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Case 1:07-cv-02338-UNA Document 45 Filed 08/01/2008 Page 1 of 30



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

Case 1:07-cv-02338-UNA Document 45 Filed 08/01/2008 Page 2 of 30




Petitioners largely reject the carefully delineated proceedings of the controlling plurality

in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Instead, petitioners envision an expansive quasi-

criminal proceeding to challenge their detention with wide-ranging discovery and a panoply of

procedural rights nowhere contemplated by the Supreme Court. Indeed, the Supreme Court,

both in Hamdi, and Boumediene v. Bush, 128 S. Ct. 2229 (2008), called for a much more modest

role for the courts in evaluating wartime detention decisions than that proposed by the

petitioners. Many of petitioners’ proposals ignore or directly contradict the framework for these

cases set forward in Hamdi, and their proposal for factfinding is anything but “prudent and

incremental.” Hamdi, 542 U.S. at 539. Instead, petitioners’ proposals closely resemble the

expansive criminal-type procedures that the Hamdi district court had ordered but that the

Supreme Court reversed as overbroad. The procedures they propose trivialize both the unique

circumstance these habeas cases present – where judges will be evaluating the intelligence and

information that leads to military actions taken overseas during an active military conflict – and

the weighty national security interests that the Supreme Court has repeatedly recognized must be

part of the balance.

This context demands a more modest role for this Court—one where, to be sure, each

petitioner and the Court is provided notice of the Government’s basis for detention through the

filing of a factual return, but one where: (i) the Court must giver proper weight to the

Government’s military determination to detain an individual as an enemy combatant by, among

other things, presuming the correctness of the information relied upon by the Government in

making that military decision, even though it will often be hearsay evidence; (ii) the petitioner is

Case 1:07-cv-02338-UNA Document 45 Filed 08/01/2008 Page 3 of 30

entitled to rebut that showing with his own factual submission, but not to seek discovery from

the Government or otherwise; and (iii) the Court must then dismiss the petition unless

petitioner’s showing is more persuasive than the Government’s. Only if a petitioner makes such

a more persuasive showing should this Court consider further evidentiary and factfinding


Petitioners rely heavily on the habeas statute, but nowhere address the fact that Hamdi

required implementation of much narrower procedures when that same habeas statute clearly

was applicable. Now it is not. Petitioners fail to come to terms with the fact that Congress

repealed that statute and, accordingly, “now there must be constitutionally based jurisdiction or

none at all.” Boumediene, 128 S. Ct. at 2278 (Souter, J., concurring). As we have demonstrated,

the constitutional requirements for habeas are the applicable rules going forward. In any event,

petitioners interpret the statute far more expansively than is warranted and indeed envision a

process exceeding even the process afforded in the habeas statute and rules. The habeas statute

provides for very limited discovery, at most, and summary resolution of the facts—not a norm of

free-wheeling discovery and trial-type hearings. The habeas statute certainly does not mandate

what petitioners demand, but at most allows courts some flexibility in the procedures employed.

It would be improper to use this flexibility as a means of requiring criminal trial-like procedures

in light of both Hamdi and Congress’s judgment (reflected in the DTA and the MCA) that there

should be no habeas procedures available at all in this context. Prudent implementation of the

habeas statute in this context should be informed by Congress’s clear intent for these cases, and

thus used to require only the constitutional minimum, and nothing more. Nor is such prudent

implementation foreclosed by Boumediene, which stressed that “[t]he extent of the showing

required of the Government in these cases remains to be determined.” 128 S. Ct. at 2271.

Petitioners effectively demand that the Government meet an evidentiary standard that is

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inconsistent not only with Hamdi, but also the reality that a much less onerous showing is

sufficient to justify even the lethal use of military force abroad. Moreover, the criminal-like

procedures that petitioners propose would, as a matter of course, require military and intelligence

officers to appear in person in testimonial hearings.

Aside from being a fatally flawed as a legal matter, petitioners’ proposed framework will

do nothing to provide a workable construct for this Court to proceed on over 200 habeas

petitions. Petitioners give short shrift to the fact that the situations involved in these habeas

cases are all quite similar – each involves an enemy alien who has been captured outside the

United States as part of military operations in a war with al Qaeda, the Taliban, and associated

forces; each has been determined by the Executive to be an enemy combatant in that war; and

each is detained abroad. These circumstances warrant even greater deference than Hamdi, which

involved a citizen detained within the United States and entitled (unlike petitioner here) to all of

the rights afforded by the United States Constitution and by the modern habeas statute and rules.

Thus, Hamdi provides the outer bounds for the process appropriate here.

The Court also should reject petitioners’ proposal to leave many of these issues to the

discretion of each individual judge in each individual case. The lack of uniform baseline

procedures necessarily means that decisions on foundational issues such as factfinding and

confrontation will lead to variant results that will force both sides to seek further review. Indeed,

fifteen different approaches to the procedural framework for handling these cases would likely

lead to fourteen different sets of reversals. Petitioners’ proposal will therefore not lead to either

the expeditious or just resolution of these habeas actions; it will lead only to further delay.

Procedurally, the way forward is clear, it was set out in Hamdi and that path calls for a burden-

shifting approach and a prudent and incremental response in each of the areas identified by the

Court for common resolution. The Government’s proposed framework does just that and gives

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petitioners their day in Court, without delay.



