                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



SUHAIL ABDU ANAM, et al.,

                        Petitioners,

                   v.                               Civil Action No. 04-1194 (TFH)

BARACK H. OBAMA, et al.,

                        Respondents.


                         MERITS HEARING PROCEDURES ORDER

       On August 21, 2009, the Court held a telephonic status hearing regarding discovery and

procedural issues concerning Petitioner Musa’ab Al Madhwani’s (ISN 839) Merits Hearing. At

the status hearing, the Government made an oral motion for an extension of time to comply with

the Court’s Order of July 23, 2009. Specifically, the Government sought a thirty-day extension

of time to complete discovery, as well an extension of time to file Motions for Judgment on the

Record. Petitioner opposed the motion. This order serves to memorialize the rulings issued

during the hearing, as well as set the procedures to be followed in connection with Petitioner Al

Madhwani’s Merits Hearing. The parties are hereby ORDERED to comply with each of the

following items.

       1. Oral Motion for Extension of Time. For the reasons set forth during the status

hearing, the Court ORDERS that the Government’s oral motion for an extension of time to

comply with the Court’s Order of July 23, 2009, is GRANTED IN PART.

       a.      Discovery: The Court orders the government to complete discovery pursuant to

               the Court’s Order of July 23, 2009, on or before September 18, 2009. Due to the
               fast-approaching Prehearing Conference and Merits Hearing, as well as the

               numerous Government motions for an extension of time to comply with discovery

               orders that have been filed in this case, the Court stresses that no more extensions

               of time to complete discovery will be granted in the case of Petitioner Al

               Madhwani absent exceptional cause.

       b.      Judgment on the Record. If a party intends to file a Motion for Judgment on the

               Record, the Initial Brief must be filed on or before September 8, 2009. See Case

               Management Order (“CMO”), In re Guantanamo Bay Litig., Misc. No. 08-0442,

               Dkt. No. 940 (Nov. 6, 2008), amended by Dkt. No. 1315 (Dec. 16, 2008) § III.A.

               Due to the truncated period between the completion of discovery and the Merits

               Hearing, Initial Briefs shall not exceed 30 pages, including the statement of

               material facts. Response Briefs shall be filed on or before September 18, 2009,

               and shall not exceed 20 pages, including the factual response. Reply Briefs may

               be filed on or before September 25, 2009, and shall not exceed 10 pages.

       2. Prehearing Statement. Each party is ordered to file a Prehearing Statement on or

before October 5, 2009. Cf. Local Civil Rule 16.5, Pretrial Statements; CMO § III.B.2. A

party’s Prehearing Statement shall include the following:

       a.      Statement of the Case. The statement of the case shall address the factual basis

               and the legal justification for detention. The statement shall also include a

               statement of material facts on which the party intends to rely and identify, with

               citations to the Exhibit List, all evidence the party expects to elicit in support of

               those facts.


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       b.        Exhibit List. Each party shall submit a numbered list of exhibits, which shall set

                 forth a description of each exhibit on which the party intends to rely, including the

                 title and date of each exhibit. The list shall also include a bound and tabbed copy

                 of the exhibits. The Government’s exhibits shall be referred to as GE #__, and

                 Petitioner’s as PE #__.1 The parties are on notice that any evidence that has not

                 been identified in the Exhibit Lists may be excluded from consideration by the

                 Court. The two exceptions shall be (1) documents offered solely for the rebuttal

                 of arguments made at the Merits Hearing that could not reasonably have been

                 anticipated prior to October 5, 2009, and (2) exculpatory information, as to which

                 the Government has a continuing obligation to disclose to Petitioner.

       c.        Witness List. The list of witnesses shall set forth the full names and addresses of

                 all witnesses the party may call, separately identifying those whom the party

                 expects to present and those whom the party may call if the need arises including

                 rebuttal witnesses. The list shall also set forth a brief description of the testimony

                 to be elicited from the witness; and an estimate of the time the party will take in

                 eliciting such testimony. See Local Civil Rule 16.5(b)(5).2

       3. Joint List of Contested Issues. The parties shall confer with respect to the contested

issues that they expect to present during the Merits Hearing, and shall submit a Joint List of

Contested Issues on or before October 9, 2009. See, e.g., Al Odah v. United States, Civil Action



       1
           Each party is instructed to file two copies of their Exhibit List with the Court.
       2
         For classified or sensitive information regarding potential witnesses, the parties are
directed to follow the Protective Order and Section I.F of the Case Management Order.

