Batarfi v. Bush

• Court: District Court, District of Columbia
• Decided: March 13, 2009
• Docket: Civil Action No. 2005-0409
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_____________________________ ) AYMEN SAEED BATARFI, et al., ) ) Petitioners, ) ) ) Civ. No. 05–0409 (EGS) v. ) ) GEORGE W. BUSH, et al., ) ) Respondents. ) _____________________________ )

ORDER TO SHOW CAUSE

Upon consideration of the Petitioner’s Motion for

Supplemental Relief Regarding Government’s Compliance with

Discovery Order (“Petitioner’s Motion”), the government’s

opposition (“Government’s Response”), the Petitioner’s reply, and

the Petitioner’s Notice of Supplemental Authority Relevant to

Petitioner’s Motion, it is hereby

ORDERED that by no later than 12:00 p.m. on Tuesday, March

17, 2009, the government shall show cause why the government and

the attorneys for the government in this case should not be held

in contempt for failure to comply with this Court’s January 16,

2009 Order1 and this Court’s previous Orders to produce

exculpatory information. It is further

ORDERED that the government’s response shall include a

1 The Court’s initial Order was issued from the bench on January 16, 2009. It was later memorialized in a written Order dated January 29, 2009. See docket no. 162. declaration from the appropriate official at the Department of

Defense (“DOD”), a declaration from the appropriate official at

the Central Intelligence Agency, and a declaration from the

appropriate official at the Department of Justice (“DOJ”),

detailing (a) who within their agency and/or department conducted

a search or searches for exculpatory information relevant to

Petitioner’s detention; (b) when such search or searches

occurred; (c) what was searched; (d) where the searches occurred;

and (e) approximately how many pages of documents were searched.

It is further

ORDERED that the declaration from the Department of Justice

shall also include an explanation of (a) why the government

failed to comply with this Court’s Order to produce exculpatory

evidence and only belatedly produced the March 2002 Memorandum

cited in Petitioner’s Motion and attached to Petitioner’s Motion

as Exhibit 4; (b) why the government failed to comply with this

Court’s Order dated January 16, 2009 to file a declaration that

“Department of Justice attorneys have reviewed Petitioner’s

statements for exculpatory evidence and have produced or will

produce all statements containing exculpatory evidence to

Petitioner’s counsel”; and (c) a certification that the

attorney(s) conducting the review for exculpatory evidence are

familiar with the meaning of exculpatory evidence and the

principles set forth in Brady v. Maryland, 373, U.S. 83, 87

2 (1963), and its progeny. Petitioner has expressed concern that

the government is relying on DOD attorneys to conduct the review

for exculpatory evidence. Petitioner’s objection is that those

non-DOJ attorneys may not have the necessary experience with the

government’s obligations pursuant Brady and its progeny. That

concern, in part, prompted the Court’s January 16, 2009 Order

that a DOJ attorney file a declaration that s/he had reviewed the

evidence. The government’s declaration filed pursuant to that

Order indicates that the government continues to rely on DOD

attorneys for the initial review for exculpatory evidence.

Moreover, the Government’s Response to Petitioner’s Motion states

requiring a review process by attorneys with “Brady experience”

would mean that “only criminal prosecutors from DOJ would be

involved in the evidence review[,]” and that such a requirement

is “not feasible.” see Government’s Response at 3. The

government’s argument raises the disturbing implication that the

attorneys conducting the review in this and other habeas cases

(who presumably are not criminal prosecutors from DOJ) do not

have the necessary experience with and knowledge of the

government’s Brady obligations.

Petitioner has been incarcerated for more than seven years

without any adjudication; his liberty interests have been and

remain at stake; and through this habeas proceeding he is

exercising a right to challenge his detention founded in the

3 United States Constitution and recognized by the United States

Supreme Court. Any delegation of a review for exculpatory

evidence to attorneys who do not understand or are not familiar

with Brady and its progeny under these circumstances is

absolutely unacceptable and will not be tolerated. It is further

ORDERED that the Court Security Office is directed to

consult with the appropriate government agency or agencies to

conduct an expedited classification review of the Petitioner’s

Motion, the Government’s Response, the Petitioner’s Reply, and

the Petitioner’s Notice of Supplemental Authority Relevant to

Petitioner’s Motion, and to provide the Court and counsel with

unclassified versions of these pleadings suitable for filing on

the public docket, by no later than 5:00 p.m. on Tuesday, March

17, 2009. It is further

ORDERED that no extensions of time to comply with this Order

will be granted. Petitioner has been detained for more than

seven years. The exculpatory document belatedly produced, in

violation of this Court’s Order to produce exculpatory evidence

issued several months ago, was created by the government in March

2002. In its response to Petitioner’s Motion, the government

fails to offer even a single reason or excuse for the belated

production. The Court and counsel have expended extraordinary

resources to prepare for a merits determination in this case,

including extensive briefing and a hearing on Petitioner’s Motion

4 for Judgment on the Record. A merits hearing is now scheduled

for April 6, 2009. The Court will not tolerate any further delay

by the government, particularly in the face of a clear violation

of this Court’s Order to produce exculpatory evidence. It is

further

ORDERED that the remainder of the discovery matters raised

in Petitioner’s Motion shall be addressed at the Pretrial

Conference on March 19, 2009.

SO ORDERED.

SIGNED: Emmet G. Sullivan United States District Judge March 13, 2009