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