                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


                                              )
MOHAMMED AL-QAHTANI, et al.,                  )
                                              )
               Petitioners,                   )
                                              )
       v.                                     )       Civil Action No. 05-1971 (RMC)
                                              )
BARACK H. OBAMA, President of the             )
United States, et al.,                        )
                                              )
               Respondents.                   )
                                              )


                                  MEMORANDUM OPINION

               Mohammed Al-Qahtani ( “Petitioner”), a detainee at the United States Naval

Station in Guantanamo Bay, Cuba, filed a petition for a writ of habeas corpus on October 10,

2005.1 Now before the Court is Petitioner’s motion to (1) compel the Government’s

compliance with Section I.D.1 of the Amended Case Management Order; (2) strike the

Government’s January 30, 2009 filing; and (3) hold Respondents in contempt [Dkt. # 122].

               Petitioner complains that the Government was slow in complying with Section

I.D.1 of the Amended Case Management Order (“Amended CMO”),2 which provides:

               The government shall disclose to the petitioner all reasonably
               available evidence in its possession that tends materially to


       1
          Manea Ahmed Fahad Al-Qahtani filed the Petition as next friend of Mohammed Al-
Qahtani. Thus, the docket lists both as petitioners here. Because Mohammed Al-Qahtani is the
real party in interest, for ease of reference the Court will refer to him as the Petitioner, in the
singular.
       2
        The Amended CMO was filed December 12, 2008 [Dkt. # 123 in Misc. No. 08-442]. It
modifies and clarifies the Case Management Order filed November 6, 2008 [Dkt. # 108 in Misc.
No. 08-442].
               undermine the information presented to support the government’s
               justification for detaining the petitioner. See Boumediene [v. Bush,
               128 S. Ct. 2229, 2270 (2008)] (holding that habeas court “must
               have the authority to admit and consider relevant exculpatory
               evidence that was not introduced during the [CSRT] proceeding”).
               In this context, the term “reasonably available evidence” means
               evidence contained in any information reviewed by attorneys
               preparing factual returns for all detainees; it is not limited to
               evidence discovered by the attorneys preparing the factual return
               for the petitioner. The term also includes any other evidence the
               government discovers while litigating habeas corpus petitions filed
               by detainees at Guantanamo Bay. In cases in which the
               government already filed a factual return, disclosure of such
               exculpatory evidence shall occur within 14 days of the date of this
               Order. In all other cases, disclosure shall occur within 14 days of
               the date on which the government files the factual return. By the
               date on which disclosure is to occur under this paragraph, the
               government shall file a notice certifying either that it has disclosed
               the exculpatory evidence or that it does not possess any
               exculpatory evidence.

Amended CMO at 2.

               While Petitioner originally sought to compel compliance with Section I.D.1,

Petitioner now concedes that its motion to compel is moot, as the Government already has

complied. “Petitioner acknowledges that the Government has certified its compliance with

Section I.D.1, according to the Government’s understanding of the scope of its disclosure

obligation. Petitioner will raise his challenge to the Government’s failure to satisfy the substance

of its disclosure obligations under I.D.1 in a future motion to comply.” Reply [Dkt. # 129] at 2

n.1. Petitioner, however, urges the Court to hold the Government in contempt due to its failure

to comply with the time deadlines imposed by Section I.D.1.

               Section I.D.1 requires that disclosure of exculpatory evidence shall occur within

14 days of the date of the Amended CMO where the government already had filed a factual

return. In this case, the Government filed the factual return on October 29, 2008, and thus the

                                                -2-
exculpatory evidence disclosure was due on December 30, 2008. See Mot. to Compel [Dkt. #

122] at 6. On that due date, the Government filed a notice of prior disclosure and a motion for

extension of time [Dkt. # 96], seeking to extend the time to disclose exculpatory evidence to

January 30, 2009. The Government indicated that it believed it had substantially complied with

its obligation under the Amended CMO, but that before it could certify that it had provided all

exculpatory evidence, it needed more time to examine all information reviewed by the

