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Case 1 :05-cv-01458-UNA-AK Document 51 Filed 07/25/2008 Page 1 of 42 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



IN RE: 

GUANTANAMO BAY 
DETAINEE LITIGATION 



Misc. No. 08-442 (TFH) 
Civil Action Nos. 



02-CV 
04-CV 
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04-CV 
05-CV 
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05-CV 
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05-CV 
05-CV 
05-CV 
05-CV 
06-CV 
06-CV 
06-CV 
06-CV 
06-CV 
07-CV 
08-CV 
08-CV 



-0828, 
-1194, 
-2022 
-2215 
-0270, 
-0359, 
-0520, 
-0634, 
-0764, 
-0881 
-0892 
-0995 
-1048, 
-1220, 
-1347 
-1457 
-1490, 
-1505 
-1555 
-1601 
-1623 
-1645 
-1678, 
-1971 
-2083 
-2112 
-2199, 
-2349, 
-2378 
-2381 
-2386, 
-2444, 
-0618, 
-1684, 
-1691 
-1761 
-1767 
-2338 
-1101 
-1185 



04-CV 
04-CV 
04-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
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05-CV 
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05-CV 
06-CV 
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06-CV 
06-CV 
07-CV 
08-CV 
08-CV 
08-CV 



-1136 
-1254 
-2035 
-0023 
-0280, 
-0392 
-0526, 
-0748, 
-0833 
-0883 
-0993 
-0998, 
-1124, 
-1236, 
-1353 
-1458, 
-1497 
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-1646, 
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-1983 
-2088, 
-2185 
-2200, 
-2367 
-2379, 
-2384, 

-2387 

-2477 
-1668, 
-1688, 

-1758 
-1765 
-1710, 
-0987 
-1104, 
-1207 



04-CV 
04-CV 
04-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
05-CV 
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05-CV 
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05-CV 
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05-CV 
05-CV 
05-CV 
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06-CV 
06-CV 
06-CV 
06-CV 
07-CV 
08-CV 
08-CV 



-1164, 
-1937, 
-2046, 
-0247, 
-0329, 
-0492, 
-0569, 
-0763, 
-0877, 
-0889, 
-0994, 
-0999, 
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-1244, 
-1429, 
-1487, 
-1504, 
-1509, 
-1592, 
-1607, 
-1639, 
-1649, 
-1725, 
-2010, 
-2104, 
-2186, 
-2249, 
-2371, 
-2380, 
-2385, 
-2398, 
-2479, 
-1674, 
-1690, 
-1759, 
-1766, 
-2337, 
-1085, 
-1153, 



Case 1 :05-cv-01 458-UNA-AK Document 51 Filed 07/25/2008 Page 2 of 42 

GOVERNMENT'S BRIEF REGARDING PROCEDURAL FRAMEWORK ISSUES 

INTRODUCTION AND SUMMARY 

Pursuant to Boumediene v. Bush, 128 S. Ct. 2229 (2008), this Court has ordered 
expedited review in over 200 constitutionally- derived habeas cases filed by aliens captured 
abroad and detained as enemy combatants at the United States Naval Station at Guantanamo 
Bay, Cuba. In its order of July 11, 2008, the Court ordered the parties to brief the following 
issues relating to the procedural framework for these wartime constitutional habeas actions: the 
burdens borne by the respective parties; the scope of discovery; the standard for obtaining an 
evidentiary hearing; the application of confrontation and compulsory process rights; and the 
standard governing hearsay evidence. These issues are closely related and their resolution turns 
on a common core of legal principles that govern the unique circumstances of the cases now 
before the Court. Those principles provide overarching guidance for tiie cases under 
consideration. 

For habeas review of wartime status determinations, the Supreme Court has stressed that 
any "factfinding process" must be "prudent and incremental." Hamdi v. Rumsfeld, 542 U.S. 507, 
539 (2004) (plurality); see also Boumediene, 128 S. Ct. at 2276 ("In considering both the 
procedural and substantive standards used to impose detention to prevent acts of terrorism, 
proper deference must be accorded to the political branches."). Pursuant to Hamdi, it is the 
Government's burden to present, in its return, sufficient credible evidence to establish that a 
petitioner is properly held as an enemy combatant. Although petitioners have no right to any 
discovery, as part of its return, the Government will provide any evidence that tends materially 
to undermine information presented in the return to support the petitioner's classification as an 
enemy combatant, which the attorneys preparing tire factual return encounter in developing the 



Case 1 :05-cv-01 458-UNA-AK Document 51 Filed 07/25/2008 Page 3 of 42 

return. Upon the filing of the Government's return, a petitioner may question the sufficiency of 
the Government's showing and supplement the record with his own evidence. After rebuttal 
submissions, the Court may then determine whether the evidence adequately establishes 
petitioner's enemy combatant status. 

Under the historical habeas practice constitutionalized in the Suspension Clause, 
moreover, any discovery obligation that could conceivably be appropriate in this setting (which 
would amount to constitutionally-compelled process for wartime status determinations), will be 
readily satisfied by the Government's provision of material exculpatory evidence as set forth 
above.' For a "pojdent and incremental" process, the Court should not even consider fuither 
discovery until it reviews the returns and traverses in individual cases. And even if the Court 
then concludes that more factfinding may be necessary (historical habeas practice 
notwithstanding), it should still reject wholesale the liberal discovery standards set forth in the 
Federal Rules of Civil Procedure (v\Mch are generally in^Dplicable even to modem statutory 
habeas proceedings outside the context of vvaitirne status deteniiinations). See Harris v. Nelson, 
394 U.S. 286, 292-98 (1969). Rather, it should provide that any discovery request must be 
approved by the Court and must be predicated on a strong and particularized showing of need. 
Any such discovery must also take account of the exigencies posed by ongoing warfare and the 
responsibilities of potential witnesses. As this Court has recognized, "[t]he discovery process 
alone risks aiding our enemies by affording them a mechanism to obtain what information they 



^"Exculpatory" in this context does not refer to information that exculpates a detainee 
from criminal liability, inasmuch as the issue of criminal liability is not material to the authority 
of the Department of Defense to detain the petitioners in these cases. Rather, it refers to evidence 
that tends materially to undermine the information presented in the return to support the 
petitioner's classification as an enemy combatant. 



Case 1 :05-cv-01 458-UNA-AK Document 51 Filed 07/25/2008 Page 4 of 42 

could about military affairs and disrupt command missions by wresting officials from tiie 
battlefield to answer compelled deposition and other discovery inquiries." In re Iraq and 
Afghanistan Detainees Litigation, 479 F. Supp. 2d 85, 105 (D.D.C. 2007) (Hogan, J.). 

Likewise, the presentation of live testimony at an evidentiary hearing is generally 
inappropriate even under modem statutory habeas practice, and is certainly not constitutionally 
mandated for wartime status determinations. No constitutional or evidentiary standard prohibits 
the Court from relying on the paper record submitted by the parties in finding facts. A "prudent 
and incremental" approach would require the Court to consider the parties' written submissions 
first, before even considering whether to receive live testimony. Moreover, any testimony 
presented directly to the Court would present enormous logistical difficulties in the context of 
concurrent and expedited proceedings in over 200 cases involving detainees captured in wartime 
at locations around the world. Indeed, this sort of evidentiary hearing would make expedition of 
these cases impossible. Under controlling Supreme Court precedent, an evidentiary hearing in 
this context is appropriate only when, absent a hearing, the weight of the evidence supports the 
petitioner. 

By its terms, the Sixth Amendment is inapplicable to these civil habeas proceedings. 
Thus, neither the Confrontation Clause nor the Compulsory Process Clause presents any obstacle 
to proceeding on a paper record. Moreover, even if live testimony were otherwise appropriate, 
petitioners could not properly summon military servicemembers or intelligence officers from 
their urgent and ongoing duties in the ongoing war. Furthermore, the courts lack authority to 
order the admittance of aliens held as enemy combatants at a secure military base in Cuba into 
the United States to appear live at hearings. Such an extraordinary order would also be 



Case 1 :05-cv-01 458-UNA-AK Document 51 Filed 07/25/2008 Page 5 of 42 

imprudent and unnecessary, as video or phone conferencing could also allow live testimony by 

detainees in any event. 

Finally, under controlling Supreme Court precedent, the Court plainly may consider 

hearsay evidence in these proceedings and this Court should hold that it is admissible. Indeed, it 

is readily apparent that in many cases both petitioners and the Government will have no choice 

but to rely upon hearsay for their best evidence. The issue is not whether such evidence should 

be considered, but the weight it should be accorded. That is a determination that must be made 

on a case- by-case basis. In making such determinations, "the Constitution would not be 

offended by a presumption in favor of the Government's evidence." Hamdi, 542 U.S. at 534. 

DISCUSSION 

I. THE COURT SHOULD ENTER AN ORDER IMPLEMENTING THE 

PROCEDURES AND METHODOLOGY SET FORTH IN THE CONTROLLING 
PLURALITY OPINION IN HAMDI 

A. Hamdi Provides the Appropriate Framework for These Proceedings. 

The "capture and detention of lawful combatants and the capture, detention, and trial of 
unlawful combatants, by 'universal agreement and practice,' are 'important incident[s] of war.'" 
Hamdi, 542 U.S. at 518 (quoting Quirin, 317 U.S. at 28); accord id. at 587-88 (Thomas, J., 
dissenting) } While, to be sure, federal courts have "ieview[ed] applications for habeas relief in 
a wide variety of cases involving executive detention, in wartime as well as in times of peace," 
Rasul V. Bush, 542 U.S. 466, 474 (2004), the scope of review has been particularly limited in 



^ Although Justice Thomas disagreed with the ultimate resolution in Hamdi, his opinion 
provides a broader rationale than Justice O'Connor's four-justice plurality for the lawful 
detention of enemy combatants. Thus, under the rationale of Marks v. United States, 430 U.S. 
188, 193 (1977), the plurality is the controlling opinion inHamdi, and is binding on this Court. 



