United States of America
Practice Relating to Rule 99. Deprivation of Liberty
Section E. Decision on the lawfulness of deprivation of liberty
The US Field Manual (1956) reproduces Article 43 of the 1949 Geneva Convention IV.
With respect to situations of occupation, the manual uses the same wording as Article 78 of the 1949 Geneva Convention IV and specifies: “‘Competent bodies’ to review the internment or assigned residence of protected persons may be created with advisory functions only, leaving the final decision to a high official of the Government.”
The US Air Force Pamphlet (1976) provides, regarding the internment or placing in assigned residence of protected persons, that if such internment is maintained, the internee is entitled to a periodic review of his or her case by an appropriate court or administrative board at least twice yearly.
The Pamphlet further states: “Persons placed in internment or assigned residence in occupied territory are entitled to a review or reconsideration by a ‘competent body’”.
The US Detainee Treatment Act (2005) states:
Sec. 1005. Procedure for Status Review of Detainees Outside the United States.
(e) Judicial Review of Detention of Enemy Combatants
(1) In General – Section 2241 of title 28, United States Code, is amended by adding at the end the following:
(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider–
(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantánamo Bay, Cuba; or
(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantánamo Bay, Cuba, who–
(A) is currently in military custody; or
(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
“Sec. 5. Treaty Obligations Not Establishing Grounds for Certain Claims
“(a) IN GENERAL. – No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.
The Military Commissions Act further states:
“Sec. 7. Habeas Corpus Matters
“(a) IN GENERAL. – Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109–148 (119 Stat. 2742) and the sub section (e) added by added by section 1405(e)(1) of Public Law 109–163 (119 Stat. 3477) and inserting the following new subsection (e):
“(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
“(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
In 2009, the US President issued Executive Order 13492, Closure of Guantánamo Detention Facilities, which stated:
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:
Sec. 2. Findings.
(c) The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.
(d) It is in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantánamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice. …
Sec. 4. Immediate Review of All Guantánamo Detentions.
(a) Scope and Timing of Review
. A review of the status of each individual currently detained at Guantánamo (Review) shall commence immediately.
The Padilla case in December 2003, a habeas corpus appeal, involved a US citizen held in custody since May 2002 in connection with the September 2001 terrorist attacks in the United States. He had been denied contact with his counsel, family or any other non-military personnel. The appellate court held that, in the domestic context, the President’s inherent constitutional powers did not extend to the detention as an enemy combatant of an American citizen seized within the country away from a zone of combat:
The Constitution’s explicit grant of the powers authorized in the Offenses Clause, the Suspension Clause, and the Third Amendment, to Congress is a powerful indication that, absent express congressional authorization, the President’s Commander-in-Chief powers do not support Padilla’s confinement … The level of specificity with which the Framers allocated these domestic powers to Congress and the lack of any even near-equivalent grant of authority in Article II’s catalogue of executive powers compels us to decline to read any such power into the Commander-in-Chief Clause. In sum, while Congress – otherwise acting consistently with the Constitution – may have the power to authorize the detention of United States citizens under the circumstances of Padilla’s case, the President, acting alone, does not.
[T]he President, acting alone, possesses no inherent constitutional authority to detain American citizens seized within the United States, away from a zone of combat, as enemy combatants.
[W]e remand to the District Court with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release Padilla from military custody within 30 days.
In 2004, the case was appealed to the US Supreme Court, which held that the habeas corpus petition had been improperly filed: “The District of South Carolina, not the Southern District of New York, was the district court in which Padilla should have brought his habeas petition.” The judgment of the US Court of Appeals for the Second Circuit was reversed, and the case was remanded for an entry of an order of dismissal without prejudice. The Court did not decide the issue of whether the President had the power to detain a US citizen by classifying the detainee as an “enemy combatant”.
In 2005, in the Padilla case, in which the Government appealed a decision of the District Court for the District of South Carolina, which had found that the US President lacked the authority to detain the detainee (a US citizen who had trained with Al Qaeda) and that his detention was in violation of the Constitution and the laws of the United States, the Court of Appeals reversed that decision, ruling that the US President had the authority to detain Padilla without charges. The Court of Appeals stated:
We understand the plurality’s reasoning in Hamdi to be that the AUMF [Authorization for Use of Military Force Joint Resolution] authorizes the President to detain all those who qualify as “enemy combatants” within the meaning of the laws of war, such power being universally accepted under the laws of war as necessary in order to prevent the return of combatants to the battlefield during conflict. Given that Padilla qualifies as an enemy combatant under both the definition adopted by the Court in
Quirin and the definition accepted by the controlling opinion in Hamdi Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004)], his military detention as an enemy combatant by the President is unquestionably authorized by the AUMF as a fundamental incident to the President’s prosecution of the war against al Qaeda in Afghanistan.
Hamdi’s detention was an exercise of “necessary and appropriate force” within the meaning of the AUMF because “detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war.”. This reasoning simply does not admit of a distinction between an enemy combatant captured abroad and detained in the United States, such as Hamdi, and an enemy combatant who escaped capture abroad but was ultimately captured domestically and detained in the United States, such as Padilla.
Padilla also argues, and the district court held, that Padilla’s military detention is “neither necessary nor appropriate” because he is amenable to criminal prosecution …”
As to the fact that Padilla can be prosecuted, the availability of criminal process does not distinguish him from Hamdi. If the mere availability of criminal prosecution rendered detention unnecessary within the meaning of the AUMF, then Hamdi’s detention would have been unnecessary and therefore unauthorized, since he too was detained in the United States and amenable to criminal prosecution. We are convinced, in any event, that the availability of criminal process cannot be determinative of the power to detain, if for no other reason than that criminal prosecution may well not achieve the very purpose for which detention is authorized in the first place – the prevention of return to the field of battle. Equally important, in many instances criminal prosecution would impede the Executive in its efforts to gather intelligence from the detainee and to restrict the detainee’s communication with confederates so as to ensure that the detainee does not pose a continuing threat to national security even as he is confined – impediments that would render military detention not only an appropriate, but also the necessary, course of action to be taken in the interest of national security.
The Congress of the United States, in the Authorization for Use of Military Force Joint Resolution, provided the President all powers necessary and appropriate to protect American citizens from terrorist acts by those who attacked the United States on September 11, 2001. As would be expected, and as the Supreme Court has held, those powers include the power to detain identified and committed enemies such as Padilla, who associated with al Qaeda and the Taliban regime, who took up arms against this Nation in its war against these enemies, and
who entered the United States for the avowed purpose of further prosecuting that war by attacking American citizens and targets on our own soil – a power without which, Congress understood, the President could well be unable to protect American citizens from the very kind of savage attack that occurred four years ago almost to the day.
[emphasis in original]
In the Hamdi case in 2004, involving a US citizen being detained indefinitely as an “enemy combatant”, the US Supreme Court reversed the dismissal of a habeas corpus petition by a lower court, recognized the power of the government to detain “enemy combatants”, but ruled that detainees who are US citizens must have the ability to challenge their detention before a neutral decision-maker. On the matter of habeas corpus, the Court stated:
Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164-165, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963) (“The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action”); see also United States v. Robel, 389 U.S. 258, 264, 19 L. Ed. 2d 508, 88 S. Ct. 419 (1967) (“It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile”).
With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. That is, “the risk of an erroneous deprivation” of a detainee’s liberty interest is unacceptably high under the Government’s proposed rule, while some of the “additional or substitute procedural safeguards” suggested by the District Court are unwarranted in light of their limited “probable value” and the burdens they may impose on the military in such cases. Mathews, 424 U.S., at 335, 47 L. Ed. 2d 18, 96 S. Ct. 893.
We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.
(The war power “is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties”). Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions. See St. Cyr,
533 U.S., at 301, 150 L. Ed. 2d 347, 121 S. Ct. 2271 (“At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest”). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his Government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.
In the Rasul case in 2004, involving various alien petitioners challenging the legality of their detention at the Guantánamo Bay Naval Base, Cuba, the US Supreme Court found that US courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantánamo Bay. On the matter of habeas relief, the Court stated:
The Court rejects respondents’ primary submission that these cases are controlled by Eisentrager’s [Johnson v. Eisentrager, 339 U.S. 763, 94 L. Ed. 1255, 70 S. Ct. 936] holding that a District Court lacked authority to grant habeas relief to German citizens captured by U.S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in occupied Germany. Reversing a Court of Appeals judgment finding jurisdiction, the Eisentrager Court found six critical facts: The German prisoners were (a) enemy aliens who (b) had never been or resided in the United States, (c) were captured outside U. S. territory and there held in military custody, (d) were there tried and convicted by the military (e) for offenses committed there, and (f) were imprisoned there at all times. 339 U.S., at 777, 94 L. Ed. 1255, 70 S. Ct. 936. Petitioners here differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. The Eisentrager Court also made clear that all six of the noted critical facts were relevant only to the question of the prisoners’ constitutional entitlement to habeas review.