We have explained why this Court should enter an order implementing the Hamdi

framework. Govt. Br. at 4-14. That framework gives the Court what it must have under

Boumediene: “the means to correct errors,” including “some authority to assess the sufficiency of

the Government's evidence against the detainee”; “the authority to admit and consider relevant

exculpatory evidence” that each petitioner may wish to introduce; and “the means [for

petitioners] to supplement the record on review.” 128 S. Ct. at 2270. At the same time as it was

outlining these habeas essentials, Boumediene expressly rejected criminal-type proceedings,

explaining that “[h]abeas corpus proceedings need not resemble a criminal trial, even when the

detention is by executive order.” Id. at 2269. The Hamdi Court likewise expressly rejected the

imposition of a “process [that] would approach the process that accompanies a criminal trial”

including “quite extensive discovery of various military affairs.” Hamdi, 542 U.S. at 528.

Despite these plain holdings, petitioners would discard the Hamdi framework in favor of

highly intrusive, quasi-criminal process to challenge their detention. Such a course would be

unprecedented and unworkable. Petitioners propose that they are entitled to trial-type hearings

to resolve any disputed issues of material fact, see Pets’ Br. at 7-9, as if this were a criminal trial

or a run-of-the-mill civil case. But this is not such a proceeding – instead, it is much different

and the Court must “presum[e]” the Government’s “credible evidence” to be correct unless the

petitioner puts forward his own “more persuasive evidence.” Hamdi, 542 U.S. at 534. This

“prudent and incremental” approach is not governed by the Federal Rules of Civil or Criminal

Procedure or the Federal Rules of Evidence, but is properly governed by the controlling Supreme

Court opinion in Hamdi. Id. Moreover, petitioners envision a fulsome discovery process “more

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permissive” than that provided in modern statutory habeas cases, Pets’ Br. at 21, and even

broader than the discovery that accompanies criminal proceedings. See id. at 24 (seeking entry of

an order requiring a search of “all . . . evidence . . . in [the Government’s] possession” for

exculpatory material); id. at 20 (observing that some litigants may seek “all ‘Government

Information’” relating to a petitioner); id. at 33 (seeking to “take * * * depositions”). Petitioners

seek imposition of a duty on the Government even broader than that in criminal cases: to

provide any and all exculpatory evidence – regardless of its materiality or who knows about it –

and to, remarkably, place upon the United States military and intelligence community, an

affirmative “duty to learn of any favorable evidence known to the others acting on the

government’s behalf.” Id. at 22. Hamdi expressly rejected this sort of broad, criminal discovery.

542 U.S. at 528. Petitioners also argue that while some hearsay may be permitted, the Court

should employ a searching standard in evaluating whether it is permissible. Pets’ Br. at 31.

Again, this is contrary to Hamdi, which directed the lower courts to consider hearsay material as

the best available evidence, and it gives no regard to the practical limitations imposed by the

“rubble of war.” 542 U.S. at 532-34. Finally, petitioners appear to suggest that live witness

testimony through compulsory judicial process will be the norm and that the right to cross

examine Government witnesses – including intelligence and military personnel – be afforded as

a matter of course. See Pets’ Br. at 33-35. In sum, petitioners propose that this Court adopt a

quasi-criminal scheme far greater than even the procedures afforded in the statutory habeas

provisions that Congress repealed as to these petitioners. The Court should not accept this

invitation for at least three reasons.

First, as just pointed out, an expansive quasi-criminal procedural framework was

expressly rejected by the Hamdi Court. The district court in that case had refused to rely on

hearsay and “ordered the Government to turn over numerous materials for in camera review,

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including copies of all of Hamdi’s statements and the notes taken from interviews with him that

related to his reasons for going to Afghanistan and his activities therein; a list of all interrogators

who had questioned Hamdi and their names and addresses; statements by members of the

Northern Alliance regarding Hamdi’s surrender and capture; a list of the dates and locations of

his capture and subsequent detentions; and the names and titles of the United States Government

officials who made the determinations that Hamdi was an enemy combatant and that he should

be moved to a naval brig.” See Hamdi, 542 U.S. at 513-14. This actual order in Hamdi is

narrower than the limitless discovery sought by petitioners here. But the Supreme Court

reversed this order and others, describing the process contemplated by the district court as

something that “would approach the process that accompanies a criminal trial” and as

“anticipat[ing] quite extensive discovery of various military affairs.” See Hamdi, 542 U.S. at

528. Thus, the Supreme Court clearly and squarely rejected this approach even for citizen

detainees, holding that “the process apparently envisioned by the District Court below” does not

“strike[] the proper constitutional balance when a United States citizen is detained in the United

States as an enemy combatant.” Id. at 532. Petitioners’ proposals for evidentiary hearings,

sweeping discovery into military and intelligence matters, and the like, demand an even a more

burdensome process than that rejected in Hamdi as overbroad even for an American citizen


Second, petitioners’ framework seeks to remove from these proceedings any degree of

deference to the Executive Branch in carrying out wartime operations. While agreeing that these

petitioners are entitled to invoke constitutional habeas corpus, the Supreme Court also

recognized that in “considering . . . the procedural . . . standards used to impose detention to

prevent acts of terrorism, proper deference must be accorded to the political branches.”

