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JW v State Def’s Motion for Coordination

JW v State Def’s Motion for Coordination

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Number of Pages:33

Date Created:October 2, 2015

Date Uploaded to the Library:October 02, 2015

Tags:Merits, ofState, Defs, coordination, Leopold, Cases, Civil, motion, Emails, order, documents, Hillary Clinton, government, Secretary, filed, clinton, Obama, State Department, document, FOIA, Supreme Court, department, states, court, CIA, Judge


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Case 1:15-mc-01188 Document Filed 09/02/15 Page 1of15
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
INRE:
U.S. DEPARTMENT STATE FOIA
LITIGATION REGARDING EMAILS
CERTAIN FORMER OFFICIALS
Misc. No. 15-1188 (_)
UNITED STATES DEPARTMENT STATES MOTION FOR
DESIGNATION COORDINATING JUDGE AND MEMORANDUM SUPPORT
INTRODUCTION
The United States Department State (State), defendant numerous Freedom
Information Act (FOIA) cases this district which the emails certain former officials are issue, hereby requests the designation coordinating judge allow the orderly and efficient
resolution common questions oflaw, fact, and procedure those cases, pursuant Local
Civil Rules 40.5(e) and 40.6(a).
Numerous FOIA suits filed with this Court against State implicate the search and
production responsive, non-exempt documents that were provided State former
Secretary State Hillary Clinton and certain other former employees (the recently provided
documents). State has been expending considerable time and effort release the public the
approximately 53,000 pages these documents provided former Secretary Clinton. has
produced more than percent them and, pursuant court order issued Judge Rudolph
Contreras, committed completing this enormous undertaking the end January 2016.
State has identified more than FOIA cases where reasonable search would, likely to,
include search all some the recently provided documents. See Schedule Cases
Case 1:15-mc-01188 Document Filed 09/02/15 Page
(attached). These cases are assigned different judges this Court. They are not
susceptible traditional consolidation under Rule 42, because they involve wide range
unrelated subject matters, are different stages proceedings, and are brought variety
plaintiffs. But, because they each implicate search the recently provided documents
referenced above, different judges are being asked impose variety search regimes,
resulting hodgepodge orders directing how State manages the search and production
the emails. The result confusion, inefficiencies, and advantages given some requesters
the expense others. The appointment coordinating judge not only would avoid these
results but would assist State its efforts complete production the documents produced
former Secretary Clinton the end January 2016.
For example, several cases, courts have ordered searches the recently provided
documents. The Department also has been required file joint status reports individual cases
where individual judges could benefit from the broader context that coordinated management
could provide. addition, plaintiffs have sought orders relating discovery and preservation
several cases. Having one judge coordinate these issues would ensure that conflicting orders are
not entered and that scheduling orders take into account relevant demands State, whose IA-processing resources are overextended, and the needs other requesters, rather than
focusing exclusively the circumstances each individual case. least two judges this Court have noted this possibility and made inquiries regarding
consolidation. Tr. Status Conference Judicial Watch Dep ofState, Civil No. the event that further issues that warrant coordination arise, whether cases the
attached Schedule otherwise, State will, after conferring with the relevant plaintiffs, ask the
coordinating judge include them the coordination process.
Case 1:15-mc-01188 Document Filed 09/02/15 Page
15-688 (D.D.C. July 2015) (Judge Contreras querying whether the government plans
anything consolidate these [cases] because doesnt make lot sense for six different
judges ordering six different things, certain extent); Tr. Status Hrg seq.,
Judicial Watch Dept ofState, Civil No. 13-1363 (D.D.C. Jul. 31, 2015) (Judge Sullivan
inquiring how many FOIA and Federal Records Act (FRA) cases there are involving the
emails former Secretary Clinton and the judges involved, and further noting that might seek
their views consolidation); see also Tr. Status Conference 45: 15-20, Judicial Watch
Dep ofState, Civil No. 13-1363 (D.D.C. Aug. 20, 2015) (Judge Sullivan noting the overlap
concerning discovery number related lawsuits pending before him and other judges the
Court).
The Court should exercise its inherent authority designate, pursuant LCvR 40.5(e),
40.6(a), coordinating judge for resolution and management common issues oflaw, fact, and
procedure. each case, the transferring judge would retain the case for all other purposes,
including searches for responsive records other than the recently provided documents. Once
designated, the coordinating judge would determine how best prioritize demands for searches the recently provided documents the different cases; the schedules established the
transferring judges for records other than the recently provided documents would remain
undisturbed and under the jurisdiction those transferring judges. Once searches the recently
provided documents are completed particular case, would sent back the judge
whom the case assigned, for summary judgment other necessary proceedings,
appropriate. State believes this coordinated approach, which modeled the designation
Judge Thomas Hogan coordinate and manage proceedings cases this district involving
Case 1:15-mc-01188 Document Filed 09/02/15 Page
habeas petitioners detained Guantanamo Bay, Cuba, will benefit FOIA requesters, State, and
the Court enabling the fair and efficient resolution these cases.
BACKGROUND December 2014, former Secretary State Clinton provided State paper copies
approximately 30,000 emails (Clinton emails) totaling more than 53,000 pages. Deel. John Hackett ,-i 10, Leopold Dept ofState (Leopold I), Civil No. 15-123 (RC) (D.D.C.
May 18, 2015) (ECF No. 12-1) (Hackett Deel. Processing Emails). Secretary Clinton
provided these records response letter sent the Department State former
Secretaries requesting that, former Secretaries their representatives were aware [were to]
become aware the future federal record, such email sent received personal
email account while serving Secretary State, that copy this record made available
the Department.... there reason believe that may not otherwise preserved the
Departments recordkeeping system. Id. (citation omitted).
Judge Contreras has the case with the most comprehensive production schedule regarding
the Clinton emails and managing monthly rolling production schedule for the entire
collection federal records provided former Secretary Clinton. Leopold Civil No. 15-123. August 31, State has produced more than percent the Clinton emails pursuant that
schedule. The production all the Clinton emails that are federal records scheduled
The number pages provided former Secretary Clinton was originally estimated
approximately 55,000. Hackett Deel. Processing Emails ,-i 10. However, once the
digitizing process was complete, State was able provide more precise count. See Def.
Status Report Leopold (D.D.C. Jul. 2015) (ECF No. 20) (reporting that former Secretary
Clinton provided 53,988 pages, which approximately 1,533 were identified, consultation
with the National Archives and Records Administration, entirely personal correspondence,
that is, documents that are not federal records, leaving approximately 52,455 pages).
Case 1:15-mc-01188 Document Filed 09/02/15 Page
completed January 29, 2016. See Scheduling Order 1-2, Leopold (D.D.C. May 27, 2015)
(ECF No. 17) (establishing monthly Cumulative Pages Completed targets which State shall
aspire abide 37% for the end September, for October, 66% for November, 82% for
December, and 100% for January).