Case 1 :05-cv-01 458-UNA-AK Document 51 Filed 07/25/2008 Page 6 of 42 

cases dealing with the mihtary in periods of armed conflict. See Burns v. Wilson, 346 U.S. 137, 
139 (1953) ("[I]n military habeas corpus the inquiry, the scope of matters open for review, has 
always been more narrow than in the civil cases."). 

These cases present the question of what habeas procedures are constitutionally 
compelled to review the continued detention of aliens captured and detained abroad as enemy 
combatants. For that question, tiie most relevant precedent is Hamdi. In tiiat case, the Supreme 
Court established a framework for adjudicating statutory habeas petitions filed on behalf of 
citizens detained in the United States as enemy combatants. A fortiori, these procedures are 
more than sufficient in the context of constitutional habeas actions filed by aliens detained as 
enemy combatants in Cuba. 

First, the Hamdi framework implemented modem statutory habeas under section 2241; 
because the Military Commissions Act (MCA) repealed that provision for aliens held as enemy 
combatants, the procedures here should contain only those required by the Suspension Clause 
itself, as identified inBoumediene and as reflected in longstanding historical habeas practice. 
Although Boumed/ene did not specify the precise procedural rules for constitutional habeas 
proceedings involving wartime status determinations for aliens captured and held outside the 
United States, see 128 S. Ct. at 2271, the Court did identify certain elements that are 
"constitutionally required," id. at 2270. Because the MCA eliminates statutory habeas for these 
petitioners in its entirety, and is unconstitutional only to the extent that the Suspension Clause 
mandates habeas review in this context of its own force, the only appropriate procedures are 
those required by the Constitution itself. Id. at 2278 (Souter, J., concurring) ("Subsequent 
legislation eliminated the statutory habeas jurisdiction over these claims, so that now there must 



Case 1 :05-cv-01 458-UNA-AK Document 51 Filed 07/25/2008 Page 7 of 42 

be constitutionally based jurisdiction or none at all.")- Moreover, Boumediene explicitiy "[did] 
not hold" that constitutional habeas proceedings for wartime status determinations must 
duplicate statutory proceedings under § 2241 and modem habeas practice. 128 S. Ct. at 2267, 
2274. Thus, while the procedures afforded under the modem habeas statute and mles might 
define a ceiling of protection, they clearly do not define a floor. 

Second, because aliens are entitled to lesser (and certainly not greater) constitutional 
protections than citizens like Hamdi, the framework that the Supreme Court deemed 
constitutionally sufficient for citizens held as wartime enemy combatants is more than 
constitutionally adequate for aliens captured under similar circumstances and detained as 
wartime enemy combatants. The proposition that citizens and no n- citizens may be extended 
different constitutional protections is well established. See, e.g., United States v. 
Verdugo-Urquidez, 494 U.S. 259, 273 (1990). Cf. Mathews w.Diaz, 426 U.S. 67, 79-80 (1976) 
("In the exercise of its broad power over naturalization and immigration. Congress regularly 
makes rules that would be unacceptable if applied to citizens."). Boumediene, does not affect 
this bedrock principle. Simply put, if the Hamdi framework was sufficient for a citizen, it 
necessarily must be good enough for an alien - particularly if, as in Hamdi, the detainee was 
captiired outside tiie United States. SeeAl-Marri v. Pucciarelli, - F.3d - , 2008 WL 2736787, 
*42 (4th Cir. July 15, 2008) (Traxler, J., concurring) (recognizing that many of the exigencies 
underiying the rationale in Hamdi emerge, in part, from the extraterritorial capture). Indeed, for 
this reason, as the controlling plurality recognized in Hamdi, "the full protections that 
accompany challenges to detentions in other settings may prove unworkable and inappropriate in 
the enemy- combatant setting." Hamdi, 542 U.S. at 535. Habeas review accommodates such 



Case 1 :05-cv-01 458-UNA-AK Document 51 Filed 07/25/2008 Page 8 of 42 

limitations because the writ's "precise application . . . change[s] depending upon the 
circumstances." Boumediene, 128 S. Ct. at 2267. 

Third, because the petitioners are at a location where lesser constitutional protections 
apply than was the citizen in Hamdi, the framework that the Supreme Court found appropriate 
for a citizen held in the United States must necessarily be sufficient. Hamdi' s procedural 
framework was sufficient for a detainee held in the United States, where the Constitution applies 
with full force. This case, on the other hand, involves a detainee held in Cuba, where the 
Constitution has diminished application under a multi-factor test. See Boumediene, 128 S. Ct. at 
2259. It is a debatable proposition which specific constitutional provisions apply at Guantanamo 
and to what extent they apply, but obviously the protection provided by the Constitution is not 
more extensive than it was in Hamdi, where the detention was in the United States. Thus, in this 
respect as well, the Hamdi procedures a fortiori provide constitutionally- adequate procedures for 
habeas review. 

The Hamdi framework is fully consistent with the constitutionally-required elements of 
habeas identified by Boumediene. Under Boumediene, a constitutional habeas court must have 
"some authority to assess the sufficiency of the Government's evidence against the detainee." 
128 S. Ct. at 2270. It also must "have the authority to admit and consider relevant exculpatory 
evidence that was not introduced during the earlier proceeding." Ibid, (concluding that it is 
"constitutionally required" that petitioners have the opportunity "to supplement the record on 
review"). The procedural framework in Hamdi provides the necessary elements of habeas 
review that, according to Boumediene, "accords with [the] test for procedural adequacy in the 
due process context." Id. at 2268 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). In 

-7- 



Case 1 :05-cv-01 458-UNA-AK Document 51 Filed 07/25/2008 Page 9 of 42 

sum, the Hamdi framework allows this Court to assess the sufficiency of the evidence and allows 
the petitioners to submit their own evidence (and, of course, the Hamdi framework allows this 
Court to address legal issues raised by petitioners). Indeed, it would be startling if the 
Suspension Clause, which primarily preserves jurisdiction and a cause of action to challenge 
detention, of its own force mandated adjudicatory procedures beyond those required by the Due 
Process Clause itself. 

Hamdi also is a vital precedent on the procedures to be employed in habeas even though 
the Boumediene Court concluded that Hamdi had not approved of Combatant Status Review 
Tribunal-type administrative procedures as being an adequate habeas substitute. See 128 
S. Ct. at 2269-70. Boumediene did not address all of the procedures to be employed and did not 
hold that the Hamdi framework was inappropriate for federal court habeas proceedings. 
Moreover, Boumediene disclaims addressing what procedures are required in these cases, 
leaving Hamdi' s analysis untouched. See id. at 2277 ("It bears repeating that our opinion does 
not address the content of the law that governs petitioners' detention."); id. at 2276 (the 
"remaining questions are within the expertise and competence of the District Court to address in 
the first instance"). Because the four-justice plurality opinion inHamdi authored by Justice 
O'Connor is the controlhng opinion, see Marks, 430 U.S. at 193; see also supra, note 2, it is 
therefore binding on this Court. SeeAgostini v.Felton, 521 U.S. 203, 237-38 (1997) ("[i]f a 
precedent of this Court has direct application in a case, yet appears to rest on reason rejected in 
some other line of decisions, the Court of Appeals should follow the case which directly 
controls, leaving to this Court the prerogative of overruling its own decisions"). 

Under Hamdi' s framework, citizen enemy combatants are entitled to the "core" 

-8- 



Case 1 :05-cv-01 458-UNA-AK Document 51 Filed 07/25/2008 Page 1 of 42 

protections that constitute the "minimum requirements of due process." Hamdi, 542 U.S. at 535, 
538. These core procedural rights are threefold: first a detainee "must receive notice of the 
factual basis for his classification"; second, a detainee must have "a fair opportunity to rebut the 
Government's factual assertions"; and, third, the hearing must occur "before a neutral 
decisionmaker." Id. at 533. No more can be required as applied to alien enemy combatants 
captured abroad. Indeed, Boumediene did not upset the well-established holding that the Fifth 
Amendment and other individual rights secured by the Constitution do not apply to alien enemy 
combatants lacking any voluntary connection to the United States. See Verdugo-Urquidez, 494 
U.S. 259; Johnson v. Eisentrager, 339 U.S. 763, 783 (1950). 

