Al Odah v. USA

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FAWZI KHALED A.F. AL ODAH, et al.,

Petitioners,

v. Civil Action No. 02-828 (CKK) UNITED STATES,

Respondents.

ORDER SUPPLEMENTING THE COURT’S JANUARY 7, 2009 SCHEDULING ORDER (April 7, 2009)

The parties have filed a Joint Status Report indicating their agreement that merits

hearings are appropriate for each of the four Petitioners in the above-captioned case. As a

supplement to its January 7, 2009 Scheduling Order, the Court sets forth herein additional

deadlines in anticipation of further proceedings.

Accordingly, it is, this 7th day of April, 2009, hereby ORDERED as follows:

1) Motions. On or before April 10, 2009, the parties shall submit a Joint Status Report

that includes a proposed briefing schedule for the following items:

! Motions in Limine, which concern evidentiary issues in connection with Petitioners’ merits hearings, which would include motions to exclude specific types of evidence (including dates for oppositions and replies); and

! Legal Motions, which concern non-evidentiary issues, such as the “presumption in favor of the Government’s evidence” or “hearsay,” as contemplated in Section II of the Case Management Order, as amended (including dates for oppositions and replies). 2) Stipulations. The parties’ April 10, 2009 Joint Status Report shall include a proposed

date by which the parties shall notify the Court as to whether they have reached any stipulations

in connection with Petitioners’ merits hearings, and to the extent no stipulations have been

reached, the date by which the parties shall so inform the Court.

3) Standard for Determining Legality of Detention. The parties shall confer regarding

the proper standard for determining the legality of Petitioners’ detention. The Court is aware that

Respondents filed a memorandum on March 13, 2009, refining its position with respect to its

authority to detain those persons who are now being held at Guantanamo Bay. The Court is also

aware that Petitioners have suggested a different standard in their consolidated traverses, but that

their traverses subsequently appear to apply the Government’s standard for detention.1 To the

extent the parties are proposing that the Court apply different standards for the legality of

Petitioners’ detention, the parties shall include a proposed briefing schedule on this issue in their

April 10, 2009 Joint Status Report.

4) Redacted Information in Classified Factual Returns. Following a preliminary

review of Petitioners’ Traverses, it appears that certain information in the exhibits attached to the

classified factual returns has been redacted and made unavailable to the Court and to Petitioners’

counsel, even though certain of Petitioners’ arguments appear to directly implicate the

1 The Court is unclear as to whether Petitioners are accepting the Government’s standard for “present purposes only,” and if so, what implications are associated with that position. For example–as a hypothetical and not expressing any view as to the merits of Petitioners’ detention–if the Court were to apply the Government’s standard and the Government prevailed, would Petitioners then move for new merits hearings pursuant to the definition they have offered? If so, it would appear that the Court needs to resolve the parties’ dispute concerning the proper scope of the Government’s detention authority prior to the merits hearings in order for the merits hearing to produce final decisions.

2 information. See, e.g., Consol. Traverses at 31, 54. Because the redacted information appears

relevant and potentially helpful to Petitioners’ defense, it also appears to the Court that the

redactions implicate the D.C. Circuit’s decision in Al Odah v. United States, 2009 U.S. App.

LEXIS 4538 (D.C. Cir. Mar. 6, 2009). Accordingly, the parties shall confer and include a

proposed schedule for briefing the issues associated with these redactions in their April 10, 2009

Joint Status Report, except if (i) Petitioners are willing to withdraw any arguments implicating

the information that has been redacted from the classified factual returns, or (ii) Respondents are

willing to disclose the redacted information that is implicated by Petitioners’ arguments.

5) Executive Order 13,492. President Barack H. Obama recently issued Executive

Order 13,492, directing the Attorney General to “[a]ssemble all information in the possession of

the Federal Government that pertains to any individual currently detained at Guantanamo and

that is relevant to determining the proper disposition of any such individual.” To the extent that

materials relating to Petitioners have been collected or otherwise assembled in connection with

this Executive Order (or that will be collected or otherwise assembled), such materials shall be

produced to Petitioners’ counsel, provided such materials were not previously reviewed or

produced by Respondents’ counsel in connection with any of their disclosure and discovery

obligations under the Case Management Order, as amended, or the Court’s subsequent discovery

orders. This obligation shall be immediate and ongoing.

SO ORDERED.

Date: April 7, 2009

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge