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Khiali-Gul v. Obama

April 22, 2009


The opinion of the court was delivered by: James Robertson United States District Judge


The Petitioner is a detainee at the United States Naval Station in Guantanamo Bay, Cuba. He moves to exclude 17 exhibits submitted with the Respondents' amended factual return on the ground that they contain unreliable hearsay. The motion will be denied.

The 17 challenged exhibits consist of 16 Department of Defense Intelligence Investigation Reports (IIRs) and one Central Intelligence Agency Telegraph Dissemination (TD). They each contain statements from unnamed sources that, in the Respondents' view, support the continued detention of the Petitioner. The exhibits are at least triple hearsay: the relevant statements were recorded by members of the intelligence community, converted "to a form usable by analysts through decryption, language translations and data reduction," screened for relevance, and reported electronically or in printed form. See Declaration of Rafael Sanchez-Carrasquillo (Sept. 19, 2008), at 5.

As in other detention-related proceedings -- such as pre-trial detention hearings, see 18 U.S.C. § 3142, sentencing hearings, see 18 U.S.C. § 3661, parole hearings, see Crawford v. Jackson, 323 F.3d 123, 128 (D.C. Cir. 2003), and traditional habeas actions, see 28 U.S.C. § 2246 -- hearsay is admissible in this unconventional habeas proceeding. Under Section II.C of Judge Hogan's November 6, 2008 Case Management Order (CMO):

The Merits Judge may admit and consider hearsay evidence that is material and relevant to the legality of the petitioner's detention if the movant establishes that the hearsay evidence is reliable and that the provision of non-hearsay evidence would unduly burden the movant or interfere with the government's efforts to protect national security.

The Petitioner argues that the hearsay statements in the 17 challenged exhibits are too unreliable to be admitted because: (1) the statements are provided by unnamed sources whose reliability is -- in the words of the exhibits themselves --"undetermined," "unknown," or "unevaluated"; (2) the few facts the exhibits do provide about the sources often undermine the sources' credibility; and (3) some of the statements -- such as those accusing the Petitioner of participating in the Afghan insurgency at a time when he was in US military custody -- are patently untrue.

The CMO only permits the admission of "reliable" hearsay evidence, but Hamdi v. Rumsfeld, 542 U.S. 507 (2004), and Boumediene v. Bush, 128 S.Ct. 2229 (2008), counsel a liberal interpretation of that term. District courts are to afford the government significant latitude in presenting its cases for detention, giving due consideration to its "legitimate interest in protecting sources and methods of intelligence gathering," Boumediene, 128 S.Ct. at 2267, and its primary focus on collecting actionable intelligence rather than admissible evidence. In these habeas actions, the government must necessarily rest its case on the kinds of IIRs and TDs that are challenged in this motion, and the exhibits at issue here are not notably different from those submitted in the other ongoing Guantanamo Bay habeas cases. To require the government to justify the reliability of each of these reports at this preliminary stage would ignore the Supreme Court's admonition that district courts should accommodate the government's legitimate interests "to the greatest extent possible." Id.

Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008), does not compel a different result. Setting aside the contextual differences between that case and this one, the decision requires, at most, that a body reviewing a detainee's status have enough information to assess the reliability of the relevant sources. Although the exhibits here state that the sources are of "unknown" or "undetermined" reliability, they collectively include sufficient detail about the sources' placement, access, and motivation to provide a basis for making informed reliability determinations. By contrast, in Parhat, the Combatant Status Review Tribunal only had conclusory summaries that did not "provide any of the underlying reporting upon which [their] assertions [were] founded, [or] any assessment of the reliability of that reporting." Id. at 846-47. In essence, the Parhat court demanded the very kind of "raw" intelligence reports the Petitioner challenges here.

In Boumediene, the Supreme Court charged district courts with "reduc[ing] the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ." Id. at 2267. Admitting the 17 challenged exhibits at this stage -- with the assurance that the Petitioner's arguments on this motion will be considered when assessing the weight of the admitted evidence -- accomplishes that task.


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