Taher v. Bush ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MOHAMMAD AL-ADAHI, et al., :
:
Petitioners, :
:
v. : Civil Action No. 05-280 (GK)
:
BARACK H. OBAMA, et al., :
:
Respondents. :
____________________________________:
:
RAFIQ BIN BASHIR BIN JALLUL :
ALHAMI, et al., :
:
Petitioners, :
:
v. : Civil Action No. 05-359 (GK)
:
BARACK H. OBAMA, et al., :
:
Respondents. :
____________________________________:
:
FARHI SAEED BIN MOHAMMED, :
et al., :
:
Petitioners, :
:
v. : Civil Action No. 05-1347 (GK)
:
BARACK H. OBAMA, et al., :
:
Respondents. :
____________________________________
:
JIHAD DHIAB, et al., :
:
Petitioners, :
:
v. : Civil Action No. 05-1457 (GK)
:
BARACK H. OBAMA, et al., :
:
Respondents. :
____________________________________:
:
HAMID AL RAZAK, et al., :
:
Petitioners, :
:
v. : Civil Action No. 05-1601 (GK)
:
BARACK H. OBAMA, et al., :
:
Respondents. :
____________________________________:
:
ALLA ALI BIN ALI AHMED, et al., :
:
Petitioners, :
:
v. : Civil Action No. 05-1678 (GK)
:
BARACK H. OBAMA, et al., :
:
Respondents. :
____________________________________:
:
MOHAMMED AHMED TAHER, et al., :
:
Petitioners, :
:
v. : Civil Action No. 06-1684 (GK)
:
BARACK H. OBAMA, et al., :
Respondents. :
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:
MUHAMMAD AHMAD ABDALLAH :
AL ANSI, et al., :
:
Petitioners, :
:
v. : Civil Action No. 08-1923 (GK)
:
BARACK H. OBAMA, et al., :
:
Respondents. :
APPENDIX A
CASE MANAGEMENT ORDER #31
As indicated in the accompanying Memorandum Order, the Court includes here a revised
version of Case Management Order #1. It integrates past clarifications and amendments.2
I.
A. Factual Returns.3 In accordance with Judge Hogan’s Order of July 29, 2008, as
amended by his Order of September 19, 2008, the Government shall file returns and proposed
amended returns containing the factual basis upon which it is detaining 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”).
B. Legal Justification. The Government shall file a succinct (one or two paragraph)
1
Changes or modifications of Case Management Orders #1 and #2 are in bold face.
2
In several instances in individual cases, specific Orders from the Court have altered
or over-ridden provisions of the CMO. Those Orders are not superceded by the issuance of CMO
#3.
3
When used in this Order, the term “factual return” refers to factual returns and
proposed amended factual returns filed pursuant to Judge Hogan’s Order of July 29, 2008, as
amended by his Order of September 19, 2008.
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statement explaining the specific legal grounds upon which it relies for detaining Petitioner. If the
Government’s justification for detention is Petitioner’s status as an enemy combatant, the
Government shall provide the definition of enemy combatant on which it relies. If the Government
has already filed a factual return, the legal justification is due within 14 days of the date of this
Order. In all other cases, the Government shall include the legal justification with the factual return.
C. Unclassified Factual Returns. By January 9, 2009, the Government 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 is to file the factual return.
D. Exculpatory Evidence.
1. The Government shall disclose to Petitioner all reasonably available evidence
in its possession that tends materially to undermine the information presented to support the
Government’s justification for detaining 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, torture, mental incapacity, or physical incapacity which could affect
the credibility and/or reliability of evidence being offered. In this context, the term “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
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. If the Government has already filed a factual return, disclosure of such
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exculpatory evidence shall occur within 21 days of the date of this Order. If the Government has not
yet filed a factual return, disclosure of such exculpatory evidence shall occur within 21 days of the
date on which it files the factual return. By the date on which disclosure is to occur under this
paragraph, the Government shall notify 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 Government’s
justification for detaining Petitioner. 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.
2. If evidence described in the preceding paragraph becomes known to the
Government after the date on which the Government is required to disclose exculpatory evidence
in Petitioner’s case, the Government shall provide the evidence to Petitioner as soon as practicable.
The Government bears a continuing obligation to update and supplement the evidence described in
the preceding paragraph.
E. Discovery.
1. If requested by Petitioner, the Government shall disclose to him: (1) any
documents or objects in its possession that the Government relies on to justify detention; (2) all
statements, in whatever form, made or adopted by Petitioner that the Government relies on to
justify detention; and (3) information 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]istrict courts have power to require discovery when essential to render a habeas
corpus proceeding effective.”); Bismullah v. Gates, 501 F.3d 178, 187 (D.C. Cir. 2007) (“we
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presume counsel . . . has a ‘need to know’ all Government Information concerning his [or her] client
. . . .”), reh’g denied, 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) (per curiam), reh’g. granted in part, Case No. 06-1197 (D.C. Cir.
