Chapter4 Access to Justice | 79
“meaningful opportunity” to contest the lawfulness of his detention guaranteed
by Boumediene v. Bush. 202
175. The dissenting opinion further found that, “[c]ompounding this error, the court
undertakes a wholesale revision of the district court’s careful fact findings. Flaws in
the Report the district court found serious, this court now finds minor [….] without
ever concluding that the district court’s particular take on the evidence was clearly
erroneous.” 203 In June 2012, the U.S. Supreme Court denied certiorari in this case
and in multiple appeals examining whether suspected terrorists are being afforded
a meaningful opportunity to challenge the legality of their detention.
176. Professor Hafetz has highlighted the division between district and circuit judges
regarding the standard of proof in the following terms: 204
The debate over the standard of proof reflects a larger divide between circuit
and district judges over how to treat the government’s evidence. One area of
division concerns the government’s “mosaic theory.” Originally employed in
intelligence analysis, the mosaic theory is premised on the notion that pieces of
evidence must be evaluated as a whole rather than examined independently.
Several district judges have rejected the government’s reliance on this theory
in detainee habeas proceedings. […]
Circuit Judge Randolph has taken one of the most extreme positions on the
issue, asserting that judges must undertake a conditional probability analysis
in reviewing the evidence […] [e]ven if a given fact does not prove the ultimate
proposition (i.e., that the detainee is an enemy combatant), that fact makes it
more likely that other facts establish this ultimate proposition and counsels in
favor of a finding the petitioner detainable under the AUMF. Circuit Judge
Silberman has advocated a similar approach, arguing that a D.C. Circuit judge
should not order the release of a Guantánamo detainee if he or she believes it
“somewhat likely that the petitioner is an al-Qaeda adherent or an active
supporter.” 205
177. Regarding requests for additional discovery, in Abdulmalik v. Obama, the detainee
requested the D.C. District Court to compel the government to reveal the names of
his interrogators and those present at his interrogations before his transport to
Guantanamo; and to make these individuals available for deposition. He claimed
that the depositions were necessary to establish that he was mistreated during
interrogation and thus made statements that were not credible. Although the court
did not rule on the merits, it held, on July 26, 2011, that the Government must reveal
whatever evidence they had to rebut the detainee’s allegations of abuse in order to
allow him to explain why the discovery requested would enable him to rebut the
202
203
204
205
Circuit Judge Tatel dissenting opinion at 2. Latif v. Obama, 677 F.3d 1175 (D.C. Cir. 2012).
Circuit Judge Tatel dissenting opinion at 2. Latif v. Obama, 677 F.3d 1175 (D.C. Cir. 2012).
Hafetz, Jonathan, Calling the Government to Account: Habeas Corpus after Boumediene (December 14, 2011),
p. 12.
Esmail, 639 F.3d at 1078 (Silberman, J. concurring).
Inter-American Commission on Human Rights | IACHR
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