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Case 1 :05-cv-01458-UNA-AK Document 55 Filed 08/01/2008 Page 1 of 30 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



IN RE: 

GUANTANAMO BAY 
DETAINEE LITIGATION 



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



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Case1:05-cv-01458-UNA-AK Document 55 Filed 08/01/2008 Page 2 of 30 

GOVERNMENT'S RESPONSE TO PETITIONER'S FILING 
ON FRAMEWORK PROCEDURAL ISSUES 

INTRODUCTION 

Petitioners largely reject the carefully delineated proceedings of the controlling plurality 
in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Instead, petitioners envision an expansive guasi- 
criminal proceeding to challenge their detention with wide-ranging discovery and a panoply of 
procedural rights nowhere contemplated by the Supreme Court. Indeed, the Supreme Court, 
both in Hamdi, and Boumediene v. Bush, 128 S. Ct. 2229 (2008), called for a much more modest 
role for the courts in evaluating wartime detention decisions than that proposed by the 
petitioners. Many of petitioners' proposals ignore or directly contradict the framework for these 
cases set forward in Hamdi, and their proposal for factfinding is anything but "prudent and 
incremental." Hamdi, 542 U.S. at 539. Instead, petitioners' proposals closely resemble the 
expansive criminal- type procedures that the Hamdi district court had ordered but that the 
Supreme Court reversed as overbroad. The procedures they propose trivialize both the unigue 
circumstance these habeas cases present - where judges will be evaluating the intelligence and 
information that leads to military actions taken overseas during an active military conflict - and 
the weighty national security interests that the Supreme Court has repeatedly recognized must be 
part of the balance. 

This context demands a more modest role for this Court— one where, to be sure, each 
petitioner and the Court is provided notice of the Government's basis for detention through the 
filing of a factual return, but one where: (i) the Court must giver proper weight to the 
Government's military determination to detain an individual as an enemy combatant by, among 
other things, presuming the correctness of the information relied upon by the Government in 
making that military decision, even though it will often be hearsay evidence; (ii) the petitioner is 



Case 1 :05-cv-01458-UNA-AK Document 55 Filed 08/01/2008 Page 3 of 30 

entitled to rebut that showing with his own factual submission, but not to seek discovery from 

the Government or otherwise; and (iii) the Court must then dismiss the petition unless 

petitioner's showing is more persuasive than the Government's. Only if a petitioner makes such 

a more persuasive showing should this Court consider further evidentiary and factfinding 

proceedings. 

Petitioners rely heavily on the habeas statute, but nowhere address the fact that Hamdi 

reguired implementation of much narrower procedures when that same habeas statute clearly 

was applicable. Now it is not. Petitioners fail to come to terms with the fact that Congress 

repealed that statute and, accordingly, "now there must be constitutionally based jurisdiction or 

none at all." Boumediene, 128 S. Ct. at 2278 (Souter, J., concurring). As we have demonstrated, 

the constitutional reguirements for habeas are the applicable rules going forward. In any event, 

petitioners interpret the statute far more expansively than is warranted and indeed envision a 

process exceeding even the process afforded in the habeas statute and rules. The habeas statute 

provides for very limited discovery, at most, and summary resolution of the facts— not a norm of 

free-wheeling discovery and trial-type hearings. The habeas statute certainly does not mandate 

what petitioners demand, but at most allows courts some flexibility in the procedures employed. 

It would be improper to use this flexibility as a means of reguiring criminal trial-like procedures 

in light of both Hamdi and Congress's judgment (reflected in the DTA and the MCA) that there 

should be no habeas procedures available at all in this context. Prudent implementation of the 

habeas statute in this context should be informed by Congress's clear intent for these cases, and 

thus used to reguire only the constitutional minimum, and nothing more. Nor is such prudent 

implementation foreclosed by Boumediene, which stressed that "[t]he extent of the showing 

reguired of the Government in these cases remains to be determined." 128 S. Ct. at 2271. 

Petitioners effectively demand that the Government meet an evidentiary standard that is 

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inconsistent not only with Hamdi, but also the reality that a much less onerous showing is 
sufficient to justify even the lethal use of military force abroad. Moreover, the criminal-like 
procedures that petitioners propose would, as a matter of course, require military and intelligence 
officers to appear in person in testimonial hearings. 

Aside from being a fatally flawed as a legal matter, petitioners' proposed framework will 
do nothing to provide a workable construct for this Court to proceed on over 200 habeas 
petitions. Petitioners give short shrift to the fact that the situations involved in these habeas 
cases are all quite similar - each involves an enemy alien who has been captured outside the 
United States as part of military operations in a war with al Qaeda, the Taliban, and associated 
forces; each has been determined by the Executive to be an enemy combatant in that war; and 
each is detained abroad. These circumstances warrant even greater deference than Hamdi, which 
involved a citizen detained within the United States and entitled (unlike petitioner here) to all of 
the rights afforded by the United States Constitution and by the modern habeas statute and rules. 
Thus, Hamdi provides the outer bounds for the process appropriate here. 

The Court also should reject petitioners' proposal to leave many of these issues to the 
discretion of each individual judge in each individual case. The lack of uniform baseline 
procedures necessarily means that decisions on foundational issues such as factfinding and 
confrontation will lead to variant results that will force both sides to seek further review. Indeed, 
fifteen different approaches to the procedural framework for handling these cases would likely 
lead to fourteen different sets of reversals. Petitioners' proposal will therefore not lead to either 
the expeditious or just resolution of these habeas actions; it will lead only to further delay. 
Procedurally, the way forward is clear, it was set out in Hamdi and that path calls for a burden- 
shifting approach and a prudent and incremental response in each of the areas identified by the 

Court for common resolution. The Government's proposed framework does just that and gives 

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petitioners their day in Court, without delay. 

I. PETITIONERS' PROPOSAL REJECTS THE HAMDI FRAMEWORK AND 

CALLS FOR THE QUASI-CRIMINAL PROCESS THAT THE SUPREME 
COURT REJECTED. 

We have explained why this Court should enter an order implementing the Hamdi 
framework. Govt. Br. at 4-14. That framework gives the Court what it must have under 
Boumediene: "the means to correct errors/' including "some authority to assess the sufficiency of 
the Government's evidence against the detainee"; "the authority to admit and consider relevant 
exculpatory evidence" that each petitioner may wish to introduce; and "the means [for 
petitioners] to supplement the record on review." 128 S. Ct. at 2270. At the same time as it was 
outlining these habeas essentials, Boumediene expressly rejected criminal-type proceedings, 
explaining that "[h]abeas corpus proceedings need not resemble a criminal trial, even when the 
detention is by executive order." Id. at 2269. The Hamdi Court likewise expressly rejected the 
imposition of a "process [that] would approach the process that accompanies a criminal trial" 
including "guite extensive discovery of various military affairs." Hamdi, 542 U.S. at 528. 