Third, adopting the Hamdi framework provides the appropriate balance between an alien 
detainee's right under Boumediene to challenge his continued detention with the Government's 
competing legitimate interests. In Hamdi, as inBoumediene, the Court anticipated that 
petitioners challenging their status as enemy combatants, like other habeas petitioners, "would 
have some opportunity to present and rebut facts" but noted that courts could "vary the ways in 
which they do so as mandated by due process." Hamdi, 542 U.S. at 526. Therefore, in assessing 
what process is constitutionally required for evaluating the detainee's habeas petition, the Hamdi 
plurality applied the balancing test from Mathews v. Eldridge, under which "'the private interest 
that will be affected by the official action'" is balanced "against the Government's asserted 
interest, 'including the function involved' and the burdens the Government would face in 
providing greater process." 542 U.S. at 529 (quoting Mathews, 424 U.S. at 335). On the one 
side of the balance, the Court weighed the detainee's liberty interest in being free from physical 
detention. Ibid. "On the other side of the scale are the weighty and sensitive Governmental 



Case 1 :05-cv-01458-UNA-AK Document 51 Filed 07/25/2008 Page 1 1 of 42 

interests in ensuring that those who have in fact fought with the enemy during a war do not 
return to battle against the United States." Id. at 531. In addition, the Court considered the 
burdens additional procedures "may impose on the military" in the context of ongoing hostilities. 
Id. at 533; see id. at 536 ("[0]ur due process assessment must pay keen attention to the particular 
burdens faced by the Executive in the context of military action."). Boumediene is fully 
consistent in expressing concern that "it does not follow that a habeas corpus court may 
disregard the dangers the detention in these cases was intended to prevent" and that "[c]ertain 
accommodations can be made to reduce the burden ... on the military." 128 S. Ct. at 2276. 

Thus, the Hamdi plurality recognized that "the exigencies of the circumstances may 
demand that aside from the[] core elements [of notice and an opportunity to rebut the 
Government's factual assertions], enemy-combatant proceedings may be tailored to alleviate 
their uncommon potential to burden the Executive at a time of ongoing military conflict." Ibid. 
Similar concerns are present given the analogous circumstances, such capture outside the United 
States, between the citizen- detainee in Hamdi and the alien- detainees here. The Hamdi plurality 
thus explained, for example, that "[h]earsay . . . may need to be accepted as the most reliable 
available evidence from the Government in such a proceeding." Id. at 533-34. Similarly, the 
Boumediene Court, while not providing an exhaustive explanation of permissible procedures, 
recognized that similar accommodations would need to be made. For example, Boumediene 
noted that "the Government has a legitimate interest in protecting sources and methods of 
intelligence gathering; and we expect that the District Court will use its discretion to 
accommodate this interest to the greatest extent possible." 128 S. Ct. at 2276. 

In light of these competing interests, and to provide a workable mechanism to balance 

-10- 



Case 1 :05-cv-01 458-UNA-AK Document 51 Filed 07/25/2008 Page 1 2 of 42 

them, as well as to address the unique separation- of- powers concerns presented by enemy 

combatant litigation, the Hamdi plurality endorsed a "burden- shifting scheme" under which the 

Government has the initial burden to "put[] forth credible evidence that tiie habeas petitioner 

meets the enemy- combatant criteria." Id. at 534. The plurality noted that "the Constitution 

would not be offended by a presumption in favor of the Government's evidence, so long as tiiat 

presumption remained a rebuttable one and fair opportunity for rebuttal were provided." Ibid. 

Under such a scheme, following a showing of credible evidence by the Government, the burden 

would "shift to the petitioner to rebut that evidence with more persuasive evidence that he falls 

outside the criteria." Ibid. This approach "meet[s] the goal of ensuring that [any wrongly 

accused person] has a chance to prove military error while giving due regard to tiie Executive 

once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy 

combatant." Ibid. These Hamdi procedures, which the Court explained are constitutionally 

sufficient for habeas proceedings involving U.S. citizens detained as enemy combatants in the 

United States, are a fortiori constitutionally sufficient for habeas procedures involving ahens 

detained as enemy combatants outside the United States. And because the procedures are 

spelled out by the Supreme Court, they are binding on this Court. 

B. AC onsolidated rder Implementing tiie Ha mdi Framework Is W arranted and 
Appropriate. 

While the foregoing establish why the Court is obligated to follow the general Hamdi 

procedural framework as a matter of law, the practical considerations for this Court's orderly 

management of several hundred habeas petitions present compelling reasons as to why the Court 

ought to adoptHamdi's framework. Many procedural aspects of this case are amenable to 

coordinated resolution and the habeas process will greatly benefit from such a resolution. Most 

-11- 



Case 1 :05-cv-01 458-UNA-AK Document 51 Filed 07/25/2008 Page 1 3 of 42 

of the cases share a core of critical commonalities: all are brought under the constitutional writ 
of habeas corpus; all involve executive wartime detention; all of the petitioners are detained 
because tiiey are enemy combatants in the conflict with the Taliban, al Qaeda, and associated 
forces; all of the petitioners were apprehended overseas; and all are being detained at 
Guantanamo Bay, Cuba. Not only is the Hamdi framework the appropriate one to be applied in 
these circumstances, an order concretely applying that framework to these many similar cases is 
called for. 

The questions presented by the Court's order - the scope of discovery; the standard for 
obtaining an evidentiary hearing; the standard governing hearsay; the application of 
confrontation and compulsory process rights; and the relevant standards of proof and burdens of 
production and persuasion, and any burden shifting - are each common procedural issues that 
will apply in each case. There is a congressional policy favoring the coordinated resolution of 
common issues that arise in cases involving common issues if doing so serves the goal of 
efficiency, as the statute authorizing consolidation and coordination of multidistrict litigation 
recognizes. See 28 U.S.C. § 1407. In enacting that statute. Congress explained that it was meant 
to "assure uniform and expeditious treatment in the pretrial procedures in multidistrict 
litigation." H.R. Rep. No. 90-1130, reprinted in 1968 U.S.C.CA.N. 1898, 1901 (1968). As the 
Ninth Circuit has explained in discussing multi-district litigation, "[cjoordination of . . . many 
parties and claims requires that a district court be given broad discretion to structure a procedural 
framework for moving the cases as a whole as well as individually." In re Phenylpropanolamine 
(PPA) Products, 460 F.3d 1217, 1231-32 (9th Cir. 2006). 

While this is not multi-district litigation under Section 1407, a similar analysis calls for 

-12- 



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coordinated resolution: there are many parties here who are raising similar claims that call for 
similar procedures. The procedural issues are purely legal issues, in the nature of a mlebook for 
habeas proceedings of this nature. But of course, one does not need to know specific facts to 
know the procedural rules for federal cases. In these cases, where the constitution supplies the 
only jurisdiction, this Court will need to prescribe the basic procedural rules. 

Addressing these issues separately in hundreds of individual actions does not make sense. 
First, it would be wasteful and inefficient to brief common issues dozens of times before each of 
the judges on this court. Second, without guidance on common procedural issues, the parties 
cannot efficiently or effectively prepare for more than 200 proceedings. InBoumediene, the 
Supreme Court recognized the need for coordination, explaining that "[i]f, in a future case, a 
detainee files a habeas petition in another judicial district in which a proper respondent can be 
served, the government can move for change of venue to the court that will hear [the 
Boumediene] petitioners' cases, the United States District Court for the District of Columbia." 
128 S. Ct. at 2276 (citation omitted). It would make little sense to "channel[] future cases to one 
district court," id., if that court did not itself attempt to address common issues in a coordinated 
fashion but instead left all common legal issues to be resolved in different ways by different 
judges in individual cases. 

Moreover, the lack of a coordinated approach would lead to severe delay to ultimate 
resolution of these cases. Under petitioners' approach, the parties would be required to litigate 
the same legal and procedural issues repeatedly in hundreds of cases before 15 individual judges. 
There would very likely be disagreement in the procedural approach employed by individual 
judges which would ensure a significant number of reversals and remands following appeal, and 

-13- 



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may very well delay proceedings by creating conflicts that require interlocutory appeal under 28 
U.S.C. § 1292(b) to obtain from the court of appeals what tiiis Court can do now - issue an order 
addressing "a controlling question of law" which, if resolved, "may materially advance tiie 
ultimate termination of the litigation." Id. And absent interlocutory appeals, there will be even 
greater delay over tiie long term. Widely conflicting rulings, arising from the use of different 
procedures and different standards would necessarily ensure that there will inevitably be a 
substantial number of reversals, and remands to the district court that will take years to resolve. 
Indeed, in the past, these cases have led to divergent opinions on common issues followed by 
lengthy appeals. See Boumediene, 128 U.S. at 2241. This Court has, though coordinated 
rulings, an opportunity to avoid that outcome. Ultimately, declining to address common 
procedural issues in a coordinated fashion will not only waste scarce judicial and party 
resources, it will lead to the very delay that petitioners seek to avoid. 
II. APPLICATION OF THESE PRINCIPLES TO THE CURRENT PROCEEDINGS. 

The decisions mBoumediene and Hamdi thus provide a basic framework to govern tiiese 
proceedings. The precise application of these principles may vary in certain cases. But it is 
essential that the Court establish general baseline principles to make possible the expedited 
consideration of the scores of pending cases. 
A. The Parties' Respective Burdens. 

The burden- shifting framework proposed by the Government seeks to address the special 
circumstances of these cases. Cf. Hamdi, 542 U.S. at 534. It therefore differs from typical 
habeas actions, where the petitioner alone generally bears the burden of proof. See Garlotte v. 
Fordice, 515 U.S. 39, 46 (1995) ("[T]he habeas petitioner generally bears the burden of proof."); 

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Eagles v. United States ex rel Samuels, 329 U.S. 304, 314 (1946) ("[Petitioner] had tiie burden 
of showing that he was unlawfully detained."); Williams v. Kaiser, 323 U.S. 471, 472, 474 
(1945) (similar); Walker w. Johnson, 312 U.S. 275, 286 (1941) (similar); Johnson w.Zerbst, 304 
U.S. 458, 468 (1938) (similar). 