The Clinton emails may reasonably likely contain records responsive FOIA
requests issue more than other cases this district. All the Clinton emails responsive
the requests those cases will processed under FOIA, and the non-exempt portions will
released part the productions the full collection Leopold These emails are being
posted the Departments website keyword-searchable format. Individual searches
identify specific records that are responsive specific FOIA requests may still necessary, and
have been ordered certain cases. Performing such searches now and reviewing the search
results for documents responsive individual FOIA requests, however, requires State divert
resources away from its ongoing effort review and publicly release searchable format the
non-exempt portions the entire Clinton email collection accordance with the Leopold
production schedule. Hackett Deel. Processing Emails n.2. some cases, State has
nonetheless been ordered conduct such searches; others, the searches will done after the
production the full collection complete; and others, the issue has not been addressed
resolved. With way for the judges making decisions individual cases take into account
the cumulative effect search and production orders and balance all the equities the
The Clinton emails are also reasonably likely contain records responsive hundreds FOIA requests not currently litigation. Deel. John Hackett 13, n.1 Associated
Press Dep ofState, Civil No. 15-345 (RJL) (D.D.C. July 21, 2015) (ECF No. 11-1) (Hackett
Deel. FOIA Workload).
Case 1:15-mc-01188 Document Filed 09/02/15 Page
different plaintiffs and State, these various approaches have led uncoordinated and piecemeal
schedules for searches, status reports, and production ofrecords from the Clinton emails.
Moreover, the uncoordinated schedules make difficult for State group together searches for
records responsive FOIA requests that address similar topics, which could allow quicker
overall response those requests while easing the burden State.
The difficulty complying with these divergent court requirements and deadlines
exacerbated the fact that States resources for processing FOIA requests are strained the
limit. 2014, State received nearly 20,000 FOIA requests, increase more than 300
percent over the fewer than 6,000 new requests received 2008. Hackett Deel. FOIA
Workload~
10. the end Fiscal Year 2014, State had 10,965 FOIA requests pending; since
then, July 15, 2015, State has received approximately 16,517 new requests and currently
engaged FOIA litigation cases multiple districts, many which involve court-ordered
document production schedules. See id. (reporting active FOIA litigation cases July 21,
2015). This dramatic increase workload has occurred while funding for States operating
account, which funds Department operations around the world, including the FOIA program, has
decreased real terms. Id. For instance, State spent approximately $16.5 million 2013
and $15.9 million 2014 FOIA personnel costs associated with processing requests
outside litigation. Id.
Appropriated funding for Diplomatic and Consular Programs Ongoing Operations, from
which States FOIA program funded, has been reduced 15.9% since sequestration
2013. the same time, annual Federal pay raises and overseas inflation are increasing annual
operating costs least annually. Hackett Deel. FOIA Workload~ 10.
Case 1:15-mc-01188 Document Filed 09/02/15 Page addition the Clinton emails, State has received non-state.gov emails from certain
former employees-Cheryl Mills, Jacob Sullivan, Huma Abedin, and Philippe Reines-who
served State during former Secretary Clintons tenure. State sent letters these individuals
earlier this year asking them make available State any federal records that they may have
their possession, such emails concerning official government business sent received
personal email account while serving their official capacities with State, ifthere any reason believe that those records may not otherwise preserved States recordkeeping system.
The documents provided response these individuals may theory reasonably likely
contain records responsive numerous FOIA requests that are active litigation, and many
the documents produced these individuals may overlap with the Clinton emails that are the
subject Judge Contrerass rolling production schedule. Because these documents have
processed (including being scanned, necessary, and put into electronically searchable form)
before they can efficiently searched-a process that has been completed for only some the
provided documents-it difficult establish search schedules. The volume records has
further strained States FOIA resources. Adjudication issues related the processing and
search these records separate judges presents concerns similar those that have already
arisen with respect the Clinton emails.
All these issues are further complicated the different procedural postures the
various cases. For example, some them have just recently begun and have production dates
set for the recently provided records; some are currently the document-production stage; some
Ms. Mills, Ms. Abedin, Mr. Sullivan, and Mr. Reines have indicated that they have
produced State all potential federal records their possession.
Case 1:15-mc-01188 Document Filed 09/02/15 Page
have been reopened after they originally concluded; and some were the midst summary
judgment briefing when these documents began arrive State. addition, individual
plaintiffs have asked for various forms miscellaneous relief, including orders requiring State provide discovery other information related the Clinton emails and emails the former
employees, and orders related preservation. Many these requests for relief from the Court
are the same very similar across several cases. some cases these requests have been
granted, whole part, and others, rejected. And some cases, the issues are not yet ripe.
ARGUMENT
THE COURT HAS THE INHERENT AUTHORITY TRANSFER THESE
CASES RESOLVE COMMON ISSUES LAW, FACT, AND PROCEDURE
District courts have both express and inherent authority coordinate proceedings
cases pending before them the interest justice and the service judicial economy. has
long been recognized that there power inherent every court control the disposition
the causes its docket with economy time and effort for itself, for counsel, and for
litigants. Air Line Pilots Assn Miller, 523 U.S. 866, 879, n.6 (1998) (quoting Landis
Am. Co., 299 U.S. 248, 254-55 (1936)). One specific codification this authority Fed.
Civ. 42, provision that recognizes not only the notion formal consolidation, but also the
power the Court join for hearing trial any all matters issue the actions, and
issue any other orders avoid unnecessary cost delay. Fed. Civ. 42(a)(l), (3).
The district courts inherent authority manage their dockets goes beyond the
measures expressed Rule 42. the Federal Judicial Centers Manual for Complex Litigation
(Fourth) explains, even when cases sharing common issues are pending different judicial
districts, judges can coordinate proceedings their respective courts avoid minimize
duplicative activity and conflicts. MOORES FED. PRACTICE, MANUAL FOR COMPLEX
LITIGATION (FOURTH) 227 (2004).
Case 1:15-mc-01188 Document Filed 09/02/15 Page
This courts local rules include provisions premised similarly broad principles
inherent authority case management issues. Under LCvR 40.5( e), this courts Calendar and
Case Management Committee has the authority refer two more cases assigned different
judges one judge for specific purpose ... order avoid duplication judicial
effort, long the assignment with the consent the judge whom the cases will
referred and the scope authority said judge identified. The Calendar and Case
Management Committee can also advise judge transfer directly all part any case
the judges docket any consenting judge. LCvR 40.6(a). More broadly, LCvR 40.7(h)
recognizes the authority the Chief Judge take such other administrative actions, after
consultation with appropriate committees the Court, his/her judgment are necessary
assure the just, speedy and inexpensive determination cases, and are not inconsistent with
these Rules.
