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Case 1 :05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 1 of 24 


Approved for public filing by C SO 



Misc. No. 08-442 (TEH) 

Civil Action Nos. 

02-CV-0828, 04-CV-1136, 04-CV-1164 
04-CV-1254, 04-CV-1937, 04-CV-2022 
04-CV-2046, 04-CV-2215, 05-CV-0023 
05-CV-0270, 05-CV-0280, 05-CV-0329 
05-CV-0392, 05-CV-0492, 05-CV-0520 
05-CV-0569, 05-CV-0634, 05-CV-0748 
05-CV-0764, 05-CV-0833, 05-CV-0877 
05-CV-0883, 05-CV-0889, 05-CV-0892 
05-CV-0994, 05-CV-0995, 05-CV-0998 
05-CV-1048, 05-CV-1124, 05-CV-1189 
05-CV-1236, 05-CV-1244, 05-CV-1347 
05-CV-1429, 05-CV-1457, 05-CV-1458 
05-CV-1490, 05-CV-1497, 05-CV-1504 
05-CV-1506, 05-CV-1509, 05-CV-1555 
05-CV-1592, 05-CV-1601, 05-CV-1602 
05-CV-1623, 05-CV-1638, 05-CV-1639 
05-CV-1646, 05-CV-1649, 05-CV-1678 
05-CV-1725, 05-CV-1971, 05-CV-1983 
05-CV-2083, 05-CV-2088, 05-CV-2104 
05-CV-2185, 05-CV-2186, 05-CV-2199 
05-CV-2249, 05-CV-2349, 05-CV-2367 
05-CV-2378, 05-CV-2379, 05-CV-2380 
05-CV-2384, 05-CV-2385, 05-CV-2386 
05-CV-2398, 05-CV-2444, 05-CV-2477 
06-CV-0618, 06-CV-1668, 06-CV-1674 
06-CV-1688, 06-CV-1690, 06-CV-1691 
06-CV-1759, 06-CV-1761, 06-CV-1765 
06-CV-1767, 07-CV-1710, 07-CV-2337 
08-CV-0987, 08-CV-1085, 08-CV-llOl 
08-CV-1153, 08-CV-1185, 08-CV-1207 




Pursuant to the Court's Scheduling Order of July 11, 2008, Petitioners hereby 
respectfully submit this Reply Memorandum in response to the government's memorandum of 
July 25, 2008. 


Case1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 2 of 24 


The government's proposal for a framework to govern these cases ignores both the 
holding of Boumediene v. Bush, 128 S. Ct. 2229 (2008), and its persistent admonition that habeas 
remains a flexible, robust procedure designed to provide a meaningful inquiry into the lawfulness 
of detention by executive decree. Instead, the government proposes a cookie-cutter review 
process for these diverse cases that rests on two fundamental errors. First, contrary to the 
government's understanding, as a result oi Boumediene' s holding that the jurisdictional-stripping 
provision of § 7 of the Military Commissions Act of 2006 ("MCA") is unconstitutional, the 
framework for adjudicating these cases is governed by the prevailing habeas corpus statute, 28 
U.S.C. §§ 2241, et seq. Second, the government misreads the plurality opinion in Hamdi to 
propose a rigid and inflexible procedure that is at odds with this Court's obligation to seek the 
truth through a fair and neutral process. The habeas statute, Boumediene, and other controlling 
habeas precedents establish a flexible, adaptable remedy capable of balancing the competing 
interests of the parties while ensuring a neutral and robust truth- seeking process in the context of 
the facts of a particular case. Context-specific procedural questions are not amenable to blanket 
resolution, but must be addressed on a case- by-case basis. 

A. Petitioners' C ases Are G overned by tiie Habeas C orpus Statute 
Contrary to the holding of Boumediene, the government contends that Petitioners are only 
entitled to the minimum habeas procedures "constitutionally compelled" by the Suspension 
Clause. This contention is wrong. These cases have always been, and remain, statutory habeas 
cases brought under 28 U.S.C. § 2241(c)(1) and (3). Although Congress sought to bar statutory 
jurisdiction through § 7 of the MCA, Boumediene held that § 7 is unconstitutional, and therefore 
void. Petitioners' habeas petitions were properly filed under 28 U.S.C. § 2241. Now that the 

Case 1 :05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 3 of 24 

constitutionally-invalid provision has been stricken, Petitioners are entitied to proceed with their 
petitions under the habeas statute that has always been available to them, which necessarily 
includes those "modem" statutory habeas proceedings of 28 U.S.C. §§ 2243-48 described in 
Petitioners' opening brief. The logic of this conclusion can be elaborated as follows: 

Rasul held that this Court has jurisdiction in Petitioners' cases under the habeas corpus 
statute, 28 U.S.C. § 2241, et. seq. Congress attempted to amend the statute in § 7 of the MCA, 
which purported to strip the courts of jurisdiction over habeas petitions filed by foreign nationals 
detained as enemy combatants. Boumediene expressly held that § 7 of the MCA was 
unconstitutional. 128 S. Ct. at 2274. As a result of Boumediene, the jurisdictional repeal of 
MCA §7 is simply void, and the habeas corpus statute is as applicable as it was before. See 
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803) ("[A]n act of tiie legislatiire, repugnant 
to the constitution, is void"). 

