Taher v. Bush

Opinion

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. :

-2- : 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 Those Orders are not superceded by the issuance of CMO #3. 3 When used in this Order, the term “factual return” refers to factual returns and proposed amended factual returns filed pursuant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.

-3- 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

-4- 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

-5- 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

-6- 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.

-7- 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

-8- 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

-9- 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.

-10- 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

-11-