In the end, the answer to the question presented is clear. Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court’s jurisdiction over petitioners’ custodians. Cf. Braden, 410 U.S., at 495, 35 L. Ed. 2d 443, 93 S. Ct. 1123. [28 USCS] Section 2241, by its terms, requires nothing more. We therefore hold that ß 2241 confers on the District Court jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention at the Guantánamo Bay Naval Base.
As explained above, Eisentrager
itself erects no bar to the exercise of federal court jurisdiction over the petitioners’ habeas corpus claims. It therefore certainly does not bar the exercise of federal-court jurisdiction over claims that merely implicate the “same category of laws listed in the habeas corpus statute.” But in any event, nothing in Eisentrager
or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the “‘privilege of litigation’” in U.S. courts. 321 F.3d, at 1139. The courts of the United States have traditionally been open to nonresident aliens. Cf. Disconto Gesellschaft v. Umbreit
, 208 U.S. 570, 578, 52 L. Ed. 625, 28 S. Ct. 337 (1908) (“Alien citizens, by the policy and practice of the courts of this country, are ordinarily permitted to resort to the courts for the redress of wrongs and the protection of their rights”). And indeed, 28 U.S.C. ß 1350 [28 USCS ß 1350] explicitly confers the privilege of suing for an actionable “tort … committed in violation of the law of nations or a treaty of the United States” on aliens alone. The fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Court’s jurisdiction over their nonhabeas statutory claims.
[emphasis in original]
In 2005, in the In re Guantánamo Detainee cases, involving 11 coordinated habeas corpus civil actions brought against the US Government by various detainees being held at the US Naval Base at Guantánamo Bay, Cuba, the Court found that “CSRT [Combatant Status Review Tribunal] procedures are unconstitutional for failing to comport with the requirements of due process.”:
While the Court would have welcomed a clearer declaration in the Rasul opinion [Rasul v. Bush, 542 U.S. 466, 159 L. Ed. 2d 548, 124 S. Ct. 2686 (2004)] regarding the specific constitutional and other substantive rights of the petitioners, it does not interpret the Supreme Court’s decision as narrowly as the respondents suggest it should. To the contrary, the Court interprets Rasul in conjunction with other precedent, to require the recognition that the detainees at Guantánamo Bay possess enforceable constitutional rights.
In sum, there can be no question that the Fifth Amendment right asserted by the Guantánamo detainees in this litigation – the right not to be deprived of liberty without due process of law – is one of the most fundamental rights recognized by the U.S. Constitution.
Hamdi [Hamdi v. Rumsfeld, 542 U.S. 507, 159 L. Ed. 2d 578, 124 S. Ct. 2633 (2004)]was decided before the creation of the Combatant Status Review Tribunal, and the respondents contend in their motion to dismiss that were this Court to conclude that the detainees are entitled to due process under the Fifth Amendment, the CSRT proceedings would fully comply with all constitutional requirements. More specifically, the respondents claim that the CSRT regulations were modeled after Army Regulation 190-8 governing the determination of prisoner of war status, referenced in Hamdi, and actually exceed the requirements set forth by the Hamdi plurality. For example, respondents cite the facts that under CSRT rules, tribunal members must certify that they have not been involved in the “apprehension, detention, interrogation, or previous determination of status of the detainee[s],” that detainees are provided a “Personal Representative” to assist in the preparation of their cases, that the “Recorder” – that is, the person who presents evidence in support of “enemy combatant” status – must search for exculpatory evidence, that the detainee is entitled to an unclassified summary of the evidence against him, and that the tribunal’s decisions are reviewed by a higher authority. Motion to Dismiss at 34–35. Notwithstanding the procedures cited by the respondents, the Court finds that the procedures provided in the CSRT regulations fail to satisfy constitutional due process requirements in several respects.
The constitutional defects in the CSRT procedures can be separated into two categories. The first category consists of defects which apply across the board to all detainees in the cases before this Judge. Specifically, those deficiencies are the CSRT’s failure to provide the detainees with access to material evidence upon which the tribunal affirmed their “enemy combatant” status and the failure to permit the assistance of counsel to compensate for the government’s refusal to disclose classified information directly to the detainees. The second category of defects involves those which are detainee specific and may or may not apply to every petitioner in this litigation. Those defects include the manner in which the CSRT handled accusations of torture and the vague and potentially overbroad definition of “enemy combatant” in the CSRT regulations. While additional specific defects may or may not exist, further inquiry is unnecessary at this stage of the litigation given the fundamental deficiencies detailed below.
1. General Defects Existing in All Cases Before the Court: Failure to Provide Detainees Access to Material Evidence Upon Which the CSRT Affirmed “Enemy Combatant” Status and Failure to Permit the Assistance of Counsel
The CSRT reviewed classified information when considering whether each detainee presently before this Court should be considered an “enemy combatant,” and it appears that all of the CSRT’s decisions substantially relied upon classified evidence. No detainee, however, was ever permitted access to any classified information nor was any detainee permitted to have an advocate review and challenge the classified evidence on his behalf. Accordingly, the CSRT failed to provide any detainee with sufficient notice of the factual basis for which he is being detained and with a fair opportunity to rebut the government’s evidence supporting the determination that he is an “enemy combatant.”
2. Specific Defects That May Exist in Individual Cases: Reliance on Statements Possibly Obtained Through Torture or Other Coercion and a Vague and Overly Broad Definition of “Enemy Combatant”
Additional defects in the CSRT procedures support the denial of the respondents’ motion to dismiss at least some of the petitions, though these grounds may or may not exist in every case before the Court and though the respondents might ultimately prevail on these issues once the petitioners have been given an opportunity to litigate them fully in the habeas proceedings.
a. Reliance on Statements Possibly Obtained Through Torture or Other Coercion
The first of these specific grounds involves the CSRT’s reliance on statements allegedly obtained through torture or otherwise alleged to have been provided by some detainees involuntarily. The Supreme Court has long held that due process prohibits the government’s use of involuntary statements obtained through torture or other mistreatment …
b. Vague and Overly Broad Definition of “Enemy Combatant”
Although the government has been detaining individuals as “enemy combatants” since the issuance of the AUMF [Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001)] in 2001, it apparently did not formally define the term until the July 7, 2004 Order creating the CSRT. The lack of a formal definition seemed to have troubled at least the plurality of the Supreme Court in Hamdi, but for purposes of resolving the issues in that case, the plurality considered the government’s definition to be an individual who was “part of or supporting forces hostile to the United States or coalition partners’ in Afghanistan and who engaged in an armed conflict against the United States’ there.” 542 U.S. 507, 159 L. Ed. 2d 578, 124 S. Ct. 2633, 2639 (quoting Brief for the Respondents) (emphasis added). The Court agreed with the government that the AUMF authorizes the Executive to detain individuals falling within that limited definition, id., with the plurality explaining that “because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of necessary and appropriate force,’ Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.” Id. at 2641. The plurality cautioned, however, “that indefinite detention for the purpose of interrogation is not authorized” by the AUMF, and added that a congressional grant of authority to the President to use “necessary and appropriate force” might not be properly interpreted to include the authority to detain individuals for the duration of a particular conflict if that conflict does not take a form that is based on “longstanding law-of-war principles.” Id.
The definition of “enemy combatant” contained in the Order creating the CSRT is significantly broader than the definition considered in Hamdi. According to the definition currently applied by the government, an “enemy combatant” “shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” July 7, 2004 Order at 1 (emphasis added). Use of the word “includes” indicates that the government interprets the AUMF to permit the indefinite detention of individuals who never committed a belligerent act or who never directly supported hostilities against the U.S. or its allies.
It may well turn out that after the detainee is given a fair opportunity to challenge his detention in a habeas proceeding, the legality of his detention as an “enemy combatant” will be upheld and he will continue to be held at Guantánamo Bay until the end of the war on terrorism or until the government determines he no longer poses a threat to U.S. security. It is also possible, however, that once given a fair opportunity to litigate his case, the detainee will establish that he is being indefinitely detained not because of anything he has done and not to prevent his return to any “battlefield,” metaphorical or otherwise, but simply because [TEXT REDACTED BY THE COURT] and the respondents’ motion to dismiss must therefore be denied.