Despite these plain holdings, petitioners would discard the Hamdi framework in favor of 

highly intrusive, guasi- criminal process to challenge their detention. Such a course would be 

unprecedented and unworkable. Petitioners propose that they are entitled to trial-type hearings 

to resolve any disputed issues of material fact, see Pets' Br. at 7-9, as if this were a criminal trial 

or a run-of-the-mill civil case. But this is not such a proceeding - instead, it is much different 

and the Court must "presum[e]" the Government's "credible evidence" to be correct unless the 

petitioner puts forward his own "more persuasive evidence." Hamdi, 542 U.S. at 534. This 

"prudent and incremental" approach is not governed by the Federal Rules of Civil or Criminal 

Procedure or the Federal Rules of Evidence, but is properly governed by the controlling Supreme 

Court opinion iaHamdi. Id. Moreover, petitioners envision a fulsome discovery process "more 

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permissive" than that provided in modern statutory habeas cases, Pets' Br. at 21, and even 

broader than the discovery that accompanies criminal proceedings. See id. at 24 (seeking entry of 

an order reguiring a search of "all . . . evidence ... in [the Government's] possession" for 

exculpatory material); id. at 20 (observing that some litigants may seek "all 'Government 

Information'" relating to a petitioner); id. at 33 (seeking to "take * * * depositions"). Petitioners 

seek imposition of a duty on the Government even broader than that in criminal cases: to 

provide any and all exculpatory evidence - regardless of its materiality or who knows about it - 

and to, remarkably, place upon the United States military and intelligence community, an 

affirmative "duty to learn of any favorable evidence known to the others acting on the 

government's behalf." Id. at 22. Hamdi expressly rejected this sort of broad, criminal discovery. 

542 U.S. at 528. Petitioners also argue that while some hearsay may be permitted, the Court 

should employ a searching standard in evaluating whether it is permissible. Pets' Br. at 31. 

Again, this is contrary to Hamdi, which directed the lower courts to consider hearsay material as 

the best available evidence, and it gives no regard to the practical limitations imposed by the 

"rubble of war." 542 U.S. at 532-34. Finally, petitioners appear to suggest that live witness 

testimony through compulsory judicial process will be the norm and that the right to cross 

examine Government witnesses - including intelligence and military personnel - be afforded as 

a matter of course. See Pets' Br. at 33-35. In sum, petitioners propose that this Court adopt a 

guasi- criminal scheme far greater than even the procedures afforded in the statutory habeas 

provisions that Congress repealed as to these petitioners. The Court should not accept this 

invitation for at least three reasons. 

First, as just pointed out, an expansive guasi- criminal procedural framework was 

expressly rejected by the Hamdi Court. The district court in that case had refused to rely on 

hearsay and "ordered the Government to turn over numerous materials for in camera review, 

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including copies of all of Hamdi's statements and the notes taken from interviews with him that 

related to his reasons for going to Afghanistan and his activities therein; a list of all interrogators 

who had guestioned Hamdi and their names and addresses; statements by members of the 

Northern Alliance regarding Hamdi's surrender and capture; a list of the dates and locations of 

his capture and subseguent detentions; and the names and titles of the United States Government 

officials who made the determinations that Hamdi was an enemy combatant and that he should 

be moved to anaval brig." SeeHamdi, 542 U.S. at 513-14. This actual order in Hamdi is 

narrower than the limitless discovery sought by petitioners here. But the Supreme Court 

reversed this order and others, describing the process contemplated by the district court as 

something that "would approach the process that accompanies a criminal trial" and as 

"anticipat[ing] guite extensive discovery of various military affairs." See Hamdi, 542 U.S. at 

528. Thus, the Supreme Court clearly and sguarely rejected this approach even for citizen 

detainees, holding that "the process apparently envisioned by the District Court below" does not 

"strike[] the proper constitutional balance when a United States citizen is detained in the United 

States as an enemy combatant." Id. at 532. Petitioners' proposals for evidentiary hearings, 

sweeping discovery into military and intelligence matters, and the like, demand an even a more 

burdensome process than that rejected in Hamdi as overbroad even for an American citizen 

detainee. 

Second, petitioners' framework seeks to remove from these proceedings any degree of 

deference to the Executive Branch in carrying out wartime operations. While agreeing that these 

petitioners are entitled to invoke constitutional habeas corpus, the Supreme Court also 

recognized that in "considering ... the procedural . . . standards used to impose detention to 

prevent acts of terrorism, proper deference must be accorded to the political branches." 

Boumediene, 128 S. Ct. at 2276 (emphasis added). Petitioners' proposed framework, however, 

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accords no deference to the political branches. Indeed, petitioners' proposed procedural 
framework suggests that "the government bear the burden of demonstrating the lawfulness of the 
detention by clear and convincing evidence/' see id. at 10, and its decision to detain and 
evidence is entitled to no presumption of validity. Id. at 14-18. This proposal is contrary not 
only to Boumediene's holding that deference is reguired, but also to Hamdi, which called for an 
evidentiary showing not by clear and convincing evidence, but by "credible evidence," and 
which expressly endorsed a presumption in favor of the Government's evidence in these 
circumstances. Hamdi, 542 U.S. at 534. 

Third, petitioners' course is wholly unprecedented and will prove unworkable given the 
large number of habeas petitions at hand. Indeed, petitioners envision limited coordination and 
expect individual judges to decide issues of discovery in an ad hoc manner that will necessarily 
lead to inconsistent rulings on basic procedural points that all parties should have a strong 
interest in resolving consistently. Such a course can only further delay these cases rather than 
resolve them. The "prudent and incremental" approach is to reguire an orderly, manageable 
process whereby the Government first submits a factual return containing credible evidence that 
is presumed valid; the petitioner submits a traverse that must contain more persuasive evidence; 
and that any additional process, taken in incremental steps, is appropriate only if the weight of 
the evidence supports the petitioner. To be sure, petitioners will, as the Supreme Court 
emphasized in Boumediene, be able to participate in an adversarial process, have notice of the 
basis of their detention, and challenge that detention through supplementation of the record with 
their information. But the Court may properly limit its review as established by Hamdi. The 
Court should thus enter a case management order implementing the Hamdi framework, as 
proposed by the Government. 

II. PETITIONERS' SPECIFIC PROPOSALS ARE INCONSISTENT WITH THE 

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Case 1:05-cv-01458-UNA-AK Document 55 Filed 08/01/2008 Page 9 of 30 

HAMDI FRAMEWORK. 

A . The Hamdi Burden-Shifting Approach Is Appropriate In These C ases and Should 
Be Implemented. 

