B. The Paperwork at Issue

The DTA is of general application to all alien detainees, whether at Gitmo or in Iraq or Afghanistan. It represents an initial stage in the process (and for those detainees not charged under the MCA, the final stage). The closest domestic law enforcement analogy is the arrest and initial incarceration phase (police investigation, arrest warrant and affidavit before a magistrate, jail booking).

So, the DTA paperwork should, if properly done, reflect similar features. Many who are reading this are very familiar with the domestic law paperwork, so I will not dwell on that. Police investigative reports (like everything else) may be good, bad or indifferent. My own experience has generally been positive - they nail down the facts of the case, the witnesses, the crime scene, accused's admissions, technical evidence, etc. Of course, certain aspects have to be developed as one moves to the charging stage and into preliminary and trial stages - in MI, by complaint, preliminary examination (usually a bind-over), information, pre-trial motion practice and trial (followed by conviction and hanging - not really, but just checking to see if you are still awake).

For those familiar with domestic law enforcement, I think you will find - if you look at the actual DTA paperwork - that it is not up to the standards set by our police agencies. That is my opinion after after having downloaded (from the DoD webpages) and reviewed some of it. That is rather surprising since the government has had years to prepare this preliminary paperwork.

The reversal in Parhat of the CSRT determination (total lack of evidence), and Judge Allred's felt need to re-determine de novo Hamdan's status as an enemy combatant (he found that status based on the evidence he required to be presented), support my opinion about DTA paperwork.

The skeptic in me sends up a red flag - does the government really have evidence against many of these detainees that would meet the probable cause test which we are so used to in obtaining an arrest warrant - or, in making an arrest without warrant ?

That is, of course, the question being asked by the detainees' attorneys in the "Bismullah" discovery cases. That there should be some discovery of the evidence used to make the CSRT determination seems to me to be a no-brainer - including exculpatory evidence if it exists. The government seems to think differently. The issue is whether the Brady discovery doctrine (Brady v Maryland, from the early 60's) is a fundamental due process rule, since its purpose is to guard against convicting an innocent person.

We could live without Miranda and many of the various search and seizure rules requiring exclusion of credible evidence because of technical errors (the constable has blundered, so the guilty must go free). In fact, we lived under the "totality of circumstances" exclusionary concept for almost 200 years without losing the integrity of our judicial system. The Brady doctrine (applied with some common sense) is of a different order of magnitude.

The "Bismullah" requests also involve requests for discovery of relevant evidence not used in the CSRT determinations - which the government also opposes.

It is interesting that, in SEC 1005(a) of the DTA, we do find a "new evidence" requirement:

(3) Consideration of new evidence.--The procedures submitted under paragraph (1)(A) shall provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee.
That provision is one factor in the "Bismullah" requests for discovery of "government information"