                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA

 FAYIZ MOHAMMED AHMED
 AL KANDARI, et al.,

             Petitioners,
                                                                  Civil Action No. 02-828 (CKK)
             v.

 UNITED STATES, et al.,

             Respondents.


                            MERITS HEARING PROCEDURES ORDER
                                     (September 9, 2009)

                            Je n’ai fait celle-ci plus longue parceque
                            je n’ai pas eu le loisir de la faire plus courte1

         This Order sets forth the procedures to be followed in connection with Petitioner Al

Kandari’s Merits Hearing. It is, this 9th day of September, 2009, hereby ORDERED that

counsel are directed to carefully review this Order and to comply with each of the following

items.

         1. Scheduling. Petitioner’s Merits Hearing is scheduled for October 19, 2009 through

October 23, 2009, with proceedings to begin daily at 9:00 A.M. In connection with this hearing,

the record for the Court’s consideration shall consist of all evidence identified in the parties’

respective Witness and Exhibit Lists. Motions for leave to amend the parties’ respective Witness

and Exhibit Lists, Respondents’ Statement of Facts, or the underlying Factual Return and




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         BLAISE PASCAL, LETTRES PROVINCIALES, NO . 16 (1656-1657), reprinted in BARTLETT ’S
FAMILIAR QUOTATIONS, at 270 (Justin Kaplan, ed., 1992) (translation: I have made this longer
than usual, because I lack the time to make it short).
Traverse, must be filed no later than October 13, 2009.2 In preparation for these filings, the

parties shall (i) exchange initial proposed exhibits no later than October 5, 2009, (ii) exchange

any additional exhibits no later than October 9, 2009, and (iii) confer regarding their final

Exhibits Lists and any objections to the same prior to their submission to the Court on October

13, 2009. The parties are on notice that any evidence that has not been identified in the Witness

and Exhibit Lists and disclosed to opposing counsel on or before October 13, 2009, may be

excluded from consideration by the Court. The two exceptions to the October 13, 2009 deadline

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 13, 2009, or (2) exculpatory

information, as to which Respondents have a continuing obligation to disclose to Petitioner.

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

October 13, 2009, as to whether Petitioner wants to listen to the unclassified opening statements

at his Merits Hearing.

        3. Joint Task Force Database Discovery. In connection with the Court’s April 7, 2009

Order, and by agreement of the parties to limit Respondents’ obligations to search the

Guantanamo Task Force Database for particular documents in which Petitioner’s counsel are

particularly interested, Respondents shall complete their search for agreed upon documents and

shall produce all such exculpatory documents to Petitioner’s counsel no later than September 30,

2009.




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         The Court has directed Petitioner’s counsel to submit a revised Exhibit List that includes
only those exhibits that relate to Petitioner Al Kandari (as opposed to all of the Petitioners in this
case).

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        4. Certification Regarding Exculpatory Evidence. For the reasons set forth in the

Court’s June 17, 2009 Order, Respondents shall file a Certification with the Court on or before

October 13, 2009, stating that they have completed their review of all reasonably available

information and disclosed all exculpatory evidence pursuant to the Amended Case Management

Order, this Court’s Discovery Orders, and the Court’s Orders dated June 16, 2009, and June 17,

2009.

        5. Exhibit Book. On the morning of October 19, 2009, the parties shall present the Court

with a Joint Exhibit Book that contains the exhibits the parties anticipate presenting during

Petitioner’s Merits Hearing.

        6. Intake Form. Respondents shall ascertain whether there exists an “intake form”

created when the United States took custody of Petitioner Al Kandari. If such a form exists,

Respondents shall produce it to Petitioners’ counsel on or before October 5, 2009, and the form

must be included in the parties’ Exhibit Book as an exhibit. If such a form does not exist,

Respondents shall file a Notice indicating the same on or before October 13, 2009.

        7. 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 to the Court on or before October 13, 2009.

        8. Guantanamo Review Panel. Respondents’ counsel shall file a Notice on October 16,

2009, indicating whether the Guantanamo Review Panel has made any decisions related to

Petitioner, and confirming that the Convening Authority has not referred charges against Al

Kandari to a military commission.




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       9. Merits Hearing Procedures.

       (A) Opening Statements. The parties shall begin with unclassified opening statements,

with Respondents presenting their unclassified opening statement first. These unclassified

opening statements shall be no more than 30 minutes per side. The parties shall confer prior to

October 19, 2009, to determine whether there are any 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 Respondents

shall be responsible for all other logistical arrangements. Following unclassified opening

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

their classified opening statement first. These classified openings shall be no more than 15

minute per side.

       (B) Presentation of Evidence. The Court shall require an issue-by-issue evidentiary

presentation. Accordingly, Respondents shall make a presentation on a contested issue relevant

to Petitioner’s detention. Petitioner shall then respond to Respondents’ presentation through a

presentation of evidence and argument. Finally, Respondents may respond to Petitioner’s

presentation in rebuttal. The parties shall repeat this sequence for each contested issue raised by

Respondents. 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 sequence, followed by a

presentation by Respondents, and Petitioner’s rebuttal. The parties shall repeat this sequence for

each contested issue raised by Petitioner. The Court expects that counsel for Petitioner and

Respondents will use electronic presentation devises to present their documentary evidence to the

Court. The parties should contact John Cramer, Office of Information Technology, to discuss the


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equipment available to the parties.

       (C) Closing Statements. The parties shall present classified closing statements.

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

be allowed to make a rebuttal closing argument. These closing statements shall be no more than

30 minutes per side.

       10. Unanticipated issues. If any unanticipated issues arise after the close of business on

October 16, 2009, the parties shall first confer and attempt to reach a resolution. If the issue

cannot be resolved, the proponent of the issue shall FAX to Chambers by no later than 7:15 P.M.

on October 18, 2009, a succinct statement of the issue and legal authority, if applicable. The

opposing party shall FAX by no later than 7:45 A.M. on October 19, 2009, a contrary position

statement with legal authority, if applicable.

       SO ORDERED.

Date: September 9, 2009

                                                                      /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




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