78 | Towards the Closure of Guantanamo 171. In November 2008 the D.C. District Court issued a Case Management Order (CMO) in the handling of Guantanamo cases stating, among other things, that “the government should bear the burden of proving by a preponderance of the evidence that the petitioner’s detention is lawful” (emphasis added). 198 In Al-Bihani v. Obama the detainee alleged that application of the preponderance of the evidence standard in his habeas case was unconstitutional. He appealed the denial of the writ by the D.C. District Court. 172. Al-Bihani argued before the D.C. Circuit Court that “the prospect of indefinite detention in this unconventional war augurs for a reasonable doubt standard or, in the alternative, at least a clear and convincing standard.” 199 In the first D.C. Circuit case ruling on the merits of a Guantanamo detainee’s habeas petition postBoumediene, the court rejected the appeal, finding no indication that a preponderance standard is unconstitutional. The court referred to the Hamdi v. Rumsfeld decision issued in 2004 in which the Supreme Court described as constitutionally adequate a “burden-shifting scheme” in which the Government needs only present “credible evidence that the habeas petitioner meets the enemycombatant criteria” before “the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria.” 200 173. Another aspect related to the standard of proof that has been litigated before federal courts is the validity of intelligence reports on which the government relies for the detention of individuals at Guantanamo. On July 21, 2010, U.S. District Judge Henry H. Kennedy Jr. issued an opinion granting a writ of habeas corpus to Adnan Farhan Abd Al Latif, whose case was addressed in the previous chapter. Latif, along with several other Guantanamo detainees, had filed a petition for a writ of habeas corpus contending that he was being unlawfully detained. The opinion found that, because the government did not demonstrate that Latif was part of Al Qaeda or an associated force, his detention was unlawful under the AUMF and ordered his release. 174. On October 14, 2011, the D.C. Circuit Court overturned the district court opinion. Referring to the intelligence reports used by the Government as evidence in the case, the court concluded that the district court “failed to accord an official government record a presumption of regularity.”201 Circuit Judge Tatel issued a dissenting opinion asserting that the court “now facing a finding that [the government’s report] is unreliable, moves the goal posts.” In this regard, the opinion indicated that: 198 199 200 201 [a]ccording to the court, because the Report is a government-produced document, the district court was required to presume it accurate unless Latif could rebut that presumption […] In imposing this new presumption and then proceeding to find that it has not been rebutted, the court denies Latif the In re Guantanamo Bay Detainee Litig., Misc. No. 08-442, CMO § II.A (Nov. 6, 2008). Brief for Petitioner-Appellant at 48, cited in Al-Bihani v. Obama, 590 F.3d 866, 877 (D.C. Cir. 2010). Al-Bihani v. Obama, 590 F.3d 866, 877 (D.C. Cir. 2010), citing Hamdi v. Rumsfeld 542 U.S. 507 (2004). Latif v. Obama, 677 F.3d 1175 (D.C. Cir. 2012). Decided on October 14, 2011, reissued on April 27, 2012. Organization of American States | OAS