Boumediene, 128 S. Ct. at 2276 (emphasis added). Petitioners’ proposed framework, however,

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accords no deference to the political branches. Indeed, petitioners’ proposed procedural

framework suggests that “the government bear the burden of demonstrating the lawfulness of the

detention by clear and convincing evidence,” see id. at 10, and its decision to detain and

evidence is entitled to no presumption of validity. Id. at 14-18. This proposal is contrary not

only to Boumediene’s holding that deference is required, but also to Hamdi, which called for an

evidentiary showing not by clear and convincing evidence, but by “credible evidence,” and

which expressly endorsed a presumption in favor of the Government’s evidence in these

circumstances. Hamdi, 542 U.S. at 534.

Third, petitioners’ course is wholly unprecedented and will prove unworkable given the

large number of habeas petitions at hand. Indeed, petitioners envision limited coordination and

expect individual judges to decide issues of discovery in an ad hoc manner that will necessarily

lead to inconsistent rulings on basic procedural points that all parties should have a strong

interest in resolving consistently. Such a course can only further delay these cases rather than

resolve them. The “prudent and incremental” approach is to require an orderly, manageable

process whereby the Government first submits a factual return containing credible evidence that

is presumed valid; the petitioner submits a traverse that must contain more persuasive evidence;

and that any additional process, taken in incremental steps, is appropriate only if the weight of

the evidence supports the petitioner. To be sure, petitioners will, as the Supreme Court

emphasized in Boumediene, be able to participate in an adversarial process, have notice of the

basis of their detention, and challenge that detention through supplementation of the record with

their information. But the Court may properly limit its review as established by Hamdi. The

Court should thus enter a case management order implementing the Hamdi framework, as

proposed by the Government.



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The Hamdi Burden-Shifting Approach Is Appropriate In These Cases and Should
Be Implemented.

As we explained in our opening brief, this Court should enter an order that implements

the Hamdi burden-shifting approach in assessing the facts that support the Executive Branch’s

decision to detain a petitioner as an enemy combatant. Govt. Br. at 14-15. Under that approach,

the Government would first “put[] forth credible evidence that the habeas petitioner meets the

enemy-combatant criteria.” Hamdi, 542 U.S. at 534. The petitioner must then rebut that

evidence “with more persuasive evidence.” Id. Only if that more persuasive showing is made

will the Court then engage in additional factfinding.


The Clear and Convincing Evidence Standard Proposed by Petitioners Is
Incorrect and Inconsistent with the Hamdi Burden-Shifting Approach.

Petitioners argue that military detention is appropriate only if the Government has “clear

and convincing” evidence that the detainee is an enemy combatant. Application of that standard

is wrong on multiple levels. First, it is inconsistent with the standard set out by the controlling

plurality in Hamdi, and, remarkably, petitioner nowhere cites that opinion in its discussion of the

Government’s burden. Second, it is grossly at odds with a habeas court’s traditional role in

reviewing the factual basis for Executive detention decisions. Indeed, petitioners urge that this

Court apply substantive standards used in other detention contexts, but ignore this context,

namely, how much evidence justifies a soldier’s military decision to apprehend an apparent

enemy in the field rather than allow him to potentially return to battle. The answer to that

question is far different from the question presented in any of the domestic proceedings cited by

the petitioners, such as civil commitment or pre-trial detention, where the stakes and setting are

far different.

The Supreme Court in Hamdi set forth the standard that the Government must meet to

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satisfy a habeas Court’s inquiry into the factual basis for detention – if the Government “put[s]

forth credible evidence that the habeas petitioner meets the enemy-combatant criteria,” it has met

its factual burden. Hamdi, 542 U.S. at 534 (emphasis added). This standard is a far cry from the

“clear and convincing evidence” standard proposed by petitioners. Because petitioner’s

proposed evidentiary standard is flatly inconsistent with Hamdi, it must be rejected.

Petitioners argue that a clear and convincing standard is appropriate because in cases of

executive detention – without prior criminal judgment by a court – the “‘protections [of the writ]

have been the strongest.’” Pets’ Br. at 10 (quoting St. Cyr, 533 U.S. at 301). But petitioners

ignore the context of that statement in St. Cyr – it was made to show that in cases of executive

detention, a habeas court would review “pure questions of law,” St. Cyr, 533 U.S. at 305; indeed,

St. Cyr quite plainly stated that, even in the context of executive detention, habeas “courts

generally did not review factual determinations made by the Executive” other than to determine

whether the decision was supported by “some evidence.” Id. at 306. Thus, the protections of

the writ in the context of executive detention lend no support to petitioners’ claim that this Court

should review the determination under a clear and convincing evidence standard.

Petitioners next argue that a “clear and convincing” evidentiary standard is appropriate

because this is the standard employed in domestic civil commitment cases. Pets’ Br. at 11-12.

Petitioners are only partially correct in their assessment of domestic law;1 but more importantly

1The immigration cases cited by petitioners imposed a clear and convincing standard not

based on any constitutional requirement, but because “Congress has not addressed itself to the
question of what degree of proof is required.” Woodby v. INS, 385 U.S. 276, 284 (1966);
Schneiderman v. United States, 320 U.S. 118, 132 (1943) (“naturalization is a privilege, to be
given or withheld on such conditions as Congress sees fit”). Schneiderman also dealt with the
unique circumstance of revoking citizenship, a circumstance that does not provide a ready
analogy for the wartime detention at issue here, as it involved an attempt to reverse a prior
judicial decree where “rights once conferred should not be lightly revoked,” and it implemented
a preference (entirely inapposite here) that “the facts and the law should be construed as far as is
reasonably possible in favor of the citizen.” Id. at 122, 125.

