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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________



IN RE:




GUANTANAMO BAY

DETAINEE LITIGATION



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Misc. No. 08-442 (TFH)

Civil Action Nos.
02-CV-0828, 04-CV-1136, 04-CV-1164, 04-CV-1194,
04-CV-1254, 04-CV-1937, 04-CV-2022, 04-CV-2035,
04-CV-2046, 04-CV-2215, 05-CV-0023, 05-CV-0247,
05-CV-0270, 05-CV-0280, 05-CV-0329, 05-CV-0359,
05-CV-0392, 05-CV-0492, 05-CV-0520, 05-CV-0526,
05-CV-0569, 05-CV-0634, 05-CV-0748, 05-CV-0763,
05-CV-0764, 05-CV-0833, 05-CV-0877, 05-CV-0881,
05-CV-0883, 05-CV-0889, 05-CV-0892, 05-CV-0993,
05-CV-0994, 05-CV-0995, 05-CV-0998, 05-CV-0999,
05-CV-1048, 05-CV-1124, 05-CV-1189, 05-CV-1220,
05-CV-1236, 05-CV-1244, 05-CV-1347, 05-CV-1353,
05-CV-1429, 05-CV-1457, 05-CV-1458, 05-CV-1487,
05-CV-1490, 05-CV-1497, 05-CV-1504, 05-CV-1505,
05-CV-1506, 05-CV-1509, 05-CV-1555, 05-CV-1590,
05-CV-1592, 05-CV-1601, 05-CV-1602, 05-CV-1607,
05-CV-1623, 05-CV-1638, 05-CV-1639, 05-CV-1645,
05-CV-1646, 05-CV-1649, 05-CV-1678, 05-CV-1704,
05-CV-1725, 05-CV-1971, 05-CV-1983, 05-CV-2010,
05-CV-2083, 05-CV-2088, 05-CV-2104, 05-CV-2112,
05-CV-2185, 05-CV-2186, 05-CV-2199, 05-CV-2200,
05-CV-2249, 05-CV-2349, 05-CV-2367, 05-CV-2371,
05-CV-2378, 05-CV-2379, 05-CV-2380, 05-CV-2381,
05-CV-2384, 05-CV-2385, 05-CV-2386, 05-CV-2387,
05-CV-2398, 05-CV-2444, 05-CV-2477, 05-CV-2479,
06-CV-0618, 06-CV-1668, 06-CV-1674, 06-CV-1684,
06-CV-1688, 06-CV-1690, 06-CV-1691, 06-CV-1758,
06-CV-1759, 06-CV-1761, 06-CV-1765, 06-CV-1766,
06-CV-1767, 07-CV-1710, 07-CV-2337, 07-CV-2338,
08-CV-0987, 08-CV-1085, 08-CV-1101, 08-CV-1104
08-CV-1153, 08-CV-1185, 08-CV-1207

PETITIONERS’ JOINT MEMORANDUM OF LAW

ADDRESSING PROCEDURAL FRAMEWORK ISSUES






Petitioners hereby respectfully submit this Memorandum of Law addressing certain

issues identified in the Court’s July 11, 2008 Scheduling Order related to the procedural

Case 1:05-cv-01429-UNA Document 113 Filed 07/25/2008 Page 2 of 36

framework to govern the disposition of the Guantanamo Bay habeas corpus petitions and

addressing whether such issues may be amenable to common resolution.

Petitioners propose the following procedural framework: (1) Petitioners are entitled to an

evidentiary hearing on any material factual issue in dispute; (2) the government should bear the

burden of demonstrating to the Court the sufficiency of the evidence in support of the detention

by clear and convincing evidence, and should not receive any presumption of sufficiency or

validity based upon its prior unilateral determinations regarding a Petitioner’s “enemy

combatant” status; (3) Petitioners are entitled to discovery through leave of court based on the

needs in a particular case, and the government is obligated to produce all relevant exculpatory

evidence in each of the cases; (4) hearsay evidence, while strongly disfavored, may be permitted

consistent with the Federal Rules of Evidence and the habeas corpus statute, based upon the

nature of the evidence offered, the Judge’s ability to assess its reliability and the specific facts

and issues raised by the case; (5) Petitioners generally have a right to confront the evidence

against them and to meaningfully participate in their proceedings.

INTRODUCTION

Habeas corpus entitles a petitioner to a searching, independent inquiry into the lawfulness

of his detention. Ex parte Watkins, 28 U.S. 193, 202 (1830) (“[T]he great object of [the writ] is

the liberation of those . . . imprisoned without sufficient cause. It is in the nature of a writ of

error, to examine the legality of the commitment”); Braden v. 30th Judicial Circuit Court of

Kentucky, 410 U.S. 484, 490 (1973) (the writ is “a swift and imperative remedy in all cases of

illegal restraint or confinement”) (internal citations omitted). As the Supreme Court recently

explained in Boumediene v. Bush, habeas entitles a prisoner to determine whether the respondent

has sufficient statutory, constitutional or other lawful authority to detain. 128 S. Ct. 2229, 2266



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Case 1:05-cv-01429-UNA Document 113 Filed 07/25/2008 Page 3 of 36

(2008) (citing INS v. St. Cyr, 533 U.S. 289, 302 (2001)). In addition, the Court confirmed that,

in the executive detention context, habeas must provide a meaningful opportunity to challenge

the factual basis for the detention. Id. at 2266–68, 2269 (because “the writ must be effective . . .

[t]he habeas court must have sufficient authority to conduct a meaningful review of . . . the cause

for detention”); id. at 2270 (habeas “includes some authority to assess the sufficiency of the

Government’s evidence against the detainee. [The court] also must have the authority to admit

and consider relevant exculpatory evidence that was not introduced during the earlier

proceeding”).