This Court exercised this authority when designated Judge Hogan coordinate and
manage proceedings more than hundred actions behalf almost 200 military
detainees Guantanamo Bay, Cuba. Order 1-2, Guantanamo Bay Detainee Litig., Misc
No. 08-442 (TFH) (D.D.C. July 2008) (ECF No. (Guantanamo Coordination Order)
(citing LCvR 40.5(e), 40.6(a)) (attached). The coordination order that case transferred each
such case :from the judge whom was assigned Judge Hogan for the purpose
coordination and management and identify and delineate both procedural and substantive
issues that are common all some [the] cases and, the extent possible, rule
procedural issues that are common the cases; the transferring judge retained the case for all
other purposes. Id. Judge Hogan established schedule for briefing procedural and
Case 15-mc-01188 Document Filed 09/02/15
substantive issues and the staggered filing factual returns the cases. See Scheduling Order, Guantanamo Bay Detainee Litig. (D.D.C. July 11, 2008) (ECF No. 53). Judge Hogan also
entered case management order that decided variety procedural and substantive issues
common the cases: the common discovery which each petitioner was entitled and the
schedule which must provided; (2) the procedures which petitioners could file
motions for additional discovery (to heard and decided the transferring judge); (3) the
burden proof the government had satisfy prevail; and (4) and procedures and schedules
for filing motions for judgment the record. See Case Management Order
Guantanamo Bay Detainee Litig. (D.D.C. Nov. 2008) (ECF No. 940) (attached). The
transferring judges modified these standard procedures and schedules where necessary
specific cases. this way, the Court addressed these issues far more efficiently and
consistently than could have without coordinating judge. The same type coordination and
management would provide similar benefits the dozens cases issue here.
II.
TRANSFER COMMON ISSUES COORDINATING JUDGE WOULD
ALLOW FOR MORE EFFICIENT RESOLUTION COMMON ISSUES
LAW, FACT, AND PROCEDURE THE CASES HERE
The Court should exercise its inherent authority designate coordinating judge for
resolution and management common issues law, fact, and procedure for the cases involving
the recently provided documents. Once designated, the coordinating judge would determine how
best prioritize the search demands the different cases and address other common issues. impossible anticipate all the common issues that might arise across cases, but proceedings
date have made clear that, minimum, the following issues would benefit from coordination:
Two judges opted out the coordination process entirely.
Case 15-mc-01188 Document Filed 09/02/15
Scheduling Searches the Clinton Emails discussed above, State currently processing the Clinton emails for public release,
consistent with the FOIA and according the schedule set forth Judge Contreras Scheduling
Order Leopold, which calls for production complete January 29, 2016. When this
process complete, the non-exempt portions the Clinton emails that are subject the FOIA
will publicly available States FOIA website. noted above, that website keyword
searchable, which will allow FOIA requesters (as well members the general public)
locate documents interest. However, may still necessary for State conduct searches
the Clinton emails for records responsive other FOIA requests.
Although State has reached agreement with plaintiffs several cases regarding the
scheduling case-specific searches, the issue has given rise disputes several others,9 and
will likely still more. These searches have the potential interfere with each other,
well jeopardize States ability complete release the collection January 29, 2016.
And there are likely efficiencies realized State can group searches for records responsive FOIA requests that address similar topics together, which would ease the burden State
See, e.g., Minute Order, Judicial Watch US. Dep ofState, Civil No. 15-687 (JEB)
(D.D.C. Aug. 2015) (parties agreed that production schedule for Clinton emails would
accordance with the production schedule ordered the Court Leopold I); Judicial Watch
Dep ofState, Civil No. 15-321 (CKK) (Department agreed conduct particularly narrow
search Clinton emails before schedule ordered Court Leopold I).
See, e.g., Minute Order, Citizens United Dep ofState, Civil No. 15-441 (CRC)
(D.D.C. Aug. 2015) (rejecting Plaintiffs proposed production schedule and ordering that the
release responsive records the emails provided former Secretary Clinton follow the
production schedule ordered the Court Leopold I); Joint Status Report ,-i,-i 13, Judicial
Watch Dept State, Civil No. 15-692 (APM) (D.D.C. July 29, 2015) (plaintiffs proposing
more immediate search the Clinton emails; defendant proposing search after the production Leopold complete).
Case 15-mc-01188 Document Filed 09/02/15
while allowing quicker overall response those requests. For this reason, resolving issues
related searches the Clinton emails involves weighing the facts and procedural posture
the various cases against each other, increasing the likelihood divergent and inconsistent
schedules absent coordination. coordinating judge could weigh all the competing demands
and establish consistent schedule for searches the Clinton emails, determine allow the
completion the posting all the emails before individual searches are conducted, while
leaving challenges withholdings from the Clinton emails litigated the individual cases
after they are returned their original judges.
Scheduling Searches the Emails Provided Other Individuals described above, State has recently received documents from other former employees.
These submissions may contain documents potentially responsive several FOIA requests
issue pending cases; with the Clinton emails, cases implicating these documents (either
instead addition the Clinton emails) are different procedural stages, from near
inception summary judgment briefing. each case where State has searched, plans
search, the state.gov email accounts one more these individuals, schedule will need established allow State also search the non-state.gov emails those particular
individuals. some these cases, the searches were complete before these records came into
States custody and control; indeed, some cases, summary judgment briefing had already
begun when documents were received. Nonetheless, given the unique circumstances here, State
proposes that each such case, search the non-state.gov emails those individuals whose
state.gov email accounts were searched, should the plaintiff desire, according schedule
established the coordinating judge.
Case 15-mc-01188
Document Filed 09/02/15
Processing these documents for searching and potential release consistent with FOIA involved process. For example, ready former Secretary Clintons emails for processing and
release, State first undertook multiple steps, including initial review screen out documents
that are entirely personal and thus are not federal records, five-step scanning and digitizing
process, and process load the documents into searchable system (which necessary
allow State conduct search for documents potentially responsive specific FOIA request).
This processing must completed before searches the recently provided records for
potentially responsive documents can run, and State has limited resources available
complete the processing. The coordinating judge, with knowledge each case issue, could
balance the competing concerns between the various plaintiffs, keeping mind States available
resources.
Requests for Information, Discovery, Preservation, and Other Orders
Plaintiffs various cases have made requests for information and discovery about the
use personal email former State Department officials.
Other plaintiffs have sought orders
Several individuals have informed State that they were over-inclusive what they
provided State; possible that some the provided documents are not federal records.
See, e.g. Tr. Status Hrg 66:4-67:3, Associated Press Dep ofState, Civil No. 15-345
(RJL) (D.D.C. July 29, 2015).