As we explained in our opening brief, this Court should enter an order that implements 

the Hamdi burden- shifting approach in assessing the facts that support the Executive Branch's 

decision to detain a petitioner as an enemy combatant. Govt. Br. at 14-15. Under that approach, 

the Government would first "put[] forth credible evidence that the habeas petitioner meets the 

enemy-combatant criteria." Hamdi, 542 U.S. at 534. The petitioner must then rebut that 

evidence "with more persuasive evidence." Id. Only if that more persuasive showing is made 

will the Court then engage in additional factfinding. 

1. The C lear and C onvincing Evidence Standard Proposed by Petitioners Is 
Incorrect and Inconsistent with the Hamdi Burden-Shifting Approach. 

Petitioners argue that military detention is appropriate only if the Government has "clear 

and convincing" evidence that the detainee is an enemy combatant. Application of that standard 

is wrong on multiple levels. First it is inconsistent with the standard set out by the controlling 

plurality in Hamdi, and, remarkably, petitioner nowhere cites that opinion in its discussion of the 

Government's burden. Second, it is grossly at odds with a habeas court's traditional role in 

reviewing the factual basis for Executive detention decisions. Indeed, petitioners urge that this 

Court apply substantive standards used in other detention contexts, but ignore this context, 

namely, how much evidence justifies a soldier's military decision to apprehend an apparent 

enemy in the field rather than allow him to potentially return to battle. The answer to that 

guestion is far different from the guestion presented in any of the domestic proceedings cited by 

the petitioners, such as civil commitment or pre-trial detention, where the stakes and setting are 

far different. 

The Supreme Court in Hamdi set forth the standard that the Government must meet to 

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satisfy a habeas Court's inquiry into the factual basis for detention - if the Government "put[s] 
forth credible evidence that the habeas petitioner meets the enemy-combatant criteria/' it has met 
its factual burden. Hamdi, 542 U.S. at 534 (emphasis added). This standard is a far cry from the 
"clear and convincing evidence" standard proposed by petitioners. Because petitioner's 
proposed evidentiary standard is flatly inconsistent with Hamdi, it must be rejected. 

Petitioners argue that a clear and convincing standard is appropriate because in cases of 
executive detention - without prior criminal judgment by a court - the "'protections [of the writ] 
have been the strongest.'" Pets' Br. at 10 (quoting St. Cyr, 533 U.S. at 301). But petitioners 
ignore the context of that statement in St. Cyr - it was made to show that in cases of executive 
detention, a habeas court would review "pure questions of law/' St. Cyr, 533 U.S. at 305; indeed, 
St. Cyr quite plainly stated that even in the context of executive detention, habeas "courts 
generally did not review factual determinations made by the Executive" other than to determine 
whether the decision was supported by "some evidence." Id. at 306. Thus, the protections of 
the writ in the context of executive detention lend no support to petitioners' claim that this Court 
should review the determination under a clear and convincing evidence standard. 

Petitioners next argue that a "clear and convincing" evidentiary standard is appropriate 
because this is the standard employed in domestic civil commitment cases. Pets' Br. at 11-12. 
Petitioners are only partially correct in their assessment of domestic law; 1 btrtirDieiirpjitantiy 



x The immigration cases cited by petitioners imposed a clear and convincing standard not 
based on any constitutional requirement, but because "Congress has not addressed itself to the 
question of what degree of proof is required." Woodby v. INS, 385 U.S. 276, 284 (1966); 
Schneiderman v. United States, 320 U.S. 118, 132 (1943) ("naturalization is a privilege, to be 
given or withheld on such conditions as Congress sees fit"). Schneiderman also dealt with the 
unique circumstance of revoking citizenship, a circumstance that does not provide a ready 
analogy for the wartime detention at issue here, as it involved an attempt to reverse a prior 
judicial decree where "rights once conferred should not be lightly revoked," and it implemented 
a preference (entirely inapposite here) that "the facts and the law should be construed as far as is 
reasonably possible in favor of the citizen." Id. at 122, 125. 

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it is entirely inappropriate to incorporate that law in this context. Cases involving pre-trial 
detention or civil commitment strike at the heart of liberty in this nation in peacetime, where 
"liberty is the norm, and detention . . . without trial is the carefully limited exception." United 
States v. Salerno, 481 U.S. 739, 755 (1987). In those cases, "the Court deemed it inappropriate 
to ask the individual 'to share equally with society the risk of error.'" Jones v. United States, 
463 U.S. 354, 367 (quoting Adding ton v. Texas, 442 U.S. 418, 427 (1979)). This is an entirely 
different context. It involves fundamental questions pertaining to the security of the nation itself, 
questions heightened by technological advances that give terrorist organizations the ability to 
inflict devastation on a massive scale, a power heretofore limited only to nation-state actors and 
vividly illustrated by the attacks of September 11th, 2001. Here the risk of error tips decisively 
in favor of society's interests in self-preservation. And indeed, the Executive's actions in 
response to these threats have been taken with the full authority of Congress, not to prevent 
criminality or deviant dangerous behavior that threatens individuals, but for the preservation of 
the nation and its citizenry writ large in a time of war. Unsurprisingly, petitioners' own cases 
specifically distinguish detention that arises as part of "the exigencies of war." Salerno, 481 
U.S. at 748. 

The concerns that led to the "clear and convincing" standard in the domestic law- 
enforcement and civil confinement contexts have no applicability in the context of wartime 
detention of the enemy. There is no "norm" against detention without trial in these 
circumstances - instead, trials are not the norm when taking military action abroad that includes 
the detention of the enemy. Third Geneva Convention, Art. V; Army Reg. 190-8. Moreover, it 
would be misguided at best to impose on our service members - who place themselves in harm's 
way on a daily basis in defense of our country - the obligation to "share equally" in the risk of 

error, much less share the bulk of the burden of error if enemy combatancy has not been 

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established by clear and convincing evidence. Indeed, if anything, when fighting a war overseas, 
as the United States is doing today, against belligerents who show no respect for the traditional 
laws of war, the risk of error must be weighed heavily the other way to protect our soldiers, our 
citizens, and our homeland. Cf. Salerno, 481 U.S. at 750-51 ("as our cases hold, this right [not 
to be detained] may, in circumstances where the government's interest is sufficiently weighty, be 
subordinated to the greater needs of society"); Addington, 441 U.S. at 430 ("[n]or should the 
state be reguired to employ a standard of proof that may completely undercut its efforts to further 
the legitimate interests of ... the state . . . that are served by civil commitments"). 

