Al Bihani v. Bush, Civil Case No. 05-1312 (RJL).

Decision Date28 November 2008
Docket NumberCivil Case No. 05-1312 (RJL).
PartiesGhaleb Nassar AL BIHANI, Petitioner, v. George W. BUSH et al., Respondents.
CourtU.S. District Court — District of Columbia

Shereen Joy Charlick, Ellis M. Johnston, III, Heather R. Rogers, Steven F. Hubachek, Zaki Zehawi, Federal Defenders of San Diego, Inc., San Diego, CA, for Petitioner.

Scott Michael Marconda, Terry Marcus Henry, August Edward Flentje, James C. Luh, James J. Schwartz, Scott Douglas Levin, U.S. Department of Justice, Washington, DC, for Respondents.

CASE MANAGEMENT ORDER

RICHARD J. LEON, District Judge.

Upon review of the filings made pursuant to the Court's July 31, 2008 Order, the relevant law, and the entire record herein, it is hereby ORDERED that the following procedures will govern the habeas corpus proceedings for the petitioner in the above-captioned case:1

I. PRE-HEARING PROCEDURES:

A. Filings: All classified filings made through the Court Security Office, including the Government's return, petitioner's traverse, and any motions, shall be filed in duplicate and by 1:00 p.m. on the due date.

B. Factual Returns: The Government shall produce returns according to the schedule set forth in the Court's September 23, 2008 Order.2 The Government's return shall include, at a minimum, the factual basis for detention and a brief statement setting forth the Government's legal basis for detaining the petitioner. If the Government's basis for detention is the petitioner's status as an "enemy combatant," the Government must provide the definition of enemy combatant upon which it relies. If the Government's return fails to include a brief statement setting forth its legal basis for detention, the Government will be required to file a supplement to its return by a date set by the Court. In addition, the return may be amended or supplemented only by leave of the Court for good cause shown.

C. Unclassified Returns: The Government shall file an unclassified version of the return no later than two weeks after the filing date for the return set in the Court's September 23, 2008 Order.

D. Status Conference: The Court will hold a status conference after the filing of the return at a date and time set by the Court. Counsel should be prepared to discuss, at a minimum, the following issues at this conference:

a. any evidentiary/classification issues concerning the Government's return;

b. what discovery, if any, the petitioner intends to request and when petitioner intends to make such request(s); and

c. whether petitioner intends to file a single traverse or intends to file an initial traverse and a motion to amend or supplement the traverse.

E. Discovery: Discovery may only be obtained by leave of the Court for good cause shown. The petitioner requesting discovery must provide specific reasons for the request in writing. Any request for discovery must: (1) be narrowly tailored; (2) specify why the request is likely to produce evidence both relevant and material to the petitioner's case; (3) specify the nature of the request (e.g., proposed interrogatories, requests for admission, or requested documents); and (4) explain why the burden on the Government to produce such evidence is neither unfairly disruptive nor unduly burdensome to the Government. The Government has three (3) calendar days to respond in writing to any discovery request. The Court may hold a hearing at its discretion to hear arguments on the discovery request(s). All discovery must be completed by the deadline set forth in the scheduling order.3

F. Exculpatory Evidence: The Government shall provide on an ongoing basis any evidence contained in the material reviewed in developing the return for the petitioner, and in preparation for the hearing for the petitioner, that tends materially to undermine the Government's theory as to the lawfulness of the petitioner's detention.

G. Traverse: The petitioner shall file a traverse in response to the Government's return. The traverse, including any amendments or supplements, shall be filed by the deadline set forth in the scheduling order. The traverse shall include, at a minimum, the relevant facts in support of the petition and a succinct rebuttal of the Government's legal...

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1 cases
  • Al-Bihani v. Obama, No. 09-5051.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 5, 2010
    ...discuss the process to be used. The district court finalized the procedure in a published case management order. See Al-Bihani v. Bush (CMO), 588 F.Supp.2d 19 (D.D.C.2008) (case management order). The order established that the government had the burden of proving the legality of Al-Bihani'......

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