Most the documents received date have been received paper form. Because the
document review platform that State uses process FOIA requests cannot ingest most forms
electronic data, most potentially responsive documents must first printed and then scanned
into the system, even documents are received electronically. Hackett Deel. FOIA Workload 14. Even those that not have scanned will still have through four the five
steps the process.
These requests have been made variety contexts, including status reports, orally status conferences, and formal discovery motions. See, e.g., Mot. Allow Time for
Limited Disc., Judicial Watch US. Dep ofState, Civil No. 14-1242 (RCL) (D.D.C. Aug. 21,
Case 15-mc-01188
relating preservation.
Document Filed 09/02/15
Many these requests seek the same similar relief, resulting
similar arguments being made across various cases and risking conflicting rulings such issues.
Coordinating such issues would allow them litigated more efficiently and consistently,
while leaving truly case-specific requests the individual judge before whom the remainder
the cases remains.
***
State respectfully requests that designation coordinating judge occur immediately
due number scheduled conference and reports due different cases. State will
separately filing notice this filing each case this district that implicates the search the
recently provided documents and, most such cases, motion stay those portions each
case addressing those documents until the Coordination Motion decided, and, granted,
2015) (ECF No. 22); Joint Status Report at~ 13, Judicial Watch US. Dep ofState, Civil No.
14-1511 (ABJ) (D.D.C. June 19, 2015) (ECF No. 13) (plaintiff seeking discovery); Tr. Status
Conference 41:22-42:16, Judicial Watch US. Dept ofState, Civil No. 13-1363 (EGS)
(D.D.C. Aug. 20, 2015) (requesting deposition examination State official); Joint Status
Report, Gawker Media, LLC, eta!. US. DeptofState, Civil No. 15-363 (KBJ) (D.D.C. Aug. 2015) (ECF No. 13) (requesting that Department and Mr. Reines provide sworn affidavits).
addition, counsel for plaintiffs numerous other cases have sought similar types information
from counsel for State; some have indicated they may raise these issues with the Court.
See, e.g., Mot. for Status Conference at~ 13, Judicial Watch US. Dept ofState,
Civil No. 14-1242 (RCL) (D.D.C. May 2015) (ECF No. 13) (plaintiff raising issue
possible spoliation); Minute Order, Judicial Watch US. DeptofState, Civil No. 13-1363
(EGS) (D.D.C. Aug. 2015) (directing Department request that former Secretary Clinton,
Ms. Mills, and Ms. Abedin not delete any federal records, electronic otherwise, their
possession control, and provide assurances this point Department); Pl.s Status Report,
Judicial Watch US. Dept ofState, Civil No.12-2034 (RW) (D.D.C. Aug. 13, 2015) (ECF No.
22) (raising issue preservation certain emails). addition, counsel for plaintiffs
numerous other cases have informed counsel for State that they may seek similar relief.
Case 15-mc-01188
Document Filed 09/02/15
until the coordinating judge issues order determining how proceed the coordinated
cases.
CONCLUSION
For the reasons set forth above, the Court should grant this motion and transfer the
common legal, factual, and procedural issues member this Court serve
coordinating judge.
Date: September 2015
Respectfully submitted,
BENJAMIN MIZER
Principal Deputy Assistant Attorney General
ELIZABETH SHAPIRO
Deputy Branch Director
MARCIA BERMAN
Assistant Branch Director
Isl Robert Prince
ROBERT PRINCE (D.C. Bar No. 975545)
United States Department Justice
Civil Division, Federal Programs Branch Massachusetts Ave., N.W.
Washington, 20530
Tel: (202) 305-3654
robert.prince@usdoj.gov
Counsel for Movant
The motion State will file Leopold will not seek stay the scheduling order
governing the production the emails provided State former Secretary Clinton.
The government has reached out the plaintiffs the scheduled cases determine
their position with respect this motion. Their respective positions are set forth the attached
Schedule Cases.
Case 1:15-mc-01188 Document 1-1 Filed 09/02/15 Page 1of3
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
INRE:
U.S. DEPARTMENT STATE FOIA
LITIGATION REGARDING EMAILS
CERTAIN FORMER OFFICIALS
Misc. No. 15-1188 (_)
UNITED STATES DEPARTMENT STATES
MOTION FOR DESIGNATION COORDINATING JUDGE
SCHEDULE CASES
Case
Civil No.
Plaintiff Position
Accuracy Media Dep
Defense, al.
14-1589 (EGS)
Does not oppose
Associated Press Dep ofState
15-345 (RJL)
Needs see motion before
taking position
Bauer Central Intelligence Agency,
al.
14-963 (APM)
Opposes
Canning Dep State
13-831 (RDM)
Takes position (plaintiff
George Canning); unable
obtain separate consent
(plaintiff Jeffrey Steinberg)
Citizens United Dep ofState
15-374 (EGS)
Opposes
Citizens United Dep ofState
15-441 (CRC)
Opposes
Citizens United Dep ofState
15-518 (ABJ)
Opposes
Citizens United Dep ofState1
15-1031 (EGS)
Opposes
Because this relatively new case, the Department State has not yet made final
determination whether not reasonable search will include the recently provided
documents.
Case 1:15-mc-01188 Document 1-1 Filed 09/02/15 Page
Case
Civil No.
Plaintiff Position
Competitive Enterprise Institute U.S.
Dept ofState
15-553 (RDM)
Opposes
Freedom Watch National Security
Agency, al.
12-1088 (CRC)
Does not oppose, but only
the designated coordinating
judge was not appointed the
District Court for the District
Columbia President Clinton President Obama, given,
minimum, the appearance
conflict interest since Hillary
Clinton and the Obama State
Department are issue
Gawker Media U.S. Dep State
15-363 (KBJ)
Takes position
Joseph U.S. Dept ofState, al.
14-1896 (RJL)
Judicial Watch U.S. Dep State,
al.
12-893 (IDB)
Judicial Watch U.S. Dep ofDefense, al.
14-812 (KBJ)
Judicial Watch U.S. DeptofState
12-2034 (RW)
Judicial Watch U.S. Dep State
13-1363 (EGS)
Judicial Watch U.S. Dep State
13-772 (CKK)
Judicial Watch U.S. Dep State
14-1242 (RCL)
Judicial Watch U.S. Dep State
14-1511 (ABJ)
Judicial Watch U.S. DeptofState
15-1128 (EGS)
Judicial Watch U.S. DeptofState
15-321 (CKK)
Judicial Watch U.S. DeptofState
15-646 (CKK)
Did not convey position;
wants more time discuss
logistics and think about
questions related the
coordination motion
Case 1:15-mc-01188 Document 1-1 Filed 09/02/15 Page
Case
Civil No.