Petitioners understand that the issues identified by the Court in its Scheduling Order will

primarily relate to the manner in which district judges dispose of challenges to the factual

sufficiency of the government’s evidence. Petitioners wish to bring to the Court’s attention that

some detainees may choose to concede, arguendo, the correctness of the government’s factual

allegations against them – thereby initially foregoing factual development and an evidentiary

hearing – to argue that those stipulated facts cannot provide a lawful basis to detain. See, e.g.,

Parhat v. Gates, No. 06-1397, __ F.3d __, 2008 WL 2576977 (D.C. Cir. June 20, 2008) (holding

that evidence in record was insufficient to support executive’s authority to detain petitioner

under AUMF); Al-Marri v. Pucciarelli, No. 06-7427, __F.3d __, 2008 WL 2736787 at *31 (4th

Cir. July 15, 2008) (Motz, J, concurring) (concluding it unnecessary to reach the question

whether petitioner received “sufficient process” in the course of the determination that he was an

“enemy combatant” because detention was unlawful under the AUMF and the Constitution).

Petitioners who do intend to challenge the factual basis of their detention stress two

governing principles. First, the habeas corpus statute itself already provides a basic framework

for adjudicating all habeas petitions brought, as these petitions are, pursuant to 28 U.S.C.



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Case 1:05-cv-01429-UNA Document 113 Filed 07/25/2008 Page 4 of 36

§ 2241(c). That framework includes Petitioners’ opportunity to traverse, or rebut, the

government’s proffered return to the writ, § 2243, ¶6, to undertake discovery where needed,

§ 2246, and to have disputed factual questions decided by an evidentiary hearing, § 2243, ¶7.

The statutory framework thus reflects a common law court’s plenary power to inquire into the

lawfulness of the detention. See Harris v. Nelson, 395 U.S. 286, 293 (1969) (“The language of

Congress, the history of the writ, the decisions of this Court, all make clear that the power of

inquiry on federal habeas corpus is plenary.”) (internal quotations and citations omitted).

Second, many of the issues identified by the Court for discussion by the parties are not

suitable for common resolution. This Court should establish Petitioners’ baseline entitlement to

several of the procedural devices listed in its order – including discovery, confrontation and an

evidentiary hearing on disputed factual questions, with the burden on the government to justify

the legal and factual sufficiency of the bases for the detentions. But the actual application of

such procedural devices will depend on the circumstances presented by particular cases; they are,

accordingly, best reserved to disposition by individual judges.1

Individual judges operating within this broad statutory framework, and guided by

elementary due process principles, can resolve most of these habeas cases. See Hamdi v.

Rumsfeld, 542 U.S. 507, 526 (2004) (plurality op.) (“The simple outline of § 2241 makes clear

both that Congress envisioned that habeas petitioners would have some opportunity to present

and rebut facts and that courts in cases like this retain some ability to vary the ways in which

they do so as mandated by due process”); 28 U.S.C. § 2243, ¶8 (authorizing district court judges


1
Petitioners reiterate their previously-expressed concern regarding the extent to which the
government will use collective rulings by this Court as a device to generate delay through
interlocutory appeals. It appears the process has already begun. The government today noticed
an appeal of the most ministerial of orders – this Court’s directive that the government provide
the court with notice before it transfers a petitioner within the Court’s jurisdiction.





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Case 1:05-cv-01429-UNA Document 113 Filed 07/25/2008 Page 5 of 36

to “dispose of the matter as law and justice require”). The framework reflects the reality that

habeas, unlike many other forms of action, is at its core a flexible, adaptable remedy well-suited

to address the particular circumstances of any individual case. See Boumediene, 128 S. Ct. at

2267 (“Habeas is not ‘a static, narrow, formalistic remedy; its scope has grown to achieve its

grand purpose.’”) (quoting Jones v. Cunningham, 371 U.S. 236, 243 (1963)).

I.






PETITIONERS ARE ENTITLED TO EVIDENTIARY HEARINGS

A.

The Habeas Corpus Statute, 28 U.S.C. §§ 2243–2248, Provides the Basic
Framework to Govern These Cases

In Boumediene, the Court held that Section 7 of the Military Commissions Act of 2006

(“MCA”), which amended 28 U.S.C. § 2241(e) to deny district judges habeas jurisdiction over

petitions brought by Guantanamo Bay detainees, was unconstitutional. 128 S. Ct. at 2274.

Accordingly, detainees are now entitled to proceed with their habeas petitions. All Petitioners

invoke the court’s jurisdiction pursuant to § 2241(c)(1), a provision that authorizes challenges to

the “custody under, or by color of authority of the United States,” 28 U.S.C. § 2241(c)(1). The

provision codifies § 14 of the Judiciary Act of 1789, and thus mirrors the core common law

process available to challenge the factual and legal authority to detain, see St. Cyr, 533 U.S. at

305, which the Boumediene Court confirmed exists for these Petitioners, 128 S. Ct. at 2262,

2274; see also Rasul v. Bush, 542 U.S. 466, 484 (2004) (remanding habeas petitions to district

courts to consider “the merits of petitioners’ claims”).

