Al Odah, et al v. USA, et al

District of Columbia, dcd-1:2002-cv-00828

ORDER. Counsel shall comply fully with the attached Order, which has been redacted for publication on the public docket. Counsel are separately receiving the classified version of this Order. Signed by Judge Colleen Kollar-Kotelly on February 12, 2009. (lcckk1)

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NO.239 P.1 FILED WITH THE COURT SECURITY OFFICER C80: Anton DATELO T REDACTED UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PAWZI KHALID ABDULLAH FAHAH AL ODAH, et al. Petitioners, Civil. Action No. 02-828 م UNITED STATES, et al., م . Respondents. CUSSID ORDER (February 12, 2009) The Court held a closed-session Status Hearing in the above-captioned case on February 11, 2009. For the rousons stated on the record, it is, this 12th day of February, 2009, harcby ORDERED that on February 12, 2009, Petitioners shall file a list of the items that were ideatified in their Motion for Production of Complete Declassified Foctual Retums or Adequate Substitutes (whether identified as "high priority or other spocifically identified items) that have not been declassified by the Government; It is further ORDERED that on or before February 18, 2009, Rospondents shall submit an Opposition to Petitioners' Motion for Production of Complete Declassified Factual Retums or. Adequate Substitutes that contains a legal analysis supporting the Government's decision not to declarify Potitioners may file a Reply on or before February 25, 2009; it is further ORDERED that Petitioners and Respondents shall confer as to whether Petitioners' MOTED R es counsal may meet with the decisionmakers at the FBI of Department of Defense who are deciding whether or not to doclassify the items of information identified in Petitioners' Motion la an offort to resolve the parties' remaining disputes. On or before Pobruary 27, 2009, whether or Dot such a moeting has occurred, the parties shall file a Joint Status Report listing the items Identified in Petitioners' Motion for Production of Complete Declassified Factual Retums or Adequate Substitutes that remain in dispute, und propose a further briefing schedule, if necessary; it is further ORDERED that "axculpatory evidence" is defined as all reasonably avadlable evidence in the Government's possession or any ovidence that tends to materially undermine the evidence that the Government intends to rely on in its case-in-chief, including any evidodco or information that undercut the reliability and/or crodibility of the Government's ovidence (Le., such as evidence that casts doubt on a speaker's credibility, evidence that undermines the reliability of a witnes's identification of one or more Petitioners, or evidence that indicates a statement is unreliable because it is the product of abuse, torturs, or mental or physical locapacity); it is further ORDERED that Respondents shall disclose to Petitioners' counsel, pursuant to Sections I.D.L, LE.1, and LE 2 of the Case Management Order, as amended, all statements, in whatever form (including audio or video), whether cumulative or not, that have not previously been disclosed, made by Petitioner or the detainecs identified as relating to the statements attributed to them in the Pactual Retuens.' Respondents shall also disclose all exculpatory information that has not previously been disclosed concerning those individuals. If no such documents exist, Respondents shall so represent to the Court and Petitioners' counsel, in writing; It is further ORDERED that Respondents shall disclose to Petitioners' counsel, pursuant to Section LE1 of the Case Management Order, as amended, whether the names of Petitioners or the detaineer who are identified in the preceding paragraph appear on a list of Guantanamo detainees whore interviewalinterrogations were either videotaped or audiotapod. If the name of my of there individuals appears on that list, Respondents shall either disclose the videotapes or audiotapes to Petitioners' counsel, or if such tapes aro unavailable, Respondents shall explain why they are unavallable. If none of the foregoing individuals appear on that list, Respondents shall no represent to the Court and Petitioners' coimeal, in writing; it is further ORDERED that Respondents shall disclose to Petitioners' commsel, pursuant to Sections ID.1 and L.E.2 of ths Case Management Orda, a amended, the photograph collections or individual photographs referenced in the Pactual Returns that were used by interrogators to have detalnces identify Petitioners. If the photograph collections or individual photographs are. unavailable, Respondents shall so represont to the Court and Petitioners' counsel, in writing, and shall include an explanation as to why they are unavailable; it is further: ORDERED that Respondents sball disclose to Potitionen' counsel, pursuant to sections I.D.1 and I.E.2 of the Case Management Ordar, as amended, the telephone book allegedly found The term "Factual Return" refers to Respondents' factual narrative and the attachments supporting the factual narrative. on Petitioner Al Kandari's person, provided the telephone book is in the custody of the United States Government. If the United States Government does not have possession of the telephone book, Rospondents shall so represent to the Court and Petitioners' counsel, in writing; it is further ORDERED that Respondents shall disclose to Petitioners' counsel, pursuant to Soctions I.D.1, LE,1, and LE.2 of the Cuse Management Order, as amended, the results of all polygraph and voice strass tests conducted on Poddoner Al Rabiah that are referenced in the Factual Rotun, to the extent the results of those tests are exculpatory (which includes any inconclusive findings). If the United States Government does not have the results of polygraph or voice stress tests conducted on Petitioner Al Rabiah, Respondents shall so represent to the Court and Petitioners' counsel, in writing; it is further ORDERED that Petitioners shall provide Respondents with all identifying Information After receiving this information, Respondents shall disclose the report to Petitioners' counsel, provided it is exculpatory as alleged by Petitioners' counsel, pursuant to sections I.D.1 and I.E.2 of the Case Management Order, as amendod. If the report cannot be located or is not exculpatory, Rospondents shall so represent to the Court and Potitioners' counsel, in writing; it is further ORDERED that Respondents shall disclose