Judicial Watch US. DeptofState
15-684 (BAH)
Judicial Watch US. DeptofState
15-687 (JEB)
Judicial Watch US. DeptofState
15-688 (RC)
Judicial Watch US. DeptofState
15-689 (RDM)
Judicial Watch US. DeptofState
15-691 (APM)
Judicial Watch US. DeptofState
15-692 (APM)
Leopold US. Dep State
14-1760 (TSC)
Opposes
Leopold US. Dep State
15-123 (RC)
Opposes Brien US. Dep State
14-119 (RC)
Opposes
Veterans for Strong America US.
Dept ofState
15-464 (RMC)
Takes position
Plaintiff Position
Did not convey position;
wants more time discuss
logistics and think about
questions related the
coordination motion
Case 1:15-mc-01188 Document 1-2 Filed 09/02/15 Page 1of1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
INRE:
U.S. DEPARTMENT STATE FOIA
LITIGATION REGARDING EMAILS
CERTAIN FORMER OFFICIALS
Misc. No. 15-1188 (_)
PROPOSED ORDER
More than cases arising under the Freedom Information Act (FOIA) are pending
this District that implicate the search and production ofresponsive, non-exempt documents
subject the FOIA that were provided State former Secretary State Hillary Clinton and
certain other former employees (the recently provided documents). These
matters(Coordinated Cases) are listed the Schedule Cases attached the Defendants
motion for designation coordinating judge (Coordination Motion). Upon consideration
the Coordination Motion hereby:
ORDERED that Judge
ORDERED that the Coordination Motion GRANTED. further designated resolve
and manage issues law, fact, and procedure arising the Coordinated Cases from the search
and production ofresponsive records within the recently provided documents. further
ORDERED that each Coordinated Case, the transferring judge will retain the case for
all other purposes.
Date
Chief Judge Richard Roberts
Case0 a{)8-llnltffitnM9fill8El D[}oomBehL-0 Fffflec09ID9Z21!210Cf83.gePlagB41
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
INRE:
Misc. No. 08-442 (TFH)
GUANTANAMO BAY
DETAINEE LITIGATION
Civil Action Nos.
02-CV-0828, 04-CV-1136, 04-CV-1164, 04-CV-1194,
04-CV-1254, 04-CV-1937, 04-CV-2022, 04-CV-2035,
04-CV-2046, 04-CV-2215, 05-CV-0023, 05-CV-0247,
05-CV-0270, 05-CV-0280, 05-CV-0329, 05-CV-0359,
05-CV-0392, 05-CV-0409, 05-CV-0492, 05-CV-0520,
05-CV-0526, 05-CV-0569, 05-CV-0634, 05-CV-0748,
05-CV-0763, 05-CV-0764, 05-CV-0765, 05-CV-0833,
05-CV-0877, 05-CV-0881, 05-CV-0883, 05-CV-0886,
05-CV-0889, 05-CV-0892, 05-CV-0993, 05-CV-0994,
05-CV-0995, 05-CV-0998, 05-CV-0999, 05-CV-1048,
05-CV-1124, 05-CV-1189, 05-CV-1220, 05-CV-1234,
05-CV-1236, 05-CV-1244, 05-CV-1347, 05-CV-1353,
05-CV-1429, 05-CV-1457, 05-CV-1458, 05-CV-1487,
05-CV-1490, 05-CV-1497, 05-CV-1504, 05-CV-1505,
05-CV-1506, 05-CV-1509, 05-CV-1555, 05-CV-1590,
05-CV-1592, 05-CV-1601, 05-CV-1602, 05-CV-1607,
05-CV-1623, 05-CV-1638, 05-CV-1639, 05-CV-1645,
05-CV-1646, 05-CV-1649, 05-CV-1678, 05-CV-1704,
05-CV-1725, 05-CV-1971, 05-CV-1983, 05-CV-2010,
05-CV-2083, 05-CV-2088, 05-CV-2104, 05-CV-2112,
05-CV-2185, 05-CV-2186, 05-CV-2199, 05-CV-2200,
05-CV-2249, 05-CV-2348, 05-CV-2349, 05-CV-2367,
05-CV-2370, 05-CV-2371, 05-CV-2378, 05-CV-2379,
05-CV-2380, 05-CV-2381, 05-CV-2384, 05-CV-2385,
05-CV-2386, 05-CV-2387, 05-CV-2398, 05-CV-2444,
05-CV-2477, 05-CV-2479, 06-CV-0618, 06-CV-1668,
06-CV-1674, 06-CV-1684, 06-CV-1688, 06-CV-1690,
06-CV-1691, 06-CV-1725, 06-CV-1758, 06-CV-1759,
06-CV-1761, 06-CV-1765, 06-CV-1766, 06-CV-1767,
07-CV-1710, 07-CV-2337, 07-CV-2338, 08-CV-0864,
08-CV-987
ORDER July 2008, the United States District Court for the District Columbia resolved
Executive Session designate the undersigned coordinate and manage proceedings all
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cases involving petitioners presently detained Guantanamo Bay, Cuba, that these cases can addressed expeditiously possible per the Supreme Court decision Boumediene
Bush, No. 06-1195, slip op. (June 12, 2008). Pursuant LCvR 40.6(a) and 40.5(e), all
cases involving Guantanamo Bay detainees that have been filed and that may filed the
future will transferred from the Judge whom they are assigned the undersigned for the
purpose coordination and management. The transferring Judge will retain the case for all
other purposes. The undersigned will identify and delineate both procedural and substantive
issues that are common all some these cases and, the extent possible, rule
procedural issues that are common the cases.
Accordingly, hereby ORDERED that: The parties shall appear for conference the record discuss and schedule
anticipated proceedings these cases. The conference shall take place Tuesday, July
2008 2:00 p.m. the Ceremonial Courtroom, which located the Sixth Floor the
Barrett Prettyman Courthouse, 333 Constitution Avenue, N.W., Washington, D.C. 20001. One counsel for each petitioner presently detained Guantanamo Bay shall present the conference, either person telephone, and shall have authority resolve procedural
and scheduling matters.2 All petitioners counsel, however, shall confer beforehand and
designate more than two lead counsel represent them during the conference. Likewise,
counsel for the United States also shall designate two lead counsel represent them during the
Excluded from reassignment are all cases over which Judge Richard Leon
currently presides well Hamdan Bush, No. 04-CV-1519 (Robertson, J.). addition, cases which the petitioner detained country other than Cuba
also are excluded from reassignment this time.
Because the Courts limited resources and space, for the purpose this
conference only one counsel for each petitioner shall permitted appear.
