HAMBALI v. OBAMA et al

Filing 38

CASE MANAGEMENT ORDER. See text of Order for details. Signed by Judge John D. Bates on 5/18/2012. (lcjdb1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RIDUAN BIN ISOMUDDIN HAMBALI,
Petitioner,
v.

Civil Action No. 10-407 (JDB)

BARACK H. OBAMA, et al.,
Respondents.

CASE MANAGEMENT ORDER
Pursuant to the joint motion filed by the parties on March 8, 2012, and consistent with the
standards set forth in Boumediene v. Bush, 128 S. Ct. 2229, 2275 (2008), Hamdi v. Rumsfeld,
542 U.S. 507, 539 (2004) (plurality), Latif v. Obama, 666 F.3d 746, 755, 767 (D.C. Cir. 2011),
the standards referenced in the Case Management Order entered by Judge Hogan on November
6, 2008 and revised on December 16, 2008, and the standards referenced elsewhere by this
Court, see, e.g., Dokhan, et al. v. Bush, Civ.A.No. 08-987, ECF No. 87, the Court enters the
following Case Management Order to govern proceedings in the above-captioned case.1
I.
A.

1

Public Version of the Factual Return. The government shall provide
petitioner's counsel with the proposed public version of the factual return, in
accordance with the procedure outlined in the joint motion for a case management
order. See Joint Mot. for Case Management Order [ECF 37] at 2 n.1. If the

This case-specific Case Management Order is independent of Case Management
Orders
entered in any other case, including the orders entered by Judge Hogan on November 6, 2008
and
December 16, 2008. Hence, any future modifications in other orders will have no impact on the
schedule of proceedings in the above-captioned matter. If the parties wish to request relief from
the schedule set forth in this order, they must file an appropriate motion before this Court.

public version of the factual return was not provided to petitioner by the date
specified in the joint motion, the government shall produce it by May 25, 2012.
B.

Legal Justification. This section intentionally left blank.

C.

Unclassified Factual Returns. This section intentionally left blank.

D.

Exculpatory Evidence.
1.

2.

E.

The government shall disclose to the petitioner all reasonably available
evidence in its possession that tends materially to undermine the
information presented to support the government's justification for
detaining the petitioner. In this context, the term "reasonably available
evidence" means evidence contained in any information reviewed by any
attorney preparing factual returns for any detainee; it is not limited to
evidence discovered by the attorneys 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. Disclosure of such exculpatory evidence shall occur by
not later than June 29, 2012. On that date, the government shall file a
notice certifying either that it has disclosed the exculpatory evidence or
that it does not possess any exculpatory evidence.
If evidence described in the preceding paragraph becomes known to the
government after the deadline for disclosure, the government shall provide
the evidence to the petitioner as soon as practicable.

Discovery.
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 about the circumstances
in which any statements of the petitioner were made or adopted, including
but not limited to any evidence of coercive techniques used during any
interrogation or any inducements or promises made. Respondents
represent that they have complied with these obligations. See Joint Mot.
for Case Management Order at 2 n.3.

2.

Petitioner may obtain limited discovery beyond that described in the
preceding paragraph in accordance with the following procedure.
Discovery requests shall be presented by written motion and (1) be
narrowly tailored, not open-ended; (2) specify precisely the discovery
sought; (3) explain why the request, if granted, is likely to produce
evidence that is exculpatory or that will demonstrate that the petitioner is

not an enemy combatant; and (4) explain why the requested discovery will
not unfairly disrupt or unduly burden the government. All motions for
additional discovery under this subsection must be filed by not later than
August 7, 2012. The government's opposition, if any, shall be filed by not
later than August 29, 2012, and Petitioner's reply shall be filed by
September 14, 2012.
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,
provide the petitioner's counsel with the classified information, provided the
petitioner's counsel is cleared to access such information. If the government
objects to providing the petitioner's counsel with the classified information, the
government shall move for an exception to disclosure.

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.
Petitioner's traverse shall be filed by not later than October 26, 2012. For good
cause shown, the petitioner may amend or supplement a filed traverse.
II.

A.

Burden and Standard of Proof. The government bears the burden of proving by
a preponderance of the evidence that the petitioner's detention is lawful.

B.

Presumption in Favor of the Government’s Evidence. The Court will accord a
rebuttable presumption of regularity to government records introduced by either
respondent or petitioner. Hence, absent rebuttal evidence, the Court will presume
that "the statements in a government record were actually made, [and that] the
government official accurately identified the source and accurately summarized
[the source's] statement." Latif v. Obama, 666 F.3d 746, 755, 767 (D.C. Cir.
2011) (internal quotation marks omitted). The Court will not, however, presume
that any underlying non-governmental source's statement is true. See id. The
presumption of regularity may be overcome by a preponderance of the evidence.
Any argument in support of a different burden of proof shall be presented in each
party's motion for judgment on the record.

C.

Hearsay. Upon the request of either the petitioner or the government, the Court
may consider hearsay evidence that is material and relevant to the legality of the
petitioner's detention. Requests to admit hearsay evidence shall be presented in
each party's motion for judgment on the record. If the Court admits hearsay
evidence, the party opposing admission will have the opportunity to challenge the
credibility of, and weight to be accorded, such evidence.

A.

Judgment on the Record.

III.

1.

Status Report; Schedule of Briefs. The parties shall file a joint status
report on or before November 16, 2012 to propose a schedule for filing
motions for judgment on the record and for a merits hearing.

2.

Contents of Briefs.
(a) Initial Briefs. Each motion or cross-motion for judgment on the record
shall address both the factual basis and the legal justification for detention,
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.
(b) Response Briefs. Each response brief shall be accompanied by a
factual response statement that either admits or controverts each fact
identified in the opposing party's statement of material facts as to which
there is no genuine dispute. The factual response shall cite to the specific
portions of the record that support the party’s contention that a material
fact is in genuine dispute. 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 a statement of material facts
are admitted unless controverted in the factual response.
(c) Page Limitations. (i) Initial briefs in support of a motion for judgment
on the record or cross-motion for judgment on the record shall not exceed
45 pages, excluding the statement of material facts. (ii) Oppositions to
motions for judgment on the record shall not exceed 35 pages. (iii) Reply
briefs shall not exceed 20 pages.

3.

B.

Hearing. A hearing on the motions for judgment on the record will be
scheduled by the Court if necessary.

Evidentiary Hearing.
1.

Basis for a Hearing. If, after reviewing the parties' briefs for judgment on
the record, the Court determines that substantial issues of material fact
preclude final judgment based on the record, the petitioner is entitled to an
evidentiary hearing.

2.

Prehearing Conference. Counsel shall appear for a prehearing
conference on a date to be determined that will be not later than three
business days prior to the evidentiary hearing. The parties shall be
prepared to discuss and narrow the issues to be resolved at the hearing,
discuss evidentiary issues that might arise at the hearing, identify
witnesses and documents that they intend to present at the hearing, and
discuss the procedures for the hearing.

3.

Petitioner’s Presence. The petitioner will not have access to classified
portions of the hearing. Through available technological means that are
appropriate and consistent with protecting classified information and
national security, the Court will provide the petitioner with access to
unclassified portions of the hearing.

SO ORDERED.
/s/
John D. Bates
United States District Judge

Dated: May 18, 2012