Abd Al Sattar v. Bush ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MUIEEN ADEEN JAMAL ADEEN ABD
AL FUSAL ABD AL SATTAR,
Petitioner,
v. Civil Action No. 08-1236 (JDB)
BARACK OBAMA, et al.,
Respondents.
CASE MANAGEMENT ORDER
Pursuant to the status hearing held on February 11, 2009, consistent with the standards
set forth in Boumediene v. Bush, 128 S. Ct. 2229, 2275 (2008), and Hamdi v. Rumsfeld, 542 U.S.
507, 539 (2004) (plurality), the standards referenced in the Case Management Order entered by
Judge Hogan on November 6, 2008 and revised on December 16, 2008, and the standards
referenced by this Court on December 22, 2008, see, e.g., Hamlily v. Obama, Civ.A.No. 05-
0763, the Court enters the following Case Management Order to govern proceedings in the
above-captioned case.1
I.
A. Declassified Factual Returns. By not later than February 25, 2009, petitioner
shall file a statement identifying the portions of the unclassified factual return and
attachments thereto that he seeks to have declassified. Petitioner must provide a
reasonable basis to assert that any item should be declassified, and under the
heading "High Priority Items," petitioner shall identify the items he considers
most important to his ability to present his defense. By not later than March 25,
2009, the government shall file the declassified return. The government shall
provide a justification for each item it has determined not to declassify.
B. This section intentionally left blank.
1
This case-specific Case Management Order is independent of Case Management Orders
entered in any other case, including the orders entered by Judge Hogan on November 6, 2008
and December 16, 2008. Hence, any future modifications in other orders will have no impact on
the schedule of proceedings in the above-captioned matter. If the parties wish to request relief
from the schedule set forth in this order, they must file an appropriate motion before this Court.
C. This section intentionally left blank.
D. Exculpatory Evidence.
1. The government shall disclose to the petitioner all reasonably available
evidence in its possession that tends materially to undermine the
information presented to support the government's justification for
detaining the petitioner. In this context, the term "reasonably available
evidence" means evidence contained in any information reviewed by any
attorney preparing factual returns for any detainee; 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. Disclosure of such exculpatory evidence shall occur by
not later than March 12, 2009. On that date, 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 deadline for disclosure, the government shall provide
the evidence to the petitioner as soon as practicable.
E. Discovery.
1. If requested by the petitioner, the government shall disclose to the
petitioner (1) any documents and objects in the government's possession
that the government relies on to justify detention; (2) all statements, in
whatever form, made or adopted by the petitioner that the government
relies on to justify detention; and (3) information about the circumstances
in which any statements of the petitioner were made or adopted, including
but not limited to any evidence of coercive techniques used during any
interrogation or any inducements or promises made.2 Disclosure requests
shall be made in writing by not later than February 18, 2009. Disclosure
shall occur by not later than March 12, 2009.
2. Petitioner may obtain limited discovery beyond that described in the
preceding paragraph in accordance with the following procedure.
Discovery requests shall be presented by written motion and (1) be
narrowly tailored, not open-ended; (2) specify precisely the discovery
sought; (3) explain why the request, if granted, is likely to produce
2
To the extent the parties require clarification as to the scope of section I.E.1(2), they
should refer to the Court's February 9, 2009 order in Zaid v. Obama, Civ.A.No. 05-1646 (dkt.
ent. #147).
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evidence that is exculpatory or that will demonstrate that the petitioner is
not an enemy combatant; and (4) explain why the requested discovery will
not unfairly disrupt or unduly burden the government. All motions for
additional discovery under this subsection must be filed by not later than
April 3, 2009. The government's opposition, if any, shall be filed by not
later than April 14, 2009. All discovery shall be provided by not later
than May 14, 2009, or as ordered by the Court.