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conference. Counsel who are unavailable appear person should contact Judge Thomas
Hogans chambers make arrangements appear teleconference. initial matter, the parties shall prepared identify date which they will
confer for the purpose identifying all petitioners who currently have cases pending before the
Court and eliminating any duplicate petitions that have been filed behalf single
individual. The Court expects this process clarify the correct identity petitioners and avoid
possible duplication by, for example, eliminating the number petitioners proceeding under
Doe surname. The parties also shall prepared identify date which they will file
status report summarizing the status each case. All future filings shall captioned identify the Miscellaneous Number established
solely for the purpose consolidating the proceedings before the undersigned well under
the Civil Action Number originally assigned the petition. Accordingly, the parties shall adhere the above case-caption format for the purpose filing all documents these cases, although
the only Civil Action Numbers that will identified any given filing will the numbers
applicable that particular filing. For example, ifthe petitioner Civil Action No. 09-0111
files document that applies only his case, the case caption should formatted follows,
with the XXX representing the initials the appropriate judge:
INRE:
Misc. No. 08-442 (TFH)
GUANTANAMO BAY
DETAINEE LITIGATION
Civil Action No. 09-0111 (XXX)
If, however, filing applies all cases, then shall filed exactly indicated the caption
above, which lists all applicable Civil Action Numbers well the required Miscellaneous
Number. Pursuant LCvR 5.1 (b), counsel shall not direct correspondence the undersigned.
All communications with the Court shall motion other such appropriate filing
accordance with the proper filing procedures. The Court expects professionalism, courtesy and civility govern the parties conduct all times during these proceedings. Given counsels competence and experience, the Court
confident that this objective will accomplished without judicial intervention. ORDERED.
July 2008
Isl Ifwmas 1fogan
Thomas Hogan
United States District Judge
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
INRE:
Misc. No. 08-442 (TFH)
GUANTANAMO BAY
DETAINEE LITIGATION
Civil Action Nos.
02-CV-0828, 04-CV-1136, 04-CV-1164, 04-CV-1194,
04-CV-1254, 04-CV-1937, 04-CV-2022, 04-CV-2035,
04-CV-2046, 04-CV-2215, 05-CV-0023, 05-CV-0247,
05-CV-0270, 05-CV-0280, 05-CV-0329, 05-CV-0359,
05-CV-0392, 05-CV-0492, 05-CV-0520, 05-CV-0526,
05-CV-0569, 05-CV-0634, 05-CV-0748, 05-CV-0763,
05-CV-0764, 05-CV-0833, 05-CV-0877, 05-CV-0881,
05-CV-0883, 05-CV-0889, 05-CV-0892, 05-CV-0993,
05-CV-0994, 05-CV-0995, 05-CV-0998, 05-CV-0999,
05-CV-1048, 05-CV-1124, 05-CV-1189, 05-CV-1220,
05-CV-1236, 05-CV-1244, 05-CV-1347, 05-CV-1353,
05-CV-1429, 05-CV-1457, 05-CV-1458, 05-CV-1487,
05-CV-1490, 05-CV-1497, 05-CV-1504, 05-CV-1505,
05-CV-1506, 05-CV-1509, 05-CV-1555, 05-CV-1590,
05-CV-1592, 05-CV-1601, 05-CV-1602, 05-CV-1607,
05-CV-1623, 05-CV-1638, 05-CV-1639, 05-CV-1645,
05-CV-1646, 05-CV-1649, 05-CV-1678, 05-CV-1704,
05-CV-1725, 05-CV-1971, 05-CV-1983, 05-CV-2010,
05-CV-2083, 05-CV-2088, 05-CV-2104, 05-CV-2112,
05-CV-2185, 05-CV-2186, 05-CV-2199, 05-CV-2200,
05-CV-2249, 05-CV-2349, 05-CV-2367, 05-CV-2371,
05-CV-2378, 05-CV-2379, 05-CV-2380, 05-CV-2381,
05-CV-2384, 05-CV-2385, 05-CV-2386, 05-CV-2387,
05-CV-2398, 05-CV-2444, 05-CV-2477, 05-CV-2479,
06-CV-0618, 06-CV-1668, 06-CV-1674, 06-CV-1684,
06-CV-1688, 06-CV-1690, 06-CV-1691, 06-CV-1758,
06-CV-1759, 06-CV-1761, 06-CV-1765, 06-CV-1766,
06-CV-1767, 07-CV-1710, 07-CV-2337, 07-CV-2338,
08-CV-987, 08-1085, 08-CV-1101, 08-CV-1104, 08-CV1153
SCHEDULING ORDER
Based upon the parties representations during the hearing held July 2008, the
filings the Court received following the hearing, and the entire record herein, the Court enters the
following schedule initially govern this consolidated proceeding. Status Reports. Julyl8, 2008, the parties shall each file concise reports
summarizing the status each case. applicable, counsel involved with multiple cases (versus
multiple petitioners single case) may, solely for the purpose submitting single status
report, consolidate their cases. Joint Report. July 21, 2008, petitioners and the government shall submit joint
report that: includes proposed amended protective order and separate proposed
protective order for use cases involving high-value detainees; identifies duplicate petitions that were filed behalf single individual,
and addresses which the duplicate petitions should dismissed; identifies petitioners currently detained Guantanamo Bay, Cuba, whose
cases were dismissed jurisdictional grounds, and addresses whether the Court should vacate
such dismissals; identifies petitioners who are cleared authorized for release and the type
such release-e.g., whether the petitioner authorized for release and the government simply
seeking receiving country whether the petitioner authorized for release detention
another country-and addresses any objection consolidation such cases before one Judge
this Court; identifies all Boumediene-related motions dismiss and motions stay that
are still pending, and addresses whether such motions are moot; identifies all pending motions that are ripe for decision, and suggests the
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appropriate time address such motions and whether they are amenable common resolution the undersigned; identifies the cases which stay was entered, and addresses whether the
Court should lift all such stays; identifies the cases which appeal petition for certiorari pending;
and includes proposals how the undersigned should conduct regular status
conferences. reports any agreement for the government provide unclassified portions the CSRT records petitioners who have had their CSRT reviews July 31, 2008. Simultaneous Briefing Procedural Framework Issues. July 25, 2008,
counsel for petitioners and the government shall each file one brief addressing the following
issues relating the procedural framework which these cases will resolved and whether
such issues are amenable common resolution: the scope discovery; the standard for obtaining evidentiary hearing; the standard governing hearsay evidence; the application confrontation and compulsory process rights; and the relevant standards proof and burdens production and persuasion, and
any burden shifting.
