                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

MOHAMMAD AL-ADAHI, et al.,          :
                                    :
                  Petitioners,      :
                                    :
            v.                      :              Civil Action No. 05-280 (GK)
                                    :
BARACK H. OBAMA, et al.,1           :
                                    :
                  Respondents.      :
____________________________________:
                                    :
RAFIQ BIN BASHIR BIN JALLUL         :
ALHAMI, et al.,                     :
                                    :
                  Petitioners,      :
                                    :
            v.                      :              Civil Action No. 05-359 (GK)
                                    :
BARACK H. OBAMA, et al.,            :
                                    :
                  Respondents.      :
____________________________________:
                                    :
FARHI SAEED BIN MOHAMMED,           :
et al.,                             :
                                    :
                  Petitioners,      :
                                    :
            v.                      :              Civil Action No. 05-1347 (GK)
                                    :
BARACK H. OBAMA, et al.,            :
                                    :
                  Respondents.      :




       1
               Former President George W. Bush was named as the original lead respondent in this
case. Pursuant to Federal Rule of Civil Procedure 25(d), the Court automatically substitutes his
successor, President Barack H. Obama, as the new lead respondent.
____________________________________
                                    :
JIHAD DHIAB, et al.,                :
                                    :
                  Petitioners,      :
                                    :
            v.                      :         Civil Action No. 05-1457 (GK)
                                    :
BARACK H. OBAMA, et al.,            :
                                    :
                  Respondents.      :
____________________________________:
                                    :
HAMID AL RAZAK, et al.,             :
                                    :
                  Petitioners,      :
                                    :
            v.                      :         Civil Action No. 05-1601 (GK)
                                    :
BARACK H. OBAMA, et al.,            :
                                    :
                  Respondents.      :
____________________________________:
                                    :
ALLA ALI BIN ALI AHMED, et al.,     :
                                    :
                  Petitioners,      :
                                    :
            v.                      :         Civil Action No. 05-1678 (GK)
                                    :
BARACK H. OBAMA, et al.,            :
                                    :
                  Respondents.      :
____________________________________:
                                    :
MOHAMMED AHMED TAHER, et al., :
                                    :
                  Petitioners,      :
                                    :
            v.                      :         Civil Action No. 06-1684 (GK)
                                    :




                                        -2-
BARACK H. OBAMA, et al.,            :
                                    :
                  Respondents.      :
____________________________________:
                                    :
MUHAMMAD AHMAD ABDALLAH :
AL ANSI, et al.,                    :
                                    :
                  Petitioners,      :
                                    :
             v.                     :                 Civil Action No. 08-1923 (GK)
                                    :
BARACK H. OBAMA, et al.,            :
                                    :
                  Respondents.      :


                                  MEMORANDUM ORDER

       The Government has filed a Motion to Clarify, Reconsider, or Amend Three Case

Management Order Provisions and to Stay Those Obligations Pending Resolution of This Motion

and Any Appeal. Upon consideration of the Motion, the Oppositions, the Reply, and the very

extensive briefing relating to this Motion, the Court concludes that the Motion should be granted

in part and denied in part.2

       1.      The Government argues that Case Management Order #1 (“CMO #1”) leaves open

the key question of whether the Government must conduct open-ended searches for exculpatory

information or whether the requirement to disclose “all reasonably available evidence” is satisfied

by the searches for exculpatory information that have already been conducted by the Government

in preparing its factual returns. This Court agrees with Judge Hogan that no more expansive




       2
               For the convenience of counsel and the public, a revised version of CMO #1 is
attached hereto as Appendix A.

                                                -3-
searches are required under § I.D.1. to meet the standard of disclosing “all reasonably available

evidence.”3

        Judge Hogan further defined the term “reasonably available evidence” to include “evidence

contained in any information reviewed by attorneys preparing factual returns . . .” and noted that “it

is not limited to evidence discovered by the attorneys preparing the factual return for the petitioner.”

Judge Hogan added that the “term [reasonably available evidence] also includes any other evidence

the Government discovers while litigating habeas corpus petitions filed by detainees at Guantanamo

Bay.” § I.D.1.