The Court must therefore "disregard" the unconstitutional provision {see Plant v. 
Spendthrift Farm, Inc., 514 U.S. 211, 231 (1995)), and proceed under the pre-existing statutory 
authority. See United States v. Klein, 80 U.S. (13 Wall.) 128, 147-48 (1872) (disregarding an 
unconstitutional statute that divested the court of jurisdiction and reinstating a judgment obtained 
under prior statutory scheme); accord Armstrong v. United States, 80 U.S. (13 Wall.) 154 (1872) 
(same); Henry M. Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An 
Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1387 (1953) ("If the court finds that what is being 
done is invalid, its duty is simply to declare the jurisdictional limitation invalid also, and then 
proceed under the general grant of jurisdiction"). See also Boumediene v. Bush, 476 F.3d 981, 
1011 (D.C. Cir. 2007) (Rogers, J., dissenting) (stating that the habeas repeal was 
unconstitutional, and that the proper outcome was to hold that "on remand the district courts 

Case 1 :05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 4 of 24 

shall follow the return and traverse procedures of 28 U.S.C. § 2241, et seq."); Boumediene, 128 
S. Ct. at 2266 (stating that "[t]he differences between the DTA and the habeas statute that would 
govern in MCA § 7's absence, 28 U.S.C. § 2241, are likewise telling") (emphasis added). 

This Court's jurisdiction in habeas cases comes from § 2241, not from "constitutional 
habeas." As Chief Justice Marshall explained, "the power to award the writ [of habeas corpus] 
by any of the courts of the United States, must be given by written law." Ex parte BoUman, 8 
U.S. (4 Cranch) 75, 94 (1807). Disregarding the unconstitutional amendment by § 7 of the 
MCA, that "written law" is § 2241. 

The government's suggestion that "Boumediene 'did not hold' that constitutional habeas 
proceedings for wartime status determinations must duplicate statutory proceedings under § 2241 
and modem habeas practice," (Gov't Br. at 6 (quoting 128 S. Ct. at 2267, 2274)), both takes the 
Court's statement out of context and reveals the depth of the government's confusion. Nothing 
in Boumediene diminishes the obvious conclusion that the jurisdiction-stripping provision of 
MCA is void. The Court said only: "Although we do not hold that an adequate substitute must 
duplicate § 2241 in all respects, it suffices that the Government has not established that the 
detainees' access to the statutory review provisions [of the Detainee Treatment Act of 2005] at 
issue is an adequate substitute for the writ of habeas corpus. MCA § 7 thus effects an 
unconstitutional suspension of the writ". 128 S. Ct. at 2274. The Court was merely explaining 
that, even though the DTA is unconstitutional, the Court would not specifically catalogue the 
ways in which a statute would potentially constitute an adequate substitute for the writ. Indeed, 
the Boumediene Court evinced its understanding that § 2241 would govern as a result of its 
holding. See, e.g., 128 S. Ct. at 2276 (noting that, following remand, consolidation before a 

Case 1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 5 of 24 

district judge "is a legitimate objective that might be advanced even without an amendment to § 

2241"); id. at 2269-70 (considering Ha mdi's analysis of § 2241). 

Petitioners are therefore in precisely the same position they were in prior to enactment of 

§ 7 of the MCA, and are in the same position as any other federal habeas petitioner invoking 28 

U.S.C. § 2241. Petitioners may proceed, as some of the early petitioners had already been doing 

in this Court pursuant to Rasul, under the framework established by the habeas statute, to 

traverse the government's proffered return to the writ, to undertake discovery where needed, and 

to have disputed factual questions decided by an evidentiary hearing at which evidence will be 

taken as prescribed by statute and tiie Federal Rules of Evidence. See Pet. Br. at 5-7; 28 U.S.C. 

§§2243 and 2246. 

B. Hamdi Does Not C ompel or Support the Inflexible Procedural Framework 
Proposed by the Government 

In place of the governing habeas statute, the government seeks to impose a narrow and 
rigid framework that it argues is compelled by the plurality opinion in Hamdi v. Rumsfeld, 542 
U.S. 507 (2004). The government's proposed framework was not mandated by Hamdi, and 
would give the government advantages not authorized by statute or permitted by due process, 
including an undefined presumption in favor of the government's evidence, a presumption in 
favor of hearsay, and a prohibition against discovery. 

As an initial matter, Hamdi' s suggested procedures relied upon by the government are 
clear dicta. As dicta, it is in no way controlling, and is rendered all the less persuasive as a result 
of Justice Souter's concurrence, refusing to accept the plurality's suggestion that the government 
could be entitled to a presumption or that the burden of proof could fall on the petitioner. See 
542 U.S. at 553 (Souter, J., concurring) ("It should go without saying that in joining with the 
plurality to produce a judgment, I do not adopt the plurality's resolution of constitutional issues 

Case 1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 6 of 24 

that I would not reach. ... I do not mean to imply agreement that the Government could claim an 
evidentiary presumption casting the burden of rebuttal on Hamdi"). Nothing in Marks v. United 
States, 430 U.S. 188 (1977) lends any support to the government's position that dicta in the 
plurality opinion, much less injustice Thomas's dissent, is binding precedent when it is 
specifically disclaimed by the concurring justices. See King v. Palmer, 950 F.2d 771, 781 (D.C. 
Cir. 1991) (en banc) {"Marks is workable - one opinion can be meaningfully regarded as 
"narrower" than another - only when one opinion is a logical subset of other, broader opinions"). 
Indeed, the Supreme Court has already rejected the argument that the Hamdi plurality's 
suggested procedures are binding precedent. "Setting aside the fact that the relevant language in 
Hamdi did not gamer a majority of the Court, it does not control the matter at hand." 
Boumediene, 128 S. Ct. at 2269. 

In any event, even the Hamdi plurality opinion does not support the government's 
position. There is no rigid "Hamdi Framework" that can be applied across the board to all "war 
on terror" habeas cases. Rather, as stated in Judge Traxler's controlling opinion in the Fourth 
Circuit's recent en banc decision inAl-Marri v. Pucciarelli, Hamdi sets forth one particular fact- 
based application of a Mathews v. Eldridge due process balancing framework. See Al-Marri v. 
Pucciarelli, __F.3d__, 2008 WL 2736787, at*31 (4th Cir. July 15, 2008) (Traxler, J., 
concurring) (noting that the Hamdi plurality does not impose "a cookie-cutter procedure 
appropriate for every alleged enemy- combatant"). As Boumediene recognized, habeas is an 
"adaptable remedy. Its precise application and scope changed depending upon the 
circumstances." 128 S. Ct. at 2267. 