The process in each of these cases begins with the Government's submission of a factual 
return that "puts forth credible evidence that the habeas petitioner meets the enemy-combatant 
criteria." Hamdi, 542 U.S. at 534; see Order of July 11, 2008 (directing submission of factual 
returns). The Government's production of evidence gives the petitioner full "notice of the 
factual basis for his classification." Id. at 533. In addition to making the "credible evidence" on 
which the Government relies part of the record, any material exculpatory evidence discovered by 
the attorneys preparing the Government's return will be provided to the petitioner or petitioner's 
counsel, as is more fully addressed in the next section. 

If the Government files a return supported by credible evidence, the burden shifts to the 
petitioner to rebut, "with more persuasive evidence," the Government's classification. Hamdi, 
542 U.S. at 534.^ TTis affords the pditioner "a fair oppoiturdty to idxit the Govemn]^ 
factual assertions before a naitral decisionmaker," id. at 533, and gives tiie Court a chance "to 
admit and consider relevant exculpatory evidence that was not introduced during the earlier 
proceeding." Boumediene, 128 S. Ct. at 2270. The parties should then have the opportunity to 
brief the legality of detention based on the record and to make arguments as to the credibility and 
weight of the evidence presented. However, if a petitioner is unable to overcome the 
Government's evidence, no further steps need be taken and the Government prevails. 



^The petitioner may also file a motion for judgment at this stage. 

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B. Availability of Discovery. 

1. There is no significant history of discovery in habeas proceedings and discovery is 
certainly not constitutionally required. The point of habeas is to provide the court with evidence 
to justify the detention (and to provide petitioners the opportunity to submit their evidence that 
detention is unlawful), Boumediene, 128 S. Ct. at 2770; the purpose is not to provide alien 
enemy detainees an opportunity to obtain additional materials from the Government in a time of 
war that go beyond that showing. 

Even outside the context of wartime status determinations, there is no significant history 
of discovery in habeas cases prior to 1969, and there has never been a suggestion that the 
Constitution requires discovery in such proceedings. See Harris v. Nelson, 394 U.S. 286, 293 
(1969) (in concluding that Federal Rules of Civil Procedure on discovery do not apply to habeas 
proceedings, explaining that "prior to [the promulgation of the federal rules in] 1938" there was 
no showing made that "discovery was actually being used in habeas proceedings").* Infect, it 
was "not until marry years later" that factual questions were even considered in federal habeas 
cases, making it inconceivalie that discovery would be an essential conpjnent of the writ Id . at 
295. 

Thus, in these constitutionally-based habeas proceedings, there can be no question that 
the relevant settled habeas practice - not only in 1789, but for almost two centuries thereafter - 
would preclude discovery. See id. That habeas practice of 1789 did not contemplate discovery 
or factfinding by the habeas petitioner is clear. Indeed, "[o]ne of the maxims of 



^Indeed, in 1938, discovery was "one of the most significant innovations" in civil cases 
generally. Id. at 295. 

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eighteenth- century habeas corpus practice had been that the petitioner could not controvert the 
facts stated in the return." Gerald L. Neuman, Habeas Corpus, Executive Detention, and the 
Removal of Aliens, 98 Colum. L. Rev. 961, 986 n. 131 (1998) (citing, inter alia, R.J. Sharpe, 
The Law of Habeas Corpus 61-68 (1976)). The facts alleged by the Executive to continue to 
hold an individual "were to be taken as true, and the court was to determine whether the 
justification was legally sufficient." Id. Even in executive detention cases, courts traditionally 
conducted only limited factual review. See INS v. St. Cyr, 533 U.S. 289, 306 (2001) ("some 
evidence" review). While courts from the period permitted the prisoner to "allege additional 
facts consistent with the return that might rebut the appearance of justification," Neuman, 98 
Colum. L. Rev. at 986 n. 131, that was not a constitutional requirement and certainly did not 
suggest that discovery was ever appropriate. Indeed, Hamdi, itself specifically rejected the trial 
court's anticipated discovery into various military affairs. Hamdi, 542 U.S. at 528, 532. 

The Supreme Court has thus held, for example, that in view of the history of the writ and 
the intended scope of the Federal Rules of Civil Procedure a petitioner does not have the right to 
serve interrogatories on his custodian (although the Federal Rules would otherwise allow for 
broad discovery in civil suits). Harris, 394 U.S. at 292-98. Significantly, in 1938, when the 
federal rules were initially adopted, the expansion of statutory habeas corpus practice to its 
present scope was only in its primordial stages. Mooney v. Holohan, 294 U.S. 103 (1935); 
Johnson v.Zerbst, 304 U.S. 458 (1938); Waley v. Johnston, 316 U.S. 101, (1942). And it was 
not until many years later that the federal courts considering a habeas corpus petition began to 
even make an independent determination of the factual basis of claims that state convictions had 



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violated the petitioner's federal constitutional rights.^ Brown v. Allen, 344 U.S. 443 (1953). 
Thus, the notion that tiie Constitution, or traditional habeas practice as of 1789 or later, requires 
any discovery to enemy combatant petitioners is demonstrably false. 

That the Constitution did not require such innovations to the habeas practice of 1789 is 
demonstrated by the need for subsequent legislation to expand factfinding authority of federal 
courts, which did not occur until after the Civil War. See Act of Feb. 5, 1867, ch. 28, § 1, 14 
Stat. 385 (stating that a "petitioner may deny any of the material facts set forth in the return, or 
may allege any fact to show that the detention is in contravention of the constitution or laws of 
the United States," and requiring the federal court to "proceed in a summary way to determine 
the facts of the case, by hearing testimony and the arguments of the parties interested"). And it 
was in 1890 that the Supreme Court, citing the Civil War era statute, held that the federal courts 
could have a proper role in determining certain non-jurisdictional facts. Cunningham v. Neagle, 
135 U.S. 1, 70-75 (1890). The statutory expansion of the factfinding role only proves the point 
such functions are never constitutionally required. So too here. Alien detainees at Guantanamo 
may be permitted to invoke 1789 habeas practice, but that does not entitle them to any discovery 
against the Government, or anyone else. And while they may provide their own evidence and 
version of events for this Court's consideration, any discovery they may be granted from the 
G ovemment is a matter of Executive discretion rather than a constitutional entitlement. 



^ "It is also of some relevance that in 1948, when Congress enacted 28 U.S.C. § 2246 
expressly referring to the right of parties in habeas corpus proceedings to propound written 
interrogatories, its legislation was limited to interrogatories for the purpose of obtaining evidence 
from affiants where affidavits were admitted in evidence. Again, the restricted scope of this 
legislation indicates that the adoption in 1938 of the Federal Rules of Civil Procedure was not 
intended to make available in habeas corpus proceedings the discovery provisions of those 
rules," Harris, 394 U.S. at 296, let alone that the Constitution requires any discovery at all. 

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Modem developments in statutory habeas procedure cannot alter this constitutional 
ceiling. Thus, it is of no moment that in Harris the Court interpreted the All Writs Act 28 
U.S.C. § 1651, to authorize limited discovery in statutory habeas cases at the discretion of the 
court. Indeed, the fact that discovery, even in modem statutory habeas cases, is entirely 
discretionary, see Harris, 394 U.S. at 300, Habeas Rule 6(a), provides a complete answer to the 
question whether it is constitutionally required. Moreover, recent developments in habeas 
practice cannot alter the fact that there was no constitutional requirement for discovery in habeas 
cases. The Suspension Clause cannot operate as a "one-way rachet that enshrines in the 
Constitution every grant of habeas jurisdiction" conferred by statute or judge-made common law, 
see St. Cyr, 533 U.S. at 341-42 (Scalia, J., dissenting), for if it did, then the Antiterrorism and 
Effective Death Penalty Act of 1996 (AEDPA), which limited state prisoners' access to the writ, 
would be unconstitutional, a proposition the Supreme Court rejected in Felker v. Turpin, 518 
U.S. 651, 662-664(1996) ("judgmentsabouttheproperscopeof the writ are 'normally for 
Congress to make' "). Thus, there is significant support for the historical approach to habeas as 
providing the constitutional baseline. See Swain v. Pressley, 430 U.S. 372, 384-85 (1977) 
(Burger, C J., concurring in part and concurring in the judgment); Friendly, Is Innocence 
Irrelevant? Collateral Attack on Criminal Judgments, 47 U. Chi. L. Rev. 142, 170 (1970). 
Congress' s repeal of habeas jurisdiction, in conjunction with the fact that constitutionally- 
derived habeas corpus does not require discovery, is therefore fatal to the claim that discovery is 
appropriate in these proceedings. 

2. Although not constitutionally required, when filing its factual retums, the Govemment 
will provide any evidence that tends materially to undermine information presented in the return 

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tD support the petitioner's classification as an enemy combatant, which is encountered in 
developing the returns by tiie attorneys preparing them (including the Department of Justice 
attorneys assigned to the case and those Department of Defense attorneys working on the case 
with them) } This voluntary disclosure will mate discovery from the Government unnecessary 
under the governing precedents and background habeas principles. Indeed, to date, no discovery 
has been allowed in the context of enen^^ combatant habeas cases. In Ha mdi , the Supreme C ourt 
expressly rejected the imposition of a "process [that] would approach the process that 
accompanies a criminal trial" including "quite extensive discovery of various military affairs." 
Hamdi, 542 U.S. at 528; see id. at 532-33. In turn, Boumediene did not identify discovery as one 
of the critical constitutionally-compelled elements of adequate habeas review, 128 S. Ct. at 
2270, and instead rejected the notion that "[hjabeas corpus proceedings need . . . resemble a 
criminal trial, even when the detention is by executive order." Id. at 2269. Accordingly, even 
assuming any discovery were required or appropriate, Boumediene and Hamdi set down a clear 
marker beyond which habeas discovery cannot properly extend, and which is far less 
burdensome than the "extensive discovery" that is applicable to criminal proceedings. Hamdi, 
542 U.S. at 528. The Government's voluntary disclosures clearly exceed that marker. 

