In 2008, in Boumediene v. Bush, a five-justice majority of the U.S. Supreme Court declared that habeas corpus jurisdiction extended beyond the shores of the United States. This, it said, was a matter of American constitutional law. The Boumediene ruling was unprecedented, not just in this country in modern times, but in the entire ancient history of habeas corpus jurisprudence. Boumediene ripped up centuries of settled law, leaving in its wake the title of my essay — a legal mess.
The Guantanamo habeas cases march on, hundreds of them, case by case, in our court and in the district court. Law is made; precedents set; judicial standards declared. Soldiers capturing combatants in the field may have to comply with judicially prescribed evidentiary requirements. Questioning of prisoners may have to adhere to some sort of judicial norm. Exclusionary rules may be enforced. Modes of questioning may not exceed proper bounds as judges see them. Evidence may have to be handled and preserved in certain judicially approved ways.
The short of it is that, in the peace and quiet of the federal courthouse at Third and Constitution Avenue, Washington, D.C., federal judges are making law — law that potentially affects the actions of our soldiers in the battlefields of the world, now and in the future, all in the name of the Constitution.
Consider one of the most basic issues: Who bears the burden of proof? Must the government show that it is properly holding the detainee? Or is it up to the detainee to show that he is being held improperly? Boumediene contains language that seems to support both positions. On the one hand, the Court said that habeas “entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” This sounds like the ball is in the detainee’s court.
But a few pages later we find the court stating that the “extent of the showing required of the Government in these cases is a matter to be determined.” This seems to contemplate some sort of showing required of the government. Assume that to be the case — as several of our cases do and as have the district judges. The question remains: What exactly is the nature of the government’s burden?
Reading and rereading Boumediene will not give you an answer. So how does a court go about resolving the question?
Here are some options. The burden of proof could be beyond a reasonable doubt, as in criminal cases. It could be clear and convincing evidence. Perhaps the standard is a preponderance of the evidence. Or maybe it is probable cause, which is all the police need to arrest and hold someone suspected of a crime. Or maybe the proof required of the government is merely some evidence. For decades that was the standard in deportation cases.
Again, how does a court choose among these options? What legal principles govern? Some of the judges of the district court have followed a case-management order that puts the burden on the government to show by a preponderance of evidence that the detainee is part of al-Qaeda or the Taliban. Yet if you consulted the common-law writ of habeas as it existed in 1789, you would find no case in which the crown had to prove by a preponderance that it was justifiably holding the prisoner.
In this country, even in a statutory regime, the government only had to produce “some evidence” in habeas cases challenging Selective Service decisions and in cases challenging orders of deportation. In Boumediene, the solicitor general pointed out — actually quoted from Supreme Court opinions — that in traditional habeas proceedings in this country, well into the 20th century, the courts did not review factual determinations made by the executive in detaining individuals. That was certainly true in the military context. In habeas cases seeking review of courts martial, the government only had to show that the soldier received full and fair consideration of his claims.
Other issues, just as fundamental as the burden of proof, are working their way through our courts. For instance, is the detainee entitled to engage in discovery? If so, what sort of discovery? May he depose field commanders, CIA agents, and other government officials? May he or his attorney examine intelligence reports and other government documents? Is there a Brady rule — that is, does the government have to provide the detainee with exculpatory evidence? What sort of evidentiary search and production does the government have to make in response to discovery requests, if these are allowed? Must records in the field be reviewed? CIA records? NSA? The Pentagon?
— Judge A. Raymond Randolph was appointed by Pres. George H. W. Bush to the U.S. Court of Appeals for the District of Columbia circuit in 1990 and assumed senior status in 2008. He has authored a number of important opinions in the national security area, including Hamdi v. Rumsfeld and Boumediene v. Bush. This essay is excerpted from the new Encounter book, Confronting Terror: 9/11 and the Future of American National Security.