What mattered was "the sum total of procedural protections afforded to the detainee at all stages, direct and collateral."40*104. The DTA left the detainees unable to rebut effectively the government's factual basis for the enemy combatant classification. The detainee lacked counsel, had limited means to find or present evidence, and might not know critical allegations the government had relied on. The detainee could not confront witnesses or effectively challenge the admissibility of evidence.41*105. That made the detainees' opportunity "more theoretical than real."42Id.
The closed and accusatorial process carried an inherent risk of error. Where the error could cause persons to be detained for a generation or more, the risk became too significant to ignore.43*107. A procedural substitute for writ of habeas corpus had to give the court the means to correct errors, to assess the sufficiency of the government's evidence, and to consider new exculpatory evidence.44*108-109.
Under the DTA, the Appeals Court could not make factual findings. Moreover, the availability of a release remedy in the Appeals Court was purely presumptive. The detainee could not present new exculpatory evidence unavailable during the review tribunal. The procedure was record-developing rather than adversarial.45*111-119.
4. Did the circumstances present prudential barriers to habeas corpus?
No. Some detainees had been detained for six years without judicial oversight. The DTA reviews would cause more delay and the government had shown no onerous burdens preventing it from responding to the habeas corpus actions.
Thus, the detainees could bypass their need to exhaust ordinary (DTA) remedies. The detainees were entitled to prompt habeas corpus hearings, even if they lost.46*123. Regarding future detainees, absent undue delay, habeas corpus should be available to them only after the review tribunal.47*124. Keeping the D.C. Circuit as the sole appeals jurisdiction would help prevent dissemination of information.48*125-126. The Appeals Court should use its discretion to keep military matters unexposed.49*126.