In sum, as Hamdi explained, the Court must "giv[e] due regard to the Executive once it 
has put forth meaningful support for its conclusion that the detainee is in fact an enemy 
combatant." Hamdi, 542 U.S. at 534. For wartime detention decisions, the primary risk of error 
must fall in a way so as to protect the United States, its citizens, and its service members, rather 
than the opposite as petitioners suggest. 2 

2. T he G overnment' s Evidence is E ntitled to a Presumption of V alidity . 

Petitioners urge that no presumption in favor of the Government' s evidence is 
appropriate. But this contention is directly contrary to Ha mdi, which expressly endorsed just 
such a presumption for a wartime detention in a context that is different only in that, there, more 
constitutional protections applied. Even in that context where the detainee was a citizen, and 



2 In the wartime detention context, the conseguences of even a single erroneous release 
can be catastrophic. See Mintz, John, Released D etainees Rejoining The Fight, Washington Post 
(Oct. 22, 2004) ("One of the repatriated prisoners is still at large after taking leadership of a 
militant faction in Pakistan"; he had "maintained the fiction that he was an innocent Afghan 
tribesman" while at Guantanamo); Rubin, Alissa, Former Guantanamo Detainee Tied to Attack, 
New Y ork Times (May 8, 2008) (reporting that "[a] former Kuwaiti detainee at the United States 
prison camp at Guantanamo Bay, Cuba, was one of the bombers in a string of deadly suicide 
attacks in the northern Iraqi city of Mosul last month"), 

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thus, afforded the full panoply of constitutional protections, the Court stated that "the 

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

long as that presumption remained a rebuttable one and fair opportunity for rebuttal were 

provided." Hamdi, 542 U.S. at 534. That ability to rebut the controlling plurality explained, 

"would sufficiently address the 'risk of erroneous deprivation' of a detainee's liberty interest" 

and therefore satisfy the reguirements of the Due Process Clause in protecting the liberty interest 

of a United States citizen. Id. (guoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). A 

fortiori such a presumption is appropriate here, where the detainees are not citizens, 

constitutional protections are therefore lesser, and the habeas statute is inoperative except as 

constitutionally compelled. 

Petitioners do not really challenge this aspect of Hamdi, but instead claim that a 

presumption is improper because, in their view, a CSRT determination "is entitled to no 

deference" because it was an "administrative, no n- adversarial process." Pets' Br. at 15. 

Petitioners also cite various historical cases where courts "declined to defer" to a detention 

decision, but instead conducted de novo review. Id. at 17 (citing Ex Parte B oilman, 8 U.S. 75, 

125 (1807)). But the issue of deference to a CSRT administrative determination (or the 

magistrate's determination in Bollman) has no relevance to whether the Government's factual 

evidence is entitled to the presumption endorsed by Hamdi. There were no CSRTs at the time 

Hamdi was decided, and Hamdi endorsed a presumption in favor of a declaration filed by " a 

knowledgeable affiant to summarize" the "documentation regarding battlefield detainees already 

. . . kept in the ordinary course of military affairs." Id. at 534-35. That is precisely the sort of 

evidence that will comprise the factual returns in these cases, and the same presumption in favor 

of that evidence is therefore warranted. In any event, the Court in Hamdi also reasoned that 

deference is appropriate in these circumstances, as a Court must "giv[e] due regard to the 

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Executive once it has put forth meaningful support for its conclusion that the detainee is in fact 
an enemy combatant." Id. at 534. 3 

Petitioners next argue that a presumption is not warranted because the Court in 
Boumediene directed that there be "plenary habeas review into the 'sufficiency of the 
Government's evidence.'" Pets' Br. at 16. But sufficiency review is deferential even in less 
sensitive contexts than here, see Jackson v. Virginia, 443 U.S. 307, 319 (1979), and the fact that 
this Court will be conducting a review of the sufficiency of the Government's evidence to 
warrant detention is in no way inconsistent with according that evidence a presumption of 
validity. In those circumstances, if the Government's evidence is not more persuasively 
rebutted, the Court will simply perform the familiar task of determining if that evidence, 
presumed true, is sufficient to support the conclusion that the detainee is an enemy combatant. 
Cf. id. (in reviewing sufficiency of evidence supporting criminal conviction, court "view[s] the 
evidence in the light most favorable to the prosecution"); United States v. Pettiford, 517 F.3d 
584 (D.C. Cir. 2008) (applying sufficiency of evidence review in criminal case). 

Petitioners also contend that Boumediene directly rejected a presumption in favor of the 
Government's evidence. Pets' Br. at 16-17 (citing Boumediene, 128 S. Ct. at 2260, for the 
proposition that "a central defect" of the CSRT is that the "'Government's evidence is accorded 



3 While it is outside the scope of this procedural briefing, it is well established that, on the 
merits, the military's detention decision must be afforded substantial deference. See id.; Hirota 
v. MacArthur, 338 U.S. 197, 215 (1949) ("the capture and control of those who were responsible 
for the Pearl Harbor incident was a political guestion on which the President as Commander in 
Chief, and as spokesman for the nation in foreign affairs, had the final say"); Aguayo v. Harvey, 
476 F.3d 971, 978-79 (D.C. Cir. 2007) (noting "the limited scope of review in military habeas 
cases" where "considerable deference" is appropriate); Doe v. Sullivan, 938 F. 2d 1370, 1380 
(D.C. Cir. 1991) ("The Supreme Court has cast the principle of judicial deference to the electoral 
branches in military matters in broad terms."); Thomasson v. Perry, 80 F.3d 915, 924-26 (4th 
Cir. 1996). Bollman, a case involving a routine pre-trial detention judgment in a domestic 
criminal case, is of no relevance to the military's determination to detain a captured combatant in 
wartime on the guestion of deference. 

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a presumption of validity'"). This contention is plainly wrong. The Court nowhere addressed 
the Hamdi Court's holding that a presumption by the habeas court is appropriate. Instead, the 
Court was expressing concern over an administrative presumption that was ail-but irrebuttable. 
Boumediene, 128 S. Ct. at 2260. There, the detainee's "ability to rebut the Government's 
evidence against him" was limited by the absence of counsel in CSRT proceedings, the 
rigorously enforced limits on what "reasonably available" evidence a detainee could reguest, see 
CSRT procedures, Enc. 1, § (G)(2), and the fact that he could submit no exculpatory evidence in 
subseguent court proceedings under the DTA. Boumediene, 128 S. Ct. at 2260. Here, on the 
other hand, the presumption is fully rebuttable by the petitioner who, with counsel, will have an 
adeguate opportunity to present all of his own evidence. In such circumstances, the Hamdi 
"presumption in favor of the Government's evidence" is entirely appropriate. 542 U.S. at 534. 

The presumption is also appropriate given the nature of much of the evidence to be 
presented. In many cases, evidence will be derived from intelligence that experts in the 
intelligence agencies and the military deem reliable for purposes of conducting military 
operations - which may involve the use of lethal force. It is, thus, entirely appropriate to defer to 
their expertise with such information and their assessment. Indeed, judges have "little or no 
background in the delicate business of intelligence gathering" and "[t]here is no reason ... to 
have great confidence in the ability of judges to make" intelligence- related judgments correctly. 
CIA v. Sims, ill U.S. 159, 176 (1985). 

