Academic journal article Case Western Reserve Journal of International Law

Guantanamo, Habeas Corpus, and Standards of Proof: Viewing the Law through Multiple Lenses

Academic journal article Case Western Reserve Journal of International Law

Guantanamo, Habeas Corpus, and Standards of Proof: Viewing the Law through Multiple Lenses

Article excerpt

The Supreme Court held in Boumediene v. Bush that Guantanamo detainees have a constitutional right to habeas corpus review of their detention, but it left to district courts in the first instance responsibility for working through the appropriate standard of proof and related evidentiary principles imposed on the government to justify continued detention. This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: through that of a courtroom concerned with evidence or through that of a battlefield clouded by imperfect intelligence. All three branches of government should play significant roles in answering these questions, which are critical to establishing sound detention policy.

I. INTRODUCTION

The Supreme Court held in Boumediene v. Bush that Guantanamo detainees have a constitutional right to habeas corpus review of their detention. (1) However, the Court left to district courts in the first instance responsibility for working through the many procedural and substantive issues that would govern resulting habeas proceedings. (2) While mandating that Guantanamo detainees receive access to U.S. federal courts empowered to correct errors after "meaningful review of both the cause for detention and the Executive's power to detain," (3) the Court emphasized that it was "not ad dress[ing] the content of the law that governs petitioners' detention." (4) The particular questions I focus on here--questions with procedural and substantive, domestic and international law dimensions--concern the standard of proof and related evidentiary principles imposed by habeas courts on the government to justify continued detention.

In a 2008 article I compared detention decision-making to military targeting decision-making and argued that international law rules governing targeting could be imported by analogy to help derive answers to the question: If a state is engaged in armed conflict with a transnational terrorist organization, and the state decides to detain or continue detaining someone fighting on the enemy's behalf, how certain ought the state have to be in its assessment of that individual's identity and enemy status? (5) This Article examines how district courts have so far dealt with this issue.

This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: through that of a courtroom concerned with evidence or through that of a battlefield clouded by imperfect intelligence. The article concludes that all three branches of government should play significant roles in working through these questions, which are critical to establishing sound policy not only for those currently detained at Guantanamo, but also for those likely to be captured in the future struggle against al-Qaida.

II. STANDARD OF PROOF ISSUES

One question that quickly arises in habeas proceedings reviewing enemy combatant detentions is the appropriate standard of proof: to what level of certainty must the government prove the factual bases of its detention decision? For all enemy combatant detentions until Hamdi v. Rumsfeld (6) and Boumediene, (7) and since then for detentions of al-Qaida and allied fighters pursuant to war powers outside the U.S. or Guantanamo, the executive has dealt with this issue unilaterally and internally--i.e., through its own judgments of legally necessary factual certainty about a suspect's identity and conduct to warrant and authorize detention. Once habeas rights or some other form of judicial review apply, however, courts must quickly confront this issue more formally and explicitly. …

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