In 2005, in the Abdah case, involving 13 Yemeni nationals designated as “enemy combatants” at the Guantánamo Bay Naval Base (GTMO) in Cuba, who petitioned for a temporary restraining order to prevent their removal from the GTMO and rendition to the custody of another government, the Court granted the temporary restraining order. In doing so, it stated:
Were the Petitioners to be transferred to the control of a foreign country, they would effectively lose their rights to pursue their habeas
claims in this country. The Court finds that their injury would be continued detention outside the jurisdiction of U.S. courts – courts that are actively reviewing the constitutionality of that very detention. While the Supreme Court has granted them a right of access to our court system, such a transfer would terminate that right, insofar as it sounds in habeas corpus
, because U.S. courts would no longer have control over their warden. Presumably, the Petitioners would suffer no harm if the Government were to transfer them to Yemen for release; that is the goal of their habeas
petitions. A transfer with continued indeterminate detention with no right of review or further court access poses a very different set of parameters. With or without the allegation of improper forms of interrogation in a foreign country, the Court concludes that a continuation of their detention without redress to assess its legality could constitute irreparable harm to the Petitioners.
In 2005, in the Quasim case, involving two Ouiger detainees held at the Guantánamo Bay Naval Base in Cuba since June 2002, who had been classified by a Combatant Status Review Tribunal (CSRT) as “no longer enemy combatants” (NLECs), but had nonetheless been retained at Guantánamo because US authorities found no other country willing to accept them, the Court found:
As the Supreme Court noted in Hamdi, the authority to detain in wartime is grounded in the need to prevent captured individuals from returning to the field of battle. 542 U.S. at 518–21; see also Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross 571, 572 (2002) (“Captivity in war is ‘neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war’”) (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int’l L. 172, 229 (1947)). Because of this limited purpose, the laws of war require that detention last no longer than the active hostilities. Hamdi, 542 U.S. at 521 (citing Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949,  6 U.S.T. 3316, 3406, T.I.A.S. No. 3364 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”)). Nothing in this record establishes that the government has or could reasonably have a concern that these petitioners would return to the battlefield if released. Even if petitioners’ initial detention was lawful, however, and even assuming that some reasonable wind up period of detention was allowable, their continued detention for nine months after the CSRT found them to be NLEC’s far exceeds the presumptive limit of six months the Supreme Court applied in the analogous context of removable and excludable aliens detained under immigration statutes. See Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001) (presumptive limit to reasonable duration of post-removal-period detention under INA for removable alien is six months); Clark v. Martinez, 543 U.S. 371, 125 S. Ct. 716, 160 L. Ed. 2d 734 (2005) (six-month presumptive limit to detention applies to inadmissible aliens). The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantánamo Bay is unlawful.
Despite this finding, the Court concluded that it could provide no relief, because it did not have the power to require their entry into the United States.
In the Boumediene case in June 2008, the US Supreme Court ruled 5–4 that the aliens held at the Guantánamo Bay naval base in Cuba and persons designated there as enemy combatants were entitled to the writ of habeas corpus protected in Article I, Section 9 of the US Constitution. The decision struck down section 7 of the Military Commissions Act (2006), but left intact the remainder of that Act as well as the Detainee Treatment Act (2005). The Court stated:
The United States has maintained complete and uninterrupted control of the [Guantánamo] bay for over 100 years. At the close of the Spanish-American War, Spain ceded control over the entire island of Cuba to the United States and specifically “relinquishe[d] all claim[s] of sovereignty … and title.” See Treaty of Paris, Dec. 10, 1898, U. S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the date the treaty with Spain was signed until the Cuban Republic was established on May 20, 1902, the United States governed the territory “in trust” for the benefit of the Cuban people. Neely v. Henkel, 180 U. S. 109, 120 (1901) … And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantánamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to non-citizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgements are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.”
Marbury v. Madison, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Suspension Clause question [The Suspension Clause is Article I, Section 9 of the US Constitution, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”] in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.
Based on this language from Eisentrager [Johnson v. Eisentrager, 339 U.S. 763 (1950), where the Supreme Court held that US courts had no jurisdiction over German war criminals held in a US-administered prison in Germany], and the reasoning in our other extraterritoriality opinions, we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
Applying this framework, we note at the onset that the status of these detainees is a matter of dispute. The petitioners, like those in Eisentrager, are not American citizens. But the petitioners in Eisentrager did not contest, it seems, the Court’s assertion that they were “enemy alien[s].” Ibid. In the instant cases, by contrast, the detainees deny they are enemy combatants. They have been afforded some process in CSRT [Combatant Status Review Tribunals] proceedings to determine their status; but, unlike in Eisentrager, supra, at 766, there has been no trial by military commission for violations of the laws of war. The difference is not trivial. The records from the Eisentrager trials suggest that, well before the petitioners brought their case to this Court, there had been a rigorous adversarial process to test the legality of their detention. …
In comparison the procedural protections afforded to the detainees in the CSRT hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review. …
As to the second factor relevant to this analysis, the detainees here are similarly situated to the Eisentrager petitioners in that the sites of their apprehension and detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that weighs against finding they have rights under the Suspension Clause. But there are critical differences between Landsberg Prison, circa 1950, and the United States Naval Station at Guantánamo Bay in 2008. Unlike its present control over the naval station, the United States’ control over the prison in Germany was neither absolute nor indefinite. … The Court’s holding in Eisentrager was thus consistent with the Insular Cases [several US Supreme Court cases concerning the status of territories acquired by the United States in the Spanish-American War (1898)], where it had held there was no need to extend full constitutional protections to territories the United States did not intend to govern indefinitely. Guantánamo Bay, on the other hand, is no transient possession. In every practical sense Guantánamo is not abroad; it is within the constant jurisdiction of the United States. See Rasul, 542 U.S., at 480; id., at 487 (KENNEDY, J., concurring in judgment).
As to the third factor, we recognize, as the Court did in Eisentrager, that there are costs to holding the Suspension Clause applicable in a case of military detention abroad. Habeas corpus proceedings may require expenditure of funds by the Government and may divert the attention of military personnel from other pressing tasks. While we are sensitive to these concerns, we do not find them dispositive. Compliance with any judicial process requires some incremental expenditure of resources. Yet civilian courts and the Armed Forces have functioned alongside each other at various points in our history. … The Government presents no credible arguments that the military mission at Guantánamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims. And in light of the plenary control the United States asserts over the base, none are apparent to us.
It is true that before today the Court has never held that non-citizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. … The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantánamo Bay. If the privilege of habeas corpus
is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi,
542 U.S., at 564 (SCALIA, J., dissenting) (“[I]ndefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ”). This Court may not impose a de facto
suspension by abstaining from these controversies. See Hamdan
, 548 U.S., at 585, n. 16 (“[A]bstention is not appropriate in cases … in which the legal challenge ‘turn[s] on the status of the persons as to whom the military asserted its power’” (quoting Schlesinger v. Councilman
, 420 U.S. 738, 759 (1975))). The MCA [Military Commissions Act (2006)] does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus
to challenge the legality of their detention.
The Court also stated:
Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus
. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ.
In the Boumediene case in November 2008, which followed the US Supreme Court’s decision of 12 June 2008 that aliens held in Guantánamo and persons designated as enemy combatants on that territory were entitled to the writ of habeas corpus [Boumediene v. Bush, 128 S. Ct. 229 (2008)], the US District Court for the District of Columbia granted a writ of habeas corpus to five of the six Guantánamo petitioners (including Lakhdar Boumediene) and denied the writ to a sixth petitioner (Belkacem Bensayah). The court memorandum order stated:
On November 14, 2008, counsel for petitioners and the Government presented nearly four and a half hours of closing arguments. Once again, because the information discussed in those arguments was overwhelmingly classified, they had to be held in a closed door session. As a result, neither the public nor the petitioners were able to listen to the arguments. At the end of the final arguments, the Court informed the parties that it would hold a public hearing today to announce its decision. A closed hearing will be held hereafter to discuss in greater detail the Court’s reasoning based on the classified evidence relevant to these six detainees.
On August 27, 2008, the Court issued its Case Management Order (“CMO”), setting forth the procedural framework for the litigation of these six detainees’ habeas petitions.
Under the CMO, the Government bears the burden of proving “by a preponderance of the evidence, the lawfulness of the petitioner’s detention.” (CMO at 3.) The Government argues that petitioners are lawfully detained because they are “enemy combatants,” who can be held pursuant to the Authorization for the Use of Military Force and the President’s powers as Commander in Chief.
The following definition of “enemy combatant”, governs the proceedings in this case:
An “enemy combatant”, is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
Boumediene v. Bush, 2008 WL 4722127, at *2 (Oct. 27, 2008 D.D.C.). [The CMO for this case] Accordingly, the question before this Court is whether the Government has shown by a preponderance of the evidence that each petitioner is being lawfully detained – i.e., that each is an “enemy combatant”, under the definition adopted by this Court.