Counsel for petitioners and the government shall file responses August 2008. Factual Returns. Beginning with the earliest filed petitions petitioners currently
held Guantanamo Bay, Cuba, the government shall file factual returns and motions amend
factual returns rolling basis rate least per month. The first factual returns
and motions amend factual returns are due August 29, 2008. the government wishes
amend factual return, shall move amend and attach its motion the proposed amended
factual return. The Court will allow amendment only where the government establishes cause for
the amending. Additionally, ifthe government believes that individual factual return
significantly more complicated than others particular detainees circumstances present
unique issues that require more time complete the return such that processing the return would
delay the overall processing, the government shall move for exception the sequencing
described above. with amendments, the Court will only allow exceptions where the
government establishes cause. Similarly, any petitioners who have extraordinary circumstances
may move before this Court for exception the sequencing described above. ORDERED.
Isl
July 11, 2008
Thomas Hogan
United States District Judge this time pending further order the Court, the government need not file factual
returns motions amend factual returns for the approximately detainees charged with war
crimes under the Military Commissions Act of2006.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
INRE:
Misc. No. 08-0442 (TFH)
GUANTANAMO BAY
DETAINEE LITIGATION
Civil Action Nos.
02-cv-0828,
04-cv-1937,
05-cv-0247,
05-cv-0392,
05-cv-0634,
05-cv-0883,
05-cv-0998,
05-cv-1220,
05-cv-1457,
05-cv-1504,
05-cv-1601,
05-cv-1646,
05-cv-2088,
05-cv-2249,
05-cv-2379,
05-cv-2387,
06-cv-1684,
06-cv-1766,
08-cv-0987,
08-cv-1185,
08-cv-1227,
08-cv-1235,
08-cv-1440,
04-cv-1136, 04-cv-1164,
04-cv-2022, 04-cv-2046,
05-cv-0270, 05-cv-0280,
05-cv-0492, 05-cv-0520,
05-cv-0748, 05-cv-0763,
05-cv-0889, 05-cv-0892,
05-cv-0999, 05-cv-1048,
05-cv-1244, 05-cv-1347,
05-cv-1458, 05-cv-1487,
05-cv-1505, 05-cv-1506,
05-cv-1607, 05-cv-1623,
05-cv-1678, 05-cv-1971,
05-cv-2104, 05-cv-2185,
05-cv-2349, 05-cv-2367,
05-cv-2380, 05-cv-2384,
05-cv-2444, 05-cv-2479,
06-cv-1690, 06-cv-1758,
06-cv-1767, 07-cv-1710,
08-cv-1085, 08-cv-1101,
08-cv-1207, 08-cv-1221,
08-cv-1228, 08-cv-1230,
08-cv-1236, 08-cv-1237,
08-cv-1733, 08-cv-1805
04-cv-1194, 04-cv-1254,
04-cv-2215, 05-cv-0023,
05-cv-0329, 05-cv-0359,
05-cv-0526, 05-cv-0569,
05-cv-0764, 05-cv-0877,
05-cv-0993, 05-cv-0994,
05-cv-1189, 05-cv-1124,
05-cv-1353, 05-cv-1429,
05-cv-1490, 05-cv-1497,
05-cv-1555, 05-cv-1592,
05-cv-1638, 05-cv-1645,
05-cv-1983, 05-cv-2010,
05-cv-2186, 05-cv-2199,
05-cv-2371, 05-cv-2378,
05-cv-2385, 05-cv-2386,
06-cv-0618, 06-cv-1668,
06-cv-1761, 06-cv-1765,
07-cv-2337, 07-cv-2338,
08-cv-1104, 08-cv-1153,
08-cv-1223, 08-cv-1224,
08-cv-1232, 08-cv-1233,
08-cv-1238, 08-cv-1360,
CASE MANAGEMENT ORDER
Upon review the parties briefs response the Courts order Julyl 2008,
and the record herein, and provide the petitioners these cases with prompt habeas corpus
review, see Boumediene Bush, 128 Ct. 2229, 2275 (2008), while proceed[ing] with the
caution necessary this context, Hamdi Rumsfeld, 542 U.S. 507, 539 (2004) (plurality),
and not disregard[ing] the dangers the detention these cases was intended prevent,
Boumediene, 128 Ct. 2276, the Court enters the following Case Management Order
govern proceedings the above-captioned cases.
Factual Returns. accordance with the Courts order July 29, 2008,
amended the Courts order September 19, 2008, the government shall file
returns and proposed amended returns containing the factual basis upon which detaining the petitioner. Hamdi, 542 U.S. 533 (holding that citizendetainee seeking challenge his classification enemy combatant must
receive notice the factual basis for his classification).
Legal Justification. The government shall file succinct statement explaining
its legal justification for detaining the petitioner. the governments
justification for detention the petitioners status enemy combatant, the
government shall provide the definition enemy combatant which relies. cases which the government already filed factual return, the legal
justification due within days the date this Order. all other cases,
the government shall include the legal justification with the factual return.
Unclassified Factual Returns. Within days the date this Order, the
government shall file unclassified version each factual return has filed
date. cases which the government has yet file factual return, the
government shall file unclassified version the return within days the
date which the government file the factual return.
Exculpatory Evidence.
The government shall disclose the petitioner all reasonably available
evidence its possession that tends materially undermine the
information presented support the governments justification for
detaining the petitioner. See Boumendiene, 128 Ct. 2270 (holding
that habeas court must have the authority admit and consider relevant
exculpatory evidence that was not introduced during the [CSRT]
proceeding). cases which the government already filed factual
return, disclosure such exculpatory evidence shall occur within
While the framework detailed this Order governs proceedings all cases
consolidated before this Court, the judges whom the cases are assigned for final resolution
(Merits Judges) may alter the framework based the particular facts and circumstances
their individual cases. Additionally, the Merits Judges will address procedural and substantive
issues not covered this Order.
When used this Order, the term factual return refers factual returns and proposed
amended factual returns filed pursuant the Courts order July 29, 2008, amended the
Courts order September 19, 2008.
days the date this Order. all other cases, disclosure shall occur
within days the date which the government files the factual
return. the date which disclosure occur under this
paragraph, the government shall file notice certifying either that has
disclosed the exculpatory evidence that does not possess any
exculpatory evidence. evidence described the preceding paragraph becomes known the
government after the date which the government was disclose
exculpatory evidence petitioners case, the government shall provide
the evidence the petitioner soon practicable.
Discovery. requested the petitioner, the government shall disclose the
petitioner: (1) any documents objects its possession that are
referenced the factual return; (2) all statements, whatever form,
made adopted the petitioner that relate the information contained the factual return; and (3) information about the circumstances
which such statements the petitioner were made adopted.
Harris Nelson, 394 U.S. 286, 300 (1969) ([D]istrict courts have
the power require discovery when essential render habeas corpus
proceeding effective.). cases which the government already filed factual return, requested disclosure shall occur within days the
date which the petitioner requests the disclosure. all other cases,
requested disclosure shall occur within days the date which the
government files the factual return within days the date
which the petitioner requests disclosure, whichever later.
The Merits Judge may, for good cause, permit the petitioner obtain
limited discovery beyond that described the preceding paragraph.