Petitioner also argues that the Hamdi presumption should not be implemented as a 

"categorical rule" because such a categorical presumption was not endorsed in the opinion by 

Judge Traxler in Al-Marri v.Pucciarelli, - F.3d-, 2008 WL 2736787, *42 (4th Cir. July 15, 

2008) (Traxler, J., concurring). This claim is erroneous for two reasons. First, while Judge 

Traxler, writing only for himself, acknowledged the fact that "the Supreme Court intended its 

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[Hamdi] framework to apply to every habeas petition filed by an alleged enemy combatant," id. 
at *45, he then erroneously failed to implement it. As Judge Wilkinson explained in response, 
Judge Traxler erroneously reguired that the Government establish that it was submitting the 
"most reliable available evidence." Id. at *70, *110 (Wilkinson, J., concurring in part and 
dissenting in part). Such a standard is a "fundamental misapplication of Hamdi," id. at 1 1 1, 
because it amounts to "abandonment of] the careful incrementalism and the actual 'burden- 
shifting scheme' set forth by the Supreme Court." Id. Hamdi reguired, as we have explained, 
that the Government put forth "credible evidence"; it did not reguire the Government to establish 
that its evidence is the most reliable available. Hamdi, 542 U.S. at 534. Indeed, without such a 
presumption in favor of non- rebutted evidence, "the whole Hamdi burden- shifting framework 
would be rendered useless." Al Marri, 2008 WL 2736787, at* 109 (Wilkinson, J., concurring in 
part and dissenting in part). 4 

B. There is No Entitlement to Discovery in these Proceedings. 

Discovery into military affairs by those who have been determined to be our enemies 
poses unique risks to our nation' s security. As this Court recognized in a related context, 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." In 
re Iraq and Afghanistan Detainees Litigation, 479 F. Supp. 2d 85, 105 (D.D.C. 2007). 

1. A Framework Order Precluding Discovery Should Be Entered. 

As we argued in our opening brief, petitioners are not entitled to any discovery in these 



4 In any event, Judge Traxler' s opinion by its terms governs only cases in which (as in Al 
Marri, but unlike Hamdi or here) a detainee was arrested within the United States. Al Marri, 
2008 WL 2736787, at *42, 45-46. 

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proceedings and it should be precluded by court order. Going back to the founding, there is no 
history of discovery in habeas cases (or in civil cases generally, where it was an innovation with 
the Federal Rules of Civil Procedure) that could possibly give rise to a right to discovery in 
constitutionally- based habeas proceedings. Govt. Br. at 15-19. The Court in Boumediene did 
not identify discovery as one of the essential elements of constitutional habeas. Congress's 
repeal of statutory habeas jurisdiction, in conjunction with the fact that constitutionally- derived 
habeas corpus does not reguire discovery, is therefore fatal to the claim that discovery, much less 
discovery more extensive than that in statutory habeas, is appropriate in these proceedings. 

The rules adopted by the Supreme Court to govern statutory habeas proceedings set a 
ceiling, not a floor, for proceeding under constitutional habeas. And even if the habeas statute 
did apply, the Court's application of it should be guided by Congress's unmistakable intent to 
limit these habeas proceedings, as expressed in the DTA and MCA. Accordingly, while 
petitioners may provide their own evidence and version of events for this Court's consideration, 
any discovery they may be granted from the Government is a matter of Executive discretion 
rather than a constitutional entitlement. 

Petitioners argue for no framework limits on discovery, before or after the submission of 

petitioners' traverse, a result that cannot stand in light of the fact that no discovery at all is 

authorized in these proceedings. Such a proposal is also flatly incompatible with Hamdi's 

application of the habeas statute. In support of imposing no limits on discovery, petitioners cite 

the Hamdi decision's description of the discovery authorized by 28 U.S.C. § 2246. Pets' Br. at 

19 (speaking to "'the taking of evidence in habeas proceedings by deposition, affidavit or 

interrogatories' ") (guoting Hamdi, 542 U.S. at 525). But this citation lends no support to 

petitioners' reguest for unrestricted discovery. As we have explained, although statutory habeas 

was available in Hamdi, only constitutional habeas is available here. In any event, even the 

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habeas statute does not require a court to permit discovery. Indeed, discovery is unquestionably 
the exception, not the norm, in statutory habeas cases in peacetime - and is all the less 
appropriate here given both the wartime context and Congress's clear intent to limit procedures 
to the constitutional minimum. Moreover, the Hamdi Court quoted the habeas statute on its way 
to reversing the district court's discovery order and limiting when additional factfinding would 
be appropriate, i.e., only after a court concludes that a petitioner has successfully rebutted the 
Government's showing. And even then, as Hamdi directed, any such factfinding must be 
"prudent and incremental" and cannot be as broad as that available in criminal proceedings. 5 

Petitioners also cite statutory habeas cases to argue that no framework order is 
appropriate addressing discovery because the issue whether discovery is appropriate depends on 
'"the facts of [a] particular case.'" Pets' Br. at 20 (quoting B racy v. Gramley, 520 U.S. 899, 909 
(1997)). But Hamdi itself addressed the facts of a case involving the detention of enemy 
combatants apprehended overseas in wartime. The Hamdi Court weighed the competing 
considerations to come up with its burden- shifting framework. Under Hamdi, as we have 
explained, no discovery or other factfinding procedures are appropriate even under the habeas 
statute and modem habeas practice, prior to a Court employing the burden- shifting framework. 
Thus, the balance on discovery has already been struck even for statutory habeas cases of this 
type, and petitioners should not be allowed to evade the Hamdi framework by simply citing the 
general principle that the propriety of discovery depends on the facts and circumstances 



Petitioners also take out of context a quote in Boumediene to incorrectly state that the 
Court held that discovery was an essential aspect of substitute habeas proceedings. Pets' Br. at 
19. The Boumediene Court stated that one critical shortcoming in DTA proceedings was the fact 
that the "detainee . . . would have no opportunity to present evidence discovered after the CSRT 
proceedings concluded." Boumediene, 128 S. Ct. at 2272. Contrary to petitioners' suggestion, 
the Court was using the term "discovered" here in its common sense meaning, not to connote 
judicially-sanctioned discovery of information from an opposing party in litigation. 

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presented. 6 

Contrary to petitioners' claim, the "unique challenges ... in gathering evidence" do not 
support authorizing discovery, Pets' Br. at 21, those challenges arise from the wartime context 
and call emphatically for limiting or precluding discovery, as Hamdi itself reasoned. 542 U.S. at 
533. As Hamdi explained, "the exigencies of the circumstances may demand that, aside from 
these core elements, enemy-combatant proceedings may be tailored to alleviate their uncommon 
potential to burden the Executive at a time of ongoing military conflict." Id. The first 
"tailoring" performed by the Court was reversing the district court's broad discovery order and 
imposing the Hamdi burden- shifting framework. The Court thus has already rejected 
petitioners' suggestion that "preliminary discovery" may be needed to "identify the evidence that 
is helpful to their case." Pets' Br. at 21. 

