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November 21, 2008
Follow-up on BoumedieneThe 14-page order is here (PDF). As Drew wrote earlier, we are in this wretched mess because five justices of the Supreme Court radically altered the meaning of the U.S. Constitution. I'd add that the serial missteps (bordering on bad faith) from the Bush Administration made it much easier for the courts to take over control of what should have always been a military program. If you're into War on Terror jurisprudence, click over and read the whole thing. It's not long and gives an excellent overview of the issues involved in carrying out the War on Terror in the courts. For everyone else, here's the key ruling with respect to the five detainees to be released: To support it's claim that petitioners had a plan to travel to Afghanistan to engage U.S. and allied forces, the Government relies exclusively on the information contained in a classified document from an unnamed source. This source is the only evidence in the record directly supporting each detainee's alleged knowledge of, or commitment to, this supposed plan. And while the Government has provided some information about the source's credibility and reliability, it has not provided the Court with enough information to adequately evaluate the credibility and reliability of this source's information. See Parhat v. Gates, 532 F.3d 834, 847 (D.C. Cir 2008) ("[T]he factfinder must evaluate the raw evidence, finding it to be sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of certainty."). For example, the Court has no knowledge as to the circumstances under which the source obtained the information as to each petitioner's alleged knowledge and intentions. The burden of proof issue has also been a problem at the military commissions. There is an inherent conflict between intelligence-gathering and evidence collection. During the past five years, the military and intelligence agencies have been more interested in protecting intelligence sources and methods than in providing evidence for courts to use to convict or detain terrorists. It is the government's prerogative to make that choice. But we must be clear about the result. | Recent Comments
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