Petitioners also invoke § 2241(c)(3), which separately authorizes them to challenge

“custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

2241(c)(3). In Boumediene, the Supreme Court held that the fundamental constitutional right to

habeas corpus protected by the Suspension Clause applies to Guantanamo, see Boumediene, 128

S. Ct. at 2253–58, rejecting the formalistic approach employed by the D.C. Circuit, which had



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declined to recognize any fundamental rights of persons detained “without property or presence

in the United States,” see Boumediene v. Bush, 476 F.3d 981, 991 (D.C. Cir. 2007). Thus, in

addition to the common law habeas rights protected by § 2241(c)(1), the Petitioners are now

entitled to fundamental due process rights throughout the adjudication of their petitions. See In

re Guantanamo Bay Detainee Cases, 355 F. Supp. 2d 443, 465 (D.D.C. 2005) (Green, J.) (“there

can be no question that . . . the right not to be deprived of liberty without due process of law . . .

is one of the most fundamental rights recognized by the U.S. Constitution”).



Regardless of the source of the detainee’s substantive rights, the habeas corpus statute

sets out the basic framework for adjudicating all challenges to federal executive detention

brought under § 2241(c).2 Indeed, a portion of the framework has already been employed in

these cases. In the consolidated cases before Judge Green and in numerous subsequent-filed

cases, the government was ordered to produce “the return certifying the true cause of the

detention,” pursuant to 28 U.S.C. § 2243, ¶3. The next step in the statutorily-imposed process

(though one that was arrested by the stays of the proceedings pending appeals of various legal

questions) entitles the petitioner to traverse the return or, in other words, to “deny any of the

facts set forth in the return or allege any other material facts.” Id. § 2243, ¶6; cf. § 2248

(“allegations of a return . . . if not traversed, shall be accepted as true except to the extent that the

judge finds from the evidence that they are not true”) (emphasis added). Amendments to the

return or the traverse are permissible by leave of court. Id. § 2243, ¶7. The statute also

expressly authorizes the taking of discovery in certain circumstances. Id. § 2246; see also infra,

Section III (“Scope of Discovery”). Ultimately, the court must “summarily hear and determine


2
See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (plurality opinion) (“[A]ll agree
that § 2241 and its companion provisions provide at least a skeletal outline of the procedures to
be afforded a petitioner in federal habeas review.”).



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the facts, and dispose of the matter as law and justice require.” 28 U.S.C. § 2243, ¶8. Remedies

available to the court include a discharge where, “on the facts admitted, it may appear that, as a

matter of law, the prisoner is entitled to the writ.” Walker v. Johnston, 312 U.S. 275, 284 (1941);

see also Boumediene, 128 S. Ct. at 2266.

In sum, although the statute provides the basic operating structure to manage these cases,

courts must apply and often augment that structure as required in each case. Ultimately, because

“there is no higher duty of a court, under our constitutional system, than the careful processing

and adjudication of petitions for writs of habeas corpus,” courts must fill in the “necessary

facilities and procedures for an adequate inquiry.” Harris v. Nelson, 394 U.S. 286, 291, 300

(1969). The Supreme Court has explained:

The scope and flexibility of the writ – its capacity to reach all manner of illegal
detention – its ability to cut through barriers of form and procedural mazes – have
always been emphasized and jealously guarded by courts and lawmakers. The
very nature of the writ demands that it be administered with the initiative and
flexibility essential to insure that miscarriages of justice within its reach are
surfaced and corrected.


Id. at 291.

B.

All Petitioners Are Entitled to An Evidentiary Hearing on Disputed
Issues of Material Fact


As described, the habeas statute both entitles a Petitioner to traverse the factual

allegations contained in the government’s return and anticipates a judicially-managed procedure

to settle the factual disputes the court deems material to the resolution of the ultimate question at

issue – the legality of the detention. Habeas procedure expressly contemplates resolution by

evidentiary hearing. The Supreme Court explained:

The Government properly concedes that if the petition, the return, and the traverse
raise substantial issues of fact it is the petitioner’s right to have those issues heard
and determined in the manner the statute prescribes.





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Walker v. Johnston, 312 U.S. at 286 (emphasis added); accord Blackledge v. Allison, 431 U.S.

63 (1977); see also Johnson v. Zerbst, 304 U.S. 458, 466-67 (habeas petitioner is entitled to “a

judicial inquiry into the very truth and substance of the causes of the detention. . . . [s]uch a

judicial inquiry involves the reception of testimony”).

Indeed, the need for evidentiary hearings to resolve factual disputes is acknowledged

throughout habeas corpus jurisprudence. See Boumediene, 128 S. Ct. at 2266 (explaining that

§ 2241 “accommodates the necessity for factfinding that will arise in some cases” by authorizing

an appellate court to transfer a case to a district court “whose institutional capacity for

factfinding is superior to his or her own”); Stewart v. Overholser, 186 F.2d 339, 342 (D.C. Cir.

1950) (“When a factual issue is at the core of a detention challenged by an application for the

writ it ordinarily must be resolved by the hearing process. This is a chief purpose of the habeas

corpus proceeding.”); id. at 342-43 (collecting cases); Kendzierski v. Brantley, 447 F.2d 806, 808

(7th Cir. 1971) (Stevens, J.) (“Both parties – not just one – should be afforded an opportunity to

argue the relevant facts to the district court. Only after that has been done will it be possible to

determine whether an evidentiary hearing is necessary.”).



Moreover, the Supreme Court in Boumediene clearly recognized the obligation of the

district court to conduct de novo hearings to decide contested factual questions. First, the Court

held insufficient the procedures contemplated by the Detainee Treatment Act (“DTA”), which

only provided for appellate record review of the sufficiency of the evidence that had been

considered by a Combatant Status Review Tribunal; it thus required the government to justify to

a district court in a plenary proceeding the current sufficiency of the evidence to detain each

Petitioner. 128 S. Ct. at 2270. Relatedly, the Court held that Petitioners must be allowed to

submit exculpatory evidence obtained subsequent to a CSRT determination that might prove a



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detainee was improperly classified as an “enemy combatant.” Id. Naturally, the Court would not

have ordered the opportunity to present new factual evidence – and would not have bothered to

strike down an act of Congress limiting such ability – if the Court did not contemplate full

consideration of the factual evidence and, ultimately, the potential for a release from detention

based upon it.