F. Classified Information. If any information to be disclosed under Sections I.D or
I.E of this Order is classified, the government shall, unless granted an exception,
provide the petitioner's counsel with the classified information, provided the
petitioner's counsel is cleared to access such information. If the government
objects to providing the petitioner's counsel with the classified information, the
government shall move for an exception to disclosure.
G. Traverse. In response to the government's factual return, the petitioner shall file
a traverse containing the relevant facts and evidence supporting the petition.
Petitioner's traverse shall be filed by not later than June 4, 2009. For good cause
shown, the petitioner may amend or supplement a filed traverse.
H. Meet-and-Confer Requirements; Status Hearing. The parties shall meet-and-
confer and file a status report by not later than June 16, 2009 for the purpose of
narrowing the factual matters in dispute. A status hearing to review the factual
record will then be held on June 23, 2009 at 9:00 A.M. in Courtroom 8.
II.
A. Burden and Standard of Proof. The government bears the burden of proving by
a preponderance of the evidence that the petitioner's detention is lawful. Any
argument in support of a different burden of proof shall be presented in each
party's motion for judgment on the record in accordance with the schedule set
forth in Section III.
B. Presumption in Favor of the Government's Evidence. The Court may accord a
rebuttable presumption of accuracy and authenticity to any evidence the
government presents as justification for the petitioner's detention if the
government establishes that the presumption is necessary to alleviate an undue
burden presented in this habeas corpus proceeding. If the Court determines that a
presumption is warranted, the petitioner will receive notice of the presumption
and an opportunity to rebut it. Argument, if any, in support of a different
evidentiary presumption or process shall be presented in each party's motion for
judgment on the record in accordance with the schedule set forth in Section III.
C. Hearsay. 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 the evidence in compliance with
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the Federal Rules of Evidence would unduly burden the movant or pose an
unwarranted risk to national security. Requests to admit hearsay evidence shall
be presented in each party's motion for judgment on the record in accordance with
the schedule set forth in Section III. If the Court admits hearsay evidence, 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. Schedule of Briefs. The government's motion for judgment on the record
shall be filed by not later than July 14, 2009. Petitioner's response and
cross-motion for judgment on the record shall be filed by not later than
August 4, 2009. The government's response thereto and reply in support
of its motion shall be filed by not later than August 17, 2009. Petitioner's
reply in support of his cross-motion shall be filed by not later than August
24, 2009.
2. Contents of Briefs.
(a) Initial Briefs. Each motion or cross-motion for judgment on the
record shall address both the factual basis and the legal justification for
detention, 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.
(b) 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 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 material
fact is in genuine dispute. 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 a statement of material facts
are admitted unless controverted in the factual response.
(c) Page Limitations. (i) Initial briefs in support of a motion for
judgment on the record or cross-motion for judgment on the record shall
not exceed 55 pages, excluding the statement of material facts. Each party
shall allocate no more than 40 pages to argument in support of its motion
for judgment on the merits and no more than 15 pages to the issues
discussed in Section II of this Order. (ii) The government's combined brief
in response to petitioner's cross-motion and reply in support of its motion
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shall not exceed 20 pages. (iii) Petitioner's final reply brief shall not
exceed 20 pages.
3. Hearing. A hearing on the motions for judgment on the record will be
scheduled by the Court if necessary.
B. Evidentiary Hearing.
1. Basis for a Hearing. If, after reviewing the parties' briefs for judgment
on the record, the Court determines that substantial issues of material fact
preclude final judgment based on the record, the petitioner is entitled to an
evidentiary hearing.
2. Prehearing Conference. Counsel shall appear for a prehearing
conference on a date to be determined that will be not later than three
business days prior to the evidentiary hearing. The parties shall be
prepared 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. The petitioner will not have access to classified
portions of the hearing. Through available technological means that are
appropriate and consistent with protecting classified information and
national security, the Court will provide the petitioner with access to
unclassified portions of the hearing.
SO ORDERED.
/s/
JOHN D. BATES
United States District Judge
Date: February 12, 2009
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