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it is entirely inappropriate to incorporate that law in this context. Cases involving pre-trial

detention or civil commitment strike at the heart of liberty in this nation in peacetime, where

“liberty is the norm, and detention . . . without trial is the carefully limited exception.” United

States v. Salerno, 481 U.S. 739, 755 (1987). In those cases, “the Court deemed it inappropriate

to ask the individual ‘to share equally with society the risk of error.’” Jones v. United States,

463 U.S. 354, 367 (quoting Addington v. Texas, 442 U.S. 418, 427 (1979)). This is an entirely

different context. It involves fundamental questions pertaining to the security of the nation itself,

questions heightened by technological advances that give terrorist organizations the ability to

inflict devastation on a massive scale, a power heretofore limited only to nation-state actors and

vividly illustrated by the attacks of September 11th, 2001. Here the risk of error tips decisively

in favor of society’s interests in self-preservation. And indeed, the Executive’s actions in

response to these threats have been taken with the full authority of Congress, not to prevent

criminality or deviant dangerous behavior that threatens individuals, but for the preservation of

the nation and its citizenry writ large in a time of war. Unsurprisingly, petitioners’ own cases

specifically distinguish detention that arises as part of “the exigencies of war.” Salerno, 481

U.S. at 748.

The concerns that led to the “clear and convincing” standard in the domestic law-

enforcement and civil confinement contexts have no applicability in the context of wartime

detention of the enemy. There is no “norm” against detention without trial in these

circumstances – instead, trials are not the norm when taking military action abroad that includes

the detention of the enemy. Third Geneva Convention, Art. V; Army Reg. 190-8. Moreover, it

would be misguided at best to impose on our service members – who place themselves in harm’s

way on a daily basis in defense of our country – the obligation to “share equally” in the risk of

error, much less share the bulk of the burden of error if enemy combatancy has not been

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established by clear and convincing evidence. Indeed, if anything, when fighting a war overseas,

as the United States is doing today, against belligerents who show no respect for the traditional

laws of war, the risk of error must be weighed heavily the other way to protect our soldiers, our

citizens, and our homeland. Cf. Salerno, 481 U.S. at 750-51 (“as our cases hold, this right [not

to be detained] may, in circumstances where the government's interest is sufficiently weighty, be

subordinated to the greater needs of society”); Addington, 441 U.S. at 430 (“[n]or should the

state be required to employ a standard of proof that may completely undercut its efforts to further

the legitimate interests of . . . the state . . . that are served by civil commitments”).

In sum, as Hamdi explained, the Court must “giv[e] due regard to the Executive once it

has put forth meaningful support for its conclusion that the detainee is in fact an enemy

combatant.” Hamdi, 542 U.S. at 534. For wartime detention decisions, the primary risk of error

must fall in a way so as to protect the United States, its citizens, and its service members, rather

than the opposite as petitioners suggest.2


The Government’s Evidence is Entitled to a Presumption of Validity.

Petitioners urge that no presumption in favor of the Government’s evidence is

appropriate. But this contention is directly contrary to Hamdi, which expressly endorsed just

such a presumption for a wartime detention in a context that is different only in that, there, more

constitutional protections applied. Even in that context where the detainee was a citizen, and

2In the wartime detention context, the consequences of even a single erroneous release

can be catastrophic. See Mintz, John, Released Detainees Rejoining The Fight, Washington Post
(Oct. 22, 2004) (“One of the repatriated prisoners is still at large after taking leadership of a
militant faction in Pakistan”; he had “maintained the fiction that he was an innocent Afghan
tribesman” while at Guantanamo); Rubin, Alissa, Former Guantanamo Detainee Tied to Attack,
New York Times (May 8, 2008) (reporting that “[a] former Kuwaiti detainee at the United States
prison camp at Guantanamo Bay, Cuba, was one of the bombers in a string of deadly suicide
attacks in the northern Iraqi city of Mosul last month”),

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thus, afforded the full panoply of constitutional protections, the Court stated that “the

Constitution would not be offended by a presumption in favor of the Government’s evidence, so

long as that presumption remained a rebuttable one and fair opportunity for rebuttal were

provided.” Hamdi, 542 U.S. at 534. That ability to rebut, the controlling plurality explained,

“would sufficiently address the ‘risk of erroneous deprivation’ of a detainee’s liberty interest”

and therefore satisfy the requirements of the Due Process Clause in protecting the liberty interest

of a United States citizen. Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). A

fortiori such a presumption is appropriate here, where the detainees are not citizens,

constitutional protections are therefore lesser, and the habeas statute is inoperative except as

constitutionally compelled.

Petitioners do not really challenge this aspect of Hamdi, but instead claim that a

presumption is improper because, in their view, a CSRT determination “is entitled to no

deference” because it was an “administrative, non-adversarial process.” Pets’ Br. at 15.