The Government alleges that all six petitioners planned to travel to Afghanistan to take up arms against U.S. and allied forces and that such conduct constitutes “support” of al-Qaida under the “enemy combatant” definition adopted by this Court. …
To support its 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. …
… 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 [Hamdi v. Rumsfeld, 542 US 507, 124 S. Ct. 2633 (2004)] to protect petitioners from the risk of erroneous detention. Hamdi, 542 U.S. at 530.
Having concluded that the Government has not met its burden with respect to the existence of a plan to travel to Afghanistan to engage U.S. and coalition forces by these five petitioners, the Court need not address the issue of whether commitment to such a plan would be enough, as a matter of law, to constitute “support” under the Court’s definition of “enemy combatant.” Thus, because the Government has failed to establish by a preponderance of the evidence the plan that is the exclusive basis for the Government’s claim that Messrs. Boumediene, Nechla, Boudella, Ait Idir, and Lahmar are enemy combatants, the Court must, and will, grant their petitions and order their release.
[emphasis in original; footnote in original omitted]
In the Munaf case in 2008, the US Supreme Court unanimously ruled that the essential legal protections do extend to American citizens held overseas by US military operating as part of a multinational force, but held that those protections provide the petitioners with no legal relief, i.e., the safeguards do not apply to the case of these two US citizens held in Baghdad. Federal district courts may not exercise their habeas jurisdiction to enjoin the United States from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign to that sovereign for criminal prosecution.
The Court, in first considering the question “do United States courts have jurisdiction over
habeas corpus petitions filed on behalf of American citizens challenging their detention in Iraq by the MNF–I [Multinational Force-Iraq]?”, stated:
The United States acknowledges that Omar and Munaf [the petitioners] are American citizens held overseas in the immediate “physical custody” of American soldiers who answer only to an American chain of command.
[T]he Court has [previously] indicated that habeas jurisdiction can depend on citizenship. … [W]e decline … to preclude American citizens held overseas by American soldiers subject to a United States chain of command from filing habeas petitions.
We conclude that the habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command, even when those forces are acting as part of a multinational coalition.
In then considering the question “if such jurisdiction exists, may district courts exercise that jurisdiction to enjoin the MNF–I from transferring such individuals to Iraqi custody or allowing them to be tried before Iraqi courts?”, the court stated
We … approach … [this question] cognizant that “courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Department of Navy v. Egan, 484 U. S. 518, 530 (1988).
At the outset, the nature of the relief sought by the habeas petitioners suggests that habeas is not appropriate in these cases. Habeas is at its core a remedy for unlawful executive detention. Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). The typical remedy for such detention is, of course, release. See, e.g., Preiser v. Rodriguez, 411 U. S. 475, 484 (1973) (“[T]he traditional function of the writ is to secure release from illegal custody”). But here the last thing petitioners want is simple release; that would expose them to apprehension by Iraqi authorities for criminal prosecution – precisely what petitioners went to federal court to avoid. At the end of the day, what petitioners are really after is a court order requiring the United States to shelter them from the sovereign government seeking to have them answer for alleged crimes committed within that sovereign’s borders.
The habeas petitioners do not dispute that they voluntarily traveled to Iraq, that they remain detained within the sovereign territory of Iraq today, or that they are alleged to have committed serious crimes in Iraq. Indeed, Omar and Munaf both concede that, if they were not in MNF–I custody, Iraq would be free to arrest and prosecute them under Iraqi law. …
Given these facts, our cases make clear that Iraq has a sovereign right to prosecute Omar and Munaf for crimes committed on its soil. …
This is true with respect to American citizens who travel abroad and commit crimes in another nation whether or not the pertinent criminal process comes with all the rights guaranteed by our Constitution. …
The habeas petitioners nonetheless argue that the Due Process Clause [a clause contained within both the Fifth and Fourteenth Amendments to the US Constitution] includes a “[f]reedom from unlawful transfer” that is “protected wherever the government seizes a citizen.” …. We disagree. Not only have we long recognized the principle that a nation state reigns sovereign within its own territory, we have twice applied that principle to reject claims that the Constitution precludes the Executive from transferring a prisoner to a foreign country for prosecution in an allegedly unconstitutional trial.
In the present cases, the habeas petitioners concede that Iraq has the sovereign authority to prosecute them for alleged violations of its law, yet nonetheless request an injunction prohibiting the United States from transferring them to Iraqi custody. But … habeas is not a means of compelling the United States to harbor fugitives from the criminal justice system of a sovereign with undoubted authority to prosecute them.
… [B]ecause Omar and Munaf are being held by United States Armed Forces at the behest of the Iraqi Government pending their prosecution in Iraqi courts, … release of any kind would interfere with the sovereign authority of Iraq “to punish offenses against its laws committed within its borders,” … . This point becomes clear given that the MNF–I, pursuant to its U.N. mandate, is authorized to “take all necessary measures to contribute to the maintenance of security and stability in Iraq,” … and specifically to provide for the “internment [of individuals in Iraq] where this is necessary for imperative reasons of security”.
To allow United States courts to intervene in an ongoing foreign criminal proceeding and pass judgment on its legitimacy seems at least as great an intrusion as the plainly barred collateral review of foreign convictions. …
… Those who commit crimes within a sovereign’s territory may be transferred to that sovereign’s government for prosecution.
[emphasis in original]
In the Bismullah case in 2009, the US Court of Appeals for the District of Columbia Circuit ruled that, as a consequence of the Boumediene case in 2008, which held that Guantánamo detainees were entitled to the writ of habeas corpus, the Detainee Treatment Act (2005) no longer authorized that court to review Combat Status Review Tribunal (CSRT) determinations concerning “enemy combatant” status. The Court stated:
The question that divides the parties is whether, now that the Supreme Court has held [Boumediene each detainee has a constitutional right to pursue a writ of habeas corpus, the availability of judicial review pursuant to DTA [Detainee Treatment Act] § 1005(e)(2) is consistent with the basic objective of the Congress that passed that provision.
In DTA § 1005(e)(2), the Congress provided that this court [“the United States Court of Appeals for the District of Columbia Circuit”] was to have “exclusive jurisdiction” to review the determination that a detainee is an enemy combatant. … DTA § 1005(e)(1), which was subsequently replaced by MCA [Military Commissions Act (2006)] § 7, eliminated the jurisdiction of all courts, including this one, over a petition for a writ of habeas corpus or any other action related to an alien’s detention at Guantánamo Bay “except as provided” by the jurisdiction granting provision of the DTA. …
In sum, the Congress wanted DTA review (1) to be conducted solely in this court, (2) limited in scope, and (3) to displace habeas corpus and any other action by which an alien held at Guantánamo might challenge his detention in court. Because the [US Supreme] Court held unconstitutional the provision eliminating habeas jurisdiction, DTA § 1005(e)(2) can no longer provide jurisdiction exclusively in this court over a detainee’s challenge to his detention as an enemy combatant; instead a detainee may challenge his detention in the District Court for the District of Columbia and get review of its decision in this court. Nor can DTA review now serve as a substitute – albeit more limited in scope – for habeas corpus. Therefore, DTA review, by opening an avenue of relief alongside the writ of habeas corpus, can no longer “function in a manner consistent with the intent of Congress.” Alaska Airlines, 480 U.S. at 685, 107 S.Ct. 1476.
In sum, we are confident the Congress would not have enacted DTA § 1005(e)(2) in the absence of the statutory provision banning the courts from exercising jurisdiction over a detainee’s habeas petition. Because the latter provision has been held unconstitutional, the former must also fall. Accordingly, we hold this court lacks subject matter jurisdiction over the detainees’ petitions for review of their status determinations by a CSRT. The petitions are, therefore, Dismissed.
[emphasis in original]
In the Al Odah case in 2009, the US Court of Appeals for the District of Columbia Circuit, following the US Supreme Court’s ruling in the Boumediene case in 2008, ruled that before the district court can compel the disclosure of classified information, it must first determine that such information is both relevant and material. The Court of Appeals stated:
We now review a 2005 order of the district court compelling disclosure of certain classified information to counsel for certain detainees held at Guantánamo Bay, Cuba. That discovery order was issued well before the Supreme Court, in its June 2008 opinion in Boumediene v. Bush, ––– U.S. ––––, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), ruled that the writ of habeas corpus is available to these detainees, …
In August 2004, the district court issued an order that incorporated the government’s proposed schedule for filing returns identifying the factual support for each petitioner’s detention as an enemy combatant. See In re Guantánamo Detainee Cases, 355 F.Supp.2d at 451. As factual support, the government submitted the records from the petitioners’ CSRT [Combat Status Review Tribunal] proceedings. Id. The government filed its returns on a rolling basis as the CSRT proceedings were completed, … Because each CSRT record contained classified information, the government filed redacted, unclassified versions on the public record and submitted the full, classified versions for the court’s in camera review. …
In November 2004, in response to the government’s notice indicating that it would not provide cleared counsel with all of the classified information in the factual returns submitted to the court, the petitioners’ counsel moved for “immediate access to the unredacted returns.”
