Towards the Closure of Guantanamo

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Chapter4 Access to Justice | 79“meaningful opportunity” to contest the lawfulness of his detention guaranteedby Boumediene v. Bush. 202175. The dissenting opinion further found that, “[c]ompounding this error, the courtundertakes a wholesale revision of the district court’s careful fact findings. Flaws inthe Report the district court found serious, this court now finds minor [….] withoutever concluding that the district court’s particular take on the evidence was clearlyerroneous.” 203 In June 2012, the U.S. Supreme Court denied certiorari in this caseand in multiple appeals examining whether suspected terrorists are being affordeda meaningful opportunity to challenge the legality of their detention.176. Professor Hafetz has highlighted the division between district and circuit judgesregarding the standard of proof in the following terms: 204The debate over the standard of proof reflects a larger divide between circuitand district judges over how to treat the government’s evidence. One area ofdivision concerns the government’s “mosaic theory.” Originally employed inintelligence analysis, the mosaic theory is premised on the notion that pieces ofevidence must be evaluated as a whole rather than examined independently.Several district judges have rejected the government’s reliance on this theoryin detainee habeas proceedings. […]Circuit Judge Randolph has taken one of the most extreme positions on theissue, asserting that judges must undertake a conditional probability analysisin reviewing the evidence […] [e]ven if a given fact does not prove the ultimateproposition (i.e., that the detainee is an enemy combatant), that fact makes itmore likely that other facts establish this ultimate proposition and counsels infavor of a finding the petitioner detainable under the AUMF. Circuit JudgeSilberman has advocated a similar approach, arguing that a D.C. Circuit judgeshould not order the release of a Guantánamo detainee if he or she believes it“somewhat likely that the petitioner is an al-Qaeda adherent or an activesupporter.” 205177. Regarding requests for additional discovery, in Abdulmalik v. Obama, the detaineerequested the D.C. District Court to compel the government to reveal the names ofhis interrogators and those present at his interrogations before his transport toGuantanamo; and to make these individuals available for deposition. He claimedthat the depositions were necessary to establish that he was mistreated duringinterrogation and thus made statements that were not credible. Although the courtdid not rule on the merits, it held, on July 26, 2011, that the Government must revealwhatever evidence they had to rebut the detainee’s allegations of abuse in order toallow him to explain why the discovery requested would enable him to rebut the202203204205Circuit Judge Tatel dissenting opinion at 2. Latif v. Obama, 677 F.3d 1175 (D.C. Cir. 2012).Circuit Judge Tatel dissenting opinion at 2. Latif v. Obama, 677 F.3d 1175 (D.C. Cir. 2012).Hafetz, Jonathan, Calling the Government to Account: Habeas Corpus after Boumediene (December 14, 2011),p. 12.Esmail, 639 F.3d at 1078 (Silberman, J. concurring).Inter-American Commission on Human Rights | IACHR
80 | Towards the Closure of Guantanamofactual basis for his detention. The Government must also search all databases forexculpatory evidence relating to his statements. 206178. The Government’s use of hearsay evidence, inadmissible under Federal Rules ofEvidence, has been the center of controversy. In Hamdi v. Rumsfeld the U.S.Supreme Court ruled that hearsay “may need to be accepted as the most reliableavailable evidence from the Government” at a time of ongoing military conflict. 207In line with this decision, the CMO allows district judges to admit hearsay evidencethat is “reliable” and “material and relevant to the legality of the petitioner’sdetention” when “the provision of non-hearsay evidence would unduly burden themovant or interfere with the government’s efforts to protect national security.” 208District and circuit judges have generally admitted hearsay evidence, focusing onthe question of how much weight to accord it. In Al-Bihani v. Obama the D.C. CircuitCourt ruled that “Al-Bihani cannot make the traditional objection based on theConfrontation Clause of the Sixth Amendment [providing for the right of the accusedto be confronted with the witnesses against him] […] because the ConfrontationClause applies only in criminal prosecutions,” and not in military detention habeascases. 209c. Other challenges179. With regard to access to classified information for use in a habeas petition, onJanuary 9, 2013, the D.C. District Court held in Mousovi v. Obama that theGovernment had to allow in-camera review by the court in order to determinewhether a document was admissible or not. Though the Government was permittedto redact and edit classified documents before they were disclosed to thepetitioner’s counsel, the court had to be able to see documents in order toaccurately assess the actions of the executive. 210180. Further, the D.C. District Court in International Counsel Bureau v. U.S. Dep’t ofDefense has rejected a request brought under the Freedom of Information Act(FOIA) for records, videos, and still images of four Guantanamo detainees. Thecourt held that the Department of Defense did not have to disclose the informationunder the broad FOIA Exception 1. 211 According to this exception, the agency doesnot need to disclose information if it has been properly classified. In the instantcase, a variety of executive orders had classified the information at issue.181. Concerning sensitive but unclassified information in factual returns (documents thegovernment has to file in response to habeas corpus petitions), the D.C. DistrictCourt in In re Guantanamo Bay Detainee Litig., held that any information theGovernment wished to deem “protected” must comply with the Parhat two-step206207208209210211Abdulmalik v. Obama, 802 F. Supp. 2d 1 (D.D.C. 2011).Hamdi v. Rumsfeld 542 U.S. 507 (2004) at 533.In re Guantanamo Bay Detainee Litig., Misc. No. 08-442, CMO § II.A (Nov. 6, 2008).Al-Bihani v. Obama, 590 F.3d 866, 877 (D.C. Cir. 2010) at 879.Mousovi v. Obama, 916 F. Supp. 2d 67 (D.D.C. 2013).International Counsel Bureau v. U.S. Dep’t of Defense, 906 F. Supp. 2d 1 (D.D.C. 2012).Organization of American States | OAS
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INTER-AMERICAN COMMISSION ON HUMAN
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TABLE OF CONTENTSEXECUTIVE SUMMARY
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EXECUTIVE SUMMARY
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CHAPTER 1INTRODUCTION
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CHAPTER 2EVOLUTION OF THE IACHRINIT
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CHAPTER 6CONCLUSIONS ANDRECOMMENDAT
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