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Batarfi v. Bush

July 31, 2008

AYMEN SAEED BATARFI, ET AL., PETITIONERS,
v.
GEORGE W. BUSH, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

ORDER

Pursuant to the status hearing held July 29, 2008 and upon consideration of the status reports submitted in accordance with the Court's Orders of July 7, 2008 and July 24, 2008, and the entire record herein, it is hereby:

ORDERED that the Government shall file notice with the Court thirty (30) days prior to any transfer of a petitioner from Guantanamo Bay, Cuba.*fn1 It is further

ORDERED that any stay previously entered in this case is hereby vacated. It is further

ORDERED that, pending further order of the Court, the following apply in this case: (1) the Amended Protective Order and Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay, Cuba, first issued on November 8, 2004, 344 F. Supp. 2d 174 (D.D.C. 2004); (2) the Order Addressing Designation Procedures for Protected Information, first issued on November 10, 2004; and (3) the Order Supplementing and Amending Filing Procedures Contained in the November 8, 2004 Amended Protective Order, first issued on December 13, 2004. It is further

ORDERED that the Petitioner's renewed motion to compel the Government to permit psychologist to accompany counsel to client interviews shall be filed by August 6, 2008, the Government's response is due August 13, 2008, and Petitioner's reply is due August 15, 2008. It is further

ORDERED that a hearing on Petitioner's motion is scheduled for August 20, 2008 at 9:30 a.m. in Courtroom 24A. It is further

ORDERED that the parties shall address the procedural framework for the habeas corpus hearing in this matter, including the following issues:

1. How should the habeas proceedings be structured?

2. What is the legal authority for detention in these cases and what is the burden of proof for establishing that the detention is lawful? See, e.g., Boumediene v. Bush, 128 S.Ct. 2229, 2266 (June 12, 2008) ("We consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to 'the erroneous application or interpretation' of relevant law.")(citing I.N.S. v. St. Cyr, 533 U.S. 289, 302 (2001)).

3. What is the standard for obtaining an evidentiary hearing, if any?

4. Which party bears the burden of production and persuasion at different stages of the proceedings?

5. What is the standard governing hearsay evidence?

6. What is the scope of discovery and what is the Government's burden to produce exculpatory evidence? See, e.g., Boumediene, 128 S.Ct. at 2270 ("For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government's evidence against the detainee. It also must have the authority to admit and consider exculpatory evidence that was not introduced during the earlier proceeding. Federal habeas petitioners long have had the means to supplement the ...


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