The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
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 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 record on review, even in the post-conviction habeas setting. ... Here that opportunity is constitutionally required.") (emphasis added) (internal citations omitted); Bismullah v. Gates, 501 F.3d 178 (2007)("We hold that, contrary to the position of the Government, the record on review consists of all the information a Tribunal is authorized to obtain and consider, pursuant to the procedures specified by the Secretary of Defense and ... defined by the Secretary of the Navy as 'such reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant,' which includes any information presented to the Tribunal by the detainee or his Personal Representative.").
7. What is the application of the confrontation and compulsion rights, if any?
8. What role does the Combatant Status Review Tribunal proceedings play in the habeas proceeding? See, e.g., Boumediene, 128 S.Ct. at 2270 ("Even if we were to assume that the CSRTs satisfy due process standards, it would not end our inquiry. Habeas corpus is a collateral process that exists, in Justice Holmes' words to 'cu[t] through all forms and g[o] to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, ...