UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

SUHAIL ABDU ANAM, et al. ,

P etitioner s,

v. BARACK

H. OBAMA, et al. ,

Respondents. Civil Action No. 04-1194 (TF H)

MERITS HE ARING

P ROCEDURES ORDER On Aug ust 21, 2009, the Court held a telephonic status hear ing r eg arding discovery and proce dural issues conc erning Petitioner Musa’ab A l Madhwani’s ( I SN 839) Merits Hea ring . At the status hear ing, the Gover nment made a

n oral motion for a

n extension of tim e to comply with the Court’s Orde r of July 23, 2009. Specifica lly , the Gover nment soug ht a thirty -day extension of time to complete discove ry , as we ll an extension of tim e to file Motions for Judgment on the Record. Petitioner oppose d the motion. This order ser ves to memorialize the ruling s issued during the hea

ring , as we ll as set the proc edure s to be followed in conne ction with Petiti oner A l Madhwa ni’s Merits Hea

ring . The pa

rties ar e her eby ORDERED to comply with eac h of the following items. 1. Oral Motion for Extension of T im e . For the re asons set for

th during the status hear ing, the Court ORDERS that the Gover nment’s ora l motion for an extension of time to comply with the Court’s Orde r of July 23, 2009, is GR

ANTED IN P ART

. a. Discover

y : The Court order s the g overnme nt to complete discover y pursuant to the Court’s Orde r of July 23, 2009, on or bef

ore Septe mber 18, 2009. Due to thefast-a pproac hing Pre hear ing Confe renc e and Me rits Hear ing, a s well as the numerous Gove rnment motions for an e x tension of time to comply with discovery order s that have be en filed in this case , the Court stresses that no more extensions of time to complete discove ry will be g rante d in the case of Petitioner Al Madhwa ni absent exceptional ca

use. b. J udg ment on the Recor d. I f a pa rty intends to file a Motion for Judgment on the Record, the I nitial Brief

must be filed on or be fore September 8, 2009. See Case Manag ement Or der ( “CMO”) , In re Guantanamo B ay Litig. , Misc. No. 08-0442, Dkt. No. 940 (Nov. 6, 2008) , amende d by Dkt. No. 1315 (De c. 16, 2008) § I I I .A. Due to the trunc ated pe riod betwe en the c ompletion of discovery and the Me rits Hea ring , I nitial Brief

s shall not ex cee d 30 pag es, including the statement of materia l fac ts. Response Br iefs shall be f iled on or bef

ore Septe mber 18, 2009, and shall not exceed 20 pa g es, including the fa ctual re sponse. Reply Br iefs may be filed on or

befor e September

25, 2009, and shall not exceed 10 pa g es. 2. P rehear ing S tate m ent . Eac h party is order ed to file a

Prehea ring Statement on or befor e Oc tober 5, 2009. Cf. L ocal Civil Rule 16.5, Pretrial Statements; CMO § I I I .B.2. A party ’s Prehe aring Statement shall include the following :

a. Statement of the Case . The stateme nt of the ca se shall addr ess the fa ctual basis and the leg al justification for de tention. The statement sha ll also include a statement of mate rial fa cts on which the pa rty intends to rely

and identify , with citations to the Ex hibit L ist, all evidence the par ty expects to elicit in support of those fac ts.

2b. Ex hibit L ist. Each par ty shall submit a numbered list of exhibi ts, which shall set forth a de scription of ea ch exhibit on which the party intends to rely , including the title and date of

eac h exhibi t. The list shall also include a bound and ta bbed copy of the e x hibits. The Governme nt’s exhibi ts shall be ref err ed to as GE #__, a

nd Petitioner’s as PE #__. The pa rties ar e on notice tha t any evidenc e that has not 1 been ide ntified in the Exhi bit L ists may be excluded fr om considera tion by the Court. The two exceptions shall be (1) documents off ere d solely

for the r ebuttal of ar g uments made a t the Merits Hea ring that could not rea sonably have be en anticipated pr ior to October 5, 2009, and (2) exculpatory information, as to which the Gover nment has a c ontinuing oblig ation to disclose to Petiti oner.

c. Wit ness L ist. The list of witnesses shall set forth the full name s and addr esses of all witnesses the pa

rty may call, sepa rate ly identify ing those whom the par ty expects to present a

nd those whom the par

ty may call if the ne ed ar ises including rebuttal witnesse s. The list shall also set forth a br ief de scription of the testimony to be elicited f

rom the witness; and a

n estimate of the time the pa rty will take in eliciting suc h testimony

. See L ocal Civil Rule 16.5(b)(5). 2 3. Joint Lis t of Contested Issues . The pa rties shall confe r with respe ct to the conteste d issues that they

expect to present dur ing the Merits Hea ring , and shall submit a J oint L ist of Contested I ssues on or bef ore O ctober

