                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 SHAWALI KHAN,
           Petitioner,
                  v.                                          Civil Action No. 08-1101 (JDB)
 BARACK OBAMA, et al.,
           Respondents.


                                CASE MANAGEMENT ORDER

       The Court held status hearings in this case on February 11, 2009 and February 20, 2009.

Based on petitioner's counsel's stated preferences at those hearings, and consistent with the

standards set forth in Boumediene v. Bush, 128 S. Ct. 2229, 2275 (2008), and Hamdi v. Rumsfeld,

542 U.S. 507, 539 (2004) (plurality), the standards referenced in the Case Management Order

entered by Judge Hogan on November 6, 2008 and revised on December 16, 2008, and the

standards referenced by this Court on December 22, 2008, see, e.g., Hamlily v. Obama,

Civ.A.No. 05-0763, the Court enters the following Case Management Order to govern

proceedings in the above-captioned case.1
                                                  I.

       A.        Declassified Factual Returns. By not later than March 4, 2009, petitioner shall
                 file a statement identifying the portions of the unclassified factual return and
                 attachments thereto that he seeks to have declassified. Petitioner must provide a
                 reasonable basis to assert that any item should be declassified, and under the
                 heading "High Priority Items," petitioner shall identify the items he considers
                 most important to his ability to present his defense. By not later than April 1,
                 2009, the government shall file the declassified return. The government shall
                 provide a justification for each item it has determined not to declassify.



       1
         This case-specific Case Management Order is independent of Case Management Orders
entered in any other case, including the orders entered by Judge Hogan on November 6, 2008 and
December 16, 2008. Hence, any future modifications in other orders will have no impact on the
schedule of proceedings in the above-captioned matter. If the parties wish to request relief from
the schedule set forth in this order, they must file an appropriate motion before this Court.
       B.      This section intentionally left blank.

       C.      This section intentionally left blank.

       D.      Exculpatory Evidence.

               1.      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 any
                       attorney preparing factual returns for any detainee; 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. Disclosure of such exculpatory evidence shall occur by
                       not later than March 19, 2009. On that date, the government shall file a
                       notice certifying either that it has disclosed the exculpatory evidence or
                       that it does not possess any exculpatory evidence.

               2.      If evidence described in the preceding paragraph becomes known to the
                       government after the deadline for disclosure, the government shall provide
                       the evidence to the petitioner as soon as practicable.

       E.      Discovery. If requested by the petitioner, the government shall disclose to the
               petitioner (1) any documents and objects in the government's possession that the
               government relies on to justify detention; (2) all statements, in whatever form,
               made or adopted by the petitioner that the government relies on to justify
               detention; and (3) information about the circumstances in which any statements of
               the petitioner were made or adopted, including but not limited to any evidence of
               coercive techniques used during any interrogation or any inducements or promises
               made.2 Disclosure requests shall be made in writing by not later than February 25,
               2009. Disclosure shall occur by not later than March 19, 2009.

       F.      Classified Information. If any information to be disclosed under Sections I.D or
               I.E of this Order is classified, the government shall, unless granted an exception,
               provide the petitioner's counsel with the classified information, provided the
               petitioner's counsel is cleared to access such information. If the government
               objects to providing the petitioner's counsel with the classified information, the
               government shall move for an exception to disclosure.

       G.      This section intentionally left blank.


       2
          To the extent the parties require clarification as to the scope of section I.E, they should
refer to the Court's February 9, 2009 order in Zaid v. Obama, Civ.A.No. 05-1646 (dkt. ent. #147).

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H.   Status Hearing. A status hearing will be held on April 8, 2009 at 10:00 A.M. in
     Courtroom 8.

                                     II.

A.   Burden and Standard of Proof. The government bears the burden of proving by
     a preponderance of the evidence that the petitioner's detention is lawful. Any
     argument in support of a different burden of proof shall be presented in each
     party's motion for judgment on the record in accordance with the schedule set
     forth in Section III.

B.   Presumption in Favor of the Government's Evidence. The Court may accord a
     rebuttable presumption of accuracy and authenticity to any evidence the
     government presents as justification for the petitioner's detention if the
     government establishes that the presumption is necessary to alleviate an undue
     burden presented in this habeas corpus proceeding. If the Court determines that a
     presumption is warranted, the petitioner will receive notice of the presumption
     and an opportunity to rebut it. Argument, if any, in support of a different
     evidentiary presumption or process shall be presented in each party's motion for
     judgment on the record in accordance with the schedule set forth in Section III.

C.   Hearsay. Upon the request of either the petitioner or the government, the Court
     may admit and consider hearsay evidence that is material and relevant to the
     legality of the petitioner's detention, if the movant establishes that the hearsay
     evidence is reliable and that the presentation of the evidence in compliance with
     the Federal Rules of Evidence would unduly burden the movant or pose an
     unwarranted risk to national security. Requests to admit hearsay evidence shall be
     presented in each party's motion for judgment on the record in accordance with
     the schedule set forth in Section III. If the Court admits hearsay evidence, the
     party opposing admission will have the opportunity to challenge the credibility of,
     and weight to be accorded, such evidence.

                                     III.

A.   Judgment on the Record.

     1.     Schedule of Briefs. Petitioner's motion for judgment on the record shall
            be filed by not later than April 22, 2009. The government's opposition
            shall be filed by not later than May 4, 2009. Petitioner's reply in support
            of his motion shall be filed by not later than May 11, 2009.

     2.     Page Limitations. (a) Petitioner's brief in support of his motion for
            judgment on the record shall not exceed 45 pages. Petitioner shall allocate
            no more than 35 pages to argument in support of its motion for judgment
            on the record and no more than 10 pages to the issues discussed in Section
            II of this Order. (b) The government's opposition brief shall not exceed 45

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                     pages, with no more than 10 pages to the issues discussed in Section II of
                     this Order. (c) Petitioner's final reply brief shall not exceed 15 pages.

              3.     Hearing. A hearing on the motions for judgment on the record will be
                     scheduled by the Court if necessary.

        SO ORDERED.


                                                                  /s/
                                                          JOHN D. BATES
                                                       United States District Judge

Date:   February 20, 2009




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