UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_____________________________ ) AHMED ZAID SALEM ZUHAIR, ) ) Petitioner, ) ) ) Civ. No. 08-0864 (EGS) v. ) ) GEORGE W. BUSH, et al., ) ) Respondents. ) _____________________________ )
ORDER
To the extent that this Order conflicts with any Order
issued in this case on April 30, 2009, this Order supercedes the
previous Order. Pursuant to the motions hearing held in open
court on April 30, 2009, and upon consideration of a number of
motions and pleadings pending before the Court, the oppositions
thereto, and the replies in support thereof, and based on the
Court’s continuing efforts to provide the Petitioner with a
timely resolution of his pending habeas corpus petition, while at
the same time respecting and protecting any compelling national
security interests, it is hereby
ORDERED that the government’s ex parte motion for
reconsideration regarding the government’s obligation to produce
certain exculpatory evidence related to the allegations withdrawn
from the factual return is GRANTED. It is further
ORDERED that the government shall produce all discovery it has agreed to produce to the Petitioner, specifically, RFP
Numbers 1 - 6, 8 - 10, 17 - 22, 26 - 42, 47, and 48. It is
further
ORDERED that the information responsive to those discovery
requests shall be produced on a rolling basis, but that
production shall conclude by no later than May 30, 2009, the date
suggested by the government. The Court accepts counsel’s
representations that the government is working in good faith to
provide the relevant discovery as quickly as possible. It is
ORDERED that the government shall conduct a search of all
reasonably available databases and sources of information for
exculpatory and/or impeachment evidence pertaining to all fact
witnesses relied upon by the government in its factual return.
The search must include the databases referenced in Mr. Terry
Henry’s March 27, 2009 Declaration, and any additional reasonably
available databases or sources where the information would likely
be found. The production must also include any exculpatory
and/or impeachment information discovered by the government
attorneys while preparing the factual return and while litigating
habeas corpus petitions filed by other detainees at Guantanamo
Bay, as well as any evidence discovered during the ongoing review
of Guantanamo cases ordered by President Obama on January 22,
2009. Exculpatory evidence includes, but is not limited to,
2 evidence that casts doubt on a speaker’s credibility, evidence
that undermines the reliability of a witness’s identification of
the petitioner, and/or evidence that indicates a statement is
unreliable because it is the product of abuse, torture, and/or
mental or physical incapacity. It is further
ORDERED that the exculpatory and/or impeachment evidence
regarding the government’s fact witnesses shall be produced by no
later than May 30, 2009. In order to carry out the Court’s
judicial obligations to determine the lawfulness of Petitioner’s
detention, the Court must evaluate the credibility and
reliability of the government’s evidence relied upon to justify
his detention. The government filed its factual return in August
2008, which included information from several fact witnesses.
The government was ordered to produce exculpatory evidence in
October 2008. There have been countless discussions, motions,
and orders pertaining to the production of exculpatory evidence
since that time. Moreover, some exculpatory evidence pertaining
to these fact witnesses has been produced in other habeas cases.
Therefore, it is reasonable to require the production of all such
information by May 30, 2009. It is further
ORDERED that with respect to RFP Numbers 11 - 15 and 43 -
45, the government shall certify to the Court by no later than
May 30, 2009, that an appropriate official(s) with the requisite
understanding of the law and facts pertaining to this case has
3 reviewed the unredacted documents and determined that there is no
additional information in the documents that is relevant to
Petitioner’s case. Any relevant information shall be produced to
the Petitioner’s counsel by no later than May 30, 2009. It is
ORDERED that by no later than May 30, 2009, the evidence
requested in RFP Numbers 16, 23 - 25, and 49 shall be produced or
made available for inspection if it is in the government’s
possession. It is further
ORDERED that any remaining RFPs are DENIED without prejudice
subject to a motion for reconsideration setting forth the
specific reasons that Petitioner believes the requested
information is critical to a merits determination and, if
appropriate, a proffer as to why the Petitioner has a good faith
basis to believe such evidence exists. Petitioner is cautioned
that any such motion will almost certainly result in a delay of
the merits hearing date established by this Order. It is further
ORDERED that any motions for reconsideration of this Order
shall be filed by May 8, 2009, responses by May 13, 2009, and
replies by May 15, 2009. It is further
ORDERED that the procedural and legal framework for the
merits hearing will be as follows:
1. The government bears the burden of proof by a preponderance of the evidence that the Petitioner’s detention is lawful.
