UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
AYMEN SAEED BATARFI, et al., )
)
Petitioners, )
)
) Civ. No. 05–0409 (EGS)
v. )
)
GEORGE W. BUSH, et al., )
)
Respondents. )
_____________________________ )
ORDER TO SHOW CAUSE
Upon consideration of the Petitioner’s Motion for
Supplemental Relief Regarding Government’s Compliance with
Discovery Order (“Petitioner’s Motion”), the government’s
opposition (“Government’s Response”), the Petitioner’s reply, and
the Petitioner’s Notice of Supplemental Authority Relevant to
Petitioner’s Motion, it is hereby
ORDERED that by no later than 12:00 p.m. on Tuesday, March
17, 2009, the government shall show cause why the government and
the attorneys for the government in this case should not be held
in contempt for failure to comply with this Court’s January 16,
2009 Order1 and this Court’s previous Orders to produce
exculpatory information. It is further
ORDERED that the government’s response shall include a
1
The Court’s initial Order was issued from the bench on
January 16, 2009. It was later memorialized in a written Order
dated January 29, 2009. See docket no. 162.
declaration from the appropriate official at the Department of
Defense (“DOD”), a declaration from the appropriate official at
the Central Intelligence Agency, and a declaration from the
appropriate official at the Department of Justice (“DOJ”),
detailing (a) who within their agency and/or department conducted
a search or searches for exculpatory information relevant to
Petitioner’s detention; (b) when such search or searches
occurred; (c) what was searched; (d) where the searches occurred;
and (e) approximately how many pages of documents were searched.
It is further
ORDERED that the declaration from the Department of Justice
shall also include an explanation of (a) why the government
failed to comply with this Court’s Order to produce exculpatory
evidence and only belatedly produced the March 2002 Memorandum
cited in Petitioner’s Motion and attached to Petitioner’s Motion
as Exhibit 4; (b) why the government failed to comply with this
Court’s Order dated January 16, 2009 to file a declaration that
“Department of Justice attorneys have reviewed Petitioner’s
statements for exculpatory evidence and have produced or will
produce all statements containing exculpatory evidence to
Petitioner’s counsel”; and (c) a certification that the
attorney(s) conducting the review for exculpatory evidence are
familiar with the meaning of exculpatory evidence and the
principles set forth in Brady v. Maryland, 373, U.S. 83, 87
2
(1963), and its progeny. Petitioner has expressed concern that
the government is relying on DOD attorneys to conduct the review
for exculpatory evidence. Petitioner’s objection is that those
non-DOJ attorneys may not have the necessary experience with the
government’s obligations pursuant Brady and its progeny. That
concern, in part, prompted the Court’s January 16, 2009 Order
that a DOJ attorney file a declaration that s/he had reviewed the
evidence. The government’s declaration filed pursuant to that
Order indicates that the government continues to rely on DOD
attorneys for the initial review for exculpatory evidence.
Moreover, the Government’s Response to Petitioner’s Motion states
requiring a review process by attorneys with “Brady experience”
would mean that “only criminal prosecutors from DOJ would be
involved in the evidence review[,]” and that such a requirement
is “not feasible.” see Government’s Response at 3. The
government’s argument raises the disturbing implication that the
attorneys conducting the review in this and other habeas cases
(who presumably are not criminal prosecutors from DOJ) do not
have the necessary experience with and knowledge of the
government’s Brady obligations.
Petitioner has been incarcerated for more than seven years
without any adjudication; his liberty interests have been and
remain at stake; and through this habeas proceeding he is
exercising a right to challenge his detention founded in the
3
United States Constitution and recognized by the United States
Supreme Court. Any delegation of a review for exculpatory
evidence to attorneys who do not understand or are not familiar
with Brady and its progeny under these circumstances is
absolutely unacceptable and will not be tolerated. It is further
ORDERED that the Court Security Office is directed to
consult with the appropriate government agency or agencies to
conduct an expedited classification review of the Petitioner’s
Motion, the Government’s Response, the Petitioner’s Reply, and
the Petitioner’s Notice of Supplemental Authority Relevant to
Petitioner’s Motion, and to provide the Court and counsel with
unclassified versions of these pleadings suitable for filing on
the public docket, by no later than 5:00 p.m. on Tuesday, March
17, 2009. It is further
ORDERED that no extensions of time to comply with this Order
will be granted. Petitioner has been detained for more than
seven years. The exculpatory document belatedly produced, in
violation of this Court’s Order to produce exculpatory evidence
issued several months ago, was created by the government in March
2002. In its response to Petitioner’s Motion, the government
fails to offer even a single reason or excuse for the belated
production. The Court and counsel have expended extraordinary
resources to prepare for a merits determination in this case,
including extensive briefing and a hearing on Petitioner’s Motion
4
for Judgment on the Record. A merits hearing is now scheduled
for April 6, 2009. The Court will not tolerate any further delay
by the government, particularly in the face of a clear violation
of this Court’s Order to produce exculpatory evidence. It is
further
ORDERED that the remainder of the discovery matters raised
in Petitioner’s Motion shall be addressed at the Pretrial
Conference on March 19, 2009.
SO ORDERED.
SIGNED: Emmet G. Sullivan
United States District Judge
March 13, 2009
5