In domestic criminal proceedings, the Government's constitutional discovery obligation 
is defined by the Brady v. Maryland, 373 U.S. 83 (1963), line of precedents. Thus, beyond the 



^Materials that are not classified or otherwise protected will be available for viewing by 
the detainee. Detainee's counsel in most instances will be able to view classified materials. In 
some cases, highly sensitive information will only be disclosed to the court for in camera review, 
and not to detainee's counsel. As the Court cautioned inBoumediene, "the Government has a 
legitimate interest in protecting sources and methods of intelligence gathering [and] and we 
expect that the District Court will use its discretion to accommodate this interest to the greatest 
extent possible." 128 S. Ct. at 2276 (citing United States v. Reynolds, 345 U.S. 1, 10 (1953). 

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required production of material exculpatory evidence under Brady, the "[t]here is no general 
constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559 
(1977). Accordingly, in the criminal context, it is well established that the Due Process Clause 
requires no open-ended discovery beyond the prosecution's Brady obligations. Ibid.; see Gray v. 
Netherland, 518 U.S. 152, 167-68 (1996); Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987) ("[a] 
defendant's right to discover exculpatory evidence does not include the unsupervised authority 
to search through tiie [Government's] files"); Kyles v. Whitley, 514 U.S. 419, 437 (1995) ("We 
have never held that the Constitution demands an open file policy (however such a policy might 
work out in practice)"); Fed. R. Crim. P. 16, 1975 Advisory Cmte. Notes ("the defendant has no 
constitutional right to discover any of the prosecution's evidence (unless it is exculpatory within 
the meaning of Brady)"). Requiring discovery here, in the civil habeas context, is therefore not 
only inconsistent with Hflmdi - which rejected the criminal discovery model as overly 
burdensome - it is contrary to the Boumediene Court's reasoning that criminal-type processes 
are inappropriate. 128 S. Ct. at 2269. 

The Government's proposed disclosure is narrower than a prosecutor's 
Brady obligations, but nonetheless satisfies any plausible discovery obligation that would be 
appropriate in these proceedings. First, there is, as we have explained, no constitutionally- 
derived disclosure obligations in civil cases, much less cases involving wartime status 
determinations. Second, the Government's proposal, while narrower than Brady, still goes well 
beyond whatHflmdi anticipated. See 542 U.S. at 528, 532. And nothing in Hamdi or 
Boumediene suggested that discovery rising to the level of Brady requirements was appropriate 
in these cases. Third, as we have explained, there is no constitutionally- based requirement for 

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discovery in habeas cases at all, much less a constitutionally-based requirement for Brady type 
disclosures. The Brady rule, after all, "trace[s] its origins to early 20th-century strictures against 
misrepresentation/' Kyles, 514 U.S. at 432, but such a recent derivation is too recent to be 
relevant in determining the scope of constitutional habeas under the Suspension Clause. And 
because the Brady obligation stems from the Fifth Amendment's due process obligations in 
domestic criminal cases, which has no application either to habeas cases or to these petitioners, 
the Government's provision of material exculpatory evidence in these cases is undoubtedly a 
matter of Executive discretion rather a constitutionally required element of these proceedings. 

At the same time, because the Government has no interest in erroneously holding a 
person who does not pose a threat to the United States and in order to implement Ha md/'s 
direction that the Government submit "credible" evidence to the Court, the Government will 
provide all evidence discovered by its attorneys in preparing the factual return that tends 
materially to undermine the information presented in the return to support the petitioner's 
classification as an enemy combatant. Cf. Brady, 373 U.S. at 87 (in domestic criminal case, 
prosecutor must provide known "evidence favorable to an accused . . . where the evidence is 
material either to guilt or to punishment"). 

While the Government will turn over material exculpatory evidence discovered by its 
attorneys in preparing the factual return, the Government will not conduct an open-ended search 
for evidence relating to the petitioner, exculpatory or otherwise. Imposing such a requirement 
would be improper for several reasons. First, as we have explained, because there is no Brady 
obligation in this context and no requirement for discovery, see supra, pp. 16-22, there also is no 
obligation to conduct an open-ended search for exculpatory material; rather, at its core habeas is 

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about giving petitioner an opportunity to present his best evidence to this Court. See 
Boumediene, 128 S. Ct. at 2270 (habeas court must have "authority to admit and consider 
relevant exculpatory evidence that was not introduced during the earlier proceeding" by the 
petitioner). Second, imposing an obligation to search affirmatively for material exculpatory 
evidence would be the kind of "quite extensive discovery" rejected by the controlling plurality in 
Hamdi. 542 U.S. at 528. Finally, such an approach would be extraordinarily burdensome in a 
time of ongoing war, see BismuUah III, 514 F.3d at 1301-02 (Henderson, J. dissenting). The 
United States military and our intelligence agencies cannot be required to devote substantial 
resources in a time of war for evidentiary fishing expeditions. It is therefore not the "prudent 
and incremental" approach to factfinding that the Hamdi plurality required in this context. 
Hamdi, 542 U.S. at 539; Boumediene, 128 S. Ct. at 2262 ("habeas procedures" should be 
"modified to address" "practical barriers"). 

We have explained how the Government's voluntary disclosure more than satisfies any 
discovery obligation that could conceivably be appropriate in this context. On the other hand, 
the D.C. Circuit's vacated Bi'smunah decision, which created an expansive appellate record 
based on the specific requirements of Combatant Status Review Tribunal procedures, does not 
provide a helpful guidepost for determining the scope of disclosure or discovery in habeas 
proceedings, for four reasons. See BismuUah v. Gates, 501 F.3d 178, 192 (D.C. Cir. 2007). 
First, BismuUah was wrongly decided, garnered the support of less than a majority of the en banc 
court, and has been vacated by the Supreme Court. See BismuUah v. Gates, 514 F.3d 1291, 
1298-99, 1306 (D.C. Cir. 2008) (four judges agreed with panel decision; five judges disagreed; 
and one voted against en banc to avoid delaying the resolution of Boumediene) {BismuUah III). 

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The court erred by conflating tiie scope of tiie appellate record with the issues tiiat are reviewable 
by the court and by adopting a review function for itself that went well beyond the narrow 
review intended by Congress. Second, the BismuUah decision went well beyond even a 
prosecutor's Brady obligations, which we have already shown are not required in this context. 
See BismuUah v. Gates, 503 F. 137, 140 (D.C. Cir. 2007) {BismuUah 11) (whether or not ruling 
"impose[s] ... a greater obligation to 'turn over' exculpatory evidence . . . than [Brady]" is 
"irrelevant"). Third, BismuUah addressed the requirements of a unique regulatory and statutory 
scheme that is not at issue here. See CSRT Procedures, Enc. 1, § (E)(3) (defining "Government 
Information"); id., Enc. 2 (discussing role of the CSRT Recorder in reviewing Government 
Information). The D.C. Circuit in no way suggested that its expansive and unprecedented 
definition was constitutionally required, but rather was simply that panel's reading of the 
operative regulations for CSRTs. BismuUah II, 503 F.3d at 140. Fourtii, BismuUah created an 
expansive and overbroad appellate record primarily to address the Court's concern that a CSRT 
determination is not "the product of an open and adversarial process . . . [but] is the product of a 
necessarily closed and accusatorial process," in which the detainee lacked a meaningful 
opportunity to submit his own evidence. BismuUah III, 514 F.3d at 1296 (Ginsburg, C. J., 
concurring in denial of rehearing en banc); see also Boumediene, 128 S. Ct. at 2270. Here, on the 
otiier hand, the record before a habeas court will be the result of an adversarial process where 
each petitioner has an opportunity to submit his own evidence, with the assistance of counsel. 

In sum, the Government will provide the evidence discovered by its attorneys in 
preparing the factual return that tends materially to undermine the information presented in the 
return to support the petitioner's classification as an enemy combatant - a voluntary disclosure 

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that goes well beyond what Hamdi envisioned for a U.S. Citizen and is not constitutionally 
required, but that will assist this Court in reviewing these habeas cases. 

3. Even if the Court concluded additional discovery were constitutionally required, it 
should occur only very rarely, and each specific discovery request must be approved by the 
district court, as is contemplated by rules for statutory habeas. Such an extraordinary request 
should be granted only after the district court has decided that other less intrusive steps cannot 
resolve the issue, and the discovery authorized must itself be incremental. See Hamdi, 542 U.S. 
at 539 (factfinding must be "both prudent and incremental"); Boumediene, 128 S. Ct. at 2262 
("habeas procedures" should be "modified to address" "practical barriers"). Discovery that is 
not both extraordinarily rare and narrow is also antithetical to the expedited disposition of the 
over 200 cases at issue. 

