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Monday, November 14, 2011

The Gitmo Presumption

A recent decision from the U.S. Court of Appeals for the D.C. Circuit has shed some light on how Guantanamo habeas cases are playing out in the federal district courts.  (For a longer description of the case, see scotusblog).  Although the decision, Adnan Farhan Abdul Latif v. Obama, was recently released in a heavily redacted form, with large chunks of text covered with black markings, the rest of the decision shines a spotlight on a crucial question: what are the legal standards governing a federal court’s review of evidence submitted by the Executive Branch in support of a petitioner’s continued detention?

The defendant, Latif, was successful in his habeas petition before the district court.  On July 21, 2010, a federal judge for the District of Columbia granted his petition, finding that the intelligence report submitted by the government, which was the sole basis for its argument in support of continued detention, was unreliable and was contested by the defendant’s innocent explanation for why he traveled from Yemen to Pakistan and Afghanistan.



The Court of Appeals reversed, in a 2-1 split decision, holding that the District Court had failed to properly grant the government’s evidence the presumption of regularity.  In support of this presumption, the D.C. Circuit cited Hamdi for the proposition that: 
[T]he 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. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria.
The majority opinion also noted that in federal habeas proceedings, the D.C. Circuit routinely grants a presumption of regularity to factual findings from state court proceedings, which are only rebuttable by clear and convincing evidence. 

Judge Tatel dissented from the decision and voted to uphold the district court’s dismissal.  In particular, Tatel noted that Hamdi only endorsed a pro-government presumption when the government’s evidence was “credible,” a determination that the District Court arguably rejected in this case.  For Tatel, the presumption of regularity makes sense when the government puts into evidence mere clerical records like tax documents, but not intelligence reports collected in the fog of war.

Second, Tatel noted that the vertical comity at issue in state habeas proceedings had nothing to do with the horizontal separation of powers at issue in Guantanamo habeas proceedings.  In the former, the prior finding is made by a judicial authority through an adversarial process; in the latter, the evidence is simply proffered by the Executive Branch, untested by a court of law. 

I’m not sure what the correct presumption should be for government evidence presented at a habeas petition.  But clearly, there is a lot at stake in determining the correct legal standards in this area.  The habeas review mandated by Boumediene can be rendered more – or less – rigorous depending on which standard is adopted.  Fundamentally, the real question is who has the burden.  In a criminal trial, the ultimate burden falls to the government because they are the prosecution.  But a habeas proceeding is not a criminal trial.

One thing is certain: there is little to recommend the argument that vertical comity between a federal court and a state court is somehow analogous to horizontal comity between a federal government and the Executive Branch.  That just ignores the fundamental principle of constitutional and international law announced by the Supreme Court in both Hamdi and Boumediene, which is that the judiciary has a significant role to play in detention cases.

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