The district court directed disclosure to petitioners’ counsel of the redacted classified information on the ground that it was “relevant to the merits of this litigation.” In the context of criminal proceedings, however, this court has held that “classified information is not discoverable on a mere showing of theoretical relevance in the face of the government’s classified information privilege.” United States v. Yunis, 867 F.2d 617, 623 (D.C.Cir.1989). … This standard applies with equal force to partially classified documents: “if some portion or aspect of a document is classified, a defendant is entitled to receive it only if it may be helpful to his defense.” Rezaq, 134 F.3d at 1142. Hence, before the district court may compel the disclosure of classified information, it must determine that the information is both relevant and material – in the sense that it is at least helpful to the petitioner’s habeas case. And because such disclosure is in the context of a habeas proceeding, the touchstone of which is the court’s “authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain,” Boumediene, 128 S.Ct. at 2269, the court must further conclude that access by petitioner’s counsel (pursuant to a court-approved protective order) is necessary to facilitate such review.
Moreover, even if it is true that the redacted information in the return “does not support a determination that the detainee is not an enemy combatant” – i.e., that the information is not directly exculpatory – that is not the only ground upon which information may be material in the habeas context. The court must still assess whether the information is actually inculpatory, because the government submitted the full habeas return in support of its contention that the detainee is an enemy combatant. Evaluation of that contention requires the court to assess the reliability of the sources upon which the return is based. Hence, indications of unreliability are themselves material. Cf. Boumediene, 128 S.Ct. at 2269 (noting that the most relevant deficiencies of the CSRTs as compared to habeas proceedings are “the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant”).
[W]e now conclude that the habeas
court should proceed by determining whether the classified information is material and counsel’s access to it is necessary to facilitate meaningful review, and whether no alternatives to access would suffice to provide the detainee with the meaningful opportunity required by Boumediene.
[emphasis in original]
In the Al Odah case in June 2010, in which the Guantánamo detainee appealed a district court’s denial of his petition for a writ of habeas corpus, the US Court of Appeals for the District of Columbia Circuit affirmed the decision of the lower court that the petition be denied. The Court first provided some legal background to habeas petitions:
The legal framework that governs habeas petitions from detainees held at Guantánamo Bay, Cuba has been thoroughly explained in Al-Bihani v. Obama, 590 F.3d 866, 869 (D.C.Cir.2010) and Awad v. Obama, No. 09–5351, 608 F.3d 1, 3–4 (D.C.Cir.2010). As relevant to this appeal, Boumediene v. Bush, 553 U.S. 723, 128. S.Ct. 2229, 171 L.Ed.2d 41 (2008), held that federal courts have jurisdiction over habeas petitions from individuals detained at Guantánamo Bay, Cuba. The Authorization for Use of Military Force, Pub.L. No. 107–40, 115 Stat. 224 (2001) (“AUMF”), provides:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
This gives the United States government the authority to detain a person who is found to have been “part of” al Qaeda or Taliban forces. See Awad
, at 11–12; Al–Bihani
, 590 F.3d at 871–72; see also Barhoumi v. Obama
, 609 F.3d 416, 423–24 (D.C.Cir.2010).
Regarding the appellant’s procedural challenges, the court stated:
[The appellant] makes two procedural challenges. … [T]he district court held both that the government had to meet its burden by a preponderance of the evidence and that it would admit hearsay evidence subject to review for reliability. [The appellant] argues that the preponderance of the evidence standard is unconstitutional and that the district court cannot admit hearsay evidence unless it complies with the Federal Rules of Evidence. …
[The appellant] argues that the government can deprive a person of his liberty only if it meets its evidentiary burden by clear and convincing evidence. But this argument fails under binding precedent in this circuit. It is now well-settled law that a preponderance of the evidence standard is constitutional in considering a habeas petition from an individual detained pursuant to authority granted by the AUMF. See Awad, at 10–11 (“A preponderance of the evidence standard satisfies constitutional requirements in considering a habeas petition from a detainee held pursuant to the AUMF.”); Al–Bihani, 590 F.3d at 878 (“Our narrow charge is to determine whether a preponderance standard is unconstitutional. Absent more specific and relevant guidance, we find no indication that it is.”); see also Barhoumi, at 422–23 (holding that under circuit precedent “a preponderance of the evidence standard is constitutional in evaluating a habeas petition from a detainee held at Guantánamo Bay, Cuba,” and that the detainee’s argument that “the Government should have been required to establish that [he] is lawfully detained under a standard of at least clear and convincing evidence” is “foreclosed by circuit precedent”) (internal quotation marks omitted).
[The appellant]’s second procedural argument fares no better. He argues that the Federal Rules of Evidence and the habeas corpus
statute, 28 U.S.C. § 2241 et seq
., restrict the situations in which a district court may admit hearsay evidence in considering a petition from a person detained pursuant to the AUMF. The law is against him. … [T]he Supreme Court in Hamdi Hamdi v. Rumsfeld
, 542 U.S. 507, 533–34, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004)] stated that “[h]earsay … may need to be accepted as the most reliable available evidence from the Government” in this type of proceeding. 542 U.S. at 533–34, 124 S.Ct. 2633. We applied the teachings of Hamdi
, in which we explicitly held that “[T]he fact that the district court generally relied on items of evidence that contained hearsay is of no consequence. To show error in the court’s reliance on hearsay evidence, the habeas
petitioner must establish not that it is hearsay, but that it is unreliable hearsay.” Id
. at 6–7; see also Barhoumi
, at 422 (holding that under circuit precedent, “hearsay evidence is admissible in this type of habeas
proceeding if the hearsay is reliable”) (internal quotation marks omitted); Al–Bihani
, 590 F.3d at 879 (“[T]he question a habeas
court must ask when presented with hearsay is not whether it is admissible … but what probative weight to ascribe to whatever indicia of reliability it exhibits.”).
Regarding the appellant’s evidentiary challenges, the court stated:
[The appellant] makes several challenges to individual pieces of evidence. In considering these challenges to the individual pieces of evidence, we must keep in mind that the purpose of our inquiry is to determine whether, overall, the district court’s finding was supported by sufficient evidence. See Awad, at 6–7 (“We will begin with [the appellant]’s challenges to the individual items of evidence. In evaluating these challenges, we do not weigh each piece of evidence in isolation, but consider all of the evidence taken as a whole.”).
We have considered, and rejected, [the appellant]’s challenges to the individual pieces of evidence. The only remaining question is whether all the evidence before the district court was sufficient to support its finding that [the appellant] was “part of” the Taliban and al Qaeda forces. …
The district court considered all the evidence, rejected [the appellant]’s explanation of the evidence, and held that [he] was “part of” al Qaeda and Taliban forces. There was no error in this finding, under either a de novo
or clear error standard of review.
In conclusion, the court stated:
The law of this circuit is that a preponderance of the evidence standard is constitutional in considering a habeas
petition from an alien detained pursuant to authority granted by the AUMF. Awad
, at 10–11. Decisions of this court and of the Supreme Court have established that in this type of habeas
proceeding, hearsay evidence is admissible if it is reliable. In our review of the record, we see strong support for the district court’s finding that [the appellant] was “part of” al Qaeda and Taliban forces in the fall of 2001. Accordingly, we affirm the district court’s denial of [the appellant]’s petition for a writ of habeas corpus
In the Hammamy case in April 2009, the US District Court for the District of Columbia denied a writ of habeas corpus to a petitioner, detained at the Guantánamo Bay naval base, who had been captured in Pakistan by Pakistani authorities in April 2002 and transferred to US custody. Following court proceedings, conducted largely in camera due to the classified nature of much of the evidence, the memorandum order stated:
On November 28, 2008, the Court issued its Case Management Order (“CMO”) for the case. (Case Management Order, Nov. 28, 2008 …). That order was essentially a duplicate of the earlier CMO issued by the Court in the Boumediene v. Bush case, No. 04-cv-1 166, on August 27, 2008.
Under the CMO, the Government bears the burden of proving the lawfulness of the petitioner’s detention by a preponderance of the evidence. (CMO II.A.) The Government argues that petitioner … is lawfully detained because he is an “enemy combatant” who can be held pursuant to the Authorization for Use of Military Force [Pub. L. No. 107-40, §§ 1–2, 115 Stat. 224 (18 September 2001)] and the President’s powers as Commander-in-Chief. … The following definition of “enemy combatant,” previously adopted by this Court in the Boumediene cases, governs the proceedings in this case:
An “enemy combatant” is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
Boumediene v. Bush, 2008 WL 4722127, at *2 (D.D.C. Oct. 27, 2008). Accordingly, the question before this Court is whether the Government has shown by a preponderance of the evidence that petitioner … is being lawfully detained, i.e., that he is an “enemy combatant” under the definition adopted by this Court.
