UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FAYIZ MOHAMMED AHMED
AL KANDARI, et al.,
Petitioners,
Civil Action No. 02-828 (CKK)
v.
UNITED STATES, et al.,
Respondents.
MERITS HEARING PROCEDURES ORDER
(September 9, 2009)
Je n’ai fait celle-ci plus longue parceque
je n’ai pas eu le loisir de la faire plus courte1
This Order sets forth the procedures to be followed in connection with Petitioner Al
Kandari’s Merits Hearing. It is, this 9th day of September, 2009, hereby ORDERED that
counsel are directed to carefully review this Order and to comply with each of the following
items.
1. Scheduling. Petitioner’s Merits Hearing is scheduled for October 19, 2009 through
October 23, 2009, with proceedings to begin daily at 9:00 A.M. In connection with this hearing,
the record for the Court’s consideration shall consist of all evidence identified in the parties’
respective Witness and Exhibit Lists. Motions for leave to amend the parties’ respective Witness
and Exhibit Lists, Respondents’ Statement of Facts, or the underlying Factual Return and
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BLAISE PASCAL, LETTRES PROVINCIALES, NO . 16 (1656-1657), reprinted in BARTLETT ’S
FAMILIAR QUOTATIONS, at 270 (Justin Kaplan, ed., 1992) (translation: I have made this longer
than usual, because I lack the time to make it short).
Traverse, must be filed no later than October 13, 2009.2 In preparation for these filings, the
parties shall (i) exchange initial proposed exhibits no later than October 5, 2009, (ii) exchange
any additional exhibits no later than October 9, 2009, and (iii) confer regarding their final
Exhibits Lists and any objections to the same prior to their submission to the Court on October
13, 2009. The parties are on notice that any evidence that has not been identified in the Witness
and Exhibit Lists and disclosed to opposing counsel on or before October 13, 2009, may be
excluded from consideration by the Court. The two exceptions to the October 13, 2009 deadline
shall be (1) documents offered solely for the rebuttal of arguments made at the Merits Hearing
that could not reasonably have been anticipated prior to October 13, 2009, or (2) exculpatory
information, as to which Respondents have a continuing obligation to disclose to Petitioner.
2. Petitioner’s Participation. Petitioner’s counsel shall notify the Court on or before
October 13, 2009, as to whether Petitioner wants to listen to the unclassified opening statements
at his Merits Hearing.
3. Joint Task Force Database Discovery. In connection with the Court’s April 7, 2009
Order, and by agreement of the parties to limit Respondents’ obligations to search the
Guantanamo Task Force Database for particular documents in which Petitioner’s counsel are
particularly interested, Respondents shall complete their search for agreed upon documents and
shall produce all such exculpatory documents to Petitioner’s counsel no later than September 30,
2009.
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The Court has directed Petitioner’s counsel to submit a revised Exhibit List that includes
only those exhibits that relate to Petitioner Al Kandari (as opposed to all of the Petitioners in this
case).
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4. Certification Regarding Exculpatory Evidence. For the reasons set forth in the
Court’s June 17, 2009 Order, Respondents shall file a Certification with the Court on or before
October 13, 2009, stating that they have completed their review of all reasonably available
information and disclosed all exculpatory evidence pursuant to the Amended Case Management
Order, this Court’s Discovery Orders, and the Court’s Orders dated June 16, 2009, and June 17,
2009.
5. Exhibit Book. On the morning of October 19, 2009, the parties shall present the Court
with a Joint Exhibit Book that contains the exhibits the parties anticipate presenting during
Petitioner’s Merits Hearing.
6. Intake Form. Respondents shall ascertain whether there exists an “intake form”
created when the United States took custody of Petitioner Al Kandari. If such a form exists,
Respondents shall produce it to Petitioners’ counsel on or before October 5, 2009, and the form
must be included in the parties’ Exhibit Book as an exhibit. If such a form does not exist,
Respondents shall file a Notice indicating the same on or before October 13, 2009.
7. List of Contested Issues. The parties shall confer with respect to the contested issues
that they expect to present during the Merits Hearing, and shall submit a Joint List of Contested
Issues to the Court on or before October 13, 2009.
8. Guantanamo Review Panel. Respondents’ counsel shall file a Notice on October 16,
2009, indicating whether the Guantanamo Review Panel has made any decisions related to
Petitioner, and confirming that the Convening Authority has not referred charges against Al
Kandari to a military commission.
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9. Merits Hearing Procedures.
(A) Opening Statements. The parties shall begin with unclassified opening statements,
with Respondents presenting their unclassified opening statement first. These unclassified
opening statements shall be no more than 30 minutes per side. The parties shall confer prior to
October 19, 2009, to determine whether there are any disagreements as to what information may
be considered unclassified, and to resolve the same. If Petitioner chooses to listen to the
unclassified opening statements, Petitioner shall be responsible for translators and Respondents
shall be responsible for all other logistical arrangements. Following unclassified opening
statements, the parties shall present classified opening statements, with Respondents presenting
their classified opening statement first. These classified openings shall be no more than 15
minute per side.
(B) Presentation of Evidence. The Court shall require an issue-by-issue evidentiary
presentation. Accordingly, Respondents shall make a presentation on a contested issue relevant
to Petitioner’s detention. Petitioner shall then respond to Respondents’ presentation through a
presentation of evidence and argument. Finally, Respondents may respond to Petitioner’s
presentation in rebuttal. The parties shall repeat this sequence for each contested issue raised by
Respondents. Petitioner shall then be given the opportunity to present a contested issue relevant
to his detention that was not argued by the parties in the foregoing sequence, followed by a
presentation by Respondents, and Petitioner’s rebuttal. The parties shall repeat this sequence for
each contested issue raised by Petitioner. The Court expects that counsel for Petitioner and
Respondents will use electronic presentation devises to present their documentary evidence to the
Court. The parties should contact John Cramer, Office of Information Technology, to discuss the
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equipment available to the parties.
(C) Closing Statements. The parties shall present classified closing statements.
Respondents shall present their closing argument first, followed by Petitioner. Respondents shall
be allowed to make a rebuttal closing argument. These closing statements shall be no more than
30 minutes per side.
10. Unanticipated issues. If any unanticipated issues arise after the close of business on
October 16, 2009, the parties shall first confer and attempt to reach a resolution. If the issue
cannot be resolved, the proponent of the issue shall FAX to Chambers by no later than 7:15 P.M.
on October 18, 2009, a succinct statement of the issue and legal authority, if applicable. The
opposing party shall FAX by no later than 7:45 A.M. on October 19, 2009, a contrary position
statement with legal authority, if applicable.
SO ORDERED.
Date: September 9, 2009
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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