Government’s attorneys in preparing the factual returns for all of the Guantanamo detainees, a

time consuming task required by the Amended CMO. Petitioner opposed the motion to extend

See Opp’n [Dkt. # 108]. On January 30, 2008, the Government filed a supplemental notice

indicating that it had identified some “arguably responsive documents” and that they would be

released as soon as they finished the clearance process. See Supp. Notice re Pet’r Al-Qahtani

[Dkt. # 118] & Global Notice [Dkt. # 119]. The one outstanding document relating to this case

was the portion of the classified Department of Justice (“DOJ”) Inspector General Report

pertaining to Petitioner. See Gov’t Opp’n [Dkt. # 126] at 8. On February 13, 2009, the

Government produced that document and filed a certification that it had disclosed all exculpatory

evidence in compliance with the Amended CMO. See Supp. Certification [Dkt. # 124].3

               Petitioner asks that the Court hold the Government in contempt due to its failure

to certify that it had fully complied with the exculpatory evidence disclosure under the Amended




       3
         The Government indicates that no additional exculpatory evidence was included in the
portion of the classified DOJ Inspector General Report produced by the Government that was not
disclosed in the unclassified factual return, already provided to Petitioner. See Gov’t Opp’n
[Dkt. # 126] at 8 n.2 & 9 n.4.

                                               -3-
CMO until February 13, 2008, when the certification was due on December 30, 2008.4 Civil

contempt is an extraordinary sanction that should be imposed with caution. Joshi v. Prof’l

Health Servs., Inc., 817 F.2d 877, 879 n.2 (D.C. Cir. 1987); see also Roadway Express, Inc. v.

Piper, 447 U.S. 752, 764 (1980) (courts should exercise their inherent powers with restraint and

discretion). On a contempt motion, the moving party must show by clear and convincing

evidence that the other party failed to comply with a court order. SEC v. Bilzerian, 112 F. Supp.

2d 12, 16 (D.D.C. 2000).

               Petitioner has failed to meet its burden. While the Government did not file its

certification on December 30, 2008, as Petitioner argues, it did file a motion to extend time.

Because the December 12, 2008 Amended CMO required the Government to examine

information reviewed by all of the Government’s attorneys in preparing the factual returns for all

of the Guantanamo detainees, the Government demonstrated good cause for its request for

extension of time.

               The habeas petition in this case was filed in 2005. Obviously, there have been

long delays due to the complicated procedural history of all of the Guantanamo habeas cases filed

in this District. The Court completely understands Petitioner’s sense of urgency. At this point,

however, Petitioner’s case is moving forward apace. Petitioner has filed an extensive motion

seeking discovery, and the parties have agreed to a briefing schedule whereby the Government’s



       4
          Petitioner also erroneously claims that the Government failed to confer with Petitioner
prior to filing its January 30, 2009 motion for extension of time as required by LCvR 7.1(m).
The Government sought to meet and confer with all counsel in the Guantanamo cases on
December 24, 2008. Gov’t Notice and Mot. for Extension [Dkt. # 96] at 8 n.2. Some counsel
consented, some conditionally consented, and some opposed. Id. Petitioner’s counsel in this
case opposed, as reflected in his Memorandum in Opposition [Dkt. # 108].

                                                -4-
response is due April 3, 2009 and Petitioner’s reply is due April 13, 2009. Accordingly, the

Government’s minor delay in filing its certificate of exculpatory evidence has actually caused

little or no additional delay in this case. Thus, Petitioner’s motion to compel, to strike the

Government’s January 30, 2009 filing, and for contempt [Dkt. # 122] will be denied. Also, the

Government’s motion to extend time [Dkt. # 96] will be granted nunc pro tunc to December 30,

2008. A memorializing order accompanies this Memorandum Opinion.




DATE: March 31, 2009                           ______________/s/__________________________
                                               ROSEMARY M. COLLYER
                                               United States District Judge




                                                 -5-
