Cleaning up 'the mess': the D.C. Circuit Court of Appeals and the burden of proof in the Guantanamo habeas cases.

• Author: Payne, William R.

INTRODUCTION

Since Boumediene v. Bush, (1) the United States District Court and Court of Appeals for the District of Columbia Circuit have been thrust into an extraordinary lawmaking exercise with broad national security implications as they adjudicate the habeas petitions of the detainees held at the Guantanamo Bay detention facility. These courts have been tasked not only with applying the law to the facts of each individual detainee's case, but also with developing the substantive and procedural rules governing military detention with little guidance from either the Supreme Court or Congress. Numerous scholars have criticized the court of appeals, accusing the court--and some judges in particular--of attempting to undermine the right to judicial review recognized in Boumediene and suggesting that the court of appeals is unwilling to rule in favor any detainee. (2)

This Note examines the development of the burden of proof in the Guantanamo habeas cases, beginning with an examination of the guidance provided by the Supreme Court and Congress and continuing with an analysis of the case law developed thus far by the D.C. Circuit on the issue. What emerges is a very different view of the court of appeals's jurisprudence than the prevailing critical view. Throughout this lawmaking process, the Supreme Court and Congress have wrongly avoided addressing the burden of proof (and other procedural issues) head-on, instead deferring to the D.C. Circuit. Furthermore, the Obama Administration's litigation strategy on the issue has proved remarkably irresponsible, unwisely encouraging the adoption of a high burden of proof with unforeseen negative consequences, barely avoiding sacrificing an important legal means of incapacitating detainees by sheer luck, and inappropriately shifting its institutional responsibility to the D.C. Circuit. Saddled with the undue burden of developing the standard, the court of appeals's jurisprudence on the matter manages to accommodate both maximum deference to the government in wartime and the protections for the detainees required by the Supreme Court, illustrating admirable efforts to clean up part of what one of its judges has referred to as the "Guantanamo Mess." (3)

1. CREATING THE PROBLEM: THE SUPREME COURT OPENS THE D.C. CIRCUIT TO HABEAS ACTIONS BY GUANTANAMO DETAINEES BUT PROVIDES NO HELPFUL GUIDANCE

   The Supreme Court first grappled with the substantive law of military detention in Hamdi v. Rumsfeld, (4) its first detainee habeas case after the September 11, 2001, terrorist attacks. In Hamdi, the Supreme Court sanctioned the government's authority to hold enemy combatants in military detention. (5) In response to the petitioner's due process claims, (6) Justice O'Connor, writing for the controlling plurality, (7) determined that the detainee petitioner "must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decision-maker." (8) The plurality opinion also noted, though, that the "exigencies of the circumstances" allowed for "proceedings [to] be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." (9) In addition to approving procedural modifications such as the admission of hearsay evidence, (10) the opinion specifically contemplated a "burden-shifting scheme," under which "once the Government puts forth credible evidence ... the onus could shift to the petitioner to rebut that evidence with more persuasive evidence." (11) The plurality allowed such procedural modifications to standard habeas proceedings because "process of this sort would sufficiently address the 'risk of an erroneous deprivation' of a detainee's liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government." (12) In devising specific rules, the Court commanded lower courts to adhere to the same balancing philosophy, to "pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns." (13)

   Questions of the substantive and procedural bounds of the government's detention authority over the Guantanamo detainees became relevant in the federal courts only after the Supreme Court extended habeas jurisdiction to Guantanamo. In Rasul v. Bush, (14) the Supreme Court construed the federal habeas statute (15) to grant the federal courts of the D.C. Circuit jurisdiction over Guantanamo detainees' habeas actions. (16) Congress subsequently amended the statute to strip the jurisdiction of federal courts over Guantanamo detainees' habeas actions as part of the Detainee Treatment Act (DTA) of 2005. (17) In a subsequent habeas action challenging the military commission process in Hamdan v. Rumsfeld, the Supreme Court held that Congress's modification did not apply to suits pending before the passage of the DTA. (18) Congress chose to respond with another legislative adjustment to the habeas statute aimed at overriding the Court's holding on the jurisdictional issue. (19) The Supreme Court reacted by recognizing constitutional jurisdiction over the Guantanamo habeas claims in Boumediene v. Bush. (20) In each of these engagements with a Congress intent on stripping civilian courts' jurisdiction over the Guantanamo habeas suits, the Supreme Court overturned the decision below of the D.C. Circuit Court of Appeals. (21)

   While Boumediene generated significant criticism, (22) particularly of the quality of its legal and historical reasoning (23) and of the potential for negative unintended consequences of its holding, (24) the decision--for better or, more likely, for worse--provided a final answer to the jurisdictional question by opening the federal courts of the D.C. Circuit to the Guantanamo detainees' habeas suits. Even as it opened up the lower courts to this inundation of habeas actions, the majority opinion declined to establish much of anything in the way of substantive or procedural review standards for the lower courts to employ, instead leaving "these and the other remaining questions [to] the expertise and competence of the District Court to address in the first instance." (25) The clues the opinion did offer as to what sort of burden of proof would be constitutional seem to contradict themselves: In explaining that "the extent of the showing required of the government in these cases is a matter to be determined," (26) the Court "seemed to embrace, without much explanation, the notion that the government, rather than the petitioner, would bear the initial burden," (27) whereas the Court's review of the minimum standards required by the writ (28) concludes that "[t]he privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to 'the erroneous application or interpretation" of relevant law," (29) "suggest[ing] that adequate habeas review might even permit the burden to be placed on the petitioner." (30)

   The Boumediene Court also may have provided some modicum of elucidation of the procedural requirements for the Guantanamo habeas actions in its criticism of the Combatant Status Review Tribunal (CSRT) process as an inadequate substitute for habeas. The Court held that

   [f]or the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings.... includ[ing] some authority to assess the sufficiency of the Government's evidence against the detainee ... [and] the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. (31) Even the identification of these two basic requirements did little to offer guidance to the D.C. Circuit (or Congress) as to what minimum burden of proof would satisfy the demands of "meaningful review" required by the Court; moreover, this language did not clearly preclude any standard as long as it allowed the admission of exculpatory evidence and the independent examination of the weight of the evidence.

   The comparative factual predicates of Hamdi and the post-Boumediene Guantanamo cases also undermine the usefulness of Hamdi in prescribing minimum constitutionally acceptable protections in the Guantanamo context. In Hamdi, the petitioner was an American citizen detained in a naval brig in South Carolina. (32) These twin factors--citizenship and geography--were indisputably central to the reasoning of the Court in applying due process guarantees to the petitioner in Hamdi. (33) Furthermore, Boumediene's framework for determining the reach of the Suspension Clause also heavily emphasized these two factors, (34) further suggesting that the weight of these two factors in determining the reach of the writ could be similarly influential in determining the strength of the procedural standards demanded of the resultant habeas proceedings. Given longstanding baseline notions that citizenship and presence within the United States itself increase the chance of attachment of constitutional protections, (35) the emphasis on these two factors in Hamdi and Boumediene strongly suggests that procedural standards even more favorable to the government would be acceptable in reviewing the military detention of non-citizens captured and held abroad, as in the cases of the Guantanamo detainees. (36)

   Some uncertainty remains as to the applicability of Hamdi to the Guantanamo context because of the different legal bases of the various courts' inquiries. Hamdi involved the application of the Due Process Clause of the Fifth Amendment and the federal habeas statute, (37) whereas Boumediene instead applied only the Suspension Clause. (38) In response to...