Evidentiary Rules Governing Guantánamo Habeas Petitions: Their Effects and Consequences

Abstract

Since Boumediene, the courts within the D.C. Circuit have heard over sixty habeas petitions from detainees at Guantanamo Bay. At first, many writs were granted. The lower courts applied a functional framework for determining the admissibility, credibility, and probity of evidence, holding the government to the ordinary burden of preponderance of the evidence. However, as the government and detainees began to appeal habeas decisions on the basis of adverse evidentiary rulings, the Court of Appeals announced binding evidentiary rules limiting the district courts’ discretion to admit, exclude, weigh, and consider evidence as the district courts saw fit. This Note argues that these evidentiary rules deny detainees a “meaningful opportunity” to contest the factual basis of their detention. The D.C. Circuit maintains that it holds the government to a preponderance standard and has cast its reversals of the District Court’s grants of habeas corpus as mere corrections in judging evidentiary probity. However, in substance, the Court of Appeals’ evidentiary rules have quietly but significantly eroded the evidentiary burden.