Right-Wing Judges Suggest Reviving Discredited Bush-Era Detention Policies

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.