UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________

)

AHMED ZAID SALEM ZUHAIR, )

 )

Petitioner, )

)

) Civ. No. 08-0864 (EGS)

v. )

)

GEORGE W. BUSH, et al., )

)

Respondents. )

_____________________________ )

ORDER

To the extent that this Order conflicts with any Order

issued in this case on April 30, 2009, this Order supercedes the

previous Order. Pursuant to the motions hearing held in open

court on April 30, 2009, and upon consideration of a number of

motions and pleadings pending before the Court, the oppositions

thereto, and the replies in support thereof, and based on the

Court’s continuing efforts to provide the Petitioner with a

timely resolution of his pending habeas corpus petition, while at

the same time respecting and protecting any compelling national

security interests, it is hereby 

ORDERED that the government’s ex parte motion for

reconsideration regarding the government’s obligation to produce

certain exculpatory evidence related to the allegations withdrawn

from the factual return is GRANTED. It is further

ORDERED that the government shall produce all discovery it
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has agreed to produce to the Petitioner, specifically, RFP

Numbers 1 - 6, 8 - 10, 17 - 22, 26 - 42, 47, and 48. It is

further

ORDERED that the information responsive to those discovery

requests shall be produced on a rolling basis, but that

production shall conclude by no later than May 30, 2009, the date

suggested by the government. The Court accepts counsel’s

representations that the government is working in good faith to

provide the relevant discovery as quickly as possible. It is

further

ORDERED that the government shall conduct a search of all

reasonably available databases and sources of information for

exculpatory and/or impeachment evidence pertaining to all fact

witnesses relied upon by the government in its factual return. 

The search must include the databases referenced in Mr. Terry

Henry’s March 27, 2009 Declaration, and any additional reasonably

available databases or sources where the information would likely

be found. The production must also include any exculpatory

and/or impeachment information discovered by the government

attorneys while preparing the factual return and while litigating

habeas corpus petitions filed by other detainees at Guantanamo

Bay, as well as any evidence discovered during the ongoing review

of Guantanamo cases ordered by President Obama on January 22,

2009. Exculpatory evidence includes, but is not limited to,
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evidence that casts doubt on a speaker’s credibility, evidence

that undermines the reliability of a witness’s identification of

the petitioner, and/or evidence that indicates a statement is

unreliable because it is the product of abuse, torture, and/or

mental or physical incapacity. It is further

ORDERED that the exculpatory and/or impeachment evidence

regarding the government’s fact witnesses shall be produced by no

later than May 30, 2009. In order to carry out the Court’s

judicial obligations to determine the lawfulness of Petitioner’s

detention, the Court must evaluate the credibility and

reliability of the government’s evidence relied upon to justify

his detention. The government filed its factual return in August

2008, which included information from several fact witnesses. 

The government was ordered to produce exculpatory evidence in

October 2008. There have been countless discussions, motions,

and orders pertaining to the production of exculpatory evidence

since that time. Moreover, some exculpatory evidence pertaining

to these fact witnesses has been produced in other habeas cases. 

Therefore, it is reasonable to require the production of all such

information by May 30, 2009. It is further

ORDERED that with respect to RFP Numbers 11 - 15 and 43 -

45, the government shall certify to the Court by no later than

May 30, 2009, that an appropriate official(s) with the requisite

understanding of the law and facts pertaining to this case has
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reviewed the unredacted documents and determined that there is no

additional information in the documents that is relevant to

Petitioner’s case. Any relevant information shall be produced to

the Petitioner’s counsel by no later than May 30, 2009. It is

further

ORDERED that by no later than May 30, 2009, the evidence

requested in RFP Numbers 16, 23 - 25, and 49 shall be produced or

made available for inspection if it is in the government’s

possession. It is further

ORDERED that any remaining RFPs are DENIED without prejudice

subject to a motion for reconsideration setting forth the

specific reasons that Petitioner believes the requested

information is critical to a merits determination and, if

appropriate, a proffer as to why the Petitioner has a good faith

basis to believe such evidence exists. Petitioner is cautioned

that any such motion will almost certainly result in a delay of

the merits hearing date established by this Order. It is further

ORDERED that any motions for reconsideration of this Order

shall be filed by May 8, 2009, responses by May 13, 2009, and

replies by May 15, 2009. It is further

ORDERED that the procedural and legal framework for the

merits hearing will be as follows:

1. The government bears the burden of proof by a preponderance

of the evidence that the Petitioner’s detention is lawful.

2. There will be a rebuttable presumption of authenticity as to
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any statements or documentary evidence the government

presents if the government establishes that the presumption

is necessary to alleviate an undue burden presented by this

particular case. Petitioner will be afforded an opportunity

to rebut the presumption.

3. 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 evidence

in compliance with the Federal Rules of Evidence would

unduly burden the movant or pose an unwarranted risk to

national security. The party opposing admission will have

the opportunity to challenge the credibility of, or weight

to be accorded, such evidence.

4. As for the structure of the merits hearing, the government

will go first, because it bears the burden of proof,

followed by the Petitioner, and the government will be

afforded the opportunity to put on a rebuttal case. Because

counsel have more familiarity with the merits hearings that

have been done in other cases, the Court welcomes their

suggestions for conducting a hearing under these unique

circumstances.

5. Petitioner will not have access to classified portions of

the hearing. However, the parties are directed to structure

their presentation of argument and evidence to afford the

Petitioner access to non-classified portions of the hearing

to the greatest extent possible. Petitioner will be

afforded the opportunity to testify, if he so chooses. The

Court Security Office is directed to work with counsel and

the appropriate agencies to ensure that counsel have a

secure line of communication with their client at all times

during the proceedings.

It is further

ORDERED that pursuant to the hearing on April 30, 2009, the

Petitioner is directed to file a pleading on the scope of

authority by no later than May 8, 2009, addressing the

government’s revised definition of an enemy combatant, Judge

Walton and Judge Huvelle’s opinions on this issue cited during
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the hearing, and any other relevant points and authorities. The

government’s response shall be filed by no later than May 15,

2009. The Petitioner’s reply shall be filed by no later than May

20, 2009. It is further 

ORDERED that a Merits Hearing is scheduled for June 30, 2009

at 10:00 a.m. Any additional motions shall be filed by no later

than noon on June 8, 2009, all responses by noon on June 15,

2009, and all replies by noon on June 18, 2009. The government’s

witness and exhibit lists shall be filed by June 8, 2009, and the

Petitioner’s witness and exhibit lists shall be filed by June 15,

2009. It is further

ORDERED that upon consideration of the evaluation and report

submitted by Dr. Emily Keram on April 29, 2009, in which Dr.

Keram identifies certain medical reasons that the use of the

restraint chair during enteral feedings is detrimental to

Petitioner’s health, and in view of the fact that for more than

two months Petitioner’s feedings have taken place in a hospital

bed, the government shall provide notice to the Court if at any

time the government intends to resume use of the restraint chair

during Petitioner’s enteral feedings, and articulate the reasons

for that decision. 

SO ORDERED.

SIGNED: Emmet G. Sullivan

United States District Judge

May 1, 2009