Petitioners also cite various historical cases where courts “declined to defer” to a detention

decision, but instead conducted de novo review. Id. at 17 (citing Ex Parte Bollman, 8 U.S. 75,

125 (1807)). But the issue of deference to a CSRT administrative determination (or the

magistrate’s determination in Bollman) has no relevance to whether the Government’s factual

evidence is entitled to the presumption endorsed by Hamdi. There were no CSRTs at the time

Hamdi was decided, and Hamdi endorsed a presumption in favor of a declaration filed by “ a

knowledgeable affiant to summarize” the “documentation regarding battlefield detainees already

. . . kept in the ordinary course of military affairs.” Id. at 534-35. That is precisely the sort of

evidence that will comprise the factual returns in these cases, and the same presumption in favor

of that evidence is therefore warranted. In any event, the Court in Hamdi also reasoned that

deference is appropriate in these circumstances, as a Court must “giv[e] due regard to the

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Executive once it has put forth meaningful support for its conclusion that the detainee is in fact

an enemy combatant.” Id. at 534.3

Petitioners next argue that a presumption is not warranted because the Court in

Boumediene directed that there be “plenary habeas review into the ‘sufficiency of the

Government’s evidence.’” Pets’ Br. at 16. But sufficiency review is deferential even in less

sensitive contexts than here, see Jackson v. Virginia, 443 U.S. 307, 319 (1979), and the fact that

this Court will be conducting a review of the sufficiency of the Government’s evidence to

warrant detention is in no way inconsistent with according that evidence a presumption of

validity. In those circumstances, if the Government’s evidence is not more persuasively

rebutted, the Court will simply perform the familiar task of determining if that evidence,

presumed true, is sufficient to support the conclusion that the detainee is an enemy combatant.

Cf. id. (in reviewing sufficiency of evidence supporting criminal conviction, court “view[s] the

evidence in the light most favorable to the prosecution”); United States v. Pettiford, 517 F.3d

584 (D.C. Cir. 2008) (applying sufficiency of evidence review in criminal case).

Petitioners also contend that Boumediene directly rejected a presumption in favor of the

Government’s evidence. Pets’ Br. at 16-17 (citing Boumediene, 128 S. Ct. at 2260, for the

proposition that “a central defect” of the CSRT is that the “‘Government’s evidence is accorded

3While it is outside the scope of this procedural briefing, it is well established that, on the
merits, the military’s detention decision must be afforded substantial deference. See id.; Hirota
v. MacArthur, 338 U.S. 197, 215 (1949) (“the capture and control of those who were responsible
for the Pearl Harbor incident was a political question on which the President as Commander in
Chief, and as spokesman for the nation in foreign affairs, had the final say”); Aguayo v. Harvey,
476 F.3d 971, 978-79 (D.C. Cir. 2007) (noting “the limited scope of review in military habeas
cases” where “considerable deference” is appropriate); Doe v. Sullivan, 938 F. 2d 1370, 1380
(D.C. Cir. 1991) (“The Supreme Court has cast the principle of judicial deference to the electoral
branches in military matters in broad terms.”); Thomasson v. Perry, 80 F.3d 915, 924-26 (4th
Cir. 1996). Bollman, a case involving a routine pre-trial detention judgment in a domestic
criminal case, is of no relevance to the military’s determination to detain a captured combatant in
wartime on the question of deference.

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a presumption of validity’”). This contention is plainly wrong. The Court nowhere addressed

the Hamdi Court’s holding that a presumption by the habeas court is appropriate. Instead, the

Court was expressing concern over an administrative presumption that was all-but irrebuttable.

Boumediene, 128 S. Ct. at 2260. There, the detainee’s “ability to rebut the Government’s

evidence against him” was limited by the absence of counsel in CSRT proceedings, the

rigorously enforced limits on what “reasonably available” evidence a detainee could request, see

CSRT procedures, Enc. 1, § (G)(2), and the fact that he could submit no exculpatory evidence in

subsequent court proceedings under the DTA. Boumediene, 128 S. Ct. at 2260. Here, on the

other hand, the presumption is fully rebuttable by the petitioner who, with counsel, will have an

adequate opportunity to present all of his own evidence. In such circumstances, the Hamdi

“presumption in favor of the Government’s evidence” is entirely appropriate. 542 U.S. at 534.

The presumption is also appropriate given the nature of much of the evidence to be

presented. In many cases, evidence will be derived from intelligence that experts in the

intelligence agencies and the military deem reliable for purposes of conducting military

operations – which may involve the use of lethal force. It is, thus, entirely appropriate to defer to

their expertise with such information and their assessment. Indeed, judges have “little or no

background in the delicate business of intelligence gathering” and “[t]here is no reason . . . to

have great confidence in the ability of judges to make” intelligence-related judgments correctly.

CIA v. Sims, 471 U.S. 159, 176 (1985).

Petitioner also argues that the Hamdi presumption should not be implemented as a

“categorical rule” because such a categorical presumption was not endorsed in the opinion by

Judge Traxler in Al-Marri v. Pucciarelli, — F.3d —, 2008 WL 2736787, *42 (4th Cir. July 15,

2008) (Traxler, J., concurring). This claim is erroneous for two reasons. First, while Judge

Traxler, writing only for himself, acknowledged the fact that “the Supreme Court intended its

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[Hamdi] framework to apply to every habeas petition filed by an alleged enemy combatant,” id.

at *45, he then erroneously failed to implement it. As Judge Wilkinson explained in response,

Judge Traxler erroneously required that the Government establish that it was submitting the

“most reliable available evidence.” Id. at *70, *110 (Wilkinson, J., concurring in part and

dissenting in part). Such a standard is a “fundamental misapplication of Hamdi,” id. at 111,

because it amounts to “abandon[ment of] the careful incrementalism and the actual ‘burden-

shifting scheme’ set forth by the Supreme Court.” Id. Hamdi required, as we have explained,

that the Government put forth “credible evidence”; it did not require the Government to establish

that its evidence is the most reliable available. Hamdi, 542 U.S. at 534. Indeed, without such a

presumption in favor of non-rebutted evidence, “the whole Hamdi burden-shifting framework

would be rendered useless.” Al Marri, 2008 WL 2736787, at *109 (Wilkinson, J., concurring in

part and dissenting in part).4


There is No Entitlement to Discovery in these Proceedings.