2. There will be a rebuttable presumption of authenticity as to
4 any statements or documentary evidence the government presents if the government establishes that the presumption is necessary to alleviate an undue burden presented by this particular case. Petitioner will be afforded an opportunity to rebut the presumption.
3. Upon the request of either the Petitioner or the government, the Court may admit and consider hearsay evidence that is material and relevant to the legality of the Petitioner’s detention, if the movant establishes that the hearsay evidence is reliable and that the presentation of evidence in compliance with the Federal Rules of Evidence would unduly burden the movant or pose an unwarranted risk to national security. The party opposing admission will have the opportunity to challenge the credibility of, or weight to be accorded, such evidence.
4. As for the structure of the merits hearing, the government will go first, because it bears the burden of proof, followed by the Petitioner, and the government will be afforded the opportunity to put on a rebuttal case. Because counsel have more familiarity with the merits hearings that have been done in other cases, the Court welcomes their suggestions for conducting a hearing under these unique circumstances.
5. Petitioner will not have access to classified portions of the hearing. However, the parties are directed to structure their presentation of argument and evidence to afford the Petitioner access to non-classified portions of the hearing to the greatest extent possible. Petitioner will be afforded the opportunity to testify, if he so chooses. The Court Security Office is directed to work with counsel and the appropriate agencies to ensure that counsel have a secure line of communication with their client at all times during the proceedings.
It is further
ORDERED that pursuant to the hearing on April 30, 2009, the
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_____________________________ ) AHMED ZAID SALEM ZUHAIR, ) ) Petitioner, ) ) ) Civ. No. 08-0864 (EGS) v. ) ) GEORGE W. BUSH, et al., ) ) Respondents. ) _____________________________ )
ORDER
To the extent that this Order conflicts with any Order
issued in this case on April 30, 2009, this Order supercedes the
previous Order. Pursuant to the motions hearing held in open
court on April 30, 2009, and upon consideration of a number of
motions and pleadings pending before the Court, the oppositions
thereto, and the replies in support thereof, and based on the
Court’s continuing efforts to provide the Petitioner with a
timely resolution of his pending habeas corpus petition, while at
the same time respecting and protecting any compelling national
security interests, it is hereby
ORDERED that the government’s ex parte motion for
reconsideration regarding the government’s obligation to produce
certain exculpatory evidence related to the allegations withdrawn
from the factual return is GRANTED. It is further
ORDERED that the government shall produce all discovery it has agreed to produce to the Petitioner, specifically, RFP
Numbers 1 - 6, 8 - 10, 17 - 22, 26 - 42, 47, and 48. It is
further
ORDERED that the information responsive to those discovery
requests shall be produced on a rolling basis, but that
production shall conclude by no later than May 30, 2009, the date
suggested by the government. The Court accepts counsel’s
representations that the government is working in good faith to
provide the relevant discovery as quickly as possible. It is
ORDERED that the government shall conduct a search of all
reasonably available databases and sources of information for
exculpatory and/or impeachment evidence pertaining to all fact
witnesses relied upon by the government in its factual return.
The search must include the databases referenced in Mr. Terry
Henry’s March 27, 2009 Declaration, and any additional reasonably
available databases or sources where the information would likely
be found. The production must also include any exculpatory
and/or impeachment information discovered by the government
attorneys while preparing the factual return and while litigating
habeas corpus petitions filed by other detainees at Guantanamo
Bay, as well as any evidence discovered during the ongoing review
of Guantanamo cases ordered by President Obama on January 22,
2009. Exculpatory evidence includes, but is not limited to,
2 evidence that casts doubt on a speaker’s credibility, evidence
that undermines the reliability of a witness’s identification of
the petitioner, and/or evidence that indicates a statement is
unreliable because it is the product of abuse, torture, and/or
mental or physical incapacity. It is further
ORDERED that the exculpatory and/or impeachment evidence
regarding the government’s fact witnesses shall be produced by no
later than May 30, 2009. In order to carry out the Court’s
judicial obligations to determine the lawfulness of Petitioner’s
detention, the Court must evaluate the credibility and
reliability of the government’s evidence relied upon to justify
his detention. The government filed its factual return in August
2008, which included information from several fact witnesses.
The government was ordered to produce exculpatory evidence in
October 2008. There have been countless discussions, motions,
and orders pertaining to the production of exculpatory evidence
since that time. Moreover, some exculpatory evidence pertaining
to these fact witnesses has been produced in other habeas cases.