The balancing test of Mathews v. Eldridge, as adopted by the Supreme Court in 
Boumediene and its plurality opinion in Hamdi, requires consideration of "the risk of an 

Case1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 7 of 24 

erroneous deprivation of [a liberty interest] and the probable value, if any, of additional or 
substitute procedural safeguards." Boumediene, 128 S. Ct. at 2268 (quoting Ma thews v. 
Eldridge, 424 U.S. 319, 335 (1976)); see also Hamdi, 542 U.S. at 529. As set forth in 
Petitioners' opening brief, tiie Petitioners' liberty interests have grown as the years of indefinite 
detention have worn on, while the government's national security interests witii respect to these 
particular detainees have become weaker and more remote. 

It is the government's burden to show - not through generalized and unsupported 
assertions, but tiirough a specific showing targeted to a particular petitioner's case - that any 
deviation from the "normal way" is warranted. Al-Marri, 2008 WL 2736787 at *47 (Traxler, J., 
concurring). Thus, while the Hamdi plurality recognizes that it is appropriate to balance the 
competing interests of petitioners and the government in adjudicating "enemy combatant" cases, 
tiie particular result of the plurality's balancing cannot be directiy timisposed to these Petitioners. 

Altiiough the specific procedures warranted in any one case may differ depending on tiie 
circumstances, certain differences between these cases as a group and Hamdi can be identified 
tiiat suffice to reject the government's blanket approach. First, tiie risk of misclassifying Hamdi 
was much lower than in these cases: Hamdi was captured in a "foreign combat zone" with an 
assault rifle as part of a "Taliban unit," 542 U.S. 512-13, 523; see also id. at 549 (Souter, J., 
concurring) (Hamdi "was taken bearing arms on the Taliban side of a field of battie"). In 
contrast, few of these Petitioners were captured on any "battlefield" (an amorphous term for 
which the government has never proposed a definition). Indeed, according to the Defense 
Department's own data, only 5% of detainees held in Guantanamo are alleged to have been 
captured by American forces. See Mark Denbeaux et al, Seton Hall University School of Law, 
Report on Guantanamo Detainees: A Profile of 51 7 Detainees through Analysis of Department 

Case 1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 8 of 24 

of Defense Data 2-4 (2006), aaafinal.pdf. Or, as Brigadier General 
Martin Lucenti has explained, "Most of these guys weren't fighting, they were running." Mark 
Huband, US Officer Predicts Guantanamo Releases, Fin. Times, Oct. 5, 2004. 

Second, the definition of "enemy combatant" employed by the Court inHamdi was much 
narrower and therefore less subject to erroneous application than the definition that the 
government has since applied in Petitioners' Combatant Status Review Tribunals ("CSRTs"). In 
Hamdi, the Court limited the definition to a person who was "part of or supporting forces hostile 
to the United States or coalition partners in Afghanistan and who engaged in armed conflict 
against the United States there." See Hamdi, 542 U.S. at 516. Through the CSRT process, these 
Petitioners were improperly held subject to a wildly expansive definition of "enemy combatant" 
purportedly authorizing the detention of a person picked up anywhere in the worid, and for mere 
"support" of forces "hostile to the United States," even if that support is unintentional. See In re 
Guantanamo Bay Detainee Cases, 355 F. Supp. 2d 443, 475 (D.D.C. 2005) (noting that under 
the "enemy combatant" definition employed in Guantanamo, the government claims authority to 
detain "a little old lady from Switzeriand who writes checks to what she thinks" is an Afghan 
orphanage but is "really a front to finance al Qaeda"). If the government is correct that even 
unintentional conduct can justify indefinite detention under the laws and Constitution of the 
United States (a proposition that Petitioners firmly reject), then the "risk of error" in these cases 
is high, indeed. Boumediene, 128 S. Ct. at 2270; see also Pet. Br. at 12-14. Due process 
therefore requires more protective procedures than the Hamdi plurality suggested "may" be 
permitted in certain circumstances. 

Despite the government's attempt to resurrect its favorite controversy regarding 
application of the Fifth Amendment (Gov't Br. at 35), it should now be clear that detainees held 

Case 1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 9 of 24 

at Guantanamo have fundamental due process rights. Relying again uponjohnson v. 
Eisentrager, 339 U.S. 763 (1950), a case distinguished away once by Rasul and again by 
Boumediene, the government claims that "Boumediene did not upset the well-established holding 
tiiat 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." Gov't Br. at 9. 
Thus, the government implies, whatever restricted procedures were available for Hamdi, "must 
be good enough for an alien." Gov't Br. at 6. The government's premise is incorrect. 

As to at least some Petitioners, all doubt has been resolved as to the application of the 
Fifth Amendment in their cases. Judge Green ruled in the cases previously transferred to her for 
coordinated consideration that the Petitioners have rights under the Fifth Amendment. See In re 
Guantanamo Bay Detainee Cases, 355 F. Supp. 2d at 465. The government appealed that ruling, 
but the applicability of the Fifth Amendment was not addressed on appeal. It is therefore the law 
of the case in the cases in which it was entered. See Kimberlin v. Quinlan, 199 F.3d 496, 500 
(D.C. Cir. 1999) ("the same issue presented a second time in the same case in the same court 
should lead to the same result") (quoting LaShawnA. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 
1996) (en banc)). But even as to the cases that were not before Judge Green, the Supreme Court 
in Boumediene relied heavily on the line of cases, including the Insular Cases, that applied 
fundamental rights in territories controlled by the United States. See Boumediene, 128 U.S. at 
2254-57, and cases cited therein. See also id. at 2261 ("In every practical sense Guantanamo is 
not abroad; it is within the constant jurisdiction of the United States"). Detainees in Guantanamo 
are entitled to fundamental rights, and there is no right more fundamental than the right not to be 
deprived of liberty without due process of law. See Foucha v. Louisiana, 504 U.S. 71, 80 
(1992); In re Guantanamo Bay Detainee Cases, 355 F. Supp. 2d at 465. 

