UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FAWZI KHALED A.F. AL ODAH, et al.,
Petitioners,
v.
Civil Action No. 02-828 (CKK)
UNITED STATES,
Respondents.
ORDER SUPPLEMENTING THE COURT’S
JANUARY 7, 2009 SCHEDULING ORDER
(April 7, 2009)
The parties have filed a Joint Status Report indicating their agreement that merits
hearings are appropriate for each of the four Petitioners in the above-captioned case. As a
supplement to its January 7, 2009 Scheduling Order, the Court sets forth herein additional
deadlines in anticipation of further proceedings.
Accordingly, it is, this 7th day of April, 2009, hereby ORDERED as follows:
1) Motions. On or before April 10, 2009, the parties shall submit a Joint Status Report
that includes a proposed briefing schedule for the following items:
! Motions in Limine, which concern evidentiary issues in connection with
Petitioners’ merits hearings, which would include motions to exclude
specific types of evidence (including dates for oppositions and replies);
and
! Legal Motions, which concern non-evidentiary issues, such as the
“presumption in favor of the Government’s evidence” or “hearsay,” as
contemplated in Section II of the Case Management Order, as amended
(including dates for oppositions and replies).
2) Stipulations. The parties’ April 10, 2009 Joint Status Report shall include a proposed
date by which the parties shall notify the Court as to whether they have reached any stipulations
in connection with Petitioners’ merits hearings, and to the extent no stipulations have been
reached, the date by which the parties shall so inform the Court.
3) Standard for Determining Legality of Detention. The parties shall confer regarding
the proper standard for determining the legality of Petitioners’ detention. The Court is aware that
Respondents filed a memorandum on March 13, 2009, refining its position with respect to its
authority to detain those persons who are now being held at Guantanamo Bay. The Court is also
aware that Petitioners have suggested a different standard in their consolidated traverses, but that
their traverses subsequently appear to apply the Government’s standard for detention.1 To the
extent the parties are proposing that the Court apply different standards for the legality of
Petitioners’ detention, the parties shall include a proposed briefing schedule on this issue in their
April 10, 2009 Joint Status Report.
4) Redacted Information in Classified Factual Returns. Following a preliminary
review of Petitioners’ Traverses, it appears that certain information in the exhibits attached to the
classified factual returns has been redacted and made unavailable to the Court and to Petitioners’
counsel, even though certain of Petitioners’ arguments appear to directly implicate the
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The Court is unclear as to whether Petitioners are accepting the Government’s standard
for “present purposes only,” and if so, what implications are associated with that position. For
example–as a hypothetical and not expressing any view as to the merits of Petitioners’
detention–if the Court were to apply the Government’s standard and the Government prevailed,
would Petitioners then move for new merits hearings pursuant to the definition they have
offered? If so, it would appear that the Court needs to resolve the parties’ dispute concerning the
proper scope of the Government’s detention authority prior to the merits hearings in order for the
merits hearing to produce final decisions.
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information. See, e.g., Consol. Traverses at 31, 54. Because the redacted information appears
relevant and potentially helpful to Petitioners’ defense, it also appears to the Court that the
redactions implicate the D.C. Circuit’s decision in Al Odah v. United States, 2009 U.S. App.
LEXIS 4538 (D.C. Cir. Mar. 6, 2009). Accordingly, the parties shall confer and include a
proposed schedule for briefing the issues associated with these redactions in their April 10, 2009
Joint Status Report, except if (i) Petitioners are willing to withdraw any arguments implicating
the information that has been redacted from the classified factual returns, or (ii) Respondents are
willing to disclose the redacted information that is implicated by Petitioners’ arguments.
5) Executive Order 13,492. President Barack H. Obama recently issued Executive
Order 13,492, directing the Attorney General to “[a]ssemble all information in the possession of
the Federal Government that pertains to any individual currently detained at Guantanamo and
that is relevant to determining the proper disposition of any such individual.” To the extent that
materials relating to Petitioners have been collected or otherwise assembled in connection with
this Executive Order (or that will be collected or otherwise assembled), such materials shall be
produced to Petitioners’ counsel, provided such materials were not previously reviewed or
produced by Respondents’ counsel in connection with any of their disclosure and discovery
obligations under the Case Management Order, as amended, or the Court’s subsequent discovery
orders. This obligation shall be immediate and ongoing.
SO ORDERED.
Date: April 7, 2009
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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