Therefore, it is reasonable to require the production of all such
information by May 30, 2009. It is further
ORDERED that with respect to RFP Numbers 11 - 15 and 43 -
45, the government shall certify to the Court by no later than
May 30, 2009, that an appropriate official(s) with the requisite
understanding of the law and facts pertaining to this case has
3 reviewed the unredacted documents and determined that there is no
additional information in the documents that is relevant to
Petitioner’s case. Any relevant information shall be produced to
the Petitioner’s counsel by no later than May 30, 2009. It is
ORDERED that by no later than May 30, 2009, the evidence
requested in RFP Numbers 16, 23 - 25, and 49 shall be produced or
made available for inspection if it is in the government’s
possession. It is further
ORDERED that any remaining RFPs are DENIED without prejudice
subject to a motion for reconsideration setting forth the
specific reasons that Petitioner believes the requested
information is critical to a merits determination and, if
appropriate, a proffer as to why the Petitioner has a good faith
basis to believe such evidence exists. Petitioner is cautioned
that any such motion will almost certainly result in a delay of
the merits hearing date established by this Order. It is further
ORDERED that any motions for reconsideration of this Order
shall be filed by May 8, 2009, responses by May 13, 2009, and
replies by May 15, 2009. It is further
ORDERED that the procedural and legal framework for the
merits hearing will be as follows:
1. The government bears the burden of proof by a preponderance of the evidence that the Petitioner’s detention is lawful.
2. There will be a rebuttable presumption of authenticity as to
4 any statements or documentary evidence the government presents if the government establishes that the presumption is necessary to alleviate an undue burden presented by this particular case. Petitioner will be afforded an opportunity to rebut the presumption.
3. Upon the request of either the Petitioner or the government, the Court may admit and consider hearsay evidence that is material and relevant to the legality of the Petitioner’s detention, if the movant establishes that the hearsay evidence is reliable and that the presentation of evidence in compliance with the Federal Rules of Evidence would unduly burden the movant or pose an unwarranted risk to national security. The party opposing admission will have the opportunity to challenge the credibility of, or weight to be accorded, such evidence.
4. As for the structure of the merits hearing, the government will go first, because it bears the burden of proof, followed by the Petitioner, and the government will be afforded the opportunity to put on a rebuttal case. Because counsel have more familiarity with the merits hearings that have been done in other cases, the Court welcomes their suggestions for conducting a hearing under these unique circumstances.
5. Petitioner will not have access to classified portions of the hearing. However, the parties are directed to structure their presentation of argument and evidence to afford the Petitioner access to non-classified portions of the hearing to the greatest extent possible. Petitioner will be afforded the opportunity to testify, if he so chooses. The Court Security Office is directed to work with counsel and the appropriate agencies to ensure that counsel have a secure line of communication with their client at all times during the proceedings.
It is further
ORDERED that pursuant to the hearing on April 30, 2009, the
Petitioner is directed to file a pleading on the scope of
authority by no later than May 8, 2009, addressing the
government’s revised definition of an enemy combatant, Judge
Walton and Judge Huvelle’s opinions on this issue cited during
5 the hearing, and any other relevant points and authorities. The
government’s response shall be filed by no later than May 15,
2009. The Petitioner’s reply shall be filed by no later than May
20, 2009. It is further
ORDERED that a Merits Hearing is scheduled for June 30, 2009
at 10:00 a.m. Any additional motions shall be filed by no later
than noon on June 8, 2009, all responses by noon on June 15,
2009, and all replies by noon on June 18, 2009. The government’s
witness and exhibit lists shall be filed by June 8, 2009, and the
Petitioner’s witness and exhibit lists shall be filed by June 15,
2009. It is further
ORDERED that upon consideration of the evaluation and report
submitted by Dr. Emily Keram on April 29, 2009, in which Dr.
Keram identifies certain medical reasons that the use of the
restraint chair during enteral feedings is detrimental to
Petitioner’s health, and in view of the fact that for more than
two months Petitioner’s feedings have taken place in a hospital
bed, the government shall provide notice to the Court if at any
time the government intends to resume use of the restraint chair
during Petitioner’s enteral feedings, and articulate the reasons
for that decision.
SO ORDERED.
SIGNED: Emmet G. Sullivan United States District Judge May 1, 2009