Case1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 10 of 24 


The government's specific proposals related to the procedural issues identified by tiie 
Court are all flawed by the fundamental conceptual errors discussed above. Once these 
conceptual errors are recognized, it is clear that the habeas statute governs in these cases, that the 
plurality opinion mHamdi is not controlling and, at any rate, does not set forth a "cookie-cutter 
approach," and that the government's proposals are not workable. Instead, Petitioners' 
proposals, set out in detail in tiieir opening brief, are the ones most faithful to the habeas statute 
and the Court's decision in Boumediene entitling Petitioners to a speedy and just resolution of 
tiieir habeas cases. 

A. Entitlement to an Evidentiary Hearing 

As fully described in Petitioner's opening brief, under the habeas statute and tiie 
governing case law, an evidentiary hearing is required where the petition, return, and the traverse 
raise disputed issues of material fact. See 28 U.S.C. § 2243; Pet. Br. at 7-9 (discussing cases).^ 
In addition, Boumediene clearly contemplated resolution of factual disputes by evidentiary 
hearing. The Court would not have ordered that district courts hear and consider new evidence 
presented by Petitioners, see, e.g., 128 S. Ct. at 2270, if the Court did not contemplate a factual 

^ Even assuming ariy idevance of historical practice to these statutory cases, the 

govemmenf s conclusion that evidentiary hearings and live testimoriy were uncommon at 
commonlawis incorrect See, e.g. Boumediene, 128 S. Ct. at 2268 (citing cases); Ex Parte 
BoUman, 8 U.S. 75, 125 (1807) (holding five days of factual hearings during which time the 
Court "fully examined and attentively considered" the relevant evidence and ordered the 
petitioner released); accord Ex parte Randolph, 20 F. Cas. 242 (C.C.D. Va. 1833); see also 
Delaware v. Clark, 2 Del. Cas. 578 (Del. Ch. 1820) (live testimony from third parties regarding 
enlistee's asserted incapacity); R. v. Turlington, 97 Eng. Rep. 741 (K.B. 1761) (discharging 
woman from custody after reviewing doctor's affidavit and conducting examination of 
petitioner's mental condition); R. v. Lee, 83 Eng. Rep. 482 (K.B. 1676) (considering petitioner's 
testimony based on "oath in Court" that "she went in danger of her life by [her husband]" and 
should be freed from his custody); Brief of Legal Historians asAmici Curiae in Support of 
Petitioners, Boumediene v. Bush, S. Ct. No. 06-1195; No. 06-1196. 


Case 1 :05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 1 1 of 24 

contest between the government's and a Petitioner's case resolved by a full judicial process, 
including the possible issuance of an order releasing Petitioners based on that judicial 
disposition. In arguing against the opportunity for any evidentiary hearing, the government 
makes no mention of this central component of the Boumediene ruling. 

Remarkably, the government takes the skewed position that evidentiary hearings should 
occur only when the "court determines that, absent an evidentiary hearing, the weight of the 
evidence supports the habeas petitioner." Gov't Br. at 32.^ Theprovenanceof this standard is 
unclear, other than that such a standard would be highly favorable to the government Cf. 
Warden v. Oregon, 412 U.S. 470, 475 (1972) (due process requires reciprocal procedural rights 
to avoid unfair advantage). In support of its proposal, the government cites to Schriro v. 
Landrigan, 127 S. Ct. 1933, 1940 (2007), which is a post-conviction habeas action subject to the 
procedural limitations imposed by the Antiterrorism and Effective Death Penalty Act 
("AEDPA") - a category of cases irrelevant to these proceedings. See Boumediene, 128 S. Ct. at 
2264 ("cases discussing implementation of that statute [AEDPA] give little instruction (save 
perhaps by contrast) for the instant cases, where no trial has been held"). At any rate, the 
suggestion is both slanted and circular: it appears to require the Petitioner to prove his case 
(establishing the "weight of the evidence" supports him) before he is entitled to prove his case 
(through an evidentiary hearing), without imposing any similar burden on the government. 

District courts are well equipped to use their discretion in each case to deny an 
evidentiary hearing if it deems the government's or a Petitioner's allegations to be "vague. 

^ The government also argues that Pditioners should be allowed to participate in the 

hearing only by video conferencing. Effectuation of the Pditioners' right under 28 U.S.C. § 
2243 to be present at the hearing unless the petition and return present only issues of law can be 
addressed according to the circumstances of particular cases. The issue is outside the scope of 
the briefing required by this Courf s Scheduling Order of July 1 1, 2008, and need not be 
addressed at this time. 


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conclusory or palpably incredible." Machibroda v. United States, 386 U.S. 487, 495 (1962). 
Indeed; there may well be cases in which the government's evidence is so weak and 
unsubstantiated that no hearing will be necessary. But an evidentiary hearing is required if, 
under the circumstances of a particular case, "the petition, the return, and the traverse raise 
substantial issues of fact." Walker v. Johnston, 312 U.S. 275, 286 (1941). "If a detainee can 
present reasonably available evidence demonstrating there is no basis for his continued 
detention, he must have the opportunity to present this evidence to a habeas corpus court." 
Boumediene, 128 S. Ct. at 2273. 