We have explained that neither Hamd! or Boumediene called for any discovery in this 
context; Hamdi, instead, reversed a discovery order and Boumediene identified the 
constitutionally-required elements of habeas proceedings but in no way suggested that discovery 
was one of those elements. Thus, in the rare case where a court considers ordering discovery, as 
the Supreme Court instructed in Hamdi, it is imperative that this Court "proceed with the caution 
. . . necessary in this setting" to create a "process that is both prudent and incremental." Hamdi, 
542 U.S. at 539. The controlling opinion in Hamdi made clear that the procedures and 
factfinding mechanisms available to detainees should reflect their "'probable value' and the 
burdens they may impose on the military." Id. at 533 (quoting Mathews, 424 U.S. at 335); see 
Boumediene, 128 S. Ct. at 2262 ("habeas procedures" should be "modified to address" "practical 
barriers"). 

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In weighing the probable value of discovery or testimony against the burdens created, the 
Court should be limited by statutory habeas practice, including the rules adopted by the Supreme 
Court to govern statutory habeas proceedings, which set a ceiling, not a floor, for proceeding 
under constitutional habeas. Habeas corpus proceedings are civil actions but are not subject to 
all rules or statutes governing civil actions. Indeed, "it is clear that there was no intention to 
extend to habeas corpus, as a matter of right, the broad discovery provisions which, even in 
ordinary civil litigation, were "one of the most significant innovations" of the rules. Hickman v. 
Taylor, 329 U.S. 495, 500 (1947). Thus, rules for statutory habeas substantially limit the 
availability of discovery by requiring leave of the court, following a showing of good cause, 
before a specific discovery request is allowed. See Habeas Rule 6(a) (codifying Harris v. 
Nelson, 394 U.S. 286 (1969)); see also Bracy v. Gramley, 520 U.S. 899, 904 (1997) ("A habeas 
petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of 
ordinary course."). A discovery request must be quite specific: it must "provide reasons for the 
request" and "include any proposed interrogatories and requests for admission, and must specify 
any requested documents." Habeas Rule 6(b). 

As the Supreme Court explained in Harris, the extensive discovery contemplated by the 
Federal Rules of Civil Procedure is "ill-suited to the special problems and character of [habeas] 
proceedings," 394 U.S. at 296, observing that ordinary discovery procedures can be 
"exceedingly burdensome and vexatious." Id. at 297; see 28 U.S.C. § 2243 (habeas court "shall 
summarily hear and determine the facts"). As the Court recognized, the burden on the 
Government, "which is necessarily and properly incident to the processing and adjudication of 
habeas corpus proceedings, would be vastly increased" by allowing ordinary discovery, and "the 

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benefit to prisoners would be counterbalanced by the delay which the elaborate discovery 
procedures would necessarily entail." Harris, 394 U.S. at 297. 

Such concerns apply with particular force in the expedited consideration of petitions filed 
by over 200 detainees. As the Court noted in Hamdi, discovery raises several governmental 
concerns, including the need to protect intelligence, the need to avoid "discovery of various 
military affairs/' and the risk of "futile search[es] for evidence buried under the rubble of war." 
542 U.S. at 528, 532; see also In re Iraq and Afghanistan Detainees Litigation, 479 F. Supp. 2d 
at 105 ("The discovery process alone risks aiding our enemies by affording them a mechanism to 
obtain what information they could about military affairs and disrupt command missions by 
wresting officials from the battlefield to answer compelled deposition and other discovery 
inquiries . . ."); Al Odah v. United States, 329 F. Supp. 2d 106, 106-07 (D.D.C. 2004) (holding 
that enemy combatants were required to request leave from the court before serving their 
discovery requests, and denying their request for leave to conduct discovery as premature and 
inadequately substantiated). 

Discovery can be authorized properly only as a last resort - if it all - if the submissions 
otherwise fail to show that the detention is lawful, and only if other "incremental" steps, Hamdi, 
542 U.S. at 539, such as the expansion of the record pursuant to habeas Rule 7, is ineffective. 
See Habeas Rule 7(b) (allowing submission of affidavits to expand the record "[i]f the petition is 
not dismissed"); Rule 7, 1976 Advisory Committee Notes ("[t]he purpose [of Rule 7] is to enable 
the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time 
and expense required for an evidentiary hearing"). 

It is thus a petitioner's burden to show, on the basis of "specific allegations" that "if the 

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facts are fully developed" he may be "entitled to relief." Bracy, 520 U.S. at 908-09 (quotation 
marks omitted); cf. O.K. v. Bush, 344 F. Supp. 2d 44, 56 (D.D.C. 2004) (denying hearing in 
habeas action involving Guantanamo detainee because hearing was not relevant to relief sought); 
Rich V. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999) (affirming denial of discovery and 
evidentiary hearing because petitioner failed to explain how "habeas relief might be available if 
favorable evidence were developed" and because evidentiary process in habeas proceedings 
"was never meant to be a fishing expedition"); Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 
2004) (holding that "[c]onclusory allegations are not enough to warrant discovery" in habeas 
proceedings); see also Hamdi, 542 U.S. at 538 (holding that petitioner must be given an 
opportunity "to present his own factual case" (emphasis added)). 

Moreover, were the Court to find additional discovery constitutionally required, such 
discovery must itself be "incremental," Hamdi, 542 U.S. at 539. For example: limited 
interrogatories or requests for admission must be sought prior to depositions; document requests 
must be considered only after requests for admission, and must be narrow and focused on 
specific documents, not open-ended. To this end, as provided for in the federal habeas rules, 
petitioner's requests for leave to take discovery must be "accompanied by a statement of the 
interrogatories or requests for admissions and a list of the documents, if any, sought to be 
produced," Habeas Rule 6(b), so that the court can properly determine whether discovery is 
required and, if so, ensure that the petitioner employs the least intrusive or burdensome means to 
gamer the discoverable information. Further care must be taken to safeguard the Government's 
"legitimate interest in protecting sources and methods of intelligence gathering." Boumediene, 
128S.Ct.at2276. 

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Such concerns, and the exigencies of considering over 200 cases on an expedited basis, 
strongly indicate that if discovery beyond the Government's voluntary disclosures is to be 
permitted, it should, at least in the first instance, take the form of specific Court- approved 
interrogatories that may be answered by any appropriate Government personnel possessing the 
requisite knowledge. The Court should also allow the Government the opportunity to suggest 
substitute proceedings for actual depositions involving other detainees or substitutes for 
discovery requested as to certain types of information. To do otherwise would be impracticable 
in this context, would not be incremental or prudent, and would do nothing to ensure that 
petitioners obtain "prompt" adjudication of their claims, Boumediene, 128 S. Ct. at 2275.' 
C . The Presentation of Evidence. 

In the rDnrial course of these cases, the Govemnient expects that the 
decide individual cases on the written record Although in maiiy cases a hearing in v\Mch 
counsel may argue about the significance of the record presented will be appropriate, hearings 
involving live witness testimoriy will be almost entirely in^propriate. What Ha mdi and 



^ Even under the Federal Rules of Civil Procedure's far more generous provisions for 
discovery, a court may limit the methods or extent of discovery when "the burden or expense of 
the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(2)(c). On that basis, 
courts have held that in certain instances, for example, interrogatories are the most appropriate 
discovery method. See, e.g., Kyle Eng'g Co. v. Kleppe, 600 F.2d 226, 231-32 (9th Cir. 1979) 
(holding that interrogatories were more appropriate than deposing a high-ranking Government 
official); Am. CM Liberties Union v. Gonzales, 237 F.R.D. 120, 122-23 (E.D. Pa. 2006) 
(finding plaintiffs had not shown that oral deposition was the "least intrusive or burdensome 
means" of discovery and instead allowing plaintiffs to serve interrogatories); Fed. Sav. & Loan 
Ass'nv. Fed. Home Loan Bank Bd., 96 F.R.D. 619, 621-22 (D.D.C. 1983) (denying plaintiff's 
request to depose two members of the Federal Home Loan Bank Board on the ground that 
plaintiff had not shown "that the information it hope[d] to elicit from them is not ascertainable 
by way of interrogatories addressed to the Board, the deposition of a single spokesman 
designated to testify for it, or the testimony of . . . other witnesses"). 

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Boumediene make clear, in prescribing a "prudent and incremental" approach that recognizes 
"proper deference" to the political branches in tiie "procedural and substantive standards used to 
impose detention to prevent acts of terrorism/' is that evidentiary hearings with live testimony 
should be the last resort, only after all other alternatives have failed. Hamdi, 542 U.S. at 539; 
Boumediene, 128 S. Ct. at 2276; see id. at 2262 ("habeas procedures" should be "modified to 
address" "practical barriers"). The absence of live testimony in no way presents an impediment 
to the effective resolution of these cases. Courts can and should rely on affidavits from reliable 
sources and intelligence gathered by agents of the United States Government in the course of 
performing their sworn duties. While such evidence may not always resemble the records found 
in traditional criminal cases, it is no less reliable in this context. Indeed, it is often the basis for 
critical decisions involving life and death. There is neither a Sixth Amendment nor hearsay bar 
to the consideration of such evidence, which Hamdi recognized would often be the most reliable 
evidence in these cases. 