        The Court has concluded that, faced with the Hobson’s choice of conducting massive

comprehensive searches throughout the Government for exculpatory information versus delaying

disclosure because of the time needed to conduct such searches, the directive given by the Supreme

Court in Boumediene v. Bush, 128 U.S. 2229, 2275 (2008), to handle these cases promptly must

outweigh the effort to search for every possible piece of exculpatory information. Moreover, the

Court is convinced, after holding statuses in many of its Guantanamo Bay cases and reviewing the

files in all of them, that Petitioners have ample tools at their disposal to ferret out additional facts



        3
                While it is not completely clear from the Government’s papers, it would appear that
in preparing the factual returns, the Government reviews only materials from the Defense
Department Combatant Status Review Tribunal (“CSRT”) files, the Administrative Review Board
(“ARB”) files, and the Joint Intelligence Group (“JIG”) files. See Gov. Mot. to Clarify, Reconsider
or Amend [Dkt. No. 237] at 7. Significantly, conspicuous by its absence is any reference to the
Central Intelligence Agency (“CIA”). However, if Petitioner’s counsel, on a case-by-case basis,
believes that the necessity for additional searching outweighs the delay which such searching will
most certainly entail, counsel may submit a request under § I.E.2. for additional limited discovery.
Moreover, it will be easier for counsel to satisfy the requirements of § I.E.2. that the request be
narrowly tailored, specific, and likely to produce evidence that demonstrates the illegality of
Petitioner’s detention after they have received the exculpatory evidence and automatic discovery
provided in § I.D.1. and § I.E.1.

                                                  -4-
so as to narrow the issues in dispute and focus their challenge on those specific facts and information

upon which the Government is basing its claim of lawful detention. Specifically, Petitioners can

seek additional discovery for good cause under § I.E.2., they can file motions to compel, they can

request admissions and stipulations, they can request certifications from the Government regarding

the adequacy of searches of materials, and they can use the statements of facts in dispute and not in

dispute which must be submitted for hearings on the merits.

        2.      This Court also agrees with Judge Hogan that the discovery obligation imposed in §

I.E.1. requires automatic discovery of documents, objects, and statements of the Petitioner in the

Government’s possession, as well as information about the circumstances in which such statements

were made or adopted, that are referred to in the factual return,” and “all statements . . .” that relate

to the information contained in the factual return. This requirement pertains to those documents,

objects, and statements relied upon by the Government to justify detention. Again, after receiving

this automatic discovery, Petitioner will be in a better position to make narrow, tailored, specific,

and targeted requests for additional discovery under § I.E.2.

        3.      The Government also requests that the Court reconsider and amend the provisions

in CMO #1 regarding the handling of classified information. The Court concludes that this request

may be granted. Therefore, § I.F. is being amended to delete the requirement that the Government

provide Petitioners with an adequate substitute for any classified information required to be disclosed

under § I.D. or I.E. of CMO #1; instead, the Government shall still be required to provide such

classified information to Petitioner’s counsel, provided Petitioner’s counsel is cleared to access such

information. If the Government objects to providing Petitioner’s counsel with the classified

information, the Government shall move for an exception to disclosure. Petitioner’s counsel may


                                                  -5-
also move, on a case-by-case basis, to demonstrate why it is necessary to provide Petitioner with an

adequate substitute for any classified information.

        4.      The Government also requests certification to the Court of Appeals, pursuant to 28

U.S.C.A. § 1292(b), if any of its requests are not granted. One of the requirements for certification

is that it would “materially advance the ultimate termination of the litigation.” There is absolutely

no question that certification would delay -- not advance -- ultimate termination of this sorely-

delayed litigation. The Government’s request has absolutely no merit and is denied.

        5.      The Government appears to be requesting that the Court reconsider its requirement,

in an Order entered on December 29, 2008, in Al Adahi v. Bush, that it file a statement of facts

providing the following information: “[i]f the Government intends to rely on any statements in

proving its case-in-chief, it shall disclose in its statement of facts: (1) the identity of the speaker; (2)

the content of the statement; (3) the person(s) to whom the statement was made; (4) the date and time

the statement was made or adopted; and (5) the circumstances under which such statement was made

or adopted (including the location where the statement was made).” Order at 3 [Case No. 05-280;

Dkt. No. 225]. These requirements are consistent with what the Government is required to disclose.

All of this information is covered under provisions of the Case Management Order and the Court

sees no need to reconsider the language of that Order.

        For these reasons, the Government’s Motion is granted in part and denied in part.



February ___, 2009                                        /s/
                                                          Gladys Kessler
                                                          United States District Judge

Copies via ECF to all counsel of record


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