíoner to obtain limited discovery beyondthat descríbedin thepreceding paragraph [i.e. I.E. lJ ." The petitioner will requestthat he be permitted to obtain particulanzed discovery b e y o n dthat described paragraph in 1.E.1of the CMO. The requestwill be filed promptly after petitioner's counselreviews the amendedfactual return and related filings one more time at the CSO's SecureFacility in Arlington, Virginia. P e t i t i o n e rexpectsto file this requestno later than December31, 2008. 7. Petitioner is not able at this time to anticipatethe results of the Respondents' evaluationof its ability to comply with its obligation to provide exculpatory e v i d e n c e December30, 2008. by 8. Petitioner'scounselcan be availablefor statusconferencein personin the week o f December29,2008, and with leaveof court by telephonethe week of January 5,2009. SIGNATURE PAGE FOLLOWS -6- Dated: December 2008 22, Respectflly submitted, u G R E G O R Y KATSAS G. AssistanAttorneyGeneral t J O H NC. O'QUINN D e p u t yAssistant AttorneyGeneral /s/ JaneL. Westb)¡for JamesSmart J O S E P H HLINT(D.C.Bar No. 431134) H. V I N C E N TM. GARVEY (D.C.BarNo. l27l9l\ TERRYM. HENRY ANDREW I. WARDEN PAUL E. AHERN JAMES SMART Attorneys United States Department Justice of Civil Division,Federal Programs Branch 2 0 Massachusetts Avenue, N.W. Washington, D.C. 20530 T e t :(202)30s-3961 F a x :(202)616-8470 Attorneys Respondents for R O B E R TA. GENSBURG P . O .Box 248 S t .Johnsbury, 05819 VT Tet: (802)748-5338 Fax: (802)748-1673 Attorneyfor Petitioner /s/ RobertA. Gensburg -7-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?