Evidentiary Rules Governing Guantánamo Habeas Petitions: Their Effects and Consequences

42 Pages Posted: 26 Feb 2012 Last revised: 19 Mar 2013

See all articles by Jasmeet Ahuja

Jasmeet Ahuja

Yale University - Law School

Andrew Tutt

Independent

Date Written: February 29, 2012

Abstract

Since Boumediene, the courts within the D.C. Circuit have heard over sixty habeas petitions from detainees at Guantánamo Bay. At first, many writs were granted. The lower courts applied a functional framework for determining the admissibility, credibility, and probity of evidence, holding the government to the ordinary burden of preponderance of the evidence. However, as the government and detainees began to appeal habeas decisions on the basis of adverse evidentiary rulings, the Court of Appeals announced binding evidentiary rules limiting the district courts’ discretion to admit, exclude, weigh, and consider evidence as the district courts saw fit.

This Note argues that these evidentiary rules deny detainees a “meaningful opportunity” to contest the factual basis of their detention. The D.C. Circuit maintains that it holds the government to a preponderance standard and has cast its reversals of the District Court’s grants of habeas corpus as mere corrections in judging evidentiary probity. However, in substance, the Court of Appeals’ evidentiary rules have quietly but significantly eroded the evidentiary burden.

Keywords: Hamdi, Rasul, Hamdan, Boumediene, Al-Bihan, Al-Adahi, Al-Odah, Kandari, Latif, Evidence, D.C. Circuit, Due Process, Preponderance, Habeas Corpus, Habeas, Guantanamo, Lawfare, War on Terror, terrorism, terrorist

Suggested Citation

Ahuja, Jasmeet and Tutt, Andrew, Evidentiary Rules Governing Guantánamo Habeas Petitions: Their Effects and Consequences (February 29, 2012). Yale Law & Policy Review, Vol. 31, No. 1, 2012. Available at SSRN: https://ssrn.com/abstract=2011284 or http://dx.doi.org/10.2139/ssrn.2011284

Jasmeet Ahuja

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Andrew Tutt (Contact Author)

Independent ( email )

No Address Available

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