B. The Burden of Proof 

The government argues that the traditional rule in the post-conviction habeas context is 
that the Petitioner bears the burden of proving the detention unlawful (Gov't Br. at 14-15), but, 
as stated above, the post- conviction context is inapplicable, as it follows a proceeding in which 
tiie government has already borne its burden of proof beyond a reasonable doubt. Boumediene, 
128 S. Ct. at 2264. Recognizing that these cases implicate "special circumstances," however, the 
government proposes a burden-shifting scheme, including a "presumption in favor of the 
government's evidence," based on inapposite Hamdi plurality dicta (Gov't Br. at 40 (citing 
Hamdi, 542 U.S. at 533-34)).^ 

Consisbent with the practice of habeas courts in the executive (Mention context, as 
opposed to the post-conviction context, Boumediene specifically stated that the government 
would bear the burden of establishing the lawfulness of the detention, but left it open for the 

^ TTie government does not explain vvhat a "presim^on in favor of the govemme^ 

evidence" would mean in practice. Is it a presunqlion that the govemmenf s evidence is 
authentic? A presimption that its evidence is tme, including unsupported conclusions in 
intelligenceieportssuchasthoseigectedinPar/iQtv. Gates, __ F. 3d__, 2008 WL 2576977, at 
*12-13 (D.C. Cir.June20, 2008? Or does the government seek a presumption in favor of the 
inferences it chooses to draw from the evidence? 


Case 1 :05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 13 of 24 

district courts to decide the "extent of the showing required of tiie Government in these cases." 
128 S. Ct. at 2271 (emphasis added). As described in detail in Petitioner's opening brief, three 
factors support a heightened burden of proof on the government requiring it to demonstrate the 
factual sufficiency of its evidence by clear and convincing proof. First Petitioners are not 
collaterally attacking a prior judgment by a court of record, but are challenging, in the first 
instance, the executive's unilateral decision to detain. "In this context the need for habeas 
corpus is more urgent" Boumediene, 128 S. Ct at 2269; see also Pet Br. at 10-11 and n. 3. 
Second, the extent of the liberty deprivation at stake in these cases is severe - measured in terms 
of the length of the detention, its indeterminate nature, and its harshness. See Pet. Br. at 11-12. 
The Supreme Court has repeatedly held that for similarly- substantial liberty deprivations, the 
government has to meet its burden by clear and convincing evidence. Id. (collecting cases). 
Finally, as numerous government officials and others have concluded, the Guantanamo prison 
camp has housed, and continues to house, many innocent men. Id. at 13-14; see also 
Boumediene, 128 S. Ct at 2270 (detentions in Guantanamo via CSRT process present 
"considerable risk of error"). 

Nothing short of a heightened burden of proof in Petitioners' cases could meet the writ's 
function to guard against arbitrary deprivations of liberty. "Within the Constitution's separation- 
of- powers in our constitutional structure, few exercises of judicial power are as legitimate or as 
necessary as the responsibility to hear challenges to the authority of the Executive to imprison a 
person." Boumediene, 128 S. Ct at 2277. 


Case 1 :05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 14 of 24 

C . Discovery 

1. Discovery is Necessary to Effectuate the Purpose of Habeas C orpus 

Contrary to the government's assertion, habeas review is far more tiian a mere review for 
legal sufficiency in a proceeding where the petitioner cannot controvert the government's facts 
(Gov't Br. at 16-17). Habeas is, and always has been, a searching fact-finding endeavor.^ 
Accordingly, factual development, including discovery and the duty to disclose exculpatory 
evidence, is required Boumediene reaffirmed the role of discovery as necessary to "preserve the 
writ and its function." 128 S. Ct. at 2263. 

Under the habeas statute, the Court must "summarily hear and determine the facts" and 
provide the petitioner the opportunity, under oath, to "deny any of the facts set forth in the return 
or allege any other material facts." 28 U.S.C. § 2243. Section 2246 grants the Court the 
authority to consider evidence orally or by deposition, and allows a party to "propound written 
interrogatories" in response to the introduction of testimony by affidavit. See Harris v. Nelson, 
394 U.S. 286, 296 (1969). As discussed in the Petitioners' opening brief, the Court has the 
authority to expand discovery beyond what is provided by § 2246 in furtherance of its fact- 
finding function. See Pet. Br. at 18-22.^ 

* Historically, the Judiciary Act of 1789 gave courts authority "to grant writs of hateas 

corpus for the purpose of an inquiry into the cause of commitment." 1 Stat. 73 at 82. To 
accomplish this task, the courts have a "duty ... to cause the facts on which they found their 
sentence or decree, fully to appear upon the record." 1 Stat.at83. Thejudiciary Actof 1789 
further provided, "That the mode of proof by oral testimony and examination of witnesses in 
open court shall be the same in all the courts of the United States, as well in the trial of causes in 
equity and of admiralty and maritime jurisdiction, as of actions at common law." 1 Stat, at 88. 
See also Act of Aug. 29, 1842, ch. 257, 5 Stat. 539, 539 (judges "shall proceed to hear the said 
cause" to determine if it were "duly proved"); Actof Feb. 5, 1867, ch. 28, 14 Stat. 385, 386 
(judges "shall proceed in a summary way to determine the facts of the case, by hearing testimony 
and the arguments of the parties interested"). 

^ Ironically, if the government were correct and § 2241 did not provide the applicable 

rules, the default would be discovery directly under the civil rules: "These rules apply to 


Case1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 15 of 24 

Contrary to the government's position that the executive is entitled to discretion to 

control the information provided to a Petitioner, Harris v. Nelson reaffirms the Court's authority 

to require that tiie government produce evidence within its control that bears on the illegality of 

tiie detention: 

[W]here specific allegations before the court show reason to believe that 
tiie petitioner may, if the facts are fully developed, be able to demonstrate 
that he is confined illegally and is therefore entitled to relief, it is the duty 
of the court to provide tiie necessary facilities and procedures for an 
adequate inquiry. Obviously, in exercising this power, the court may 
utilize familiar procedures, as appropriate, whether tiiese are found in the 
civil or criminal rules or elsewhere in the 'usages and principles of law.' 

