80 | Towards the Closure of Guantanamo
factual basis for his detention. The Government must also search all databases for
exculpatory evidence relating to his statements. 206
178. The Government’s use of hearsay evidence, inadmissible under Federal Rules of
Evidence, has been the center of controversy. In Hamdi v. Rumsfeld the U.S.
Supreme Court ruled that hearsay “may need to be accepted as the most reliable
available evidence from the Government” at a time of ongoing military conflict. 207
In line with this decision, the CMO allows district judges to admit hearsay evidence
that is “reliable” and “material and relevant to the legality of the petitioner’s
detention” when “the provision of non-hearsay evidence would unduly burden the
movant or interfere with the government’s efforts to protect national security.” 208
District and circuit judges have generally admitted hearsay evidence, focusing on
the question of how much weight to accord it. In Al-Bihani v. Obama the D.C. Circuit
Court ruled that “Al-Bihani cannot make the traditional objection based on the
Confrontation Clause of the Sixth Amendment [providing for the right of the accused
to be confronted with the witnesses against him] […] because the Confrontation
Clause applies only in criminal prosecutions,” and not in military detention habeas
cases. 209
c.
Other challenges
179. With regard to access to classified information for use in a habeas petition, on
January 9, 2013, the D.C. District Court held in Mousovi v. Obama that the
Government had to allow in-camera review by the court in order to determine
whether a document was admissible or not. Though the Government was permitted
to redact and edit classified documents before they were disclosed to the
petitioner’s counsel, the court had to be able to see documents in order to
accurately assess the actions of the executive. 210
180. Further, the D.C. District Court in International Counsel Bureau v. U.S. Dep’t of
Defense has rejected a request brought under the Freedom of Information Act
(FOIA) for records, videos, and still images of four Guantanamo detainees. The
court held that the Department of Defense did not have to disclose the information
under the broad FOIA Exception 1. 211 According to this exception, the agency does
not need to disclose information if it has been properly classified. In the instant
case, a variety of executive orders had classified the information at issue.
181. Concerning sensitive but unclassified information in factual returns (documents the
government has to file in response to habeas corpus petitions), the D.C. District
Court in In re Guantanamo Bay Detainee Litig., held that any information the
Government wished to deem “protected” must comply with the Parhat two-step
206
207
208
209
210
211
Abdulmalik v. Obama, 802 F. Supp. 2d 1 (D.D.C. 2011).
Hamdi v. Rumsfeld 542 U.S. 507 (2004) at 533.
In re Guantanamo Bay Detainee Litig., Misc. No. 08-442, CMO § II.A (Nov. 6, 2008).
Al-Bihani v. Obama, 590 F.3d 866, 877 (D.C. Cir. 2010) at 879.
Mousovi v. Obama, 916 F. Supp. 2d 67 (D.D.C. 2013).
International Counsel Bureau v. U.S. Dep’t of Defense, 906 F. Supp. 2d 1 (D.D.C. 2012).
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