Cleaning Up "The Mess": The D.C. Circuit Court of Appeals and the Burden of Proof in the Guantanamo Habeas Cases

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INTRODUCTION

Since Boumediene v. Bush, (1) the United States District Court and Court of Appeals for the District of Columbia Circuit have been thrust into an extraordinary lawmaking exercise with broad national security implications as they adjudicate the habeas petitions of the detainees held at the Guantanamo Bay detention facility. These courts have been tasked not only with applying the law to the facts of each individual detainee's case, but also with developing the substantive and procedural rules governing military detention with little guidance from either the Supreme Court or Congress. Numerous scholars have criticized the court of appeals, accusing the court--and some judges in particular--of attempting to undermine the right to judicial review recognized in Boumediene and suggesting that the court of appeals is unwilling to rule in favor any detainee. (2)

This Note examines the development of the burden of proof in the Guantanamo habeas cases, beginning with an examination of the guidance provided by the Supreme Court and Congress and continuing with an analysis of the case law developed thus far by the D.C. Circuit on the issue. What emerges is a very different view of the court of appeals's jurisprudence than the prevailing critical view. Throughout this lawmaking process, the Supreme Court and Congress have wrongly avoided addressing the burden of proof (and other procedural issues) head-on, instead deferring to the D.C. Circuit. Furthermore, the Obama Administration's litigation strategy on the issue has proved remarkably irresponsible, unwisely encouraging the adoption of a high burden of proof with unforeseen negative consequences, barely avoiding sacrificing an important legal means of incapacitating detainees by sheer luck, and inappropriately shifting its institutional responsibility to the D.C. Circuit. Saddled with the undue burden of developing the standard, the court of appeals's jurisprudence on the matter manages to accommodate both maximum deference to the government in wartime and the protections for the detainees required by the Supreme Court, illustrating admirable efforts to clean up part of what one of its judges has referred to as the "Guantanamo Mess." (3)

I. CREATING THE PROBLEM: THE SUPREME COURT OPENS THE D.C. CIRCUIT TO HABEAS ACTIONS BY GUANTANAMO DETAINEES BUT PROVIDES NO HELPFUL GUIDANCE

The Supreme Court first grappled with the substantive law of military detention in Hamdi v. Rumsfeld, (4) its first detainee habeas case after the September 11, 2001, terrorist attacks. In Hamdi, the Supreme Court sanctioned the government's authority to hold enemy combatants in military detention. (5) In response to the petitioner's due process claims, (6) Justice O'Connor, writing for the controlling plurality, (7) determined that the detainee petitioner "must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decision-maker." (8) The plurality opinion also noted, though, that the "exigencies of the circumstances" allowed for "proceedings [to] be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." (9) In addition to approving procedural modifications such as the admission of hearsay evidence, (10) the opinion specifically contemplated a "burden-shifting scheme," under which "once the Government puts forth credible evidence ... the onus could shift to the petitioner to rebut that evidence with more persuasive evidence." (11) The plurality allowed such procedural modifications to standard habeas proceedings because "process of this sort would sufficiently address the 'risk of an erroneous deprivation' of a detainee's liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government." (12) In devising specific rules, the Court commanded lower courts to adhere to the same balancing philosophy, to "pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns. …