Harris, 394 U.S. at 300. The government cannot arrogate to itself authority that is exclusively 

witiiin the discretion of the Court. Id. at 300 n. 7 ("[D]istrict courts have the power to require 

discovery when essential to render a habeas corpus proceeding effective"). Accordingly, when 

tiie Court orders discovery, the executive must provide the requested evidence and may not 

disregard the order as a "matter of Executive discretion" (Gov't Br. at 18). 

Nor does Harris conclude that "Federal Rules of Civil Procedure on discovery do not 

apply to habeas proceedings," (Gov't Br. at 16). To the contrary, Harris provides for discovery 

mechanisms "in which a district court may, in an appropriate case, arrange for procedures which 

will allow development, for purposes of the hearing, of the facts relevant to disposition of a 

habeas petition." 394 U.S. at 298. Thus, while the liberal discovery process under the Rules of 

Civil Procedure may not be generally applicable in the habeas context, discovery is by no means 

prohibited, as the government suggests. Harris recognizes that the Court may use the Rules of 

proceedings for habeas corpus.. the extent that the practice in those proceedings: (A) is not 
specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing 
Section 2255 Cases; and (B) has previously conformed to the practice in civil actions." 
Fed.R.Civ.P. 81(a)(4); accord Woodford v. Garceau, 538 U.S. 202, 208 (2003) ("The Federal 
Rules of Civil Procedure apply in tiie context of habeas suits to the extent they are not 
inconsistent with the Habeas Corpus Rules"). 


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Civil Procedure "by analogy to existing rules or otherwise in conformity with judicial usage" to 
"fashion appropriate modes of procedure." Id. at 299. In fact "[w]here their duties require it 
tills is the inescapable obligation of the courts." Id. 

2. The G overnment Must Produce Exculpatory Evidence 

The government further asserts that the production of exculpatory evidence is a matter of 
grace, to be provided only if such evidence happens to cross the government attorneys' desks 
while they are preparing the return. In support of this extreme proposition, the government 
suggests that the constitutional obhgation of Brady v. Maryland, 373 U.S. 83 (1963), applies 
only to criminal trials. InBoumediene, however, the Court expressly concluded that in these 
proceedings the Court must have the opportunity "to consider relevant exculpatory evidence that 
was not introduced during the earlier proceeding." 128 S. Ct at 2270. 

The governments duty to locate and to disclose exculpatory evidence is grounded in due 
process. This constitutional imperative cannot be limited only to exculpatory evidence 
independently obtained and introduced by the Petitioners, but must include evidence in the 
governments possession. In the context of habeas corpus litigation involving a state conviction, 
the Supreme Court rejected the proposition that "the prosecution can lie and conceal and the 
prisoner still has the burden to ... discover the evidence," in "a system constitutionally bound to 
accord defendants due process." Banks v.Dretke, 540 U.S. 668, 696 (2004) (citing Bracy v. 
Gramley, 520 U.S. 899, 909 (1997) (quoting United States v. Chemical Foundation, Inc., 272 
U.S. 1, 14-15 (1926) (internal quotation marks omitted))). Concealing exculpatory evidence 
undermines the governments role as a seeker of truth. Banks, 540 U.S. at 696 (citing Strickler v. 
Greene, 527 U.S. 263, 281 (1999)). The government should not be rewarded for unwarranted 


Case1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 17 of 24 

concealment. Banks, 540 U.S. at 696 (citing Ky/es v. Whitley, 514 U.S. 419, 440 (1995) ("The 
prudence of the careful prosecutor should not ... be discouraged")). 

The government's proposal to provide only that exculpatory evidence its attorneys 
happen upon is fundamentally inconsistent with the government's responsibilities in an 
adversary proceeding in which such a serious liberty deprivation is at stake. See, e.g., Demjanjuk 
V. Petrovsky, 10 F.3d 338, 353 (6th Cir. 1993) (applying Brady to civil immigration cases where 
tiie government seeks denaturalization or extradition based on proof of alleged criminal activities 
of the party proceeded against). The Supreme Court made clear that willful blindness is not 
sufficient: "the individual prosecutor has a duty to learn of any favorable evidence known to 
others acting on the government's behalf in the case." Kyles, 514 U.S. at 437. "Because the 
prosecution is in a unique position to obtain information known to other agents of the 
government it may not be excused from disclosing what it does not know but could have 
learned." Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997) (en banc); see also United 
States V. Chapman, __ F.3d__, 2008 WL 1946744, at* 10 (9th Cir. May 6, 2008) (holding that 
reckless failure to disclose exculpatory information as required by the Constitution may 
constitute flagrant misconduct in violation of due process). 

An example of the potential importance of discovery of exculpatory information in these 
cases occurred several years ago, after the previously classified (now unclassified) interrogation 
logs of Guantanamo detainee Mohamed al Qahtani were leaked to Time Magazine. The 
disturbing logs reveal seven weeks' worth of humiliating treatment, sleep deprivation, and a 
variety of "enhanced interrogation techniques" during late 2002 and early 2003.^ Qahtani 
subsequently incriminated a rannber of prisoners at Guantanamo, and his statements constitute a 

^ See Interrogation Log: Ddainee 063, available at 



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significant portion of the government's factual returns for many of the habeas petitioners. By the 
Pentagon's own assertion, Qahtani has "[p]rovided detailed information about 30 of Osama Bin 
Laden's bodyguards who are also held at Guantanamo."^ 

The factual i^ums for the habeas pditioners, however, did not include a single reference 
to the Qahtani interrogation logs, ortothefactthathehadnaniedsorrianyof thernduiinghis 
coerdve intenogations. The factual r^ums litewise made no reference to another document, 
procured by the ACLU pursuant to the Freedom of Information Act, in v\Mch an FBI deputy 
director conqiained to the Pentagon that Qahtani had been held in isolation for months, and that, 
by November 2002, he was "evidencing behavior consistent with extreme psychological trauma 
(talking to non-existent people, crouching in a comer of the cell covered with a shed; for hours 
on end) ."^ The letter and the intenogation logs, of course, undermine the reliability of ariy 
statements made ty Qahtani. Counsel for petitioners, however, aro privy to this information only 
ly the fortdty of a classified docmnent v\Mch was leaked to the press ard ly the rrdlitary' s 
response to a FOIA request made by a non-party. Without the opportunity to tate discovery, 
similar revelatory documents and information would never come to light 