to Petitioners' counci, pursuant to Sections I.D.1 and I.E.2 of the Case Management Order, as amended, the letter allogediy mentioning Potitiona Al Kandari's name that was discussed in the interrogations of and referenced in the Factual Retura, provided that Respondents intend to rely on the letter of statements concerning the botter in any future maits briefing or merits hearings. If Respondents do not intend to rely on the letter on statemente conocming the letter, Respondents shall so represent to the Court and Petitioners' coimsel, in writing; it is further ORDERED that Respondents shall disclose to Petitioners' counsel, pursuant to Section LB.2 of the Case Management Order, as amended, the information Respondents intend to raly on in my future merita briefing or merits hearing concerning the which is referenced in the Factual Returos, provided that Respondents intend to argue that a relationship with that organization tends to support Petitioners' detentions as enemy combatants. If Respondents do not intend to rely on Potitioners' relationship with that organization to support Petitioners' detentions, Respondents shall so represent to the Court and Petitioners' counsel, in writing; it is further ORDERED that Respondents shall disclose to Petitioners' counsel, pursuant to Sections I.D.1 and LE.2 of the Case Management Order, as amended, a copy of the original document referenced in the Factual Roturns as being found in the possesdon of Fahd "Umr Abd al-Majid al-Sharif, that is entitled Respondents shall also disclose how long al-Sharif was in custody at the time this letter was obtained from him, as well as when the document was obtained from him, provided that such information is reflected in one or more documents already in the possession of the United States Government. If such information is not encompassed within ond or more documents already in the possession of the United States Government, Respondents shall so represent to the Court and Petitioners' counsel, in writing, it i further ORDERED that Respondents shall disclose to Potitioners' counsel, pursuant to Sections I.D.1, LE.1, and LE.2 of the Casc Management Order, as amended, tho circumstances surrounding Petitioner Al Rabiah's statements made during his interrogations on June 19, 2003, and July 17, 2003, which shall include an explanation of and The Court shall hold-in-abeyance Petitioners' request for depositions of Al Rabiah's interrogators; it is further ORDERED that Respondents shall disclose to Petitioners' counsel, pursuant to Sections I.D.1 and I.E.2 of the Case Management Order, as amended, the handwriting exemplars taken from Potitioner Al Rablah that are referenced in the Factual Return, and any related bandwriting expert reports, provided such exemplars or reports are exculpatory (which includes inconclusive findings). If the exemplars and/or reports cannot be located or are not exculpatory, Respondents shall 80 reprosent to the Court and Petitioners' counsel, in writing; it is further ORDERED that Rerpondents shall file & Status Report on or before February 18, 2009, which shall set forth the dates by which Respondents anticipate being able to (1) ascertain the oxistence of (2) collect, and (3) disclose the discovery items Identified above; it is further ORDERED that Petitioners' Motion for Additional Discovery is GRANTED-IN-PART us to the discovery items identified above, HELD-IN-ABEYANCE as to Petitioners' request for depositions of Al Rabiah's interrogators, and DENIED-IN-PART as to the remainder of the motion; wd it is further ORDERED that Respondents have a continuing obligution to produce exoulpatory information to Petlidoners' counsel, regardless of whether the Court has denied Petitioners' Motion for Additional Discovery as to any particular item or items; it is further ORDERED that Respondents shall produce an or before February 18, 2009, the exculpatory information that was ordered to have been disclosed to Petitioners' counsel on or before January 30, 2009, and file a notice of compliance with the Court, or fillo a Motion for an Extension of Time that proposes a date for such compliance. Respondents would be well- advised to reviow the portion of Court': January 7, 2009 Scheduling Order relating to motions for extensions prior to filing such a motion; it is further ORDERED that Petitioners shall provide Respondents with a copy of the document that was obtained from an electronic system called "SPRNet" that was discussed on the record. Within ten days after receiving that document, Respondents shall provide the Court with an explanation as to why that document was not located in the Government's search for exculpatory documents in this oase, and whether potentially exculpatory documents are likely to be found by searching that system; it is further ORDERED that, for the reasons stated on the record, Respondents shall assign now counsel to this case. As in all cases, the credibility of Government counsel and the reliability of their representations as officers of the Court &re essential. The Court previously ordered Respondents' counsel to produce an Opposition to Petitioners' Motion for Production of Complete Doclassified Pactual Returns or Adequate Substitutes in three separate orders, and not only bus Respondents' counsel falled to produce an Opposition to date, he has provided no explanation for his non-compliance with the Court's Orders. See Min. Order dated Jan. 26, 2009; [453] Order at 1-5 (Jan. 30, 2009). Respondents' counsel has reportedly flouted the deadlines set by this Court and failed to comply with its Scheduling Order. The Court has lost confidence la Respondents' current counsel, and the Court does not view his representations as credible. If this Judge cannot rely on him to comply with the Court's orders, then this Judge cannot rely on any of his representations. As this Order reflects, representations will need to be mado as to searches for documente and evidence that the Count has ordered. This Judge has no confidenco that Respondents' current coumsel will fully comply with those orders; it is further ORDERED that Potitioners are granted leave to file a motion related to military defense counsel and the classified returns for Petitioners Al Rabiah and Al Kandari, provided that Petitioners' attempts to resolve this issue with Respondents prior to seeking Court intervention remain unsuccessful. 80 ORDERED. Date: February 12, 2009 COLLEEN KOLLAR-KOTELLY United States District Judge