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). Organization of American States | OAS