Steve and Ben are having an interesting exchange about an important question: whether the DC Circuit’s caselaw in GTMO habeas proceedings has produced a set of substantive and procedural rules at variance with the positions established by the Supreme Court in 2004 (Hamdi) and 2008 (Boumediene). Steve’s most recent reply lists a number of points where he sees considerable tension. I wanted to chime in to press Steve on the first few points he raises (without expressing any views on the rest):
- Al-Bihani‘s holding that IHL is irrelevant to the scope of the AUMF.
While I very much agree that the original panel’s statement to this effect was in tension with Hamdi, the DC Circuit itself neutered this statement subsequently by declaring it to be mere dicta.
- Al-Bihani‘s holding that individuals can be detained based on the MCA’s definition of “unlawful enemy combatant,” and therefore based solely on non-belligerent material support.
By “non-belligerent material support,” I assume Steve is referring to a situation in which a person is not a member of al Qaeda, the Taliban, or AUMF-covered associated forces, but instead is in effect a third party who has nonetheless provided one or more of those groups with items or services. The NDAA FY’12 adopts this standard, making the question of whether the AUMF previously was best read to encompass it academic going forward. But that said, I don’t see how the DC Circuit’s embrace of independent support as a detention predicate can be said to be in serious tension with Boumediene (which pointedly did not reach the question presented addressing the substantive scope of detention authority) or Hamdi (which pointedly addressed only the situation in which a person was an arms-bearing member of the Taliban (allegedly), no more and no less). I wonder if Steve might say that the tension is indirect, in that (i) Hamdi at least contemplated that LOAC would inform the construction of the AUMF, and (ii) independent support is not a LOAC-compatible detention standard. That’s an interesting argument on the merits, but I don’t think it helps establish that the lower court judges have undermined prior SCOTUS decisions; it’s too indirect a point. Now, perhaps I’ve misunderstood this point, and Steve is merely objecting to the al-Bihani panel’s attempt to ground the substantive scope question entirely in domestic law sources, including the arguably inapposite MCA personal jurisdiction standard. As I said above, I do think that ignoring LOAC is in tension with Hamdi.
- Al-Bihani‘s holding that the evidentiary and procedural rules in Guantanamo habeas cases can be less than those that prevail in ordinary post-conviction habeas cases.
It’s not clear to me that either Hamdi or Boumediene can be read to clearly establish an expectation that ordinary post-conviction habeas rules would be applied in the GTMO context.
- Al-Adahi‘s endorsement of “conditional probability analysis,” and its concomitant suggestion that preponderance of the evidence is too high a burden of proof to impose upon the government.
I think these are two different issues. I do not think the conditional probability issue was on the radar screen in either Hamdi or Boumediene. The burden of proof issue is different, and it certainly is notable that the Circuit has repeatedly suggested in dicta that the government might prevail if it sought to get by with a lower standard of proof. But it seems to me most important that the government has not asked for that benefit, and in the end the courts have not actually used the lower standard, but instead still use preponderance. So there is rhetorical tension, but no tension in the actual practice.