An easier standard for detention
on Aug 27, 2008 at 3:10 pm
 NOTE: In a hearing Wednesday on procedural issues in detainee cases in his Court, U.S. District Judge Richard J. Leon expressed concern about the need to have most of the hearings in those cases behind closed doors, because of the use of classified evidence. Howard Bashman’s How Appealing blog provides this link to a news account of that hearing.
————–
A federal judge who is moving ahead rapidly to implement a Supreme Court decision and decide whether the Pentagon may continue to hold detainees at Guantanamo Bay decided on Wednesday to require only the lowest level of proof to justify further captivity.
In a case management order that applies to the 24 habeas cases before him, U.S. District Judge Richard J. Leon ruled that it would be up to the government to prove “the lawfulness of detention” case by case, but need do so only by a “preponderance of the evidence.”
In Boumediene v. Bush (06-1195), the Supreme Court on June 12 ruled that Guantanamo detainees have a constitutional right to challenge their detention in habeas proceedings in District Court. But the Court left it up to District judges to work out the details of such reviews. Judge Leon was the first to sort out these details; as matters have turned out, the Boumediene case itself is one of those pending before Leon. He plans to start habeas hearings on Oct. 6, with the Boumediene case set for Oct. 8. Other judges are expected to follow with their own procedural rulngs.
The order’s choice of a standard of proof for detention was something of a compromise: the government wanted to be required only to offer some “credible” evidence, and then require the detainee to offer stronger evidence against captivity; the detainees wanted the government to have the burden, but wanted to require that detention by justified “beyond a reasonable doubt,” or, at least, by “clear and convincing evidence” — both more demanding than the standard the judge chose.
The detainees succeeded on a key procedural point: the order did not assure the government that there would be a “presumption” in favor of all of its evidence. Instead, the judge said he would decide, for each piece of evidence, whether to presume that it was accurate or authentic. If any presumption were to be allowed, detainees’ lawyers could contest it, the order said.
Judge Leon left himself some room to second-guess the government, not only on the weight of its evidence to support detention, but also on the core issue of what is a “lawful” detention. Each government report offering reasons for an individual’s captivity, the judge said, must “set forth the government;s legal basis for detaining” that captive. If it offers evidence that he is an “enemy combatant,” it “must provide the definition of enemy combatant upon which it relies.”
The detainees partially succeeded on another point: the government’s duty to turn over any evidence that, in the words of the order, “tends materially to undermine the government’s theory as to the lawfulness” of an individual’s detention. The order said the government must do so “on an ongoing basis,” but did not impose a requirement that government agencies search for such evidence; instead, the turnover duty applies to evidence “contained in the material reviewed” in preparing its reasons for detention.
The judge also made clear, as he had tentatively decided, that he would not require that any detainee be brought to the courtroom to take part in any hearing — an option their lawyers wanted. The order said that the judge would attempt to give detainees “telephone access” to the unclassified parts of any habeas hearing. The order added that, “at a minimum,” a detainee’s lawyer would have the opportunity to contact his client at Guantanamo “by secure telephone on at least one occasion prior to presenting” the detainee’s side of a case.
The order left open the possibility that either side might be allowed to call witnesses to testify. It said: “If a party is permitted to present live testimony during the habeas hearing, the opposing party will be permitted to cross-examine those witnesses.” The judge had said earlier that he would not assure the detainees of any constitutional right to confront witnesses, or to call witnesses.
The order also left open the possibility that detainees could demand evidence from the government — that is, “discovery” rights. Each request for such information would have to get the judge’s approval, and the order set specific requirements for justifying such a request.
Judge Leon’s order left unmentioned a key point of dispute between the two sides: whether he would require the government to notify him or detainees’ lawyers in advance of transferring any detainee out of Guantanamo. At the moment, many such “notice” orders are in effect, but the government is contesting all such orders in the D.C. Circuit Court.
The judge had said publicly that he would insist on being notified himself of such proposed transfers, but said he doubted he had authority to require notice be given to detainees’ lawyers. The detainees wanted notice both to the judge and to their lawyers.
On other points, the order requires the government to get the judge’s approval to add new evidence to support detention, and allows both sides — subject to challenge by the other side — to offer “hearsay” evidence from witnesses not being called to the stand.