Discovery into military affairs by those who have been determined to be our enemies

poses unique risks to our nation’s security. As this Court recognized in a related context, the

“discovery process alone risks aiding our enemies by affording them a mechanism to obtain what

information they could about military affairs and disrupt command missions by wresting

officials from the battlefield to answer compelled deposition and other discovery inquiries.” In

re Iraq and Afghanistan Detainees Litigation, 479 F. Supp. 2d 85, 105 (D.D.C. 2007).


A Framework Order Precluding Discovery Should Be Entered.

As we argued in our opening brief, petitioners are not entitled to any discovery in these

4In any event, Judge Traxler’s opinion by its terms governs only cases in which (as in Al

Marri, but unlike Hamdi or here) a detainee was arrested within the United States. Al Marri,
2008 WL 2736787, at *42, 45-46.

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proceedings and it should be precluded by court order. Going back to the founding, there is no

history of discovery in habeas cases (or in civil cases generally, where it was an innovation with

the Federal Rules of Civil Procedure) that could possibly give rise to a right to discovery in

constitutionally-based habeas proceedings. Govt. Br. at 15-19. The Court in Boumediene did

not identify discovery as one of the essential elements of constitutional habeas. Congress’s

repeal of statutory habeas jurisdiction, in conjunction with the fact that constitutionally-derived

habeas corpus does not require discovery, is therefore fatal to the claim that discovery, much less

discovery more extensive than that in statutory habeas, is appropriate in these proceedings.

The rules adopted by the Supreme Court to govern statutory habeas proceedings set a

ceiling, not a floor, for proceeding under constitutional habeas. And even if the habeas statute

did apply, the Court’s application of it should be guided by Congress’s unmistakable intent to

limit these habeas proceedings, as expressed in the DTA and MCA. Accordingly, while

petitioners may provide their own evidence and version of events for this Court’s consideration,

any discovery they may be granted from the Government is a matter of Executive discretion

rather than a constitutional entitlement.

Petitioners argue for no framework limits on discovery, before or after the submission of

petitioners’ traverse, a result that cannot stand in light of the fact that no discovery at all is

authorized in these proceedings. Such a proposal is also flatly incompatible with Hamdi’s

application of the habeas statute. In support of imposing no limits on discovery, petitioners cite

the Hamdi decision’s description of the discovery authorized by 28 U.S.C. § 2246. Pets’ Br. at

19 (speaking to “‘the taking of evidence in habeas proceedings by deposition, affidavit or

interrogatories’”) (quoting Hamdi, 542 U.S. at 525). But this citation lends no support to

petitioners’ request for unrestricted discovery. As we have explained, although statutory habeas

was available in Hamdi, only constitutional habeas is available here. In any event, even the

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habeas statute does not require a court to permit discovery. Indeed, discovery is unquestionably

the exception, not the norm, in statutory habeas cases in peacetime – and is all the less

appropriate here given both the wartime context and Congress’s clear intent to limit procedures

to the constitutional minimum. Moreover, the Hamdi Court quoted the habeas statute on its way

to reversing the district court’s discovery order and limiting when additional factfinding would

be appropriate, i.e., only after a court concludes that a petitioner has successfully rebutted the

Government’s showing. And even then, as Hamdi directed, any such factfinding must be

“prudent and incremental” and cannot be as broad as that available in criminal proceedings.5

Petitioners also cite statutory habeas cases to argue that no framework order is

appropriate addressing discovery because the issue whether discovery is appropriate depends on

“‘the facts of [a] particular case.’” Pets’ Br. at 20 (quoting Bracy v. Gramley, 520 U.S. 899, 909

(1997)). But Hamdi itself addressed the facts of a case involving the detention of enemy

combatants apprehended overseas in wartime. The Hamdi Court weighed the competing

considerations to come up with its burden-shifting framework. Under Hamdi, as we have

explained, no discovery or other factfinding procedures are appropriate even under the habeas

statute and modern habeas practice, prior to a Court employing the burden-shifting framework.

Thus, the balance on discovery has already been struck even for statutory habeas cases of this

type, and petitioners should not be allowed to evade the Hamdi framework by simply citing the

general principle that the propriety of discovery depends on the facts and circumstances

5Petitioners also take out of context a quote in Boumediene to incorrectly state that the
Court held that discovery was an essential aspect of substitute habeas proceedings. Pets’ Br. at
19. The Boumediene Court stated that one critical shortcoming in DTA proceedings was the fact
that the “detainee . . . would have no opportunity to present evidence discovered after the CSRT
proceedings concluded.” Boumediene, 128 S. Ct. at 2272. Contrary to petitioners’ suggestion,
the Court was using the term “discovered” here in its common sense meaning, not to connote
judicially-sanctioned discovery of information from an opposing party in litigation.

