Tuesday, August 25, 2009

Al-Adahi Opinion is a Good Look at Gitmo Habeas Cases

An unclassified version of Judge Kessler's opinion in Al-Adahi was recently released. This opinion is a good comprehensive look at how the D.C. District is handling the Gitmo habeas cases. Here are a few important points:

  • The court will presume the authenticity of the government's exhibits as long as those exhibits have been maintained in the ordinary chain of custody.
  • The court will not presume the accuracy of the government's evidence. There are a couple of reasons for this. First, the accuracy of evidence in these cases is "hotly contested" because of the large amounts of multi-level hearsay involved and the danger that evidence was obtained through torture. Second, because there is no jury in habeas hearings, the court must act as the fact finder and determine the reliability and weight of the evidence.
  • While the court would not give the government's evidence a rebuttable presumption of accuracy it did say that hearsay could be allowed in some circumstances.
  • Mosaic theory- This is a popular evidentiary theory amongst the intelligence community and government has attempted to get the courts to accept this theory as a way for the government to prove its habeas cases. The theory is based on the idea that the court should look at all the pieces of the government's evidence as a whole and not focus on each individual piece of evidence. You can imagine this as a kaleidoscope in which the design is made up a many smaller pieces that look great together, but are not useful as a single piece. Judge Kessler said that while this theory was good enough for the intelligence community it was not good enough for a judicial proceeding. She said that allowing the government to use this theory would allow it to circumvent it's burden of proving every piece of its evidence.
  • Despite strong evidence of family ties to Osama Bin Laden, some evidence that Al-Adahi stayed at an Al Qaeda guesthouse, an admission by Al-Adahi that he trained at the Al Farouq training camp, and evidence that he may have been a Bin Laden bodyguard, Judge Kessler found that the government's evidence did not satisfy the question of whether Al-Adahi was a member of the armed forces of Al Qaeda and therefore granted the habeas motion.

This opinion is a great window into a judge's thinking on the Gitmo habeas motions and what standard the government is being held to. This opinion makes it look like the government is going to have a very hard time meeting its burden given the nature of the evidence in many of these cases.

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