As we explained in our opening brief, even if discovery were constitutionally reguired, it 
should occur only very rarely, and only after considering the factual return and traverse. Further, 
each specific discovery reguest must be approved by the district court, as is contemplated by 
rules for statutory habeas. 7 The discovery authorized must be incremental under Ha mdi and 
Boumediene. 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. 



Petitioners' reguest to have discovery that is"more permissive" than in statutory habeas 
cases (Pets' Br. at 21) should be rejected out of hand, given Hamdi. Pets' Br. at 21. So should 
petitioners' claim that the scope of discovery should be guided by the "full opportunity for 
discovery pursuant to state or federal rules of criminal procedure," Pets' Br. at 20, the precise 
type of discovery explicitly rejected in Hamdi. 542 U.S. at 528. 

7 Petitioners agree that discovery in habeas cases "requires leave of court" Pets' Br. at 
19. 

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To this end, even if it were ever permissible, a discovery request would have to be quite 
specific: It must "provide reasons for the request" and "include any proposed interroqatories and 
requests for admission, and must specify any requested documents." Habeas Rule 6(b). Even 
under modern habeas practice, it is a petitioner's burden to show in makinq such a request that 
based on "specific alleqations" that "if the facts are fully developed" he may be "entitled to 
relief." Bracy, 520 U.S. at 908-09 (quotation marks omitted). The request must be appropriately 
"incremental": first, an expansion of the record pursuant to habeas Rule 7; limited interroqatories 
or requests for admission that may be answered by any appropriate Government personnel- 
document requests must be considered only after requests for admission, and must be narrow and 
focused on specific documents, not open-ended. Such concerns, and the exiqencies of 
considerinq over 200 cases on an expedited basis, stronqly militate aqainst open-ended discovery 
even if it is in some rare cases constitutionally required. 

2. The G overnment Will Voluntarily Submit Evidence Discovered by its 

Attorneys in Preparing the Factual Return that Materially Undermines the 
Information Presented in the Return to Support the Petitioner's 
Classification, But Cannot Properly Be Ordered to Provide Exculpatory 
Information. 

In our openinq brief, we explained that, althouqh not constitutionally required, the 

Government would submit any evidence that tends materially to undermine information 

presented in the return to support a petitioner's classification as an enemy combatant, which is 

encountered in developinq the returns by the attorneys preparinq them (includinq the Department 

of Justice attorneys assiqned to the case and those Department of Defense attorneys workinq on 

the case with them). This voluntary disclosure would make further discovery unnecessary and 

inappropriate, even if some discovery were constitutionally required. The Government plans to 

provide this information even thouqh the Hamdi plurality expressly rejected the imposition of a 

"process [that] would approach the process that accompanies a criminal trial" includinq criminal 

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discovery that is delineated by a prosecutor's Brady obligation. See Hamdi, 542 U.S. at 528; see 
id. at 532-33. 

Petitioners seek a court order requiring the Government to provide "all exculpatory 
evidence ... in its possession." Pets' Br. at 24. This order cannot properly be imposed and, in 
any event, is overbroad and unduly burdensome. It is difficult to overstate the burden such a 
requirement would impose— effectively forcing intelligence agencies to redirect massive 
amounts of resources from protecting our national security to a limitless fishing expedition, in 
which they would be obligated to search countless databases for any shred of information that 
might arguably be considered "exculpatory." See Bismullah v. Gates, No. 06-1198, Petition for 
Rehearing En Banc, at 8-10 (D.C. Cir., filed Sept. 7, 2007) (submitting declarations from the 
military and intelligence community explaining that a search for material on a detainee results in 
"tens of thousands, and in many cases hundreds of thousands, of documents . . . little of which 
has anything to do with the detainee or his enemy combatant status"). 

Further, such an order cannot properly be imposed for the reasons we explained in our 
opening brief. First, there is no Brady obligation in civil proceedings, including statutory habeas 
proceedings, and it would be extraordinary to impose one outside of the criminal context for the 
first time ever in a case involving wartime detention where any disclosures could potentially 
threaten national security. See In re Iraq and Afghanistan Detainees Lit., 479 F. Supp. 2d at 105. 
Second, the Government's voluntary undertaking, while narrower than Brady, still goes well 
beyond what Hamdi anticipated. See 542 U.S. at 528, 532. Third, there is no constitutionally- 
based requirement for discovery in habeas cases at all, much less a constitutionally- based 
requirement for Brady type disclosures (which after all was developed well after 1789). And, as 
we explained, the Brady obligation stems from the Fifth Amendment's due process obligations 

in domestic criminal cases; it has no application either to habeas cases or to these petitioners. 

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Petitioners' proposal is also breathtakingly overbroad and burdensome. While the 
Government has no quarrel with providing evidence that is truly "exculpatory/' in the sense that 
it tends materially to undermine information presented in the return to support the petitioner's 
classification as an enemy combatant it should only provide that evidence when it is 
encountered in developing the returns by the 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). The Government cannot and should not be forced to conduct open-ended 
searches for such material. As we explained, such a search is not constitutionally required 
because no Brady obligation attaches in the context of these civil habeas proceedings in wartime. 
Further, such a search is not relevant to the core function of habeas identified by Boumediene, 
i.e., giving a petitioner the opportunity to make his own factual showing with his own evidence. 
Such a search obligation is also contrary to Hamdi, where the "quite extensive discovery" of 
criminal proceedings was rejected. 542 U.S. at 528. Finally, such an approach would be 
extraordinarily burdensome in a time of ongoing war. The United States military and our 
intelligence agencies cannot be required to devote almost limitless resources in a time of war to 
literally hundreds of worldwide evidentiary fishing expeditions. 

While petitioners' proposed order is overbroad in that it calls for the disclosure of "all" 

evidence "in [the Government's] possession" without any limitation, their argument supports 

only a much narrower obligation more closely akin to what the Government proposes to do 

voluntarily, namely, to provide qualifying evidence that is encountered in developing the returns 

by the attorneys preparing them. Thus, petitioners urge that they will not "send the government 

on a 'fishing expedition.' " Pets' Br. at 24. But a search for information beyond what the 

attorneys preparing the returns encounter in preparing them would be just such a fishing 

expedition. Additionally, petitioners point out that their proposal will not be burdensome 

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because the Government "stated it intended to review government files" to update returns. That 

is true, but this "review of government files" will be conducted by the attorneys who are 

preparing the returns. 