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Contrary to petitioners’ claim, the “unique challenges . . . in gathering evidence” do not

support authorizing discovery, Pets’ Br. at 21, those challenges arise from the wartime context

and call emphatically for limiting or precluding discovery, as Hamdi itself reasoned. 542 U.S. at

533. As Hamdi explained, “the exigencies of the circumstances may demand that, aside from

these core elements, enemy-combatant proceedings may be tailored to alleviate their uncommon

potential to burden the Executive at a time of ongoing military conflict.” Id. The first

“tailoring” performed by the Court was reversing the district court’s broad discovery order and

imposing the Hamdi burden-shifting framework. The Court thus has already rejected

petitioners’ suggestion that “preliminary discovery” may be needed to “identify the evidence that

is helpful to their case.” Pets’ Br. at 21.

As we explained in our opening brief, even if discovery were constitutionally required, it

should occur only very rarely, and only after considering the factual return and traverse. Further,

each specific discovery request must be approved by the district court, as is contemplated by

rules for statutory habeas.7 The discovery authorized must be incremental under Hamdi and

Boumediene. See Hamdi, 542 U.S. at 539 (factfinding must be “both prudent and incremental”);

Boumediene, 128 S. Ct. at 2262 (“habeas procedures” should be “modified to address” “practical

barriers”). Discovery that is not both extraordinarily rare and narrow is also antithetical to the

expedited disposition of the over 200 cases at issue.

6Petitioners’ request to have discovery that is“more permissive” than in statutory habeas
cases (Pets’ Br. at 21) should be rejected out of hand, given Hamdi. Pets’ Br. at 21. So should
petitioners’ claim that the scope of discovery should be guided by the “full opportunity for
discovery pursuant to state or federal rules of criminal procedure,” Pets’ Br. at 20, the precise
type of discovery explicitly rejected in Hamdi. 542 U.S. at 528.


7Petitioners agree that discovery in habeas cases “requires leave of court.” Pets’ Br. at

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To this end, even if it were ever permissible, a discovery request would have to be quite

specific: It must “provide reasons for the request” and “include any proposed interrogatories and

requests for admission, and must specify any requested documents.” Habeas Rule 6(b). Even

under modern habeas practice, it is a petitioner’s burden to show in making such a request that

based on “specific allegations” that “if the facts are fully developed” he may be “entitled to

relief.” Bracy, 520 U.S. at 908-09 (quotation marks omitted). The request must be appropriately

“incremental”: first, an expansion of the record pursuant to habeas Rule 7; limited interrogatories

or requests for admission that may be answered by any appropriate Government personnel;

document requests must be considered only after requests for admission, and must be narrow and

focused on specific documents, not open-ended. Such concerns, and the exigencies of

considering over 200 cases on an expedited basis, strongly militate against open-ended discovery

even if it is in some rare cases constitutionally required.


The Government Will Voluntarily Submit Evidence Discovered by its
Attorneys in Preparing the Factual Return that Materially Undermines the
Information Presented in the Return to Support the Petitioner’s
Classification, But Cannot Properly Be Ordered to Provide Exculpatory

In our opening brief, we explained that, although not constitutionally required, the

Government would submit any evidence that tends materially to undermine information

presented in the return to support a petitioner’s classification as an enemy combatant, which is

encountered in developing the returns by the attorneys preparing them (including the Department

of Justice attorneys assigned to the case and those Department of Defense attorneys working on

the case with them). This voluntary disclosure would make further discovery unnecessary and

inappropriate, even if some discovery were constitutionally required. The Government plans to

provide this information even though the Hamdi plurality expressly rejected the imposition of a

“process [that] would approach the process that accompanies a criminal trial” including criminal

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discovery that is delineated by a prosecutor’s Brady obligation. See Hamdi, 542 U.S. at 528; see

id. at 532-33.

Petitioners seek a court order requiring the Government to provide “all exculpatory

evidence . . . in its possession.” Pets’ Br. at 24. This order cannot properly be imposed and, in

any event, is overbroad and unduly burdensome. It is difficult to overstate the burden such a

requirement would impose—effectively forcing intelligence agencies to redirect massive

amounts of resources from protecting our national security to a limitless fishing expedition, in

which they would be obligated to search countless databases for any shred of information that

might arguably be considered “exculpatory.” See Bismullah v. Gates, No. 06-1198, Petition for

Rehearing En Banc, at 8-10 (D.C. Cir., filed Sept. 7, 2007) (submitting declarations from the

military and intelligence community explaining that a search for material on a detainee results in

“tens of thousands, and in many cases hundreds of thousands, of documents . . . little of which

has anything to do with the detainee or his enemy combatant status”).

Further, such an order cannot properly be imposed for the reasons we explained in our

opening brief. First, there is no Brady obligation in civil proceedings, including statutory habeas

proceedings, and it would be extraordinary to impose one outside of the criminal context for the

first time ever in a case involving wartime detention where any disclosures could potentially

threaten national security. See In re Iraq and Afghanistan Detainees Lit., 479 F. Supp. 2d at 105.

Second, the Government’s voluntary undertaking, while narrower than Brady, still goes well

beyond what Hamdi anticipated. See 542 U.S. at 528, 532. Third, there is no constitutionally-

based requirement for discovery in habeas cases at all, much less a constitutionally-based

requirement for Brady type disclosures (which after all was developed well after 1789). And, as

we explained, the Brady obligation stems from the Fifth Amendment’s due process obligations

in domestic criminal cases; it has no application either to habeas cases or to these petitioners.