This is ty no means aurdque exarrqie. In the case of ddainee Famq Ali Ahmed, No. 04r 
cv- 1254 (HHK), for exarrple, in a rare statement in Petitioner Ahmed' s unclassified return, his 
persoral representative indicates that a ddainee v\to had rnade iroirnireting sta^ 
Petitioner Ahmed was "unreliable" and "has lied about other detainees to receive preferable 
treatment" See Brief for Former Federal Judges as Amici Curiae Supporting Petitioners, 

' U.S. Dept of Defense News Release, Guantanamo Provides Valuable Intelligence 

Information, June 12, 2005, available at 


^ Letter from T.J. Harrington, Deputy Director of FBI Counterterrorism Division, to Major 

General Donald J. Ryder, Department of the Army, July 14, 2004. 


Case1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 19 of 24 

Boumediene v. Bush, 128 S. Ct. 2229 (2008) (Nos. 06-1195, 06-1196), 2007 WL 2441585, at 
*25; Corine Hegland, Guantdnamo's Grip, Nat'l Journal Feb. 3, 2006.^ Because the personal 
representative does not identify v\to the ddainee is or v\tot he has lied about before, Pditioner 
Ahmed would not be able to challenge the relevance and credihnlity of this evidence v\Mch 
conpises the bulk of the allegations against him without first receiving appropriate discovery. 

D. Hearsay 

The government objects that an evidentiary hearing with live witnesses would conflict 
with this Court's obligation to adjudicate these cases expeditiously and, therefore, argues for 
unrestricted admission of hearsay. See Gov't Br at 32. Of course, the fastest way to decide the 
cases would be to flip a coin. The government's proposal to decide the cases based on hearsay 
alone amounts to little more than that, because it leaves the Court with little means of weighing 
one piece of evidence against another But the clear import of Boumediene is not just that the 
Court will adjudicate the cases promptly, but that it will seek the truth. See 128 U.S. at 2269 
("The habeas court must have sufficient authority to conduct a meaningful review of both the 
cause for detention and the Executive's power to detain"). The government's proposal to decide 
virtually all cases based on hearsay alone is not what the Supreme Court expected for this 
Court's fulfillment of its truth-seeking role.'" 

^ Ahmed' s personal representative, a liaitenant colonel in the Army, wrote in a partially 

redacted statement, "I do fed with some certainty that ISN [redacted] has lied about other 
detainees to receive preferable treatment and to cause them problems vMle in custody. Had the 
Tribunal taten this evidence out as unreliable, then the position we have taten is that a teacher of 
the Koran (to the Taliban's children) is an enerr^^ combatant (partially because he slept under a 
Taliban roof)." 

'° As noted earlier, some, if not many, of these cases may be decided without the need for 
discovery or hearings because, as inParhat, 2008 WL 2576977, the evidentiary support for 
detention will be deficient on its face. 


Case1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 20 of 24 

The government argues repeatedly that this Court should implement a "prudent and 
incremental" approach to admission of evidence (see Gov't Br. at 1, 2, 3, 25, 29, 30, 31, and 32), 
but the approach it suggests involves nothing short of casting out the mlebook and centuries of 
judicial experience. It would be neither prudent nor incremental to accept hearsay evidence in 
violation of the Rules of Evidence without at least considering whether a particular declarant is 
available to testify in person, and without demanding sufficient information to assess the 
reliability of tiie hearsay, including the circumstances in which it was obtained. As Judge 
Traxler explained in Al-Marri, a prudent and incremental approach would entitle a Petitioner "to 
tiie normal due process protections available to all within this country, including an opportunity 
to confront and question witnesses against him," and alternatives will be considered only on the 
basis of a government showing of a particular necessity. Al-Marri, 2008 WL 2736787 at *49 
(Traxler, J., concurring). The Court "is not handcuffed by an inflexible procedure that would 
demand acceptance of a hearsay declaration from the government simply because the 
government has labeled [the petitioner] an enemy combatant." Id. at *48. 

As set forth in Petitioners' opening brief, the analysis of the admissibility of hearsay must 
begin with the Federal Rules of Evidence, which are applicable by their terms to habeas corpus 
cases. Fed R. Evid. 1101(e). The government barely mentions those Rules, and fails to 
acknowledge their applicability in habeas cases at all. The government also does not discuss the 
application of the procedures under 28 U.S.C . § 2246, under which the Court has discretion to 
admit affidavits in habeas corpus cases, but only if the opposing party is given the opportunity to 
serve interrogatories or obtain an answering affidavit. 

Instead, the government rests virtually its entire argument on a single ambiguous line of 
dicta in the Hamdi plurality opinion stating merely that hearsay "may need to be accepted as tiie 


Case1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 21 of 24 

most reliable available evidence ... ." See Gov't Br. at 36 (quoting Hamdi, 542 U.S. at 533-34). 
From this seemingly innocuous acknowledgment that there are cases in which hearsay can be 
admitted if it is shown to be necessary and to have a high degree of reliability {see, e.g., Fed. R. 
Evid. 807), the government seeks to establish the proposition that all hearsay must be admitted, 
regardless of its reliability. See Gov't Br. at 39 ("Exclusion of hearsay ... would serve no useful 