Nov. 5, 2008) (per curiam) and deferred in part, Case No. 06-1197 (D.C. Cir. Nov. 5, 2008) (per
curiam). If the Government has already filed a factual return, requested disclosure shall occur within
21 days of the date on which Petitioner requests the disclosure. If the Government has not yet filed
a factual return, requested disclosure shall occur within 21 days of the date on which the Government
files the factual return or within 21 days of the date on which Petitioner requests disclosure,
whichever is later.
2. 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 narrowly
tailored, not open-ended; (2) specify the discovery sought; (3) explain why the request, if granted,
is likely to produce evidence that demonstrates that Petitioner’s detention is unlawful, see Harris,
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 illegally
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 will enable
Petitioner to rebut the factual basis for his detention without unfairly disrupting or unduly burdening
the Government. See Hamdi, 542 U.S. at 533 (holding that “a citizen-detainee seeking to challenge
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his classification as an enemy combatant must receive . . . a fair opportunity to rebut the
Government’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 filed no later than
14 days after completion of discovery pursuant to Section I. D and I. E of this Order.4
F. Classified Information. If any information to be disclosed to Petitioner under
Sections I.D. or I.E. of this Order is classified, the Government shall, unless granted an exception,
provide Petitioner’s counsel with the classified information, provided Petitioner’s counsel is cleared
to access such information. If the Government objects to providing Petitioner’s counsel with the
classified information, the Government shall move for an exception to disclosure. See Boumediene,
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 will use its discretion to
accommodate this interest to the greatest extent possible.”); CIA v. Sims, 471 U.S. 159, 175 (1985)
(“The Government has a compelling interest in protecting . . . the secrecy of information important
to our national security . . . .” (citation omitted)). Petitioner’s counsel may also move, on a case-
by-case basis, to demonstrate why it is necessary to provide Petitioner with an adequate
substitute for the classified information.
G. Traverse. In response to the Government’s factual return, Petitioner shall file a
traverse containing the relevant facts and evidence supporting the petition. See Boumediene, 128
4
In addition, Petitioner can, in an effort to further narrow any factual disputes,
file motions to compel, can request admissions and stipulations, can request certifications from
the Government regarding the adequacy of searches of materials, and can use the statements
of facts in dispute and not in dispute which must be submitted for hearings on the merits.
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S.Ct. at 2273 (“If a detainee can present reasonably available evidence demonstrating there is no
basis for his continued detention, he must have the opportunity to present this evidence to a habeas
corpus court.”); cf. Hamdi, 542 U.S. at 533 (holding that a “citizen-detainee seeking to challenge his
classification as an enemy combatant must receive . . . a fair opportunity to rebut the Government’s
factual assertions before a neutral decisionmaker.”). Traverses are due within 14 days of the date
on which the Government files notice relating to exculpatory evidence under § I. D.1 of this Order
or within 14 days of the date on which the Government filed the unclassified factual return,
whichever is later. The Petitioner may, for good cause, 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 Petitioner’s detention is lawful. Boumediene, 128 S.Ct. 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 will accord a
rebuttable presumption of authenticity, and only authenticity, to any statements or documentary
evidence the Government presents as justification for a Petitioner’s detention if the Government
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 military
conflict . . . . [For example,] the Constitution would not be offended by a presumption in favor of
the Government’s evidence, so long as that presumption remained a rebuttable one and fair
opportunity for rebuttal were provided.”); Boumediene, 128 S.Ct. at 2276 (“Certain accommodations
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can be made to reduce the burden habeas corpus proceedings will place on the military without
impermissibly diluting the protections of the writ.”). Any motion to rebut the presumption of
authenticity must be filed within 21 days from the date of this Order.
C. Hearsay. Petitioner or the Government may move to admit or exclude hearsay
evidence that is material and relevant to the legality of Petitioner’s detention. In ruling on such
motion, the Court will 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 sufficient 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 III. A 1 of
this Order. The party opposing admission shall respond to the motion within 3 days of its filing. If
the hearsay evidence is admitted, the party opposing admission will have the opportunity to
challenge the credibility of, and weight to be accorded, such evidence.
III.
A. Judgment on the Record.
1. Initial Briefs. Within 14 days after completion of discovery pursuant to
Section I. D and E, Petitioner and the Government shall file a brief in support of judgment on the
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record.5 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
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 filing of initial briefs, the parties shall
file 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 one 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 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. Statuses: On December 22, 2008, parties shall file a Joint Status Report
indicating their readiness for submission of briefs in support of judgment on the record.
5
Parties are encouraged to file their briefs at an earlier time, if discovery has been
completed. In that case, an earlier hearing date may be set.
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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, 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. Counsel shall appear for a prehearing conference
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. Petitioner will not have access to classified portions
of any evidentiary hearing. Through available technological means that are appropriate and
consistent with protecting classified information and national security, the Court will make all
reasonable efforts to provide Petitioner with access to unclassified portions of the hearing affecting
him.
SO ORDERED.
February __, 2009 /s/
Gladys Kessler
United States District Judge
Copies via ECF to all counsel of record
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