As part of the traverse and hearing process, Petitioners are entitled to present any credible

evidence that may reasonably bear on their “enemy combatant” designation, including evidence

that a confession from the detainee or the statements of persons implicating him was procured by

torture. See Whaley v. Johnston, 316 U.S. 101, 104 (1942) (holding that petitioner is entitled to a

hearing on “the material issue whether the plea was in fact coerced by the particular threats

alleged”); accord Machibroda 368 U.S. at 493 (“There can be no doubt that, if the allegations

[regarding coercion] contained in the petitioner’s motion and affidavit are true, he is entitled to

have his sentence vacated”); see also Overholser, 186 F.2d at 345 (ordering factual hearing

“involving the taking of testimony followed by a decision based on the facts and the law”

regarding the petitioner’s sanity).

STANDARDS OF PROOF AND PLENARY REVIEW

A.

The Government Bears the Burden of Proving the Factual Basis for
Detention By Clear and Convincing Evidence

II.




In Boumediene, although the Court recognized that it was the government which bears

the burden of justifying the detention, it left open for the district courts to decide the “extent of

the showing required of the Government in these cases.” 128 S. Ct. at 2271. Habeas is a broad,

equitable remedy, which imposes on the judiciary the obligation to “dispose of the case as law

and justice require.” 28 U.S.C. § 2243. In the executive detention context, where the



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“protections [of the writ] have been strongest,” St. Cyr, 533 U.S. at 301,3 Petitioners maintain

that “law and justice require” that the government bear the burden of demonstrating the

lawfulness of the detention by clear and convincing evidence. Because of the absence of any

competent or neutral adjudicatory process under which Petitioners’ status has been determined,

the substantial liberty interests at stake in their continuing detention, and the “considerable risk

of error” associated with the detentions at Guantanamo, Boumediene, 128 S. Ct. at 2270, nothing

short of demonstrating the factual sufficiency of the detention by this exacting standard would

satisfy the high command of the writ in these cases. As the D.C. Circuit has explained:

[I]n situations where the various interests of society are pitted against restrictions
on the liberty of the individual, a more demanding standard is frequently imposed,
such as proof by clear, unequivocal and convincing evidence.


In re Ballay, 482 F.2d 648, 662 (D.C. Cir. 1973).


The federal habeas cases clearly do not suggest that the Petitioners bear the burden of

proof to demonstrate their factual innocence and that they must do so by a preponderance of the

evidence. Such a reading of the caselaw ignores the unique context of the Guantánamo Bay

detentions.

First, Petitioners are not collaterally attacking the judgment of a prior competent court of

record. Compare Ex parte Watkins, 28 U.S. 103 (1833) (recognizing limitation on habeas courts

authority to review factual judgments of “court of competent jurisdiction”), with Boumediene,

128 S. Ct. at 2268 (“The present cases fall outside these categories, however; for here the


3
See also Lonchar v. Thomas, 517 U.S. 314, 322 (1996) (stating that the common law
writ’s “most basic purpose [was] avoiding serious abuses of power by a government, say a king’s
imprisonment of an individual, without referring the matter to a court”); Swain v. Pressley, 430
U.S. 372, 385 (1977) (Burger, C.J., concurring) (noting that traditionally the writ was used “to
inquire into the cause of commitment not pursuant to judicial process”); Brown v. Allen, 344
U.S. 443, 533 (1953) (Jackson, J., concurring in result) (“The historic purpose of the writ has
been to relieve detention by executive authorities without judicial trial”).




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detention is by executive order”); see also Boumediene, 128 S. Ct. at 2264 (explaining that

“cases discussing implementation of that statute [AEDPA] give little instruction (save perhaps by

contrast) for the instant cases, where no trial has been held”). Instead, they seek the core

protections of habeas to review the executive’s unilateral decision to detain them. Thus, in

obvious contrast to a petition challenging a criminal conviction, the executive has not already

demonstrated to the satisfaction of an a neutral adjudicator that the evidence is sufficient to meet

the executive’s asserted need for detention. “In this context, the need for habeas corpus is more

urgent.” Boumediene, 128 S. Ct. at 2269. Through habeas, the executive must, for the first time,

satisfy a court that it has sufficient factual basis to detain Petitioners. In re Winship, 397 U.S.

358, 364 (1970) (“Due process commands that no man shall lose his liberty unless the

Government has borne the burden of . . . convincing the factfinder of his guilt”).

