Boumediene v. Bush: The Suspension Clause and Guantanamo Bay
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Roberts also asserted that the DTA required the Appeals Court to consider whether the review tribunal had proceeded "consistent with the standards and procedures specified by the Secretary of Defense" and "whether the use of such standards and procedures to make the determination [was] consistent with the Constitution and the laws of the United States."56*150 quoting DTA 1005(e)(2)(c), 119 Stat. 2742. That supposedly satisfied judicial review because a court would determine the review tribunal procedures' constitutionality and flaws.57*150. Moreover, Roberts argued that the detainees had caused their own delay by not requesting the review tribunal procedures.58*137-138, 144-145.


Lastly, Roberts argued that the DTA achieved a proper substitute for habeas corpus because the review tribunal operated like a habeas court: "They gather evidence, call witnesses, take testimony, and render a decision on the legality of the Government's detention."59*148. The tribunal could also order release.60*149. The only way to know if the review tribunals satisfied due process was to use the alternative procedures Congress designed.61*140. Therefore, the detainees needed to exhaust the review tribunal remedy before seeking habeas corpus relief.62*140.



The Supreme Court in Hamdi held that a citizen detainee challenging his enemy combatant status must receive notice of the factual basis for his classification and a fair opportunity to rebut the government's factual assertions before a neutral decision-maker. The court noted that the exigencies of the circumstances could require accepting hearsay evidence from the government, a presumption in favor of the government's evidence, and a fair opportunity to rebut it. Once the government presented credible evidence, the burden would shift to the detainee to rebut it with more persuasive evidence showing that he fell outside the criteria for enemy combatant status. The Court dictated that threats to military operations posed by an independent review did not trump a citizen's core rights to challenge meaningfully the government's case before an impartial adjudicator.63Hamdi, 542 U.S. 507, at III(C). The "some evidence" standard was a standard of appellate review, not a standard of proof.64Id., at III(D). Nor could the evidence simply be presumed correct.65Id. Affidavit evidence would be acceptable if it let the detainee present his factual case in rebuttal. A district court should proceed prudently and incrementally.

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Copyright © Erik L. Smith.