UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
MOHAMMED AHMED SLAM, )
AL-KHATEEB (ISN 689), )
)
Petitioner, )
)
v. ) Civil Action No. 09-745 (RCL)
)
BARACK H. OBAMA, President )
of the United States, et al., )
)
Respondents. )
____________________________________)
ORDER
Before the Court is respondents’ Motion for Leave to Amend and Supplement the Factual
Return for petitioner (filed June 5, 2009) and respondents’ Unopposed (Second) Motion for
Leave to Supplement Factual Return (filed June 25, 2009). Amended CMO § I.D.1 requires
respondents to file a certificate as to the production of exculpatory evidence within 14 days of
filing a factual return. Misc. No. 08-442, Doc. [940] (Nov. 6, 2008), as amended by Doc. [1315]
(Dec. 16, 2008) (D.D.C.) (Hogan, J.). Common sense dictates that a similar requirement attach
to any proposed amendments to a factual return. New exculpatory evidence could easily have
come into the government’s possession in the course of assembling their pending motions to
amend and supplement (or in the course of assembling materials for other detainees).1
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See Gherebi v. Bush, Civ. No. 04-1164, Doc. [164] (D.D.C. 2008) (Walton, J.), stating
the scope of respondents’ exculpatory-disclosure obligation:
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,
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Respondents did not attach such a certification to either of their motions, nor have they filed such
certifications with the Court since their motions. The Court will not consider granting
respondents’ motions unless respondents have completed the required searches. It is therefore
hereby
ORDERED that respondents’ Motion for Leave to Amend and Supplement the Factual
Return for petitioner is DENIED without prejudice as to its refiling alongside a certification
either that all reasonably available exculpatory evidence in the government’s possession has been
disclosed or that the government possesses no reasonably available exculpatory evidence that has
yet to be disclosed; and it is further
ORDERED that respondents’ Unopposed (Second) Motion for Leave to Supplement
Factual Return is DENIED without prejudice as to its refiling alongside a certification either that
all reasonably available exculpatory evidence in the government’s possession has been disclosed
or that the government possesses no reasonably available exculpatory evidence that has yet to be
disclosed.
SO ORDERED.
Signed by Royce C. Lamberth, Chief Judge, on July 6, 2009.
the term “reasonably available evidence” means evidence contained in any
information reviewed by attorneys preparing factual returns for all detainees;
however, the scope of this disclosure obligation 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 or any other United
States military facility.
(amending slightly Amended CMO § I.D.1) (emphasis added) (citation omitted).
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