The government correctly notes that the Hamdi plurality's statement "does not set forth a 
standard of admissibility .... " See id. at 36. There was no need for Hamdi to set forth a 
standard of admissibility. That has already been done in the Federal Rules of Evidence and 28 
U.S.C. § 2246. Hearsay is admissible in certain contexts, such as under Fed. R. Evid. 807, which 
permits use of hearsay with circumstantial guarantees of trustworthiness if the requisite elements 
are present. And affidavits may be accepted in habeas cases in the Court's discretion, so long as 
the procedures in § 2246 are applied. But the Court should not accept unrehable hearsay, such as 
statements obtained through use of torture or other coercive techniques, and the Court should not 
accept hearsay when sufficient information is not provided to evaluate the reliability of the 
statements and the contexts in which they were obtained. See, e.g., Parhat v. Gates, 2008 WL 
2576977, at*12-13 (rejecting use of hearsay lacking indicia of reliability). The Court would 
abandon its duty to exercise its discretion if it were to allow all hearsay without requiring at least 
a particularized showing that the declarant is not available to testify and the hearsay statement 
has circumstantial guarantees of trustworthiness. 

E . C onfrontation of W itnesses 

The most effective method of testing the reliability of evidence is cross-examination. As 
stated above. Petitioners acknowledge that hearsay may be admissible in certain narrow contexts 


Case1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 22 of 24 

if sufficient circumstantial guarantees of trustworthiness are shown to exist. But the baseline 
assumption, applying a prudent and incremental approach, should be that evidence will be given 
by witnesses subject to cross-examination. See Al-Marri, 2008 WL 2736787 at *49 (Traxler, J., 
concurring). A party seeking to admit hearsay should face a heavy burden to show that it is both 
necessary and reliable. Contrary to the government's assertion, the right to confrontation is not 
limited to the criminal context. See Pet. Br. at 33-34 (citing cases). 

The government disingenuously raises the specter that a rule allowing confrontation of 
witnesses would allow Petitioners to "haul United States servicemembers away from the 
battlefield." See Gov't Br. at 33. The government's statement is completely divorced from any 
actual evidence or event and it shows exactly why context matters. The Court should not 
entertain the government's abstract scenario. The sky will not fall if the Court does what courts 
do every day, which is to decide matters on the law and the facts, not on speculation or innuendo, 
and to determine along the way whether and which live witnesses will be necessary, and whether 
they are available, in a specific factual context. As the government well knows, few Petitioners 
were captured on any battlefield or amidst the "rubble of war." See supra part LB . Indeed, 
because only an even smaller fraction of the Petitioners were captured by U.S. forces, it is 
unlikely that U.S. troops will be burdened in any significant way. See id. Moreover, most 
Petitioners were taken into custody years ago. It is unlikely that any witnesses with relevant 
information will be on a battlefield almost seven years later. 

In those cases in which hearings are necessary to resolve factual disputes, compelling the 
attendance of witnesses and confrontation through cross-examination will be necessary in most 
cases to reduce the "considerable risk of error" that accompanies summary procedures without 
proper mechanisms to test critical evidence. See Boumediene, 128 S. Ct. at 2270. The 


Case1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 23 of 24 

government concedes the necessity of evaluating the weight that its hearsay evidence should be 
given. See Gov't Br. at 39. But it suggests no mechanism for making such an evaluation 
without the context in which the statements were made - such as inquiry into the declarant's 
personal knowledge, recollection, opportunity to observe, or motive to lie, including for the 
purpose of avoiding torture or threats or to curry favor with military authorities. Cross- 
examination is the means by which evidence is ordinarily evaluated, and one cannot cross- 
examine an anonymous intelligence report. See, e.g., Parhat, 2008 WL 2576977, at* 12- 13 
(rejecting use of anonymous intelligence reports). 

The government notes that "the costs of an erroneous determination against the 
Government ... are grave." Gov't Br. at 40. Clearly, the costs of an erroneous determination 
against a detainee are at least as grave - the Petitioners' prolonged confinement is real, and 
denial of the habeas petition could mean confinement for the indefinite future. But even taking 
tiie government's concerns at face value, the weighty issues before this Court do not justify a 
process based upon unreliable evidence. The Court's role is to ensure a fair process to seek the 
truth, not to guarantee a result in favor of one party or the other. Indeed, the gravity of the 
matters before the Court is all the more reason to insist scrupulously that the cases be decided 
only on reliable, testable evidence. The scope of the constitutional due process right to confront 
witnesses depends on the facts of individual cases. See Gagnon v. Scarpelli, 411 U.S. 778, 786 
(1973); Morrissey v. Brewer, 408 U.S. 471, 478 (1972). A "prudent and incremental" approach 
cannot permit abandonment of this principle. 


For the reasons stated, this Court should resist the temptation to establish a rigid, 
inflexible procedure unconnected to the facts and circumstances of individual cases. The Court 


Case1:05-cv-01458-UNA-AK Document 54 Filed 08/01/2008 Page 24 of 24 

should also reject the government's insistence on one-sided rules that strip the Court of its fact- 
finding tools such as evidentiary hearings, discovery, and cross-examination. Petitioners request 
tills Court to adopt the framework set forth in Petitioners' opening brief, order the government to 
produce exculpatory evidence, and leave other procedural issues to be decided by individual 
judges based on the facts of their particular cases. 

August 1, 2008 Respectfully submitted, 

/s/ mjm 

DavidJ.Cynamon (D.C.Bar No. 182477) 
Matthew J. MacLean (D.C. Bar No. 479257) 
2300 N Street, N.W. 
Washington, DC 20037 
Tel: (202) 663-8000 
Fax: (202) 663-8007 

ShayanaD. Kadidal (D.C. Bar No. 454248) 

J. Wells Dixon 

Emi MacLean 


666 Broadway, 7th Floor 

New York, NY 10012 

Tel: (212) 614-6438 

Fax: (212) 614-6499 



Center for Social Justice 

One Newark Center 

Newark, NJ 07102 

Tel: (973) 642-8700 

On behalf of Petitioners