The Justice Department urged the Supreme Court to treat cases by Guantanamo Bay detainees challenging their captivity as unique, arguing that special procedures now being used are fair without giving those prisoners the same rights that an individual in a criminal case would have. This marked the first time that the government has come to the defense before the Justices of two key tactics federal judges have used in implementing  the Supreme Court’s 2008 decision giving Guantanamo captives a right to go to court to seek their release. One approach allows the use of unsworn statements in intelligence reports as evidence, and the other requires only the lowest level of proof by the government to justify detention.
Significantly, the Department, in the new document [4] filed Tuesday night, relied upon several laws Congress passed to try to block Guantanamo prisoners entirely from the federal courts – laws that remain on the books even after the Supreme Court, in the decision in Boumediene v. Bush, interpreted the Constitution itself as assuring access to the courts to contest detention. Those laws, the Department argued, take the place of the normal habeas law that applies to regular criminal cases.
The Supreme Court, in Boumediene, chose not to spell out how those cases were to proceed in the lower courts. leaving the choice at least initially to a dozen federal District judges in Washington, D.C.  Beginning in November 2008, those judges have allowed the government to rely on “hearsay” (not under oath), usually in intelligence reports and often involving statements that the detainees themselves had made, and have uniformly judged the government’s detention reasons by the “preponderance of the evidence” standard, the lowest level of proof.
Both of those approaches are now under challenge before the Justices in a petition (10-439) by Fawzi Khalid Abdullah Fahad Al Odah, a Kuwaiti national who has been at Guantanamo Bay for almost a decade. His habeas case was one of the first filed after the opening of the Guantanamo prison facility, and he was involved in the first Guantanamo case decided by the Court, in 2004, and in the Boumediene decision almost three years ago.  His petition argued that the use of “hearsay” evidence and a low standard of proof undermined the right recognized in Boumediene.
It was in response to the petition that the Justice Department defended those procedural mechanisms, saying that the Constitution does not bar them, and that they are proper in the unique context of judging military captivity.  Detainees’ lawyers have a full opportunity to challenge the reliability of the “hearsay” evidence, the new brief contended, and the preponderance standard of proof provides for a proper balance between the detainees’ interest in their liberty and the military’s need to keep “the enemy” from returning to battle against the U.S.
Applying a more demanding standard of proof, the brief contended, “has no historical support,” would contradict military practice in dealing with battlefield captives, and “would ignore the practical difficulties in obtaining and producing relevant evidence in these military detention cases.”
Although the judges in Washington deciding the Guantanamo cases have agreed on both the use of “hearsay” evidence and on the standard of proof, there is continuing debate in those cases about whether the judges should apply the traditional federal law and rules of evidence that govern habeas cases in general. The Department has always argued that the normal rules do not apply, while detainees’ lawyers argue that they do.  The Al Odah case could give the Court a chance, if it wishes to have one, to resolve the issue.
The Department’s argument is that the laws Congress passed to try to keep Guantanamo cases out of U.S. courts took away from detainees the right to use the conventional habeas law, and the Supreme Court substituted only a special constitutional form of habeas in the Boumediene decision, and allowed it to be significantly different. The rules of evidence that normally apply in federal cases, the Department has contended, do not apply at all to the Guantanamo cases.
The detainees’ lawyers, however, have argued that the Boumediene decision did not explicitly deny that the usual habeas law applies to Guantanamo cases, and so federal judges were not free to deviate from them in significant ways. The Department’s new brief sought to counter, again, that argument, and thus to persuade the Justices to accept the new approaches as consistent with the leeway it allowed judges as they carried out Boumediene.  In fashioning special rules for the detainee cases, the brief said, judges have been fair, and “have not blindly accepted” the government’s evidence supporting detention.
“The Federal Rules of Evidence,” the brief argued, “do not apply [to Al Odah’s case] because this is a constitutional habeas case, not a statutory one.” Congress, it said, has made clear “that courts have no statutory jurisdiction to consider habeas petitions from Guantanamo detainees.”  Application of the usual rules of evidence to such cases, it added, “cannot be reconciled” with the laws Congress passed — before Boumediene created a constitutional process — to keep detainees out of U.S. courts.
Detainee Al-Odah’s lawyers will have a chance to reply to the new Department brief before the Supreme Court schedules the case for consideration.