                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
ABDUL RAZAK ALI (ISN 685),          )
                                    )
              Petitioner,           )
                                    )
       v.                           )                 Civil Action No. 09-745 (RCL)
                                    )
BARACK H. OBAMA, President          )
 of the United States, et al.,      )
                                    )
              Respondents.          )
____________________________________)

                                              ORDER

       Before the Court is respondents’ Motion [1207] for Leave to Amend the Factual Return

for petitioner (filed June 5, 2009). Amended CMO § I.D.1 requires respondents to file a

certificate as to the production of exculpatory evidence within 14 days of filing a factual return.

Misc. No. 08-442, Doc. [940] (Nov. 6, 2008), as amended by Doc. [1315] (Dec. 16, 2008)

(D.D.C.) (Hogan, J.). Common sense dictates that a similar requirement attach to any proposed

amendments to a factual return. New exculpatory evidence could easily have come into the

government’s possession in the course of assembling the Motion to Amend (or in the course of

assembling materials for other detainees).1 Respondents did not attach such a certification to


       1
        See Gherebi v. Bush, Civ. No. 04-1164, Doc. [164] (D.D.C. 2008) (Walton, J.), stating
the scope of respondents’ exculpatory-disclosure obligation:
       The government shall disclose to the petitioner all reasonably available evidence
       in its possession that tends materially to undermine the information presented to
       support the government’s justification for detaining the petitioner. In this context,
       the term “reasonably available evidence” means evidence contained in any
       information reviewed by attorneys preparing factual returns for all detainees;
       however, the scope of this disclosure obligation is not limited to evidence

                                                  1
their Motion [1207], nor have they filed one with the Court in the weeks since their motion. The

Court will not consider granting respondents’ motion unless respondents have completed the

required search. It is therefore hereby

        ORDERED that respondents’ Motion [1207] for Leave to Amend the Factual Return for

petitioner is DENIED without prejudice as to its refiling alongside a certification either that all

reasonably available exculpatory evidence in the government’s possession has been disclosed or

that the government possesses no reasonably available exculpatory evidence that has yet to be

disclosed; and it is further

        ORDERED that if respondents intend to refile with certification as described above, they

shall do so within 14 days of this Order or such further time as the Court may allow.

        SO ORDERED.

                Signed by Royce C. Lamberth, Chief Judge, on July 2, 2009.




      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 or any other United
      States military facility.
(amending slightly Amended CMO § I.D.1) (emphasis added) (citation omitted).

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