Khan v. Bush

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHAWALI KHAN, Petitioner, v. Civil Action No. 08-1101 (JDB) BARACK OBAMA, et al., Respondents.

ORDER

The Case Management Order (CMO) in this case imposes several discovery obligations

on respondents that are cabined by a "reasonably available" limitation. See Case Management

Order (Feb. 20, 2009) at § I.D (dkt. ent. #81). In response to respondents' arguments in other

habeas cases involving Guantanamo detainees that the "automatic" discovery obligations

imposed by section I.E of the CMO are unduly burdensome, the Court has interpreted section I.E

to be cabined by a similar limitation. See Zaid v. Obama, Civ.A.No. 05-1646, Orders on Feb. 9,

2009 and March 2, 2009. Respondents' obligations under both sections I.D and I.E are impacted

as well by President Obama's January 22, 2009 Executive Order, which directs 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. All executive branch departments and agencies shall promptly comply with any request of the Attorney General to provide information in their possession or control pertaining to any such individual.

See Exec. Order No. 13,492 at § 4(c)(1), 74 Fed. Reg. 4897 (Jan. 22, 2009). The Executive

Order will presumably add to the information that is reasonably available to respondents and may include information responsive to sections I.D. and I.E.

Consistent with the Court's approach in other Guantanamo habeas cases, it is hereby

ORDERED that the government file a status report in this case, in writing and on April 9, 2009,

advising whether the process outlined in section 4(c)(1) of the Executive Order has been

completed, whether additional information regarding petitioner has been gathered, and if not yet

complete, when the process is estimated to be done.1 The status report shall also advise whether

respondents have obtained additional information responsive to sections I.D or I.E of the CMO in

this case and whether all such information has been produced to petitioner. This approach should

allow petitioner's case to proceed with minimal burden to the government yet at the same time

enable petitioner to develop his case.

SO ORDERED.

/s/ JOHN D. BATES United States District Judge

Date: March 4, 2009

1 The Court does not know -- indeed, respondents themselves may not know -- whether the government intends to create new consolidated files for each petitioner or to supplement the existing consolidated files created by JTF-GTMO and OARDEC. Whatever course is taken, respondents should expect to review and report on the new information about petitioner, if any, that the process outlined in section 4(c)(1) of the Executive Order gathers.