This report proceeds in several parts. In the first section, we briefly describe the legal background that gave rise to these habeas corpus cases: the Supreme Courts decisions recognizing federal-court jurisdiction over Guantnamo and addressing to a limited extent the contours of a legal process for detainees adequate to satisfy constitutional concerns. We highlight in particular the extent to which the court left the key questions open, a move that in the absence of further congressional action effectively delegated the writing of the rules to the judiciary.
In the sections that follow, we examine the law as it is developing with respect to several of the most important questions concerning the governance of non-criminal, law-of-war-based detentions. In particular, we look at the judges approaches to the following questions:
the burden of proof;
the substantive scope of the governments detention power;
the question of whether a detainees relationship with an enemy organization, once established, is permanent or whether it can be vitiated by time or events;
whether the government is entitled to presumptions in favor of either the accuracy or authenticity of its evidence;
the use of hearsay evidence;
the use of evidence alleged to result from coercion; and
the governments use of a mosaic theory of evidentiary interpretation.
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