Friday, March 6, 2009

D.C. Circuit Decision in Al Odah Case

SCOTUSblog reports that the D.C. Circuit has published its opinion in the case of Al Odah v. US. The decision is based on an interlocutory appeal made by the government to a district court order forcing the government to turn over unredacted classified information to attorneys representing detainees in habeas proceedings. The appeal has been on hold since 2005 while other cases, most notably Hamdan and Boumediene, were decided. The D.C. Circuit decided to move ahead with deciding this appeal once the D.C. District court started case management of all pending habeas cases. The D.C. Circuit's opinion vactes the district's earlier ruling, and remands it to the district court to make findings on materiality, as well as whether the government may be able to produce a sufficient alternative to review of classified information.

The decision says that a detainee's counsel is entitled to review all classified information that is helpful to his defense, and in the case of habeas proceedings all information that is necessary to facilitate a habeas review. Such information is what the court considers "material", and it is up to the court review the information in camera to determine whether classified information meets that standard. Here's a list of things the court found to be material:
  • Exculpatory evidence
  • Inculpatory evidence relating to sources such as: source bias, coercion of the source, or inconsistent information from the source.
  • Information containing names of witnesses that may have useful information.
The court also said that if the government wants information to be classified it should file an explanation as to why the information should remain redacted.

This decision gives some more definition as to how review of all the pending habeas cases will go. Furthermore, I think it is a step in the direction of defining what kinds of procedures the U.S. will use in the future to handle national security cases.

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