The Supreme Court held in Boumediene v. Bush that Guantanamo detainees have a constitutional right to habeas corpus review of their detention, but it left to district courts in the first instance responsibility for working through the appropriate standard of proof and related evidentiary principles imposed on the government to justify continued detention. This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: through that of a courtroom concerned with evidence or through that of a battlefield clouded by imperfect intelligence. All three branches of government should play significant roles in answering these questions, which are critical to establishing sound detention policy.
The Supreme Court held in Boumediene v. Bush that Guantanamo detainees have a constitutional right to habeas corpus review of their detention. (1) However, the Court left to district courts in the first instance responsibility for working through the many procedural and substantive issues that would govern resulting habeas proceedings. (2) While mandating that Guantanamo detainees receive access to U.S. federal courts empowered to correct errors after "meaningful review of both the cause for detention and the Executive's power to detain," (3) the Court emphasized that it was "not ad dress[ing] the content of the law that governs petitioners' detention." (4) The particular questions I focus on here--questions with procedural and substantive, domestic and international law dimensions--concern the standard of proof and related evidentiary principles imposed by habeas courts on the government to justify continued detention.
In a 2008 article I compared detention decision-making to military targeting decision-making and argued that international law rules governing targeting could be imported by analogy to help derive answers to the question: If a state is engaged in armed conflict with a transnational terrorist organization, and the state decides to detain or continue detaining someone fighting on the enemy's behalf, how certain ought the state have to be in its assessment of that individual's identity and enemy status? (5) This Article examines how district courts have so far dealt with this issue.
This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: through that of a courtroom concerned with evidence or through that of a battlefield clouded by imperfect intelligence. The article concludes that all three branches of government should play significant roles in working through these questions, which are critical to establishing sound policy not only for those currently detained at Guantanamo, but also for those likely to be captured in the future struggle against al-Qaida.
STANDARD OF PROOF ISSUES
One question that quickly arises in habeas proceedings reviewing enemy combatant detentions is the appropriate standard of proof: to what level of certainty must the government prove the factual bases of its detention decision? For all enemy combatant detentions until Hamdi v. Rumsfeld (6) and Boumediene, (7) and since then for detentions of al-Qaida and allied fighters pursuant to war powers outside the U.S. or Guantanamo, the executive has dealt with this issue unilaterally and internally--i.e., through its own judgments of legally necessary factual certainty about a suspect's identity and conduct to warrant and authorize detention. Once habeas rights or some other form of judicial review apply, however, courts must quickly confront this issue more formally and explicitly. The courts' assessments of the government's claims about particular suspects must be measured against some standard, whether it be a low one such as the "some evidence" standard or a high one like "clear and convincing" or "beyond reasonable doubt." (8)
At the time of this writing, all district courts to consider Guantanamo habeas cases have reached or adopted the same answer: that courts should apply the "preponderance of evidence" standard--i.e., more probable than not--in assessing whether an individual is properly detained under the executive's detention power, (9) however that power is defined. (10) There was initially some dispute over this issue in the many consolidated cases before Judge Hogan. (11) Detainees' counsel urged the court to use a "clear and convincing" standard, (12) the standard the Supreme Court has held to apply in some other contexts where the government seeks to impose substantial deprivation of liberty. (13) The government urged instead that it ought only have to put forth credible evidence that the petitioner meets the proper detention criteria, after which the burden should shift to petitioner to rebut it with more persuasive evidence. (14) Ultimately, the government urged a preponderance of evidence standard, distinguishing the cases cited by petitioners as irrelevant in the wartime context. (15) The district court sided with the government, (16) and since then other district court judges have uniformly-and without analysis--applied the same standard in Guantanamo habeas cases. Courts probably gravitated toward the preponderance standard for these cases in part because preponderance of evidence is typically the standard presumptively applied in most habeas contexts. (17)
Should preponderance of evidence be the proof standard in these cases? The dearth of judicial analysis of this question at any level is surprising given how often the outcome of these cases will centrally turn on this question. (18) After all, the fundamental problem out of which these cases grow is a conflict against a transnational terrorist organization that does not openly mark its members and supporters as such, but instead tries to obfuscate their identity. (19) Almost every seriously contested case will involve a dispute about the strength of the government's information supporting its assessment. And in those cases for which habeas review will make a meaningful difference between release or continued detention, the government's case will likely include judgments made in the murky fog of war, reliance on intelligence supplied by foreign governments, or assessments developed based on patterns of suspects' behavior in relation to what is known about the enemy. (20)
Consider, for example, two cases that appear to fall close to but ultimately settle on different sides of the preponderance line. In Al Mutairi v. United States, the district court implied that the government narrowly failed to justify detention of a Kuwaiti national alleged to have joined al-Qaida and an affiliated terrorist group. Although the government established that the petitioner's activities and travel closely matched patterns of al-Qaida agents, the court went on to find that:
[T]he Government has at best shown that some of Al Mutairi's conduct was consistent with persons who may have become a part of al Qaida or an associated force of al Qaida, but there is nothing in the record beyond speculation that Al Mutairi did, in fact, train with or otherwise become a part of either or both of those organizations. While Al Mutairi's described travels within Afghanistan lack credibility, the Government has not supplanted Al Mutairi's version of his travels with sufficiently credible and reliable evidence to meet its burden of persuasion by a preponderance of the evidence. (21) In Boumediene v. Bush, on remand, the district court ordered the government to release five of six native Algerians taken by the U.S. government in Bosnia. (22) As to the sixth, however, the court held that:
[T]he Government has met its burden by providing additional evidence that sufficiently corroborates its allegations from [an] unnamed source that Bensayah is an al-Qaida facilitator.... In order to establish Bensayah's role as an al-Qaida facilitator, the Government depends on the same intelligence information described above [and found to be unpersuasive with respect to the other five], but also puts forth a series of other intelligence reports based on a variety of sources and evidence.... (23) Not only do this sixth case in Boumediene and Al Mutairi appear to fall close to the preponderance line, but the courts' descriptions also highlight how easily different judges viewing the same evidence could reach different conclusions, either because they weigh certain pieces of evidence differently or because they view the standard differently. (24) It is easy to wonder after reading these two decisions in full whether any principled line drawing distinguishes them.
One way of looking at the standard of proof question is through the lens of domestic law. Viewing the issue as one of procedural due process and applying the Mathews v. Eldridge (25) balancing test, the Supreme Court in Hamdi made clear with respect to citizen-detainees that risk of erroneous detention is the key individual interest to be protected. (26) The Mathews balancing test assesses the sufficiency of procedural protections based on the importance of the individual interest at stake, the state's interests, the risk of an erroneous deprivation of the individual's interests, and the probable value of additional procedural safeguards. (27) So considering these factors in the context of detaining al-Qaida suspects, how much risk of error is appropriate? Neither Hamdi--which, in the case of a citizen-detainee, called for a "fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker" (28)--nor the Supreme Court's extension of Hamdi's...