Second, the deprivation of liberty in these cases is severe. Many Petitioners are entering

their seventh year of detention without charge. Because the asserted war under which the

executive branch claims authority to detain could last “a generation or more,” Boumediene, 128

S. Ct. at 2238, many Petitioners face the prospect of a life sentence justified by what has so far

been nothing more than selective review by the Executive of the evidence that it has unilaterally

chosen to consider. The brutal conditions in which Petitioners are detained – devoid of

meaningful contact with loved ones, subject to grinding isolation and despair – only magnify the

consequences of the Executive’s claimed authority to detain, and highlight the corresponding

need for robust judicial review.4 Petitioners cannot be made to endure such grievous deprivation


4
Although it is difficult to quantify the extent of human suffering endured by the
Petitioners who have been subject to the government’s program of interrogation and
disorientation and who are held in the cramped cells of the Guantanamo prison camp, numerous
institutions believe these conditions represent a serious human rights concern. See, e.g.,
Amnesty Int’l, Conditions of isolation for detainees at Guantánamo Bay, at 4 (April 2007) (“the



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of liberty “upon no higher degree of proof than applies in a negligence case.” Woodby v. INS,

385 U.S. 276, 285 (1966).

The Supreme Court has repeatedly held that, where the government seeks to impose

similarly substantial deprivations of liberty, the government must justify the sufficiency of its

case by clear and convincing evidence. See Woodby, 385 U.S. at 286 (deportation);

Schneiderman v. United States, 320 U.S. 118 (1943) (denaturalization); Kansas v. Hendricks,

521 U.S. 346, 353 (1997) (indefinite civil commitment of sex offender); Foucha v. Louisiana,

504 U.S. 71, 81 (1992) (continued commitment of criminal defendant found not guilty by reason

of insanity); United States v. Salerno, 481 U.S. 739, 750 (1987) (pre-trial detention based on

dangerousness).

Finally, as Boumediene expressly recognizes, these cases have presented a “considerable

risk” of erroneous detention. 128 S. Ct. at 2270. Indeed, despite the boastful claims of the

administration made prior to the Court’s ruling in Rasul v. Bush, that all the detainees were the

“worst of the worst,” it is now beyond argument that there are many innocent men detained at

Guantanamo. As early as 2002, the former Guantanamo commander stated that “[s]ometimes we

just didn’t get the right folks,” yet “[n]obody wants to be the one to sign the release papers.


cells have no access to natural light or air, and are lit by fluorescent lighting which is on 24 hours
a day and controlled by guards”); Locked Up Alone: Detention Conditions and Mental Health at
Guantanamo, Human Rights Watch, June 2008, at 2, 34, 37 (describing the severe mental
deterioration of many of the 185 detainees held in “supermax-security” conditions in
Guantanamo, including hallucinations, multiple suicide attempts, and an “an array of painful and
incapacitating psychiatric symptoms”); Broken Laws, Broken Lives: Medical Evidence of
Torture by US Personnel and Its Impact, Physicians for Human Rights, June 2008 (documenting
severe psychological and physical effects of certain prisoners subject to Guantanamo’s
interrogation regime); see also William Glaberson, Detainees Mental Health is Latest Battle,
N.Y. Times, Apr. 26, 2008 (citing military statistics acknowledging that three-quarters of
Guantánamo detainees are in conditions of solitary confinement in Camps 5 and 6); Ben Fox,
Life harsher for detainees in Guantanamo's new unit, Associated Press, February 4, 2007.




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There’s no muscle in the system.”5 A 2002 CIA report similarly concluded that “a substantial

number of the detainees appeared to be either low-level militants . . . or simply innocents in the

wrong place at the wrong time.”6 Media and academic studies of Defense Department data and

CSRT decisions concluded that many detainees denominated “enemy combatants” did not

belong there:

A high percentage [of the detainees] . . . were not captured on any battlefield . . . .
Fewer than 20 percent . . . have ever been Qaeda members. Many scores, and
perhaps hundreds, of the detainees were not even Taliban foot soldiers, let alone
Qaeda terrorists. They were innocent, wrongly seized combatants with no
intention of joining the Qaeda campaign to murder Americans.7


5
Christopher Cooper, Detention Plan: In Guantanamo, Prisoners Languish in a Sea of
Red Tape, Wall St. J., Jan. 26, 2005, at A1, A10. See also Frontline: Son of Al Qaeda (PBS
television broadcast, Apr. 11, 2004), transcript available at http://www.pbs.org/wgbh/pages/
frontline/shows/khadr/interviews/khadr.html (quoting CIA operative who had spent a year
undercover at Guantanamo as estimating that “only like 10 percent of the people that are really
dangerous, that should be there and the rest are people that don’t have anything to do with it,
don’t even, don’t even understand what they’re doing here”); Tom Lassetter, America’s Prison
for Terrorists Often Held the Wrong Men, McClatchy Newspapers, June 15, 2008, available at
http://www.mcclatchydc.com/detainees/story/38773.html (quoting U.S. intelligence analyst,
“Over about three years, I assessed around 40 of these individuals, mostly Afghans. . . . I only
can remember recommending that ONE should be kept at GITMO”).

6
See also Tim Golden & Don Van Natta, Jr., U.S. Said to Overstate Value of Guantanamo
Detainees, N.Y. Times, Jun. 21, 2004 (also reporting that “[o]fficials of the Department of
Defense now acknowledge that the military’s initial screening of the prisoners for possible
shipment to Guantanamo was flawed”); Chris Mackey & Greg Miller, The Interrogators 85
(2004) (according to account of interrogators who worked at Kandahar Air Force Base in 2002
“every Arab we encountered was in for a long-term stay and an eventual trip to Cuba”).

7
Stuart Taylor, Jr., Falsehoods About Guantanamo, Nat’l J. Feb. 4, 2006, at 13; Corine
Hegland, Who Is at Guantanamo Bay, Nat’l J., Feb. 4, 2006, at 33-35. See also Mark Denbeaux
et al., Seton Hall University School of Law, Report on Guantanamo Detainees: A Profile of 517
Detainees through Analysis of Department of Defense Data 2-4 (2006), available at
http://law.shu.edu/aaafinal.pdf (according to DoD data, 55% detainees not accused of having
committed any hostile act); Lassetter, America’s Prison, supra note 5 (“an eight-month
McClatchy investigation in 11 countries on three continents has found that [there were] dozens
of men – and, according to several officials, perhaps hundreds – whom the U.S. has wrongfully
imprisoned in Afghanistan, Cuba and elsewhere on the basis of flimsy or fabricated evidence, old
personal scores or bounty payments.”); Carol Leonnig, Panel Ignores Evidence on Detainee:
U.S. Military Authorities, German Intelligence Conclude No Ties to Terrorists, Wash. Post, Mar.