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Petitioners’ proposal is also breathtakingly overbroad and burdensome. While the

Government has no quarrel with providing evidence that is truly “exculpatory,” in the sense that

it tends materially to undermine information presented in the return to support the petitioner’s

classification as an enemy combatant, it should only provide that evidence when it is

encountered in developing the returns by the attorneys preparing them (including the Department

of Justice attorneys assigned to the case and those Department of Defense attorneys working on

the case with them). The Government cannot and should not be forced to conduct open-ended

searches for such material. As we explained, such a search is not constitutionally required

because no Brady obligation attaches in the context of these civil habeas proceedings in wartime.

Further, such a search is not relevant to the core function of habeas identified by Boumediene,

i.e., giving a petitioner the opportunity to make his own factual showing with his own evidence.

Such a search obligation is also contrary to Hamdi, where the “quite extensive discovery” of

criminal proceedings was rejected. 542 U.S. at 528. Finally, such an approach would be

extraordinarily burdensome in a time of ongoing war. The United States military and our

intelligence agencies cannot be required to devote almost limitless resources in a time of war to

literally hundreds of worldwide evidentiary fishing expeditions.

While petitioners’ proposed order is overbroad in that it calls for the disclosure of “all”

evidence “in [the Government’s] possession” without any limitation, their argument supports

only a much narrower obligation more closely akin to what the Government proposes to do

voluntarily, namely, to provide qualifying evidence that is encountered in developing the returns

by the attorneys preparing them. Thus, petitioners urge that they will not “send the government

on a ‘fishing expedition.’” Pets’ Br. at 24. But a search for information beyond what the

attorneys preparing the returns encounter in preparing them would be just such a fishing

expedition. Additionally, petitioners point out that their proposal will not be burdensome

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because the Government “stated it intended to review government files” to update returns. That

is true, but this “review of government files” will be conducted by the attorneys who are

preparing the returns.

Petitioners argue that a mandatory Brady obligation is appropriate here given the

“‘considerable risk of error’ inherent in CSRTs determinations.” Pets’ Br. at 23 (quoting

Boumediene, 128 S. Ct. at 2270). But this “risk of error” is what led the Supreme Court to hold

that a petitioner must be able to make his own showing to the habeas court; the Boumediene

Court did not consider, nor did it remotely suggest, that a mandatory Brady obligation would be

appropriate here. Instead, it rejected the procedures that accompany a “criminal trial,” id. at

2269, and Hamdi expressly rejected criminal-type discovery procedures. 542 U.S. at 528, 532-

33. In sum, because there is no Brady obligation in this context, the Court cannot create one and

impose it on the Government.




Evidentiary Hearings Should Occur Only Rarely.

As we explained in our opening brief, evidentiary hearings, if they occur at all, should

occur only rarely. First, there is no constitutional entitlement to such a hearing in these

circumstances and there is nothing unusual about resolving habeas cases based upon the written

submissions. Second, neither Hamdi nor Boumediene suggested that a testimonial hearing would

be appropriate or required in these circumstances. Instead, Hamdi makes clear that evidentiary

hearings with live testimony would be improper. See 542 U.S. at 531-32 (soldiers should not be

distracted from “the serious work of waging battle” to provide eyewitness accounts of actions

that occurred half a world away). Third, routine hearings would make it all but impossible to

resolve these cases promptly. Accordingly, an evidentiary hearing would be appropriate, if at

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all, only after the Court has reviewed the parties’ written submissions and only once a court

determines that, absent an evidentiary hearing, the weight of the evidence supports the habeas

petitioner. See Gov. Br. at 32-33.

Petitioners’ proposal, on the other hand, calls for testimonial hearings to be routine – to

be held in all cases where there is any disputed issue of material fact. Such an approach does not

square with the Hamdi burden-shifting approach, which requires that a petitioner first rebut the

Government’s credible evidence with “more persuasive evidence” of noncombatancy. Hamdi,

542 U.S. at 534. Thus, prior to any additional factfinding (and well before an evidentiary

hearing is required), a petitioner must furnish evidence that is more persuasive than the

Government’s evidence – he cannot merely assert that there is a factual dispute or rest upon a

general denial. If the evidence submitted by a petitioner is not more persuasive, the court must

resolve the facts in favor of the Government’s showing under Hamdi without holding an

evidentiary hearing, and instead move on to any legal challenges raised by the petitioner.

Petitioners’ approach, by contrast, is even inconsistent with statutory habeas standards outside of

the context of wartime detention. 28 U.S.C. § 2243 (court authorized by habeas statute to

“summarily hear and determine the facts, and dispose of the matter as law and justice require”).


The Confrontation Clause Does Not Apply and Compulsory Process Is Unavailable

Petitioners urge that the baseline assumption will be a right to cross-examine witnesses

and have the Court compel attendance of live witnesses at hearing and order depositions for

those outside of this jurisdiction under Federal Rule of Civil Procedure 45. See Pet. Br. at 33.8

8The Rule 45 process itself is wholly inappropriate as a procedural framework

mechanism. Under Rule 45, a petitioner could obtain a subpoena compelling a witness presence
and perhaps documents merely by issuing a subpoena and without any court approval. It would
then place the burden on the Government to object. This is the exact opposite of the proper
baseline even in statutory habeas proceedings, where court approval for any discovery request is

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The Supreme Court in Harris expressly rejected the notion that the federal discovery rules

applied even in statutory habeas cases. Harris v. Nelson, 394 U.S. 286, 292-98 (1969). And, of

course, given that the Federal Rules of Civil Procedure are limited in their application to

statutory habeas cases, see Fed. R. Civ. P. 81(a)(2), their application to constitutional habeas

cases is