1. A^/ailabilit]J of an Evidentiary Hearing. 

As with discovery, there is no constitutional entitlement to an evidentiary hearing in 
habeas cases. Historically habeas at most looked at the legal basis for detention. See, supra p. 
16-19. Thus, there was no significant early history of evidentiary hearings in habeas, either in 
1789 or for decades thereafter. Indeed, there were no statutory provisions at all for a hearing 
prior to the 1867 Act. See28U.S.C.§ 2243. And, as with discovery, the fact that even under 
modern practice outside the context of wartime status determinations, a "trial may be had in the 
discretion of the federal couri;," Brown v. Allen, 344 U.S. 443, 463-64 (1953) (emphasis added), 
only confirms that a testimonial hearing is not constitutionally required. Thus, while the courts 

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historically have looked at the sufficiency of the factual submissions, there is no tradition of 
trial-type proceedings. See Ex parte BoUman, 4 Cranch 75, 135 (1807) (determining whether 
"there is . . . sufficient evidence" to "justify his commitment" based on the written record); id. at 
101 (habeas is "appellate in nature"); see also St. Cyr., 533 U.S. at 306 (traditional habeas 
review in executive detention context was for "some evidence"). More importantly, neither 
Hamdi nor Boumediene suggested that a testimonial hearing would be appropriate or required in 
these circumstances. Instead, they simply require that this Court be able to consider factual 
submissions of the parties on the propriety of detention. See Boumediene, 128 S. Ct. at 2270 
(what is "constitutionally required" under Suspension Clause is the"authority to admit and 
consider relevant exculpatory evidence that was not introduced during the earlier proceeding"); 
Hamdi, 542 U.S. at 533 (Fifth Amendment requires that detainee simply have a "fair opportunity 
to rebut the Government's factual assertions"). Thus, the Constitution does not require a 
testimonial hearing with live witnesses, as opposed to documentary evidence and written 
testimony by affidavit. 

Further, Hamdi makes clear that evidentiary hearings with live testimony, if they occur at 
all, will be exceptional. At its most basic level, the controlling opinion in Hamdi teaches that 
courts reviewing wartime status determinations must "proceed with the caution . . . necessary in 
this setting" to create a "process that is both prudent and incremental." Hamdi, 542 U.S. at 539. 
The Hamdi plurality made clear that the procedures and factfinding mechanisms available to 
wartime detainees should reflect their "'probable value' and the burdens they may impose on the 
military." Id. at 533 (quoting Mathews, 424 U.S. at 335). Hamdi emphatically rejects the notion 
that soldiers must be distracted from "the serious work of waging battle" to provide eyewitness 

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accounts of actions that occurred half a world away. Id. at 531-32; see id. at 533-34 ("Hearsay, 
for example, may need to be accepted as the most reliable available evidence from tiie 
Government in such a proceeding."). Evidentiary hearings with live testimony also pose 
heightened risks and burdens to what Boumediene recognized as the Government's obviously 
"legitimate interest in protecting sources and methods of intelligence gathering." See 
Boumediene, 128 S. Ct. at 2276; see also Hamdi, 542 U.S. at 532 ("discovery into military 
operations would . . . intrude on the sensitive secrets of national defense"). And routine 
evidentiary hearings also would conflict with the guidance from the Supreme Court, and the 
strongly expressed desire of various judges of this Court, to adjudicate the Guantanamo habeas 
actions as expeditiously as possible. See Boumediene, 128 S. Ct. at 2275. 

For all these reasons, evidentiary hearings with live testimony should be granted only 
rarely (if at all), only as a last resort, and only after the Court has reviewed the parties' written 
submissions. In our judgment, evidentiary proceedings should be allowed only when the court 
determines that, absent an evidentiary hearing, the weight of the evidence supports the habeas 
petitioner. Cf. Schriro v. Landrigan, 127 S. Ct. 1933, 1940 (2007) ("It follows that if tiie record 
refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is 
not required to hold an evidentiary hearing"). As Hamdi itself suggests, at the initial stage of 
written submissions, once tiie Government establishes a plausible case for detention, the 
evidence is presumed correct and the detainee must then produce a traverse witii "more 
persuasive" evidence for the proceedings to continue. 542 U.S. at 534. Even assuming that the 
Constitution sometimes might require an evidentiary hearing with live witnesses, that issue could 
not arise, consistent with the "prudent and incremental" process required by Hamdi, until after a 

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detainee has rebutted the Government's initial showing with "more persuasive" evidence. 542 
U.S. at 534, 539. Cf. Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999) (affirming denial of 
discovery and evidentiary hearing because petitioner failed to explain how "habeas relief might 
be available if favorable evidence were developed" and because evidentiary process in habeas 
proceedings "was never meant to be a fishing expedition"). Indeed, even under modem statutory 
habeas outside the context of wartime status determinations, a habeas court must "summarily 
hear and determine the facts, and dispose of the matter as law and justice require." 28 U.S.C. § 
2243. Thus, "the district court need not hold an evidentiary hearing for each habeas petitioner." 
Tijerina v. Thornburgh, 884 F.2d 861, 866 (5th Cir. 1989) (citing Kau/man v. United States, 394 
U.S. 217 (1969); Harris v. Nelson, 394 U.S. 286 (1969)). 

Under these principles, at an absolute minimum, insubstantial disputes should not give 
rise to an evidentiary hearing with live testimony. For example, a petitioner should not be 
permitted to haul United States servicemembers away from the battlefield if a knowledgeable 
affiant testifies that a detainee was captured with missiles and the detainee simply makes a 
general denial, because doing so would completely undermine the Hamdi burden- shifting 
framework. With the assistance of counsel, petitioners should have an unfettered ability to 
present their best evidence, and to challenge the Government's evidence, through written 
submissions. That by itself is far more than the process historically available in habeas. To the 
extent that petitioners wish to go even further, and to demand an evidentiary hearing with live 
witnesses, the courts should defer ruling on those demands until after reviewing the written 
submissions, and should grant them rarely if ever. As even modem statutory habeas practice 
makes clear, habeas courts "summarily hear and determine the facts." 28 U.S.C. § 2243. 

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2. Confrontation and Compulsory Process Rights. 

No constitutional provision gives rise to confrontation and compulsory process rights for 
habeas review of wartime status determinations governing aliens captured and held abroad as 
enemy combatants. 

First the Sixth Amendment rights to confrontation and compulsory process are limited 
by the terms of the Constitution to criminal proceedings. See U.S. Const, amend. VI ("[i]n all 
criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses 
against him; to have compulsory process") (emphasis added). It establishes a tial right that 
applies exclusively to criminal tials. See California v. Green, 399 U.S. 149, 157 (1970) ("[I]tis 
this literal right to 'confront the witness at the time of trial that forms the core of the values 
furthered by the Confrontation Clause."). Thus, the Supreme Court has held that the Sixth 
Amendment does not compel the presence of a prisoner in collateral proceedings. See United 
States V. Hayman, 342 U.S. 205, 222 (1952) ("The existence of power to produce the prisoner 
does not of course, mean that he should be automatically produced in every Section 2255 
proceeding. This is in accord with procedure in habeas corpus actions."). Habeas is not of 
course, a criminal proceeding, so the rights conferred by the Amendment do not apply. See 
Coleman v. Balkcom, 451 U.S. 949, 954 (1981) (Marshall, J., dissenting from denial of 
certiorari) ("A habeas corpus proceeding is, of course, civil rather than criminal in nature, and 
consequently the ordinary Sixth Amendment guarantee of compulsory process . . . does not 
apply."); Oken v. Warden, MSP, 233 F.3d 86, 93 (IstCir. 2000) (same). Accordingly, the Sixth 
Amendment does not confer on petitioners a right to compel the production of military personnel 
who provided evidence to the habeas court. 

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The Suspension Clause also does not confer a right of confrontation or compulsory 
process in constitutionally-based habeas proceedings. Instead, Boumediene created a limited set 
of Suspension Clause rights to allow the petitioner to submit his own evidence to expand the 
record, but did not address the issue of compulsory process and nowhere suggested that there 
was a right to bring into court those individuals who provided affidavits in support of detention. 

The Fifth Amendment also does not entitle petitioner to compulsory process or 
confrontation. First, it is doubtful whether the detainees here have rights conferred by the Fifth 
Amendment at all. See Verdugo-Urquidez, 494 U.S. at 273; Agostini, 521 U.S. at 237-38. In 
any event, even if the Fifth Amendment applies it cannot encompass confrontation or 
compulsory process because Hamdi very plainly explained that detention could be justified 
based upon information about a detainee's capture made by "a knowledgeable affiant" who 
would "summarize [the Government's] records." Hamdi, 542 U.S. at 534. While a petitioner 
must have an opportunity "to present his own factual case to rebut the Government's return," 
that opportunity does require a right to obtain testimony of the affiant. Id. at 538. 

In other contexts, the Supreme Court has recognized that district courts have the 
discretion to order a prisoner produced at in a collateral review proceeding in which "there are 
substantial issues of fact as to events in which the prisoner participated," Hayman, 342 U.S. at 
223 (noting that "[w]hether the prisoner should be produced depends upon the issues raised by 
the particular case"). However, Hayman involved modem practice under the habeas statute and 
rules, as opposed to the traditional, eighteenth-century practice enshrined in the Suspension 
Clause. Moreover, Hayman did not involve wartime status determinations, and Boumediene and 
Hamdi make clear that the standards are fundamentally different in this context. Finally, 

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Hayman did not involve aliens detained outside sovereign United States territory. This 
distinction is critical because courts lack tiie authority to order aliens admitted into the United 
States: "[T]he conditions of entry for every alien . . . have been recognized as matters . . . wholly 
outside the power of [courts] to control." Fiallo v. Bell, 430 U.S. 787, 796 (1977). That power 
is constitutionally assigned to the political branches. U.S. ex rel. Knauffv. Shaughnessy, 338 
U.S. 537, 542 (1950). Accordingly, as Judge Robertson has correctly concluded, even under 
modem statutory habeas, the district courts cannot order into the United States even a 
Guantanamo detainee who already has succeeded on the merits of his habeas petition. Qassim v. 
Bush, 407 F. Supp. 2d 198, 202-03 (D.D.C. 2005). A fortiori, the Court cannot order, under 
narrower constitutional habeas, the admission into the United States of a Guantanamo detainee 
who may wish to testify on his behalf during ongoing proceedings. 

