The Supreme Court rejected President George W. Bush’s claim that a president may lock up anyone he wants without giving them a meaningful opportunity to prove that they are wrongfully detained on four separate occasions. Nevertheless, a panel of conservative judges on the right-wing D.C. Circuit recently suggested that they will carve a hole in these four decisions that is so big as to render them absolutely meaningless.

One of the most important questions in any lawsuit is what “evidentiary standard” applies. In criminal cases, for example, the government cannot win unless they prove their case “beyond a reasonable doubt,” thus requiring them to present a very convincing case in order to achieve a conviction.

Shortly after the Supreme Court’s last major detention case, all of the judges on the DC federal trial court charged with hearing detainee hearings met and decided that these cases should be decided under a “preponderance of the evidence” standard, and the Justice Department agrees that this is the proper standard. In English, this means that the government may only detain an individual if it can demonstrate that it is more likely than not that the detention is justified.

This week, however, in a case called Al-Adahi v. Obama, a panel of three right-wing appeals court judges claimed that this “preponderance” bar should be replaced by one that is so low that it would be almost impossible for a detainee to be released:

[W]e are aware of no precedents in which eighteenth century English courts adopted a preponderance standard. Even in later statutory habeas cases in this country, that standard was not the norm. For years, in habeas proceedings contesting orders of deportation, the government had to produce only “some evidence to support the order.” In such cases courts did not otherwise “review factual determinations made by the Executive.” In habeas petitions challenging selective service decisions, the government also had the minimal burden of providing “some evidence” to support the decision. Habeas petitions contesting courts martial required the government to show only that the military prisoner had received, in the military tribunal, “full and fair consideration” of the allegations in his habeas petition. And in response to habeas petitions brought after an individual’s arrest, the government had to show only that it had probable cause for the arrest.

Many of the standards listed here would turn detainees’ right to challenge their detention into an empty charade.  If the government, for example, only had to show “some evidence” proving that a person was a terrorist, then even the weakest case against a detainee would be sufficient to keep them locked up forever.

There are, of course, many open legal questions concerning detainees’ habeas rights.  If a person who was previously associated with a terrorist group convincingly reputates that group and its tactics, for example, must they be freed?  One thing is clear, however.  All detainees must be given a meanful opportunity to challenge they detention.  Al-Adahi is simply wrong to suggest that a detainee’s tribunal can be nothing more than a sham.

Rachel Maddow’s interview with Lt. Col. Victor Fehrenbach, who has spent 19 years as a fighter pilot in the Air Force and is in the process of being discharged from the military because he’s gay, is the personification of the failure of the Don’t Ask, Don’t Tell policy and a test case for the Pentagon’s new “more humane” approach towards discharging gay and lesbian servicemembers:

FEHRENBACH: And we also don`t know if they`re taking extra time because Secretary Gates, as you know, announced new, more lenient, more humane enforcement standards in March. So maybe they`re taking the extra time to apply those standards. We hope so. As you know, those standards – some of the things you now see, my case meets all those standards. For instance, it was not credible information that was presented. It was not from a reliable source. And my chain of command did not take into consideration how that information was gained.

And then finally, it was clearly malicious intent involved by the person who outed me. So my case should be, you know, basically the poster case for the new enforcement standards. My case meets every one of those criteria. So really, the Air Force has the opportunity to do the right thing here, to dismiss my cases and retain me. And I hope they do that under these new enforcement standards.

Watch it:

On Monday, Pentagon spokesperson Geoff Morrell couldn’t understand why some gay troops would find the survey or its questions insulting. Here, Fehrenbach explains: “[Y]ou know, there are things in combat that we just don`t think about. You think about where your next meal is going to come from. You think about your next mission. You think about your family back home. And you just don`t think about who`s showering next to you.” “Questions like that – they got specific – seem somewhat insulting.”

Fehrenbach also argued that polling the troops was not effective way of ensuring effective implementation. “You know, if we wanted to see if everybody was comfortable, you know, we could ask them if they wanted to go home for Christmas or stay in a tent in Afghanistan. You`d probably get 90 percent that said they`d rather go home for Christmas,” he said. “And nobody asked me if I was comfortable while I was getting shot at eight times over Baghdad. Nobody if I was comfortable in my 13-hour mission over Afghanistan.”

The Pentagon however, insists that these questions are necessary for effective repeal. “Do you want us to put our head in the sand and ignore concerns that have been voiced to us by the force?” Morrell asked me. “It is better for us to ask some of these questions up front in as candid a manner as possible, to get as much information as possible, so we are prepared for this eventuality. It would be irresponsible of us to do otherwise.”

These two views seem irreconcilable: gay service members believe that some of the assumptions made about “homosexuals” are offensive, but the military believes that it needs to make these assumptions to garner enough information to implement repeal effectively. For now, it seems like gays will just have to feel offended.

Buenos Aires Argentina Temple

The Mormon Church spent millions of dollars and countless man hours to pass Proposition 8 in California, and now the Salt Lake Tribune is reporting that “despite the LDS Church’s claim last week that it had not taken a stand on Argentina’s move to allow gay marriage, a high-ranking church official did join other religious leaders there to plan opposition to the bill“:

Carlos Aguero, LDS public-affairs director for Argentina and a former Area Authority Seventy, attended a July 7 meeting with leaders from several conservative Christian churches and traditional family organizations, according to a Buenos Aires newspaper. [...]

Mormon leaders in Argentina on Sunday read a letter from the Utah-based church’s governing First Presidency, reiterating its support for traditional marriage, to all congregations in that South American country. The letter did not ask members to contribute time or money to the opposition, as it had in California’s Proposition 8, which opposed gay marriage.

A Church spokesperson confirmed that “the letter was sent to local leaders in Argentina, where the faith has more than 371,000 members, according to a 2010 church almanac.” “The letter falls short of calling for political activism by members in Argentina, but is an echo of a 2008 letter from Monson to Latter-day Saints in California. Monson had called for Mormons to give their time and money to help pass Proposition 8.”

Proposition 8 won by less than 5% of the vote and “individual Mormons contributed $20 million of its $40 million war chest.” The marriage initiative in Argentina passed 33-27 in the Senate, making the country the “first Latin American nation to legalize gay marriage, granting same-sex couples all the legal rights, responsibilities and protections that marriage brings to heterosexuals.”