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The feared risk of wrongful detention is in fact a stark reality, weighing heavily in favor of a

meaningful burden upon the government to offer proof to support continued detention.

Clear and convincing in this context refers both to the quantum of evidence – that is, a

standard higher than preponderance but less than beyond a reasonable doubt – and to the quality

of evidence, a substantial concern in many of Petitioners’ cases. See, e.g. Parhat, 2008 WL

2576977, at *11 (documents supporting authority to detain petitioner Parhat “repeatedly describe

[his] activities and relationships as having ‘reportedly’ occurred, as being ‘said to’ or ‘reported

to’ have happened, and as things that ‘may’ be true or are ‘suspected of’ having taken place. But

in virtually every instance, the documents do not say who ‘reported’ or ‘said’ or ‘suspected’

those things”); Declaration of Stephen Abraham, Lieutenant Colonel, U.S. Army Reserve, Joint

Appendix, Boumediene v. Bush, No. 06-1195, at 103 (evidence provided to the CSRT panel on

which he served “lacked even the most fundamental earmarks of objectively credible

evidence.”).

B. Neither the Government’s Decision to Detain Nor the Government’s
Evidence in Support of the Detention Is Entitled to Any Presumption
of Validity


As Petitioners have described, habeas in the executive detention context entitles them to a



plenary review of the legal and factual basis of their detention and should require that the

government demonstrate the lawfulness of the detention by clear and convincing evidence.

Under the statute, the government is obligated to file a factual return, and a Petitioner is entitled

to traverse the return. The court must “admit and consider relevant exculpatory evidence”


30, 2005, at A1 (reporting that CSRT concluded detainee was enemy combatant despite evidence
in the record exonerating him).



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Boumediene, 128 S. Ct. at 2270, and, where material issues of fact are created by the filings, the

court should resolve them by an evidentiary hearing.

A district court has discretion in determining whether a hearing is ultimately necessary

and need not hold one where a petitioner’s allegations are highly “vague, conclusory or palpably

incredible.” Machibroda v. United States, 386 U.S. 487, 495 (1962). However, “the

Government’s contention that [a Petitioner’s] allegations are improbable or unbelievable cannot

serve to deny him an opportunity to support them by evidence [and a] right to be heard.” Id.



At no point during this process should either side’s evidence be afforded any presumption

of validity or reliability. Certainly, the CSRT’s designation of a Petitioner as an “enemy

combatant” is entitled to no deference whatsoever. CSRTs were implemented by the military

nine days after the Supreme Court’s decision in Rasul v. Bush, and after many of the habeas

petitions before this Court were filed. By their own terms, the CSRTs were an internal,

administrative, non-adversarial process evaluating the executive’s prior classification of

detainees as “enemy combatants,” and were specifically created for the purpose of developing a

record to submit to the courts for a deferential habeas review of the executive’s decision. See,

e.g., In re Guantanamo Bay Detainee Cases, Letter from Terry Henry, Esq., Dep’t Justice, to

Hon. Joyce Hens Green, dated August 31, 2004, at 1 (“the submission of factual returns

containing the factual bases for the detention of petitioner-detainees . . . will follow the assembly

and finalization of an administrative record” by the CSRT). Under this scheme, the transcript of

the CSRT and its corresponding exhibits represent (at most) nothing more than the government’s

return to the habeas petition, pursuant to 28 U.S.C. § 2243, and are subject to traverse and

evidentiary hearing.



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Any doubt about the status of the CSRTs was conclusively resolved by the Supreme

Court in Boumediene, which affirmed that the need for plenary habeas review into the

“sufficiency of the Government’s evidence against the detainee” arises from the fact that the

CSRTs were not a competent “court of record” entitled to any deference by the reviewing court.

128 S. Ct. at 2268-70. As the Court explained:

A criminal conviction in the usual course occurs after a judicial hearing before a
tribunal disinterested in the outcome and committed to the procedures designed to
insure its own independence. These dynamics are not inherent in executive
detention orders or executive review procedures. In this context, the need for
habeas corpus is urgent.


Id. at 2269, see also id. at 2269 (quoting Frank v. Mangum, 237 U.S. 309, 346 (1915) (Holmes,

J., dissenting) (“habeas corpus cuts through all forms and goes to the very tissue of the structure.

It comes from the outside, not in subordination to the proceedings, and although every form may

have been preserved opens the inquiry whether they have been more than an empty shell.”)).8

The Court also specifically foreclosed an argument that the government’s evidence is

entitled to any presumption of reliability or correctness. It recognized that a central defect of the

CSRT-DTA process as compared to habeas process is that in the CSRT, the “Government’s


8
At long last, there should be no more question that the CSRTs were a grossly defective
process, devoid of any of the core attributes of a fair adversary proceeding. Hundreds of pages
have been devoted to demonstrating to the courts their inherent, irremediable deficiencies.
Suffice it to say that no court that has actually reviewed the CSRT process has found it
satisfactory under any standard of measurement. See In re Guantanamo Bay Detainee Cases,
355 F. Supp. 2d at 442-80 (highlighting “fundamental unfairness” of CSRT process and
cataloguing numerous ways in which CSRTs fell short of elementary due process); Boumediene,
128 S. Ct. at 2270 (acknowledging petitioners’ concerns regarding the CSRT’s “myriad
deficiencies,” highlighting several and concluding that, because CSRTs present “considerable
risk of error,” appellate review of CSRT determinations for the sufficiency its findings are an
inadequate substitute for habeas corpus review); Parhat, 2008 WL 2576977, at *13 (D.C. Cir.
June 20, 2008) (finding evidence relied upon by CSRTs inherently unreliable and, quoting Lewis
Carroll, observing that “the fact that the government has ‘said it thrice’ does not make an
allegation true.”).