The Government contends that petitioner … is an enemy combatant under the definition established by this Court because he was “part of or supporting al Qaeda or Taliban forces.” In particular, the Government contends that petitioner …: (1) fought with Taliban or al Qaeda forces against U.S. and Afghan forces during the battle of Tora Bora, and (2) was a member of an Italy-based terrorist cell that provided support to various Islamic terrorist groups.
[B]ased on the evidence presented by the Government … and all reasonable inferences drawn therefrom, the Court concludes that petitioner … is being lawfully detained as an enemy combatant because it is more probable than not that he was part of or supporting Taliban or al Qaeda forces both prior to and after the initiation of U.S. hostilities in October 2001. Accordingly, the Court must, and will, DENY petitioner …’s petition for a writ of habeas corpus
and will not order his release.
[emphasis in original; footnote in original omitted]
In the Noriega case in April 2009, the US Court of Appeals for the Eleventh Circuit denied the appellant’s petition for a writ of habeas corpus. The Court held that not only does the Military Commissions Act (2006) preclude application of Article 118 of the 1949 Geneva Convention III (concerning repatriation of prisoners of war), but that the Convention does not prohibit extradition of prisoners of war to another State Party to the Geneva Conventions. The Court stated:
Extradition is an executive function derived from the President’s power to conduct foreign affairs, and the judiciary historically has played a limited role in extradition proceedings.
The United States’ authority to extradite [the appellant] comes from the United States’ extradition treaty with France. The federal extradition statute generally permits extradition when based on a treaty or convention. See 18 U.S.C. § 3184. Article 1 of the extradition treaty between the United States and France, entitled “Obligation to Extradite,” states that “[t]he Contracting States agree to extradite to each other, pursuant to the provisions of this Treaty, persons whom the competent authorities in the Requesting State have charged with or found guilty of an extraditable offense.” … The offense of which Noriega has been convicted in absentia in France, which corresponds to money laundering in the United States, undoubtedly falls within the purview of the treaty.
We find it unnecessary to resolve the question of whether the  Geneva Conventions are self-executing, because it is within Congress’ power to change domestic law, even if the law originally arose from a self-executing treaty. … That is, because “‘an Act of Congress … is on a full parity with a treaty, … [and] when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.”’
Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) … Thus, as discussed below, while the United States’ international obligations under the Geneva Conventions are not altered by the enactment of § 5 of the MCA [Military Commissions Act (2006)], Congress has superseded whatever domestic effect the Geneva Conventions may have had in actions such as this.
The parties’ dispute centers on the extent to which § 5 removes an individual’s ability to invoke the Conventions in a civil action against the United States, including a habeas proceeding. Section 5 of the MCA provides:
No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or … agent of the United States is a party as a source of rights in any court of the United States or its States or territories.
[The appellant] maintains that while under § 5 he cannot invoke the Third Geneva Convention as a source of individual rights in a judicial proceeding, “his right to enforce the provisions of the Geneva Convention against the Secretary of State, the Bureau of Prisons, or the Department of Justice [is] in no way abrogated.” (Appellant’s Reply Br. 15.) Thus, [the appellant] argues that article 118 of the Third Geneva Convention mandates that he be immediately repatriated to Panama, as his term of imprisonment in the United States is complete. See Third Geneva Convention art. 118 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”). The Government maintains that § 5(a) of the MCA precludes invocation of the Third Geneva Convention in this proceeding, as § 5(a) “codified the principle that the Geneva Conventions [are] not judicially enforceable by private parties,” and that regardless, the Third Geneva Convention authorizes his continued detention pending his extradition for criminal proceedings in France. (Appellees’ Br. 14 n.6, 15.)
Despite [the appellant]’s arguments to the contrary, it appears that [he] is invoking the Third Geneva Convention as a source of rights – the alleged right to immediate repatriation under article 118. While the legal effect of § 5 has not been widely discussed, the plain language of § 5 prohibits exactly this type of action. The district court appears to have read § 5 similarly, noting that § 5 “attempts to remove entirely the protections of the Convention from any person, even a citizen of the United States, in any American courtroom whenever the United States is involved.” Noriega II, 2007 WL 2947572, at *4. …
These readings of § 5(a) are consonant with the MCA’s legislative history, which further suggests that the express language of § 5 was understood to preclude individuals from invoking the Geneva Conventions as a source of rights. …
Accordingly, the plain language of § 5 of the MCA, which is clearly supported by its legislative history, precludes Noriega’s Geneva Convention claims. As the Geneva Convention is [the appellant]’s only substantive basis for relief he has failed to state a claim upon which habeas relief could be granted.
Nevertheless, assuming arguendo that the Third Geneva Convention is self-executing and that § 5 of the MCA does not preclude [the appellant]’s claim …
… [The appellant]’s habeas
petition would also be denied because extradition would not violate [his] rights under the Third Geneva Convention.
[emphasis in original; footnotes in original omitted]
In the Al-Bihani case in January 2010, involving an appeal by a Yemeni citizen held in detention at the Guantánamo Bay naval base since 2002 for the denial of a writ of habeas corpus by a district court, the US Court of Appeals for the District of Columbia Circuit affirmed the order of the lower court, stating with regard to the detention powers granted to the US President by Congress:
[The appellant]’s many arguments present this court with two overarching questions regarding the detainees at the Guantánamo Bay naval base. … The second asks what procedure is due to detainees challenging their detention in habeas corpus
Regarding the appellant’s procedural challenge, the court stated:
He claims the habeas process afforded him by the district court fell short of the requirements of the Suspension Clause [The Suspension Clause of the US Constitution (Article I, Section 9, Clause 2), states: “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion the public Safety may require it.”] and that his case should be remanded for rehearing in line with new, more protective procedures. The Supreme Court in Boumediene [Boumediene v. Bush, 128 S. Ct. 2229 (2008)] held detainees are entitled to the “fundamental procedural protections of habeas corpus.” 128 S. Ct. at 2277. The Boumediene Court refrained from identifying the full list of procedures that are fundamental, but it did say that a petitioner is entitled to “a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law,” and that “the habeas court must have the power to order the conditional release” of the petitioner. Id at 2266. Meaningful review in this context requires that a court have “some authority to assess the sufficiency of the Government’s evidence against the detainee” and to “admit and consider relevant exculpatory evidence” that may be added to the record by petitioners during review. Id at 2270.
… Habeas review for Guantánamo detainees need not match the procedures developed by Congress and the courts specifically for habeas challenges to criminal convictions. Boumediene’s holding explicitly stated that habeas procedures for detainees “need not resemble a criminal trial,” 128 S. Ct. at 2269. …
… [I]n the shadow of Boumediene
, courts are neither bound by the procedural limits created for other detention contexts nor obliged to use them as baselines from which any departures must be justified. Detention of aliens outside the sovereign territory of the United States during wartime is a different and peculiar circumstance, and the appropriate habeas procedures cannot be conceived of as mere extensions of an existing doctrine.
In the Al Maqaleh case in May 2010, involving three detainees held as unlawful enemy combatants at the Bagram Airfield Military Base in Afghanistan who had petitioned for writs of habeas corpus, the US Court of Appeals for the District of Columbia Circuit reversed a decision of the lower court and ordered that the detainees’ petitions be dismissed. The Court stated:
[In considering] the question of the jurisdiction of United States courts to consider habeas petitions from detainees in Guantánamo, the [US Supreme] Court [in [Boumediene v. Bush, 128 S. Ct. 2229 (2008)] concluded that “at least three factors are relevant in determining the reach of the Suspension Clause.” Id. at 2259. [The Suspension Clause is Article I, Section 9 of the US Constitution, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”.] Those three factors, which we must apply today in answering the same question as to detainees at Bagram, are:
(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
Applying these factors to the detainees at Guantánamo, the Court held that the petitioners had the protection of the Suspension Clause.
