Al Habashi v. Bush

• Decision Date: 08 December 2008
• Docket Number: Civ. No. 05-0765 (EGS).
• Citation: 591 F.Supp.2d 1
• Parties: Benjamin Mohammed AL HABASHI, et al., Petitioners, v. George W. BUSH, et al., Respondents.
• Court: U.S. District Court — District of Columbia

Page 1

591 F.Supp.2d 1

Benjamin Mohammed AL HABASHI, et al., Petitioners, v. George W. BUSH, et al., Respondents.

Civ. No. 05-0765 (EGS).

United States District Court, District of Columbia.

December 8, 2008.

Cori Crider, Ahmed Ghappour, Reprieve, London, UK, James W. Beane, Jr., Clive A. Stafford Smith, New Orleans, LA, Yvonne R. Bradley, Swarthmore, PA, David H. Remes, Appeal For Justice, Silver Spring, MD, Zachary Katznelson for Petitioners.

Arlene Pianko Groner, Carol Lee Draper, Margaret K. Taylor, Ronald James Wiltsie, Scott Michael Marconda, Terry Marcus Henry, Andrew I. Warden, August Edward Flentje, Edward Martin, James C. Luh, Jessica O'Donnell, Paul A. Dean, Sean W. O'Donnell, Jr., U.S. Department of Justice, Washington, DC, for Respondents.

ORDER

EMMET G. SULLIVAN, District Judge.

Upon consideration of the Petitioner's Motion to Compel and Proposed Discovery Schedule, the opposition thereto and reply in support thereof, and the arguments made by the parties in open court on December 1, 2008, it is hereby:

ORDERED that the Petitioner's motion is granted in part and denied in part. It is further

ORDERED that by no later than December 11, 2008, the Respondent Secretary of Defense Robert M. Gates shall submit a sworn declaration that the Respondent has fully complied with (1) this Court's Order of September 22, 2008, requiring Respondent to produce to Petitioner's counsel, subject to any restrictions of the Protective Order in this case, all exculpatory information reasonably available to the United States Government that bears on Petitioner's detention; and (2) this Court's Order of October 30, 2008, requiring Respondent to produce to Petitioner's counsel, subject to any restrictions of the Protective Order in this case, all exculpatory information reasonably available to the United States Government regarding the allegations withdrawn by Respondent on October 6, 2008 in paragraphs 56-78 of the Amended Factual Return; and (3) this Court's Order of December 1, 2008 requiring Respondent to produce to Petitioner's counsel, subject to any restrictions of the Protective Order in this case, any exculpatory evidence reasonably available to the United States Government that would suggest that Petitioner should not be designated as an enemy combatant. See Parhat v. Gates, 532 F.3d 834, 841 (D.C.Cir. 2008) (citing the United States military's definition of exculpatory information as "evidence to suggest that the detainee should not be designated as an enemy combatant.")¹ It is further ORDERED that by no later than December 11, 2008, the United States agent(s) who conducted the interviews with the Petitioner since he was brought into custody (the "interviewing agent") upon which Respondent relies in its Amended Factual Return shall submit a sworn declaration describing the circumstances surrounding those interviews and the resulting statements by Petitioner. (See Parhat v. Gates, 532 F.3d 834, 847) ("As the Supreme Court explained in Concrete Pipe, in the course of discussing the nature of `the burden of showing something "by a preponderance of the evidence"': `Before any such burden can be satisfied in the first instance, the factfinder must evaluate the raw evidence, finding it to be sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of certainty.'") (citing Concrete Pipe & Prods., Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993)). See also Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) ("`In short, the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort.'" ... And, of course, "whether the confession was obtained by coercion or improper inducement can be determined only by an examination of all the attendant circumstances.") (internal citations omitted). It is further

ORDERED that Respondent shall make...