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evidence is accorded a presumption of validity,” id. at 2260, and that there is a “considerable risk

of error in the [CSRT’s] finding of fact” – a risk it agreed was “inherent in any process that is

‘closed and accusatorial’” as was the CSRT. 128 S. Ct. at 2270 (internal citations omitted). See

also Parhat, 2008 WL 2576777 (rejecting hearsay evidence in CSRT record because it lacked

indicia of reliability).9

De novo review accords with the process undertaken by habeas courts at common law.

For example, in Ex parte Bollman, 8 U.S. 75, 125 (1807), Chief Justice Marshall declined to

defer to a magistrate’s determination that the facts justified holding a pre-trial detainee for

treason; instead, the Court held five days of factual hearings during which time it “fully

examined and attentively considered” the relevant evidence and ordered the petitioner released.

Similarly, in Ex parte Randolph, 20 F. Cas. 242 (C.C.D. Va. 1833), Chief Justice Marshall,

riding circuit, reviewed the commitment of a civil debtor by local municipal authorities, took

new evidence and reached his own conclusions despite prior factual findings by executive

officials. Accord, Boumediene, 128 S. Ct. at 2268 (citing Ex parte Robinson, 20 F. Cas. 969, 971

9
Nothing in Hamdi supports a contrary view in these cases. First, in noting that in
Hamdi’s case, “the Constitution would not be offended” were the government offered a
presumption, 542 U.S. at 534, the plurality opinion set no categorical rule regarding procedures
to adjudicate all future habeas cases. As the controlling opinion in the recent decision in Al-
Marri v. Pucciarelli explained in denying a categorical presumption in favor of the government’s
evidence, the default entitlement to full due process procedures must prevail unless the executive
can demonstrate “exigent circumstances” entitling it to any departure from due process. __ F.
3d. __, 2008 WL 2736787 *49 (4th Cir. July 15, 2008) (en banc) (Traxler, J.) (quoting Hamdi).
Indeed, because Boumediene already identified the use of such a presumption as a defect of the
CSRT process, no general presumption can prevail in these habeas cases. Second, in Hamdi the
Court’s due process calculus was informed by a far more narrow definition of “enemy
combatant” – requiring affirmative acts of belligerency – than the government now promotes.
See Hamdi, 542 U.S. at 516 (“for purposes of this case, the ‘enemy combatant’ that [the
government] is seeking to detain is an individual who, it alleges, was ‘part of or supporting
forces hostile to the United States or coalition partners’ in Afghanistan and who ‘engaged in an
armed conflict against the United States’ there”) (emphasis added). Finally, the balancing of
competing interests under the due process calculus adopted in Hamdi tips decidedly in greater
favor of these Petitioners. See infra at p. 27.




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(C.C. Ohio 1855) (McLean, J.)). Indeed, at common law, no habeas court was bound to defer to

a prior and presumptively self-serving judgment of an executive official. One court aptly

summarized the state of the law:

[T]o require the court in its investigation to be governed by the decision of an
executive officer, acting under instructions from the head of the department in
Washington, would be an anomaly wholly without precedent, if not a flagrant
absurdity.


In re Jung Ah Lung, 25 F. 141, 143 (D. Cal. 1885); see also Jared Goldstein, Habeas Without

Rights, 2007 Wisc. L. Rev. 1165 (2007) (Appendix) (collecting cases).

III.

SCOPE OF DISCOVERY

A. While Discovery Is Authorized in Every Habeas Proceeding, the

Specific Scope of Discovery Will Depend on the Circumstances of a
Particular Case




The federal habeas statute expressly authorizes discovery in habeas proceedings. Section

2246 provides that, if a party introduces an affidavit, the opposing party “shall have the right to

propound written interrogatories to the affiants.” See Harris v. Nelson, 394 U.S. 286, 296 (1969)

(noting that § 2246 provides for “interrogatories for the purpose of obtaining evidence from

affiants where affidavits were admitted into evidence”). Further, in Harris v. Nelson, the

Supreme Court held that, pursuant to the All Writs Act, 28 U.S.C. § 1651, habeas courts are

authorized to expand discovery beyond measures specified in § 2246, and declared that it is “the

inescapable obligation of the courts” to grant leave for discovery in appropriate circumstances.

394 U.S. at 299. The Harris Court instructed district courts to “fashion appropriate modes of

procedure, by analogy to existing rules or otherwise in conformity with judicial usage,” to permit

a petitioner to “secur[e] facts where necessary to accomplish the objective of the proceedings.”

Id.



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A Petitioner is thus entitled to “the taking of evidence in habeas proceedings by

deposition, affidavit or interrogatories.” Hamdi, 542 U.S. at 525 (citing § 2246). See also Al-

Marri, 2008 WL 2736787, at *49 n. 16 (Traxler, J., concurring) (citing “discovery” as part of the

“process normally available [to persons] who challenge their executive detention”); El-Banna v.