Petitioners argue that a mandatory Brady obligation is appropriate here given the 

"'considerable risk of error' inherent in CSRTs determinations." Pets' Br. at 23 (guoting 

Boumediene, 128 S. Ct. at 2270). But this "risk of error" is what led the Supreme Court to hold 

that a petitioner must be able to make his own showing to the habeas court; the Boumediene 

Court did not consider, nor did it remotely suggest that a mandatory Brady obligation would be 

appropriate here. Instead, it rejected the procedures that accompany a "criminal trial," id. at 

2269, and Hamdi expressly rejected criminal-type discovery procedures. 542 U.S. at 528, 532- 

33. In sum, because there is no Brady obligation in this context, the Court cannot create one and 

impose it on the Government. 

III. IN THE NORMAL COURSE, THE FACTS SHOULD BE RESOLVED BASED 
UPON THE WRITTEN RECORD. 

A . Evidentiary Hearings Should ccur nly Rarely. 

As we explained in our opening brief, evidentiary hearings, if they occur at all, should 
occur only rarely. First, there is no constitutional entitlement to such a hearing in these 
circumstances and there is nothing unusual about resolving habeas cases based upon the written 
submissions. Second, neither Hamdi nor Boumediene suggested that a testimonial hearing would 
be appropriate or reguired in these circumstances. Instead, Hamdi makes clear that evidentiary 
hearings with live testimony would be improper. See 542 U.S. at 531-32 (soldiers should not be 
distracted from "the serious work of waging battle" to provide eyewitness accounts of actions 
that occurred half a world away). Third, routine hearings would make it all but impossible to 
resolve these cases promptly. Accordingly, an evidentiary hearing would be appropriate, if at 

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all, only after the Court has reviewed the parties' written submissions and only once a court 
determines that absent an evidentiary hearing, the weight of the evidence supports the habeas 
petitioner. See Gov. Br. at 32-33. 

Petitioners' proposal on the other hand, calls for testimonial hearings to be routine - to 
be held in all cases where there is any disputed issue of material fact. Such an approach does not 
sguare with the Hamdi burden- shifting approach, which reguires that a petitioner first rebut the 
Government's credible evidence with "more persuasive evidence" of noncombatancy. Hamdi, 
542 U.S. at 534. Thus, prior to any additional factfinding (and well before an evidentiary 
hearing is reguired), a petitioner must furnish evidence that is more persuasive than the 
Government's evidence - he cannot merely assert that there is a factual dispute or rest upon a 
general denial. If the evidence submitted by a petitioner is not more persuasive, the court must 
resolve the facts in favor of the Government's showing under Hamdi without holding an 
evidentiary hearing, and instead move on to any legal challenges raised by the petitioner. 
Petitioners' approach, by contrast, is even inconsistent with statutory habeas standards outside of 
the context of wartime detention. 28 U.S.C. § 2243 (court authorized by habeas statute to 
"summarily hear and determine the facts, and dispose of the matter as law and justice reguire"). 
B. The C onfrontation C lause Does Not Apply and C ompulsory Process Is Unavailable 

Petitioners urge that the baseline assumption will be a right to cross-examine witnesses 
and have the Court compel attendance of live witnesses at hearing and order depositions for 
those outside of this jurisdiction under Federal Rule of Civil Procedure 45. See Pet. Br. at 33. 8 



8 The Rule 45 process itself is wholly inappropriate as a procedural framework 
mechanism. Under Rule 45, a petitioner could obtain a subpoena compelling a witness presence 
and perhaps documents merely by issuing a subpoena and without any court approval. It would 
then place the burden on the Government to object. This is the exact opposite of the proper 
baseline even in statutory habeas proceedings, where court approval for any discovery reguest is 
reguired. 

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The Supreme Court in Harris expressly rejected the notion that the federal discovery rules 

applied even in statutory habeas cases. Harris v. Nelson, 394 U.S. 286, 292-98 (1969). And, of 

course, given that the Federal Rules of Civil Procedure are limited in their application to 

statutory habeas cases, see Fed. R. Civ. P. 81(a)(2), their application to constitutional habeas 

cases is limited to that minimum of process required by the Constitution itself. Petitioners also 

assert that the baseline right to confrontation exists by relying principally upon cases where a 

constitutional right to confrontation applied due to the Sixth Amendment. That is clearly wrong 

because the Sixth Amendment simply does not apply outside of criminal cases. See Govt. Br. at 

35. As to petitioners' assertion that the right of confrontation has been adopted outside of the 

criminal context in some circumstances, see Pets' Br. at 34, those cases all rest on Fifth or 

Fourteenth Amendment Due Process Clauses. But we have explained, the Fifth Amendment has 

no application (or reduced application) to aliens held outside the United States; and, in any 

event, our proposed procedures are consistent with the Fifth Amendment as construed in Hamdi. 

Aside from asking the Court to adopt as a baseline the right to confrontation and compel 

the attendance of witnesses, petitioners posit that "particular considerations ... are not amenable 

to common preliminary decision." Id. at 34. To be sure, the precise factual situations presented 

by the detainee cases may vary. But that is no reason not to set down a baseline procedure that 

we have suggested, and permit petitioners to argue whether, based on specific reasons, that it be 

modified. With regard to confrontation, it is plain, for the reasons we identified, that as a general 

rule no such confrontation or cross examination rights should exist. In addition, prior to arguing 

that some exception should apply in a particular case (and consistent with a prudent and 

incremental approach), other means should be employed prior to any confrontation or cross 

examination. For example, interrogatories or depositions by written questions might be 

appropriate, but only if a petitioner has exhausted other options. 

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Finally, as to the assertion that a petitioner should be permitted to argue that evidence be 
excluded, see Pet. Br. at 35, the Court must reject this invitation. While petitioners should be 
free to argue that particular evidence should be given less weight by the Court, a categorical 
right to exclude evidence is wholly improper. In short, while exclusionary rules might be 
appropriate for criminal proceedings, they do not apply to the conduct of a war. The 
Government has a right under Hamdi to justify detention 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. Nothing in Hamdi or any other authority 
compels the exclusion of information from the factual return. 
C . Hearsay Is A dmissible In These Proceedings. 

While resisting a uniform rule on the admission of hearsay, petitioners concede that it is 
well within the district court's discretion to admit such evidence. See Pet. Br. at 24-26. Thus, at 
most, petitioners' arguments suggest that, as the Government has argued, the real issue is the 
weight that this Court give hearsay evidence, rather than the mere admission of hearsay into 
evidence. 