If a court should determine that the detainee's participation (or another detainee's 
participation) in a hearing is essential to the Court's adjudication, the Court could permit 
participation by telephone or video conference from Guantanamo. Such an approach would give 
the detainee more process than is constitutionally compelled, while at the same time eliminating 
the grave separation-of-powers and security concerns that otherwise would apply. 

3. Admissibility of Hearsay Evidence. 

Hamdi establishes that hearsay will be the norm, not the exception, in the parties' 
submissions both in the factual return and traverse, and during an evidentiary hearing if one is 
required. As the controlling plurality explained, "[h]earsay . . . may need to be accepted as the 
most reliable available evidence from the Government" in these habeas proceedings. Hamdi, 
542 U.S. at 533-34. That statement does not set forth a standard for admissibility, but rather 

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identifies what is likely the best evidence available for enemy combatant determinations given 
the wartime context that led to these detentions. Indeed, the Hamdi plurality specifically 
directed the lower courts to consider the second-hand statements of Government officials 
regarding a detainee's actions and tiie circumstances of the detainee's capture, where the official 
is familiar with relevant Government practices and has reviewed the Government's "records and 
reports." See id. at 512-13, 534, 538 ("a habeas court . . . may accept affidavit evidence like that 
contained in the Mobbs Declaration"). 

This principle is critical. Without it, soldiers would be summoned back from remote 
battlefields to testify to the circumstances of distant captures. Intelligence reports might be 
excluded without live, in-court testimony from confidential sources. A tip from a custodial 
interrogation in the field could require the in-court appearance of military interrogators, or even 
the present or former detainee subject to the interrogation. None of these absurd consequences is 
remotely compelled by traditional wartime or habeas practices, by the Fifth Amendment or the 
Suspension Clause, or by Hamdi andBoumediene. 

To the contrary, as the Supreme Court recognized in Hamdi, "military officers who are 
engaged in the serious work of waging battle would be unnecessarily and dangerously detracted 
by [developing the case in chief for] litigation half a world away," by a judicially- made 
prohibition against the use of hearsay evidence to support wartime status determinations. 
Hamdi, 542 U.S. at 531-32. In war there is no evidence room and chain of custody procedures. 
Evidence of combatancy {i.e., weapons) is generally destroyed, not retained. Indeed, much of 
the physical evidence may be "buried under the rubble of war." Hamdi, 542 U.S. at 532. 
Moreover, the events giving rise to the military detention of the Guantanamo detainees took 

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place overseas, where the Government does not have the same freedom to operate. Additionally, 
because habeas proceedings could result in the erroneous release of enemy combatants (as has 
the Department of Defense administrative review process, which the Supreme Court has held to 
be an inadequate substitute for habeas), requiring the live testimony of soldiers or others 
involved in the war effort could easily jeopardize their safety. See Boumediene, 128 S. Ct. at 
2276 (habeas procedures must ensure protection of intelligence sources). 

Even if the Constitution required some limits on consideration of hearsay, those limits 
would surely devolve to the weight the habeas court should give to the evidence rather than the 
question of admissibility. The hearsay rule is "grounded in the notion that untrustworthy 
evidence should not be presented to the triers of fact" and the view that "[o]ut-of-court 
statements . . . lack the conventional indicia of reliability: they are usually not made under oath 
or other circumstances that impress the speaker with the solemnity of his statements; the 
declarant's word is not subject to cross-examination; and he is not available in order that his 
demeanor and credibility may be assessed by the jury." Chambers v. Mississippi, 410 U.S. 284, 
298-99 (1973) (citing Green, 399 U.S. at 158). Nonetheless, considerations of "trustworthiness" 
or "reliability" routinely justify the admission of hearsay pursuant to numerous well-recognized 
exceptions. See, e.g.. United States v. D'Anjou, 16 F.3d 604, 610 (4th Cir. 1994); Guam v. 
Ignacio, 10 F.3d 608, 612 (9th Cir. 1993); Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 277 (5th 
Cir. 1991); Gass v. United States, 416 F.2d 767, 772 (D.C. Cir. 1969). Moreover, although the 
Federal Rules of Evidence governing introduction of hearsay encompass bench trials, the courts 
have repeatedly recognized that the hazards associated with the introduction of hearsay evidence 
before jury trials apply with much diminished force in trials before a judge. See, e.g.. United 

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States ex rel. Ford v. Pate, 425 F.2d 178, 180 (7th Cir. 1970) (admission of potential hearsay 
"occurred during a bench trial which reduced the likelihood of prejudice"); see also United 
States V. Cardenas. 9 F.3d 1139, 1155 (5th Cir. 1993); Gulf States Utilities Co. v. Ecodyne 
Corp., 635 F.2d 517, 519 (5tii Cir. 1981) ("The exclusion of this evidence under Rule 403's 
weighing of probative value against prejudice was improper. This portion of Rule 403 has no 
logical application to bench trials."). Accordingly, in civil bench trials, "many experienced 
judges admit hearsay tiiey deem reasonably reliable and probative, eitiier 'for what it is worth' or 
on some more explicit rejection of the hearsay rule and its some 30 exceptions." Cobell v. 
Norton, 224 F.R.D. 1, 5 (D.D.C. 2004) (citing McCormick on Evidence, 137 (2d ed. 1972), and 
Kenneth C. Davis, Hearsay in Nonjury Cases, 83 Harv. L. Rev. 1362 (1970)) (internal citations 
omitted). Moreover, in pretrial detention hearings before a judge. Congress expressly 
provided that the limitations on hearsay do not apply. 18 U.S.C. § 3142 ("The rules concerning 
admissibility of evidence in criminal trials do not apply to the presentation and consideration of 
information at the hearing."). 

Thus, to the extent that any constitutional question is presented at all, the issue in these 
cases would be not whether hearsay evidence should be admitted, but what weight particular 
evidence should be accorded in a particular proceeding. Exclusion of hearsay, which must be 
reviewed by the judge in any event, would serve no useful purpose. To the contrary, allowing 
battles over the admissibility (rather than the probative value) of hearsay evidence would only 
impede the expedited resolution of these cases. In contrast, "[i]t is well settled that in a non-jury 
trial the introduction of incompetent evidence does not require a reversal in the absence of an 
affirmative showing of prejudice. The presumption is that the improper testimonial evidence, 

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taken under objection, was given no weight by the trial judge and the Court considered only 
properly admitted and relevant evidence in rendering its decision." United States v. McCarthy, 
470 F.2d 222, 224 (6th Cir. 1972); see also Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971) (noting 
that in nonjury cases there will typically be no reversal for the erroneous reception of evidence); 
Can-Am Engineering Co. v. Henderson Glass, Inc., 814 F.2d 253, 255 (6th Cir. 1987) (holding 
that it makes no difference whether evidence is admitted or not in a court trial where the record 
did not indicate that judge used the testimony in his decision). 

Of course, in weighing the hearsay evidence, "the Constitution would not be offended by 
a presumption in favor of the Government's evidence." Hamdi, 542 U.S. at 534. Indeed, in light 
of the unique context in which these habeas cases arise and the primary issue involved, i.e., 
whether the United States may legally detain combatants to prevent them from returning to the 
battlefield, such a presumption is both appropriate and necessary. The costs of an erroneous 
determination against the Government - which could ultimately result in the deaths of more 
American soldiers or civilians, either on the field of battle or from terrorist attacks - are grave. 
Thus, evidence submitted by the Government, including hearsay evidence, can and must be 

accorded appropriate weight. 

* * * 

As discussed, the proposed framework addresses the principles set forth by the Supreme 
Court in Hamdi and Boumediene. Those principles permit meaningful judicial review of 
wartime status determinations, while at the same time recognizing that "enemy combatant 
proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a 
time of ongoing military conflict." Hamdi, 542 U.S. at 533; see also Boumediene, 128 S. Ct. at 

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2276 ("In considering both the procedural and substantive standards used to impose detention to 
prevent acts of terrorism, proper deference must be accorded to the political branches."). 
Moreover, absent a clear and limited framework of this sort, the expedited resolution of hundreds 
of pending petitions will be impossible. Therefore, we respectfully request that the Court enter 
the Government's proposed case management order. 

Dated: July 25, 2008 Respectfully submitted, 

GREGORY G.KATSAS 
Assistant Attorney General 

JOHNC.O'QUINN 

Deputy Assistant Attorney General 

/s/ Alexander K. Haas 



JOSEPH H. HUNT (D.C. Bar No. 431134) 

VINCENT M. GARVEY (D.C. Bar No. 127191) 

JUDRY L. SUBAR (D.C. Bar No. 347518) 

TERRY M. HENRY 

AUGUST E. FLENTJE 

ALEXANDER K.HAAS 

PAUL AHERN 

Attorneys 

United States Department of Justice 

Civil Division, Federal Programs Branch 

20 Massachusetts Ave., N.W. 

Washington, DC 20530 

Tel: (202)514-1278 

Fax: (202) 514-7964 

Attorneys for Respondents 



41