Bush, No. 04-CV-1144, 2005 WL 1903561 (D.D.C. 2005) (Roberts, J.) (ordering the government

to preserve evidence regarding petitioners’ detention at Guantanamo, in view of the habeas

court’s plenary power of inquiry, and petitioners’ right to discovery); Rule 6 of the Rules

Governing Section 2254 Cases (authorizing discovery in § 2254 cases; applicable to other types

of habeas cases through Rule 1(b)).

Boumediene specifically noted that the availability of discovery to a habeas petitioner

counted among the procedural rights that, historically, “preserved the writ and its function.” 128

S.Ct. at 2263 (citing Harris, 394 U.S. at 299-300). Indeed, the notable absence of discovery in

DTA review contributed to the Supreme Court’s conclusion that a DTA proceeding “falls short

of being a constitutionally adequate substitute.” 128 S. Ct. at 2272 (noting, under DTA review,

the detainee’s lack of opportunity “to present evidence discovered after the CSRT proceeding

concluded”).10



Though it is clear that discovery is permissible in the habeas context, the scope of

discovery in these cases is not amenable to common resolution. Discovery in habeas cases

generally requires leave of court and should be allowed if the request is based on “specific


10
Boumediene further noted the habeas court’s discretion to “accommodate” the
government’s interest in protecting sources and methods of intelligence gathering. 128 S. Ct. at
2276. By instructing habeas courts to “accommodate” the government’s interests in secrecy in
certain information, the Supreme Court implied that, in the first instance, habeas petitioners
would be able to make requests for disclosure of information.

Of course, nothing in the Court’s opinion should be read to foreclose discovery of alleged

“sources and methods” where such information is material and exculpatory.



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allegations” by the petitioner. See Harris, 394 U.S. at 300 (where “specific allegations before

the court show reason to believe that the petitioner may, if the facts are fully developed, be able

to demonstrate that he is confined illegally and is therefore entitled to relief, it is the duty of the

court to provide the necessary facilities and procedures for an adequate inquiry”).



The availability of discovery in habeas litigation therefore depends on “the facts of [a]

particular case.” Compare Bracy v. Gramley, 520 U.S. 899, 909 (1997) (Rehnquist, C.J.) (9-0)

(holding that “given the facts of this particular case,” the habeas court abused its discretion when

it denied discovery to the petitioner), with Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir. 2000)

(affirming denial of habeas discovery where discovery request was “based purely on

speculation”). Different Petitioners, moreover, might legitimately adopt different litigation

strategies with respect to discovery because of significant differences in the facts of their cases,

requiring individual judges to assess the issues raised by the corresponding requests. Compare

Parhat, 2008 WL 2576777, at * 5 (noting that petitioners, though entitled to production of all

“Government Information,” asked the court to first review CSRT determinations based on the

CSRT record alone), with Order, Hamdi v. Rumsfeld, No. 02-439, Dkt. 81, at 1 (E.D. Va. Oct.

11, 2004) (government ordered to produce copies of all documents on which it intended to rely

in case-in-chief against Hamdi before hearing took place).



Regardless of the variations between cases in Petitioners’ approach to discovery, in all

detainee cases district courts should be more permissive in considering discovery requests than

even the Harris court, which considered a collateral attack on a prior state court judgment. In

such a typical habeas proceeding, a petitioner would have already had (in the earlier proceeding)

a full opportunity for discovery pursuant to state or federal rules of criminal procedure, would

have been provided full access to exculpatory material pursuant to Brady v. Maryland, 373 U.S.



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83 (1963), and would have had the full opportunity to confront and cross-examine all the

evidence ultimately supporting a judgment in his case. A regime of partially constrained

discovery thus makes sense in a post-conviction context, where the full apparatus of criminal

procedure and constitutional law presumptively affords the habeas petitioner all the discoverable

information he would need. By contrast, in the present challenges to executive detention, where

Petitioners have not had a prior adjudication consistent with due process, ordinary post-

conviction presumptions do not apply. Boumediene, 128 S. Ct. at 2267 (“[T]he common-law

habeas court’s role was most extensive in cases of pretrial and noncriminal detention, where

there had been little or no previous judicial review of the cause for detention”); St. Cyr, 533 U.S.

at 301 (protections of habeas corpus “have been strongest” in the context of executive detention).

Accordingly, the need for discovery in these cases will be much greater.



Not only has there been no discovery in any prior proceeding, these cases present a

number of unique challenges to Petitioners in gathering evidence. Substantial time has passed,

the events at issue occurred in and involve distant countries, English is not the native language of

most detainees, Petitioners’ ability

to communicate with

their attorneys

is severely

circumscribed, and their mental health may have suffered as a result of their confinement.

Individual Petitioners may need to undertake some preliminary discovery in order to be able to

identify the evidence that is helpful to their case. Others may need to investigate whether

statements against them were obtained by coercion or torture, and are therefore unreliable.

Habeas law has long recognized that “[t]he very nature of the writ demands that it be

administered with the initiative and flexibility essential to insure that miscarriages of justice

within its reach are surfaced and corrected.” Harris, 394 U.S. at 291. These cases will

especially require “initiative and flexibility” in the administration of discovery if the court is to



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remain faithful to the spirit of habeas corpus. The application of that principle must be made by

the judge in each case, based on an evaluation of the facts, arguments and legitimate needs for

discovery on the matters at issue in that case.






B.

The Government Has An Affirmative Duty to Disclose Exculpatory
and Impeaching Evidence, Which Should Be Confirmed by a
Standing Order of the Court

One aspect of discovery that would benefit from an across-the-board adjudication at this

juncture by this Court involves the government’s duty and ongoing obligation to disclose to

Petitioners evidence in its possession that falls within the definition of “exculpatory” and