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November 21, 2008

Follow-up on Boumediene

The 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.

In addition, the Court was not provided with adequate corroborating evidence that these petitioners knew of and were committed to such a plan. Contra Parhat, 532 F.3d at 849 (noting, in the Detainee Treatment Act context, that when assessing hearsay evidence in intelligence documents, "we do not suggest that hearsay evidence is never reliable -- only that it must be presented in a form, or with sufficient additional information, that permits [the factfinder] to assess its reliability"). Because I cannot, on the record before me, adequately assess the credibility and reliability of the sole source information relied upon, for five of the petitioners, to prove an alleged plan by them to travel to Afghanistan to engage U.S. and coalition forces, the Government has failed to carry its burden with respect to these petitioners. Unfortunately, due to the classified nature of the Government's evidence, I cannot be more specific about the deficiencies of the Government's case at this time.

Suffice it to say, however, that while the information in the classified intelligence report, relating to the credibility and reliability of the source, was undoubtedly sufficient for the intelligence purposes for which it was prepared, it is not sufficient for the purposes for which a habeas court must now evaluate it. To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court's obligation under the Supreme Court's decision in Hamdi to protect petitioners from the risk of erroneous detention.

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.

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posted by Gabriel Malor at 02:22 AM

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