MEMORANDUM OPINION AND ORDER
PAUL
L. FRIEDMAN UNITED STATES DISTRICT JUDGE
This
matter is before the Court on respondent's motion to
admit hearsay - and to admit it with a presumption of
regularity. See Dkt. No. 530. Respondents argue that
hearsay - namely, certain intelligence and law enforcement
documents - must be admitted in evidence in this case.
Respondents also maintain that the Court must accord each
piece of hearsay evidence a rebuttable presumption of
regularity: that it is both (i) an authentic
government document, and (ii) an accurate summary or
record of a statement made by a nongovernment source to the
government official who produced the document. Motion at 4.
Mr. Paracha concedes that binding authority in this circuit
requires the Court to admit hearsay evidence and to grant it
a presumption of regularity. Response, Dkt. No. 536, at 1.
Mr. Paracha opposes the motion solely for the purpose of
preserving for appellate review his objection to the
presumption of regularity. Id. The Court will grant
the respondents' motion.
The
United States Court of Appeals for the District of Columbia
Circuit has made its position clear: hearsay evidence is
“always admissible” in Guantanamo habeas
proceedings. Al-Bihani v. Obama, 590 F.3d 866, 879
(D.C. Cir. 2010). Similarly, the court of appeals has held
that “in Guantanamo habeas proceedings a rebuttable
presumption of regularity applies to official government
records, including intelligence reports like the one at issue
here.” Latif v. Obama, 677 F.3d 1175, 1185
(D.C. Cir. 2011). The evidentiary presumption arises from the
principle that government officials are presumed to discharge
their duties properly - as relevant in the evidentiary
context, the duty to produce accurate documents. See
Id. at 1178. But the presumption has an important
limitation: it “only permits a court to conclude that
the statements in the government record were actually made;
it says nothing about whether those statements are
true.” Id. See also id. at 1180-81
(“The presumption of regularity - to the extent it is
not rebutted - a requires a court to treat the
Government's record as accurate; it does not compel a
determination that the record establishes what it is offered
to prove.”). This Court retains its duty to determine
the probative weight to which any piece of hearsay evidence
is entitled. Al-Bihani v. Obama, 590 F.3d at 879. In
determining the reliability, truthfulness, and credibility of
hearsay evidence, the Court will view the hearsay evidence in
the context of the evidence as a whole - that is,
“collectively, rather than in isolation.”
Latif v. Obama, 677 F.3d at 1193.
The
only matter that the parties continue to dispute is the
nature and quantity of evidence Mr. Paracha must introduce to
rebut the presumption of regularity. The court of appeals has
expressly declined to “decide precisely how much . . .
[a habeas petitioner detained at Guantanamo] must show to
overcome the presumption of regularity.” Latif v.
Obama, 677 F.3d at 1185 n. 5. Instead, the court in
Latif surveyed other courts' decisions - outside
the Guantanamo context - in which a presumption of regularity
was rebutted pursuant to thresholds ranging from “clear
and specific evidence” to “clear and convincing
evidence” to “clear evidence.” Id.
Ultimately, however, the court of appeals concluded in
Latif that the petitioner was unable to rebut the
presumption even under a lower preponderance of the evidence
standard. Id.
With
respect to the rebuttal evidence, the respondents urge the
Court to require “a clear evidentiary showing that the
presumption should not apply to a document, ”
characterizing the showing as one that establishes that the
evidence is “fundamentally unreliable.” Motion at
4-5. At the invitation of the Court, the respondents
“clarif[ied] that the usual burden of proof noted by
the [c]ourt of [a]ppeals . . . clear evidence . . . should
apply here.” Respondents' Notice Concerning the
Burden of Proof, Dkt. No. 543, at 3. Mr. Paracha argues,
however, that detainees should be able to rebut the
presumption of regularity by a preponderance of the evidence.
Response at 1-2. Mr. Paracha believes that it would be unfair
to allow respondents to prove their authority to detain him
under a mere preponderance of the evidence standard, while
requiring him to satisfy a higher “clear
evidence” standard to rebut the accuracy or
authenticity of the government's evidence. Id.
at 2.
The
Court must agree with the respondents: Mr. Paracha may only
rebut the presumption of regularity by clear evidence. This
threshold has long been the corollary to the presumption of
regularity. See United States v. Chem. Found. Inc.,
272 U.S. 1, 14-15 (1926) (“The presumption of
regularity supports the official acts of public officers and,
in the absence of clear evidence to the contrary, courts
presume that they have properly discharged their official
duties.”); Nat'l Archives and Records Admin. V.
Favish, 541 U.S. 157, 174 (2004) (observing that
“clear evidence is usually required to displace the
presumption” of regularity). The court of appeals did
not find it necessary in Latif to define the nature
of this burden with respect to evidence in Guantanamo cases.
But the general rule in our circuit requires clear evidence
to rebut the presumption of regularity given to government
documents or conduct. See People for the Ethical
Treatment of Animals v. United States Dep't of
Agric., 918 F.3d 151, 157 (D.C. Cir. 2019); Riggs
Nat'l Corp. v. Comm'r, 295 F.3d 16, 20-21 (D.C.
Cir. 2002); United States v. Studevant, 116 F.3d
1559, 1563 (D.C. Cir. 1997) (noting that the government's
conduct in a criminal investigation was entitled to the
presumption of regularity in the absence of “clear
evidence to the contrary”).
The
Court will therefore admit the government's hearsay
evidence and accord it the presumption of regularity. The
presumption can only be rebutted by clear evidence of
irregularity - a standard higher than preponderance of the
evidence but lower than beyond a reasonable doubt. See
Addington v. Texas, 441 U.S. 418, 423-35 (1979). The
clear evidence burden is only applicable, however, where Mr.
Paracha challenges the presumption of regularity itself. The
lower preponderance of the evidence standard will continue to
control the Court's analysis of the probative value of
the evidence: whether the contents of a record are a true
statement of fact. Accordingly, it is hereby
ORDERED
that respondents' motion [Dkt. No. 530] is GRANTED;
hearsay evidence is admissible in this matter and is entitled
to a rebuttable presumption of regularity; and it is
FURTHER
ORDERED that petitioner may only rebut the presumption of
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