Bracy Gramley, 520 U.S. 899, 904 (1997) habeas petitioner,
unlike the usual civil litigant federal court, not entitled discovery matter ordinary course.). Discovery requests shall presented written motion the Merits Judge and (1) narrowly tailored, not
open-ended; (2) specify the discovery sought; (3) explain why the
request, granted, likely produce evidence that demonstrates that
the petitioners detention unlawful, see Harris, 394 U.S. 300 [W]here specific allegations before the court show reason believe
that the petitioner may, the facts are fully developed, able
demonstrate that confined illegally and therefore entitled
relief, the duty the court provide the necessary facilities and
procedures for adequate inquiry.); and (4) explain why the requested
discovery will enable the petitioner rebut the factual basis for his
detention without unfairly disrupting unduly burdening the
government, Hamdi, 542 U.S. 533 (holding that citizen-detainee
seeking challenge his classification enemy combatant must
receive ... fair opportunity rebut the Governments factual
assertions before neutral decisionmaker); id. 534 [E]nemycombatant proceedings may tailored alleviate their uncommon
potential burden the Executive time ongoing military
conflict.). The Merits Judge will set the date which all discovery
must completed.
Classified Information. any information disclosed the petitioner
under Sections this Order classified, the government shall
provide the petitioner with adequate substitute and, unless granted
exception, provide the petitioners counsel with the classified information,
provided the petitioners counsel cleared access such information under
Section the Protective Order entered the petitioners case. the
government objects providing the petitioners counsel with the classified
information the basis that, the interest national security, the information
should not disclosed, the government shall move for exception
disclosure and provide the information the Merits Judge camera for
determination whether the information should disclosed and, not
disclosed, whether the government will permitted rely the information support detention. See Boumediene, 128 Ct. 2276 ([T]he Government
has legitimate interest protecting sources and methods intelligence
gathering; and expect that the District Court will use its discretion
accommodate this interest the greatest extent possible.); CIA Sims, 471
U.S. 159, 175 (1985) (The Government has compelling interest protecting the secrecy information important our national security
(citation omitted)).
Traverse. response the governments factual return, the petitioner shall
file traverse containing the relevant facts and evidence supporting the petition.
See Boumediene, 128 Ct. 2273 (If detainee can present reasonably
available evidence demonstrating there basis for his continued detention, must have the opportunity present this evidence habeas corpus
court.); Hamdi, 542 U.S. 533 (holding that citizen-detainee seeking
challenge his classification enemy combatant must receive ... fair
opportunity rebut the Governments factual assertions before neutral
decisionmaker). Traverses are due within days the date which the
government files notice relating exculpatory evidence under Section LD.1
this Order. The Merits Judge may, for good cause, permit the petitioner
amend supplement filed traverse.
II.
Burden and Standard Proof. The government bears the burden proving preponderance the evidence that the petitioners detention lawful.
Boumediene, 128 Ct. 2271 (The extent the showing required the
government these cases matter determined.).
Presumption Favor the Governments Evidence. The Merits Judge may
accord rebuttable presumption accuracy and authenticity any evidence
the government presents justification for the petitioners detention the
government establishes that the presumption necessary alleviate undue
burden presented the particular habeas corpus proceeding. See Hamdi, 542
U.S. 534 [E]nemy-combatant proceedings may tailored alleviate their
uncommon potential burden the Executive time ongoing military
conflict. ... [For example,] the Constitution would not offended
presumption favor the governments evidence, long that presumption
remained rebuttable one and fair opportunity for rebuttal were provided.);
Boumediene, 128 Ct. 2276 (Certain accommodations can made
reduce the burden habeas corpus proceedings will place the military without
impermissibly diluting the protections the writ.). the Merits Judge
determines that presumption warranted, the petitioner will receive notice
the presumption and opportunity rebut it.
Hearsay. motion either the petitioner the government, the Merits
Judge may admit and consider hearsay evidence that material and relevant
the legality the petitioners detention the movant establishes that the
hearsay evidence reliable and that the provision nonhearsay evidence
would unduly burden the movant interfere with the governments efforts
protect national security. See Hamdi, 542 U.S. 533-34 (noting that,
enemy-combatant proceedings, [h]earsay ... may need accepted the
most reliable available evidence). The proponent hearsay evidence shall
move for admission the evidence later than days prior the date
which the initial briefs for judgment the record are due under Section IILA.1 this Order. The party opposing admission shall respond the motion within days its filing. the Merits Judge admits hearsay evidence, the party
opposing admission will have the opportunity challenge the credibility of, and
weight accorded, such evidence.
III.
Judgment the Record.
Initial Briefs. Within days the filing the traverse, within
days the date this Order cases which the petitioner already
filed traverse, the petitioner and the government shall each file brief support judgment the record. Each brief shall address both the
factual basis and the legal justification for detention, see Boumediene,
128 Ct. 2269 (The habeas court must have sufficient authority
conduct meaningful review both the cause for detention and the
Executives power detain.), and accompanied separate
statement material facts which the party contends there
genuine dispute. The statement material facts shall cite the specific
portions the record that support the partys contention that fact
not dispute and shall not contain argument. Initial briefs shall not
exceed pages, excluding the statement material facts.
Reply Briefs. Reply briefs may filed only leave court.
Response Briefs. Within days the filing initial briefs, the parties
shall file response briefs. Each response brief shall accompanied
factual response statement that either admits controverts each fact
identified the opposing partys statement material facts one
which there genuine dispute. The factual response shall cite the
specific portions the record that support the partys contention that
fact disputed. The Court may treat conceded any legal argument
presented initial brief that not addressed the response brief
and may assume that facts identified the statement material facts
are admitted unless controverted the factual response. Response
briefs shall not exceed pages, excluding the factual response.
Hearing. The Merits Judge may allow oral argument.
Evidentiary Hearing.
Basis for Hearing. If, after reviewing the parties briefs for judgment the record, the Merits Judge determines that substantial issues
material fact preclude final judgment based the record, the petitioner entitled evidentiary hearing. Stewart Overholser, 186
339, 342 (D.C. Cir. 1950) (When factual dispute the core
detention challenged application for the writ ordinarily must
resolved the hearing process.).
Prehearing Conference. Counsel shall appear for ehearing
conference discuss and narrow the issues resolved the
hearing, discuss evidentiary issues that might arise the hearing,
identify witnesses and documents that they intend present the
hearing, and discuss the procedures for the hearing.
Petitioners Presence. The petitioner will not have access classified
portions the hearing. Through available technological means that are
appropriate and consistent with protecting classified information and
national security, the Merits Judge will attempt provide the petitioner
with access unclassified portions the hearing. ORDERED.
November 2008
Thomas Hogan
United States District Judge