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No. 02-0828 (Dkt. Not. 627) (Aug. 19, 2009).

       4. Petitioner’s Participation. Petitioner’s counsel shall notify the Court on or before

October 9, 2009, as to whether Petitioner (1) wants to testify at the Merits Hearing, (2) wants to

listen to unclassified opening statements at the Merits Hearing, or (3) does not want to participate

at the Merits Hearing. See CMO § III.B.3.

       5. Prehearing Conference. On October 16, 2009, at 10:00 a.m., the parties shall appear

in Courtroom 25A for a Prehearing Conference. See CMO § III.B.2.

       6. Hearsay. As noted above, the time between discovery completion and the Merits

Hearing has been severely shortened. The parties now have just over one month to review the

material produced pursuant to the Court’s discovery order, file and reply to Motions for

Judgment on the Record, file Prehearing Statements, and attend the Prehearing Conference, in

addition to whatever preparations the parties deem necessary for the Merits Hearing. Therefore,

in an effort to facilitate the prehearing process, the Court will clarify its position on hearsay

evidence. The plurality in Hamdi v. Rumsfeld specifically acknowledged that “[h]earsay . . . may

need to be accepted as the most reliable evidence from the Government.” 542 U.S. 507, 534

(2004). Accordingly, and in line with the practice of other Merits Judges,3 the Court anticipates

deciding the accuracy, reliability, and weight, if any, of each piece of evidence after considering

the evidence as a whole and the arguments presented during the Merits Hearing, including any

arguments concerning the reliability of hearsay evidence.

       3
         See, e.g., Al Mutari v. United States, Civil Action No. 02-0828 (Dkt. No. 609) (D.D.C.
Aug. 3, 2009) (Kollar-Kotelly, J.); Awad v. Obama, Civil Action No. 05-2379 (Dkt. No. 178)
(D.D.C. Aug. 19, 2009) (Robertson, J.); Al-Adahi v. Obama, Civil Action No. 05-0280 (Dkt. No.
459) (D.D.C. Aug. 21, 2009) (Kessler, J.); Al-Harbi v. Obama, Civil Action No. 05-2479 (Dkt.
No. 270) (D.D.C. Aug, 26, 2009) (Kennedy, J.).

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       7. Guantanamo Review Task Force. The Government shall file a Notice on October

14, 2009, indicating whether the Guantanamo Review Task Force or Guantanamo Review Panel

has made any decisions related to Petitioner.

       8. Merits Hearing Procedures. The Merits Hearing, scheduled for October 26, 2009,

at 10:00 a.m. in Courtroom 25A, shall proceed as follows:

       a.      Opening Statements. The parties shall begin with unclassified opening

               statements, with the Government presenting its unclassified opening statement

               first. The parties shall confer by October 16, 2009, to determine whether there are

               disagreements as to what information may be considered unclassified, and to

               resolve the same. If Petitioner chooses to listen to the unclassified opening

               statements, Petitioner shall be responsible for translators and the Government

               shall be responsible for all other logistical arrangements. Following unclassified

               opening statements, the parties shall present classified opening statements, with

               the Government presenting their classified opening statement first.

       b.      Presentation of Evidence. The Court shall require an issue-by-issue evidentiary

               presentation. Accordingly, the Government shall make a presentation on a

               contested issue relevant to Petitioner’s detention. Petitioner shall then respond to

               the Government’s presentation through a presentation of evidence and argument.

               Finally, the Government may respond to Petitioner’s presentation in rebuttal.

               The parties shall repeat this sequence for each contested issue raised by the

               Government. Petitioner shall then be given the opportunity to present a contested

               issue relevant to his detention that was not argued by the parties in the foregoing


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             sequence, followed by a response from the Government, and Petitioner’s rebuttal.

             The parties shall repeat this sequence for each contested issue raised by Petitioner.

             The Court expects that both parties will use electronic presentation devices to

             present their documentary evidence to the Court. The parties should contact John

             Cramer, Officer of Information Technology, to discuss equipment available to the

             parties.

      c.     Closing Statements. The parties shall present classified closing statements. The

             Government shall present their closing argument first, followed by Petitioner.

             The Government shall be allowed to make a rebuttal closing argument.

      SO ORDERED.




August 28, 2009                                                    /s/
                                                           Thomas F. Hogan
                                                      United States District Judge




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