Regarding the first factor in the “three-factor test”, the court stated:
The first of the enumerated factors is “the citizenship and status of the detainee and the adequacy of the process through which that status determination was made.” Citizenship is, of course, an important factor in determining the constitutional rights of persons before the court. It is well established that there are “constitutional decisions of [the Supreme] Court expressly according differing protection to aliens than to citizens.” United States v. Verdugo-Urquidez, 494 U.S. at 273, 110 S.Ct. 1056 . However, clearly the alien citizenship of the petitioners in this case does not weigh against their claim to protection of the right of habeas corpus under the Suspension Clause. So far as citizenship is concerned, they differ in no material respect from the petitioners at Guantánamo who prevailed in Boumediene. As to status, the petitioners before us are held as enemy aliens. But so were the Boumediene petitioners. While the Eisentrager [Johnson v. Eisentrager, 339 U.S. 763 (1950), where the Supreme Court held that US courts had no jurisdiction over German war criminals held in a US-administered prison in Germany], petitioners were in a weaker position by having the status of war criminals, that is immaterial to the question before us. This question is governed by Boumediene and the status of the petitioners before us again is the same as the Guantánamo detainees, so this factor supports their argument for the extension of the availability of the writ.
So far as the adequacy of the process through which that status determination was made, the petitioners are in a stronger position for the availability of the writ than were either the Eisentrager or Boumediene petitioners. As the Supreme Court noted, the Boumediene petitioners were in a very different posture than those in Eisentrager in that “there ha[d] been no trial by military commission for violations of the laws of war.” 128 S.Ct. at 2259. Unlike the Boumediene petitioners or those before us, “[t]he Eisentrager petitioners were charged by a bill of particulars that made detailed factual allegations against them.” Id. at 2260. The Eisentrager detainees were “entitled to representation by counsel, allowed to introduce evidence on their own behalf, and permitted to cross-examine the prosecution’s witnesses” in an adversarial proceeding. Id. The status of the Boumediene petitioners was determined by Combatant Status Review Tribunals (CSRTs) affording far less protection. Under the CSRT proceeding, the detainee, rather than being represented by an attorney, was advised by a “Personal Representative” who was “not the detainee’s lawyer or even his ‘advocate.”’ Id. The CSRT proceeding was less protective than the military tribunal procedures in Eisentrager in other particulars as well, and the Supreme Court clearly stated that “[t]he difference is not trivial.” Id. at 2259.
The status of the Bagram detainees is determined not by a Combatant Status Review Tribunal but by an “Unlawful Enemy Combatant Review Board” (UECRB). As the district court correctly noted, proceedings before the UECRB afford even less protection to the rights of detainees in the determination of status than was the case with the CSRT. Therefore, as the district court noted, “while the important adequacy of process factor strongly supported the extension of the Suspension Clause and habeas
rights in Boumediene
, it even more strongly favors petitioners here.” Al Maqaleh
, 604 F.Supp.2d at 227. Therefore, examining only the first of the Supreme Court’s three enumerated factors, petitioners have made a strong argument that the right to habeas
relief and the Suspension Clause apply in Bagram as in Guantánamo. However, we do not stop with the first factor.
[footnote in original omitted]
Regarding the second factor in the “three-factor test”, the court stated:
The second factor, “the nature of the sites where apprehension and then detention took place,” weighs heavily in favor of the United States. Like all petitioners in both Eisentrager
, the petitioners here were apprehended abroad. While this in itself would appear to weigh against the extension of the writ, it obviously would not be sufficient, otherwise Boumediene
would not have been decided as it was. However, the nature of the place where the detention takes place weighs more strongly in favor of the position argued by the United States and against the extension of habeas
jurisdiction than was the case in either Boumediene
. In the first place, while de facto
sovereignty is not determinative, for the reasons discussed above, the very fact that it was the subject of much discussion in Boumediene
makes it obvious that it is not without relevance. As the Supreme Court set forth, Guantánamo Bay is “a territory that, while technically not part of the United States, is under the complete and total control of our Government.” 128 S.Ct. at 2262. While it is true that the United States holds a leasehold interest in Bagram, and held a leasehold interest in Guantánamo, the surrounding circumstances are hardly the same. The United States has maintained its total control of Guantánamo Bay for over a century, even in the face of a hostile government maintaining de jure
sovereignty over the property. In Bagram, while the United States has options as to duration of the lease agreement, there is no indication of any intent to occupy the base with permanence, nor is there hostility on the part of the “host” country. Therefore, the notion that de facto
sovereignty extends to Bagram is no more real than would have been the same claim with respect to Landsberg [prison in Germany] in the Eisentrager
case. While it is certainly realistic to assert that the United States has de facto
sovereignty over Guantánamo, the same simply is not true with respect to Bagram. Though the site of detention analysis weighs in favor of the United States and against the petitioners, it is not determinative.
Regarding the third factor in the “three-factor test”, the court stated:
But we hold that the third factor, that is “the practical obstacles inherent in resolving the prisoner’s entitlement to the writ,” particularly when considered along with the second factor, weighs overwhelmingly in favor of the position of the United States. It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war. Not only does this suggest that the detention at Bagram is more like the detention at Landsberg than Guantánamo, the position of the United States is even stronger in this case than it was in Eisentrager. As the Supreme Court recognized in Boumediene, even though the active hostilities in the European theater had “c[o]me to an end,” at the time of the Eisentrager decision, many of the problems of a theater of war remained:
In addition to supervising massive reconstruction and aid efforts the American forces stationed in Germany faced potential security threats from a defeated enemy. In retrospect the post-War occupation may seem uneventful. But at the time Eisentrager was decided, the Court was right to be concerned about judicial interference with the military’s efforts to contain “enemy elements, guerilla fighters, and ‘were-wolves.’”
128 S.Ct. at 2261 (quoting Eisentrager, 339 U.S. at 784, 70 S.Ct. 936).
In ruling for the extension of the writ to Guantánamo, the Supreme Court expressly noted that “[s]imilar threats are not apparent here.” 128 S.Ct. at 2261. In the case before us, similar, if not greater, threats are indeed apparent. The United States asserts, and petitioners cannot credibly dispute, that all of the attributes of a facility exposed to the vagaries of war are present in Bagram. The Supreme Court expressly stated in Boumediene
that at Guantánamo, “[w]hile obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war,
arguments that issuing the writ would be ‘impractical or anomalous’ would have more weight.” Id
. at 2261–62 (emphasis added). Indeed, the Supreme Court supported this proposition with reference to the separate opinion of Justice Harlan in Reid
[Reid v. Covert
, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957)], where the Justice expressed his doubts that “every provision of the Constitution must always be deemed automatically applicable to United States citizens in every part of the world.” See
354 U.S. at 74, 77 S.Ct. 1222 (Harlan, J., concurring in the result).
[emphasis in original]
The Court concluded:
We therefore conclude that under both Eisentrager and Boumediene, the writ does not extend to the Bagram confinement in an active theater of war in a territory under neither the de facto nor de jure sovereignty of the United States and within the territory of another de jure sovereign.
Bagram remains in a theater of war. We cannot, consistent with Eisentrager
as elucidated by Boumediene
, hold that the right to the writ of habeas corpus
and the constitutional protections of the Suspension Clause extend to Bagram detention facility in Afghanistan, and we therefore must reverse the decision of the district court denying the motion of the United States to dismiss the petitions.
In the Awad case in June 2010, in which a detainee at Guantánamo Bay, Cuba, appealed a district court’s denial of his petition for a writ of habeas corpus, the US Court of Appeals for the District of Columbia Circuit affirmed the decision of the lower court that the petition be denied. The Court stated:
Prior decisions of this court clearly hold that a preponderance of the evidence standard is constitutional and that there is no requirement that the government must show that a detainee would be a threat if released in order to detain him. … Accordingly, we affirm the district court’s denial of his petition for a writ of habeas corpus.
In the Barhoumi case in June 2010, in which a detainee held at the Guantánamo Bay naval base in Cuba appealed a district court’s denial of his petition for a writ of habeas corpus, the US Court of Appeals for the District of Columbia Circuit affirmed the decision of the lower court that the petition be denied. The Court stated:
[The appellant], a detainee held at the U.S. naval base in Guantánamo Bay, Cuba, appeals the district court’s denial of his petition for a writ of habeas corpus. The district court found that [the appellant] was “part of” an al-Qaida-associated force engaged in hostilities against the United States or its coalition partners and was therefore lawfully detained under the Authorization for Use of Military Force [AUMF: Pub.L. No. 107–40, § 2(a), 115 Stat. 224, 224 (2001)] [The appellant] contends that the court erred as a matter of law in admitting hearsay diary evidence and in applying a preponderance of the evidence standard of proof. …
[I]n Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) … the Supreme Court held that the constitutional privilege of habeas corpus extends to aliens detained at Guantánamo …
Following Boumediene, the judges of the district court, meeting in executive session, decided to coordinate proceedings in most Guantánamo habeas cases, including [the appellant]’s. In re Guantánamo Bay Detainee Litig., Misc. No. 08–442 (D.D.C. July 2, 2008). On November 6, 2008, Judge Hogan, the coordinating judge, issued a Case Management Order governing the consolidated proceedings. In re Guantánamo Bay Detainee Litig., Misc. No. 08–442, 2008 WL 4858241 (D.D.C. Nov.6, 2008) (“CMO”). The CMO provided, among other things, that (1) individual judges hearing habeas corpus petitions may admit and consider hearsay evidence, and (2) the government bears the burden of proving by a preponderance of the evidence that the petitioner’s detention is lawful. Id., 2008 WL 4858241 at *3.