Petitioners' legal arguments on limiting hearsay are also not meritorious. Even in 

statutory habeas cases, the habeas statute specifically authorizes the taking of evidence by 

affidavit as well as the submission of documentary evidence, i.e., the sort of hearsay that will 

form the core of the factual submissions in these cases. 28 U.S.C. §§ 2246-47. Thus, 

petitioners' insistence upon the application of limitations on hearsay in the Federal Rules of 

Evidence must be rejected. See Federal Rule of Evidence 1101(e) (Federal Rules of Evidence 

apply in statutory habeas proceedings only "to the extent that matters of evidence are not 

provided for in the statutes which govern procedure therein"). Moreover, because these 

proceedings are brought under the Constitution rather than under § 2241, section 1101(e) does 

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not incorporate the evidence rules at all. Id. (incorporating evidence rules only "[i]n the 
following [listed] proceedings"). 

Petitioners' proposal to limit hearsay to that provided by the rules of evidence also cannot 
be reconciled with the Supreme Court's guidance addressing these habeas proceedings in Hamdi. 
The Hamdi Court plainly considered whether hearsay may be relied upon in these kinds of 
military detention habeas proceedings. In Hamdi, 542 U.S. at 533-34, the plurality addressed the 
competing interests at issue, recognizing that petitioners be afforded "a fair opportunity to rebut 
the Government's factual assertions before a neutral decisionmaker!, ]" id. at 533, and that this 
opportunity be "'appropriate to the nature of the case'" Id. (guoting Cleveland Bd. of Ed. v. 
Loudermill, 470 U.S. 532, 542 (1985)). But these habeas proceedings must also, because of "the 
exigencies of the circumstances," "be tailored to alleviate their uncommon potential to burden 
the Executive at a time of ongoing military conflict" and, thus "[h]earsay, for example, may need 
to be accepted as the most reliable available evidence from the Government in such a 
proceeding." Id. at 533-34. 

Notwithstanding Hamdi' s plain language and its logic, petitioners insist that "the 

plurality's comment should be viewed merely as acknowledging that the district court has 

discretion to admit affidavits under 28 U.S.C. § 2246 or other hearsay under Rules 803 through 

807 of the Federal Rules of Evidence." Pet. Br. at 26. This cannot be reconciled with the 

fundamental reasoning of Hamdi, which tailored proceedings to address the unigue burden of 

these very circumstances. If the Hamdi plurality had intended that the Federal Rules of Evidence 

were to apply to these proceedings, it would have mentioned the rules. Hamdi, 542 U.S. at 533- 

34. Indeed, petitioners' interpretation of Hamdi effectively reads out the controlling plurality's 

understanding that these proceedings need to be "tailored" to account for the Government's 

recognized interests and the plurality's acknowledgment that hearsay is not only admissible, but 

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may be "the most reliable" evidence. The plurality's recognition that hearsay may be the most 
reliable evidence relied upon establishes that it contemplated a framework outside of the Federal 
Rules of Evidence. 9 

While styled as challenges to the admissibility of hearsay, petitioners' arguments, in fact, 
go to the issue of the weight the Court should grant such evidence. Thus, petitioners ask the 
Court to consider liberty interests, the alleged risk of error, and national security considerations, 
Pet Br. at 27-28, but these go to weighing the evidence, not whether it should be received See, 
e.g., Harter v. United States, 871 F.2d 1140, 1143-44 (D.C. Cir. 1989). Likewise, petitioners 
propose that the Court "must assess the reliability of the source and to determine that the 
information presented is credible," Pet. Br. at 28-30, 10 which is, of course, unnecessary as the 
Court is fully capable of making these assessments after this evidence is accepted. 1 ' In any 



9 Indeed, "centuries of legal experienced ]" Pet Br. at 24, reflect that the common law 
exceptions to the hearsay rule have been borne out of prudential considerations similar to those 
at issue here. In fact, the primary impetus behind the most common hearsay exceptions has been 
the judiciary's recognition that it is simply too burdensome or impractical to call a live witness 
to testify. For example, the exception for documents created by public officials, see Fed. R. 
Evid. 803(8), arose out of criteria at play in these habeas proceedings, the "presumption of a 
proper performance of official duty," the "great likelihood that a public official would have no 
memory at all respecting his action," and the "inconvenience of calling to the witness stand . . . 
government officers." Wong Wing Foo v. McGrath, 196 F.2d 120, 123 (9th Cir. 1952). The 
"uncommon potential to burden the Executive at a time of ongoing military conflict," Hamdi, 
542 U.S. at 533, such as, for example, detailing by a person with first hand knowledge relating to 
the capture of a detainee outside of the United States or a variety of Government records, 
provides a more compelling reason to provide for an exception to hearsay than to alleviate the 
burdens placed upon private businesses and public officials. See id. at 538-39 ("We anticipate 
that a District Court would proceed with the caution that we have indicated is necessary in this 
setting, engaging in a factfinding process that is both prudent and incremental."). 

10 Petitioners' relianceonParhat v. Gates, 2008 WL 2576977 (2008), is inapt. Whatever 
may be necessary to establish the reliability of evidence, Parhat had nothing to do with its 
admissibility, under the CSRT rules at issue there or (even more obviously) under the 
appropriate standards for wartime constitutional proceedings. 

1 ' Because these issues are before judges, and not juries, the concern over hearsay is 
clearly diminished regardless of these arguments. See Cobell v. Norton, 224 F.R.D. 1, 5 (D.D.C. 

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event credibility determinations are a matter of weight not admissibility. See, e.g., United 
States v. Hamilton, 334 F.3d 170, 186-87 (2d Cir. 2003) (credibility of hearsay declarant "goes 
to the evidence's weight rather than to its admissibility."). Finally, petitioners urge that the 
Court must consider "materiality of the evidence to be presented by the affidavit the reliability 
of the evidence, and whether it relates to a disputed factual issue in this case." Pet. Br. at 31. 
Not only do these factors go to the issue of weight which may need to be resolved in a case by 
case basis, with a presumption of validity in favor of the Government's evidence pursuant to 
Hamdi, this approach of potentially excluding evidence is contrary to Hamdi, which assumed 
that hearsay would be appropriate for the reasons that we have identified. 

CONCLUSION 
For the foregoing reasons and the reasons provided in the Government's opening brief, 
we respectfully reguest that the Court enter the G overnment' s proposed case management order. 

Dated: August 1, 2008 Respectfully submitted, 

GREGORY G.KATSAS 
Assistant Attorney General 

JOHNC.O'QUINN 

D eputy A ssistant A tto mey G eneral 

Isl August E.Flentie 



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 



2004) ("[i]n civil bench trials, . . . many experienced judges admit hearsay they deem reasonably 
reliable and probative, either 'for what it is worth' or on some more explicit rejection of the 
hearsay rule and its some 30 exceptions."). 

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Case 1 :05-cv-01458-UNA-AK Document 55 Filed 08/01/2008 Page 30 of 30 



ALEXANDER K.HAAS 

WILLIAM KANELLIS 

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 



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