9, 2009. See, e .g., Al Odah v. United States , Civil Action

Eac h party

is instructed to file two copies of their Exhibi t L ist with t he Court. 1 For classified or

sensitive information re g arding potential witnesses, the pa rties ar e 2 direc ted to follow the Protective O rder and Section I .F of

the Case Ma

nag ement Or der. 3No. 02-0828 (D kt. Not. 627) (Aug . 19, 2009). 4. P etitioner ’s P artic ipation . Petitioner’s counsel sha ll notify the Court on or bef

ore October 9, 2009, as to whethe r Petitioner (1) w ants to testify at the Mer its Hearing , (2) wa nts to listen to unclassified opening statements at the Me rits Hear ing, or (3) doe s not want to participate at the Mer its Hearing

. See CMO § I I I .B.3. 5. P rehear ing Conf

ere nce . On Octobe r 16, 2009, at 10:00 a.m., the pa rties shall appe ar in Courtroom 25A for a

Prehea ring Confere nce. See CMO § I I I .B.2. 6. Hearsay . As noted above , the time betwee n discovery completion and the Me rits Hea ring has bee n sever ely

shortened. T he par

ties now have just over one month to revie w the materia l produce d pursuant to the Court’s discove ry order , file and r eply

to Motions for J udg ment on the Recor d, file Prehe aring Statements, and attend the Prehea ring Confere nce, in addition to whatever

prepa rations the par

ties deem ne cessa

ry for the Me rits Hear ing. T here fore , in an ef fort to fa cilitate the pre hear ing pr ocess, the Court will clar ify its posit ion on hear say evidenc e. The plurality

in Hamdi v. Rum sfeld specific ally acknow ledg ed that “[h]earsay . . . may need to be acc epted a s the most reliable e vidence from the Gove rnment.” 542 U .S. 507, 534 (2004). Ac cording ly , and in line with the pra ctice of other Mer its J udg es, the Court anticipates 3 deciding the ac cura cy , reliability , and we ight, if a ny , of ea ch piec e of e vidence afte r consider ing the evidenc e as a

whole and the arg uments prese nted during the Merits He aring , including a ny arg uments conce rning the re liability of hea rsay evidenc e. See, e .g. , Al Mutari v. United States , Civil Action No. 02-0828 ( Dkt. No. 609) (D .D.C. 3 Aug . 3, 2009) (Kollar -Kotelly , J .); Awad v. Obama , Civil Action No. 05-2379 ( Dkt. No. 178) (D.D.C. Aug . 19, 2009) (Rober tson, J .); Al-Adahi v. Obam a , Civil Action No. 05-0280 ( Dkt. No. 459) (D.D .C. Aug . 21, 2009) (Ke ssler, J.); Al-Harbi v. Obam a , Civil Action No. 05-2479 ( Dkt. No. 270) (D .D.C. Aug , 26, 2009) (Ke nnedy , J .). 47. Guantanam o Review Task Forc e . The Gove rnment shall file a Notice on Oc tober 14, 2009, indicating whether the Guanta

namo Review Ta sk Forc e or Guantanamo Review Panel has made any

decisions re lated to Petitioner. 8. Mer its Hearing P roce dures . The Mer its Hearing , schedule d for Oc tober 26, 2009, at 10:00 a.m. in Courtroom 25A, shall proce ed as f ollows:

a. Opening Statements. The par ties shall beg in with unclassified opening statements, with the Gover nment prese nting its unclassified ope ning sta tement first. The pa

rties shall confe r by

October 16, 2009, to determine w hether there are disag ree ments as to what informa tion may be conside red unc lassified, and to resolve the same. I f Petitioner choose s to list en to the uncla ssified opening statements, Petitioner shall be re sponsible for tra nslators and the G overnme nt shall be re sponsible for all other logistica l arra

ng ements. F ollowing unc lassified opening statements, the par ties shall present c lassified opening statements, with the Gover nment prese nting their

classified ope ning sta tement first. b. Presentation of Evide nce. T he Court shall requir e an issue- by -issue evide ntiary prese ntation. Accor dingly , the Gover nment shall make a

prese ntation on a contested issue r eleva

nt to Petit ioner’s de tention. Petiti oner sha ll then respond to the Gover nment’s pre sentation throug h a pre sentation of evide nce a nd arg ument. Finally , the Gover

nment may

respond to Petitioner’s pre sentation in rebuttal. The pa rties shall repe at this sequence for e ach c ontested issue ra ised by the Gover nment. Petitioner shall then be g iven the opportunity to present a

contested issue rele vant to his detention that was not ar g ued by the par ties in the fore g oing

5sequenc e, followe d by a re sponse from the G overnme nt, and Petitioner’s re buttal. The pa rties shall repe at this sequence for e ach c ontested issue ra ised by Petitioner. The Court expects that both parties will use e lectronic prese ntation devices to prese nt their documenta

ry evidenc e to the Court. The pa rties should contac t J ohn Cramer , Offic er of

I nformation Te chnolog y , to discuss equipment available to the parties.

c. Closing Statements. The pa rties shall prese nt classified c losing stateme nts. The Gover nment shall prese nt their closing arg ument first, followed by

Petitioner. The Gove rnment shall be a llowed to make a rebuttal c losing a

rg ument. SO ORDERED

.

August 28, 2009 / s/ Thomas F. H og an United States District J udg e

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