We begin with two threshold legal issues. [The appellant] argues that the district court erred in admitting into evidence the al-Suri and [redacted] diaries, which are hearsay. See Fed.R.Evid. 801(c). He further argues that the district court should have applied a clear and convincing evidence standard of proof rather than a preponderance standard. We consider each issue in turn.
[The appellant] contends that in admitting the diaries, the district court adjudicating his habeas petition failed to comply with the CMO, which set forth the following procedures regarding the admission of hearsay evidence:
On motion of either the petitioner or the government, the Merits Judge may admit and consider hearsay evidence that is material and relevant to the legality of the petitioner’s detention if the movant establishes that the hearsay evidence is reliable and that the provision of non-hearsay evidence would unduly burden the movant or interfere with the government’s efforts to protect national security. The proponent of hearsay evidence shall move for admission of the evidence no later than 7 days prior to the date on which the initial briefs for judgment on the record are due.
CMO, 2008 WL 4858241 at *3 (internal citation omitted).
Although the cases [the appellant] cites hold that parties have a duty to comply with case management orders, he cites no authority for the proposition that judges are required to follow their own – much less another judge’s – case management order. In any event, the CMO governing the Guantánamo habeas cases expressly authorizes judges assigned to adjudicate habeas petitions to “alter the framework [set out in the CMO] based on the particular facts and circumstances of their individual cases.” CMO, 2008 WL 4858241 at *1 n. 1. That is precisely what the district court did here. Citing the “unique and difficult” circumstances inherent in the Guantánamo proceedings, the district court decided – after giving Barhoumi an opportunity to respond to the government’s motion to supplement the record – that the circumstances of [the appellant]’s case justified admitting all hearsay evidence. Hr’g Tr. at 4. Other district judges have made the same determination in similar circumstances. See, e.g., Awad v. Obama, 646 F.Supp.2d 20, 23 (D.D.C.2009) (receiving all evidence offered by either side but assessing it “item-by-item for consistency, the conditions in which statements were made and documents found, the personal knowledge of a declarant, and the levels of hearsay”). We therefore conclude that the district court did not abuse its discretion in departing from the CMO’s procedural framework regarding the admissibility of hearsay. …
[The appellant] next contends that irrespective of the district court’s fidelity to the CMO, the court erred in admitting the diaries absent a demonstration by the government that they fall within an established hearsay exception in the Federal Rules of Evidence. This argument, however, runs counter to this court’s decision in Al-Bihani v. Obama, 590 F.3d 866 (D.C.Cir.2010), another Guantánamo habeas case in which the detainee also challenged the district court’s admission of hearsay evidence. Relying in part on the Supreme Court’s suggestion in Hamdi v. Rumsfeld, 542 U.S. 507, 533–34, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004), that hearsay “may need to be accepted as the most reliable available evidence” in enemy combatant proceedings, the court stated that “the question a habeas court must ask when presented with hearsay is not whether it is admissible – it is always admissible – but what probative weight to ascribe to whatever indicia of reliability it exhibits,” Al-Bihani, 590 F.3d at 879 (emphasis added).
… Thus, to show that the district court erred in considering the diary evidence, [the appellant] must “establish not that it is hearsay, but that it is unreliable hearsay” – a question that we address … below.
Awad, at 7.
… In Al-Bihani, the detainee similarly argued for “at least” a clear and convincing evidence standard, while the government argued for a preponderance standard. Al-Bihani, 590 F.3d at 878. We concluded that “the government’s argument stands on more solid ground,” stating: “Our narrow charge is to determine whether a preponderance standard is unconstitutional. Absent more specific and relevant guidance, we find no indication that it is.” Id.
[The appellant] attempts to recast this language as mere dicta, but again, that argument is barred by Awad. There the panel interpreted Al-Bihani as holding that “a preponderance of the evidence standard is constitutional in evaluating a habeas petition from a detainee held at Guantánamo Bay, Cuba.” Awad, at 10. That resolves the question here as well.
This brings us to [the appellant]’s factual challenge. He argues that even if the diaries are admissible hearsay, the district court should have disregarded them on the ground that they are inherently unreliable.
Although under Al-Bihani and Awad hearsay evidence is always admissible in Guantánamo habeas proceedings, such evidence must be accorded weight only in proportion to its reliability. See Al-Bihani, 590 F.3d at 879 (“[T]he question a habeas court must ask when presented with hearsay is not whether it is admissible – it is always admissible – but what probative weight to ascribe to whatever indicia of reliability it exhibits”).
… Indeed, in Parhat [Parhat v. Gates, 532 F.3d 834 (D.C.Cir.2008)], we clarified that “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] court to assess its reliability.” 532 F.3d at 849.
… [T]he al-Suri diary is unquestionably hearsay, but nonetheless admissible as a matter of law pursuant to Al-Bihani and Awad. The question in this case, then, is not a binary one – admissibility vs. inadmissibility – but rather concerns the degree of reliability exhibited by the diary. Although we accept that the additional layer of hearsay added by the diary’s translation renders it somewhat less reliable than it otherwise would be (particularly if the government had provided information regarding its translation), we nonetheless reject [the appellant]’s contention that the district court therefore clearly erred in relying on the diary.
For the reasons set forth above, we detect no reversible error in the district court’s finding, … that it is more likely than not that [the appellant] was “part of” an al-Qaida-associated force and therefore properly detained pursuant to the AUMF. We therefore affirm the district court’s denial of [the appellant]’s petition for a writ of habeas corpus
[emphasis in original]
In the Bensayah case in June 2010, in which a detainee held at the Guantánamo Bay naval base in Cuba appealed a district court’s denial of his petition for a writ of habeas corpus, the US Court of Appeals for the District of Columbia Circuit remanded the case to the lower court for it to determine if the appellant was “functionally” part of al-Qaeda and therefore lawfully detained under the Authorization for Use of Military Force (AUMF). The Court stated:
the Supreme Court held detainees at Guantánamo Bay are entitled to “the fundamental procedural protections of habeas corpus
,” 128 S.Ct. at 2277, but did not expand upon which procedural protections are “fundamental.” It left open, for instance, the standard of proof the Government must meet in order to defeat a petition for habeas corpus
. at 2271 (“The extent of the showing required of the Government in these cases is a matter to be determined”). [The appellant] argues that because he is liable to be held “for the duration of hostilities that may last a generation or more,” requiring the Government to prove the lawfulness of his detention by a mere preponderance of the evidence is inappropriate. He contends the district court should have required the Government to prove its case beyond a reasonable doubt, or at least by clear and convincing evidence. This argument has been overtaken by events, for we have recently held a standard of proof higher than a preponderance of the evidence is not a “fundamental procedural protection” of habeas
required by Boumediene
, at 11 (“A preponderance of the evidence standard satisfies constitutional requirements in considering a habeas
petition from a detainee held pursuant to the AUMF”); Al-Bihani v. Obama
, 590 F.3d 866, 878 (2010) (“Our narrow charge is to determine whether a preponderance standard is unconstitutional. Absent more specific and relevant guidance, we find no indication that it is.”).
[footnote in original omitted]
In December 2005, the US President issued a President’s Statement on his Signing of H.R. 2863, the “Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006”, which, in part, made reference to the Detainee Treatment Act of 2005:
The executive branch shall construe Title X [The Detainee Treatment Act of 2005] in Division A of the Act , relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval
, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.
In a supplementary statement, “President’s Statement on the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006”, issued on the same day of his signing of H.R. 2863, President Bush made further reference to the Detainee Treatment Act of 2005:
These provisions reaffirm the values we share as a Nation and our commitment to the rule of law. As the sponsors of this legislation have stated, however, they do not create or authorize any right for terrorists to sue anyone, including our men and women on the front lines in the war on terror. These men and women deserve our respect and thanks for doing a difficult job in the interest of our country, not a rash of lawsuits brought by our enemies in our own courts. Far from authorizing such suits, this law provides additional liability protection for those engaged in properly authorized detention or interrogation of terrorists. I am pleased that the law also makes provision for providing legal counsel to and compensating our service members and other U.S. Government personnel for legal expenses in the event a terrorist attempts to sue them, in our courts or in foreign courts. I also appreciate the legislation’s elimination of the hundreds of claims brought by terrorists at Guantánamo Bay, Cuba, that challenge many different aspects of their detention and that are now pending in our courts.