Once more, Lyle Denniston brings us the first look at the latest developments in the GTMO habeas cases. This one is long, but worthy of your attention. As noted previously, the district court in DC, per Judge Hogan, is undertaking to determine precisely what the procedural rules will be for habeas review now that the Supreme Court in Boumediene has established that there must in fact be some such review. Judge Hogan previously called for the government and detainee attorneys to file briefs expressing their views on several of the most obvious procedural questions to be resolved, and Lyle's post both provides links to those briefs and a very handy summary of their content. To the surprise of no one, the parties disagree sharply about each of these fundamental questions.
On one hand, it is nice after six years to see direct engagement with these fundamental questions. On the other hand, it is quite obvious that a vast amount of litigation lies between today and the ultimate resolution of these questions. That would be true of new legislation as well, of course, though Congress presumably could provide for fast-track review by the Supreme Court if it were so inclined.
In any event, the full post is here, and key excerpts appear below.
Here, in summary, are the responses (the government said each should be decided in common, the detainee position on that is indicated for each):
Right to demand information from the other side ("discovery"):
Detainees: Each prisoner should have a right to demand information from the government, especially to challenge any sworn statements that the government offers. Each should have to get permission for "discovery," but the judge should be "permissive" about it. Aside from answering demands from detainees for information, the government at all times has an obligation to volunteer anything it knows that would support the detainee's challenge; this should last throughout. A ruling applying to all cases should declare a right to discovery, but specific discovery issues can only be decided by individual judges.
Government: Detainees are not entitled to discovery at all. The government promises to supply any evidence that would undercut is claim to have justified detention, and do so with its initial filing of evidence supporting detention. That promise should make discovery unnecessary. The government will not conduct "an open-ended search" for any evidence, favorable or otherwise, about an individual detainee. If a judge decides some discovery is necessary, that should occur only rarely, as "a last resort" to resolve a dispute, and must be closely managed by the judge to make sure it remains narrow in scope.
Basis for seeking a court hearing on the evidence:
Detainees: Each prisoner has a right to a hearing, but one need be held only if there are factual disputes in the papers filed by each side on the basis for detention. While a common decision could be made to establish a basic right to a hearing, individual judges should decide for or against a hearing case by case, and would exercise "de novo" (independent) judgment. The detainees have full right to offer evidence that supports their challenge, including claims that evidence against them was obtained by torture.
Government: A hearing to weigh evidence, with witnesses on the stand, is "almost entirely inappropriate," and, if deemed necessary as "a last resort," should not be held unless the judge decides that - without a hearing - the evidence supports the detainee's challenge.
Basis for allowing out-of-court statements, including "hearsay":
Detainees: Each side should have a limited right to offer sworn statements of evidence - that is, affidavits or other forms of "hearsay" evidence. In response to any such evidence offered by either side, the opposing side has a right to raise questions to test the reliability of the statement or evidence. This testing must be done before the evidence is allowed. Hearsay evidence gathered by torture is not to be admitted. Any right to admit hearsay evidence must be judged case by case.
Government: "Hearsay" evidence "will be the norm, not the exception," and may be submitted by either side, including by sworn affidavits or declarations. Each side may make arguments about the weight and believability of any evidence. A presumption that government-submitted evidence was entitled to greater weight would be appropriate.
Right to confront witnesses or subpoena witnesses to appear:
Detainees: Each individual has a right to confront witnesses against him, and to summon witnesses to testify. A ruling applying to all cases could declare that there is a right to confront and call witnesses, but judges in individual cases must decide whether to allow that, based on whether a witness is available and how important that witness' evidence might be. A detainee's right to confrontation would be exercised through his lawyer. (It is not clear from the brief what position the detainees will be taking on their right to appear in person — an issue not raised by Judge Hogan at this stage. It does appear, though, that detainees' lawyers would regard that as a case-specific issue, to be decided by individual judges.)
Government: Neither side may demand that any witness be called to appear for any hearing on the evidence. If a judge decides a detainee should be allowed to testify, this may be done by telephone or video from Guantanamo Bay.
What amount of proof is needed, and which side has the burden of convincing the court:
Detainees: The government must produce the evidence it believes supports detention, and the evidence must be "clear and convincing" in order to avoid the serious risk that a detention decision was wrong. Neither side's evidence is entitled to any "presumption" that it is valid, true or reliable. Individual judges should weigh the competing evidence.
Government: Each side is to present its written evidence, and the judge shall then order briefing on the legality of the detention. The government must present evidence that shows it is "credible" to justify detention and, if it does, the burden shifts to the detainee to offset that with "more persuasive evidence" against detention. The government's evidence is entitled to a presumption in its favor, but the detainee can rebut it.