Stepping in boldly to take control of an issue that has lingered for five years in Guantanamo Bay detainee cases — a dispute that traces directly back to the Supreme Court’s first ruling five years ago on government detention power, a federal judge on Wednesday put strict new limits on the government’s use of its main pile of evidence for justifying further confinement of prisoners.

U.S. District Judge Reggie B. Walton went further than any of his District Court colleagues has gone in cutting back on the Pentagon’s option of proving its detention cases by using a kind of evidence that normally would not be allowed in court — hearsay, as a substitute for direct proof of facts.  The judge refused to follow the government’s plea that all of its hearsay evidence about an individual detainee should have a special rank, admitted into court with a presumption that it was reliable unless detainees’ lawyers could show it was not.

Judge Walton’s 12-page order outlining a “framework” for processing government offers of hearsay evidence can be downloaded here.

Since the government has said that nearly all of its evidence of detainees’ alleged terrorist acts or affiliations  is hearsay — what somebody said, rather than hard physical evidence, the new limitations may make it harder to fend off detainees’ claims for their release, at least in Judge Walton’s Court.  Some other District judges have followed Walton’s lead on other detainee case procedures, and could do so on this, too.

The new development is another indication of how a dozen federal judges in Washington are shaping the law of detention, little by little, with only general guidance from the Supreme Court.  The net effect has been to hold the government to more demanding legal standards than it wanted, standards that it has vigorously resisted.

While the specific dispute centers on the arcane issue of what kinds of statements, declarations or other verbal descriptions of detainee activity can be admitted in habeas cases in federal court, there is a real practical dimension to it.  It puts the onus on Justice Department lawyers to show the material is convincing, and spares detainee lawyers the primary task of showing the contrary.

This controversy over hearsay actually originated with the Supreme Court in Hamdi v. Rumsfeld, in 2004.  There, dealing with a suspect captured directly on the battlefield in Afghanistan, the Court upheld the President’s power to keep such individuals confined.  It may be necessary, the Court said, for the government to have the option of using hearsay to justify further captivity, given the conditions that prevail on battlefields.

Since then, as detainee challenges to their imprisonment have gradually moved forward in court, the government has sought to interpret Hamdi broadly.  The Supreme Court decision, it has argued, means that judges should significantly relax normal rules against hearsay evidence, and admit what the government offers with presumptions in its favor.

District judges have gone along in part, agreeing to allow both sides to offer hearsay evidence, and giving the government’s offers some greater weight.  Last June, Judge Walton began creating a procedure for processing the government’s hearsay.  Over government objection, he ruled that he would decide as soon as any hearsay was offered whether it was reliable enough to be admitted, even provisionally.  The judge would rule whether it was strong enough to require detainees’ lawyers to respond, he indicated.

In Wednesday’s opinion, he went further, spelling out in detail how strict he would be in judging whether to let government hearsay evidence into the dozen habeas cases that he has before him.  He said he would allow statements of government officials about what they knew of a detainee’s activities to come in, but only if it would put an “undue burden” on the government to come up with alternatives in physical or other hard evidence.

If the government simply has not gathered or retained hard evidence, the judge ruled, that would not be sufficient proof of a burden to justify allowing a hearsay alternative into court.  He wrote: “The more significant a fact the government seeks to establish through the use of hearsay is, the heavier its burden will be to justify the Court’s consideration of a heasay as a substitute for” other, harder evidence.

He warned that he would not accept mere “conclusoary assertions from government officials” that it would be too difficult for them to come up with harder evidence.  Officials with direct access to government evidence must give sworn statements about how hard it would be to come up with alternatives to hearsay, he added.

If hearsay is all the evidence that the government has about a given detainee, Walton went on, that does not necessarily mean he will accept it.  That was in response to a government argument that, if hearsay was all it had, that evidence had to come into court, or else a habeas case could not proceed.  If it does not qualify for admission, and with sufficient indications that it is reliable, the judge said, it would not be allowed, and “the result of this process might not be to the government’s liking.” 

He commented acidly: “The very notion that the Court should lower its standards of admissibility to whatever level the government is prepared (or even able) to satisify is contradcitory to the fundamental principles of fairness” that the Supreme Court has mandated for detainee cases.

Further, the judge bluntly rejected the government’s broad reading of the Hamdi mandate to allow hearsay evidence,  and, with some sarcasm, turned aside its arguments that last Term’s decision by the Justices in Boumediene v. Bush reinforced the mandate to allow hearsay.  “The Supreme Court did not address the issue of hearsay at all” in Boumediene, the judge wrote.

And, the judge said, the fact that Congress may have indicated that it wanted to allow a special rank for government evidence in another form of court review of detentions (the Detainee Treatment Act of 2005, which is now essentially a dead letter as an alternative to habeas) does not mean that such status should be accorded hearsay in habeas proceedings.

“The bottom line,” the judge summed up, “is that hearsay of no evidentiary worth will not be considered when the Court makes its factual findings.”

Nothing the Supreme Court or Congress has said, according to the judge, “compels the Court to adopt a blanket presumption that the hearsay proffered by the government in each of its cases before this member of the Court is admissible.”

In the concluding parts of his opinion, Walton also rejected a government argument that he should defer rulings on whether government evidence would be admitted until all of the government evidence was put into a given case.  Hearsay will not be compared to other hearsay, he said, to determine which of it is reliable enough individually to be considered.

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