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The Graham Habeas Bill--A Brief Analysis

Benjamin Wittes
Tuesday, March 15, 2011, 9:54 AM
In fulfillment of my promise last week to provide analysis of the various pieces of new Senate legislation, here are some thoughts on the new version of Senator Lindsey Graham's habeas reform bill. The bill is largely a reintroduction of the one Sen. Graham wrote last year, S. 3707, on which Bobby and I consulted extensively.

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In fulfillment of my promise last week to provide analysis of the various pieces of new Senate legislation, here are some thoughts on the new version of Senator Lindsey Graham's habeas reform bill. The bill is largely a reintroduction of the one Sen. Graham wrote last year, S. 3707, on which Bobby and I consulted extensively. I wrote a long series of posts about it then (here, here, here, here, here, and here), Steve Vladeck and Peter Margulies and others have also commented on the bill. I will not repeat here my general thoughts on its virtues and vices. Instead, I will focus on the differences between this year's version and last year's. There is one huge difference between the two bills--and several small difference. The huge difference, alas, is not a good change. Some of the smaller differences, however, are positive. The big difference is that whereas last year's bill would have codified the "preponderance of the evidence" standard the courts are now using in habeas cases, this year's bill would codify a lower standard. Under its terms, a court would affirm the propriety of a detention based on a showing of mere probable cause that the habeas petitioner meets the statute's definition of the detainable class. (The statute uses the same definition of the detainable class as the McCain detention bill, which I analyzed over the weekend.) This change could have resulted from either or both of two factors. The first is the D.C. Circuit's invitation in Al Adahi to the government to seek a lower standard than the preponderance of the evidence. The panel in that case adopted the preponderance of the evidence standard on an arguendo basis only, making clear that it doubted that detention based on the preponderance of the evidence was necessary in order to satisfy the Constitution and suggesting that a lower standard might be constitutionally acceptable (see pp. 4-6 of the opinion). The government has made--rightly, in my view--a strategic decision, and perhaps a philosophical one too, not to argue for any lower standard. But the invitation is there for Congress to exploit as well, and this year Graham has decided to go for it. The second possible explanation for the change is the list of cosponsors. Last year's version of the bill was Graham's alone. This year, he has several cosponsors, including conservative Sens. Saxby Chambliss and Richard Burr; the change may simply reflect the sensibilities of his new partners. Whatever the cause of the change, it is not a good one--for two related reasons. The most basic reason is fairness. Holding people in long-term non-criminal detention is dicey enough. Holding them in long-term non-criminal detention when one can't even say that the weight of evidence supports that detention should be a tough sell. The preponderance of the evidence standard is not an onerous one. It asks only that a court find it more likely than not that the detainee is within the detainable class (however that is defined). To lower the standard below the preponderance allows for the possibility of a court's permitting the detention of someone whom it concedes is more likely than not to be, say, a case of mistaken identity. While the D.C. Circuit is not wrong, in my judgment, to consider it an open question whether the Constitution requires a preponderance of the evidence, Congress need not legislate to the constitutional minimum--just as the Executive Branch need not argue under current law for adoption of constitutionally minimal standards. Second, I worry that the adoption of a standard lower the preponderance of the evidence would trigger early Supreme Court intervention in these cases. Imagine a case in which a district judge held that (a) he did not believe the detainee was "part of" Al Qaeda, but (b) he was constrained to acknowledge that the government had satisfied the probable cause standard, and that he was therefore (c) denying the writ. Imagine that the D.C. Circuit affirmed such a case and that a cert petition found its way to Justice Anthony Kennedy--who is, let's be honest, the country's chief arbiter of detention policy. Would not a case of someone found detainable despite a conceded likelihood of innocence pull at his heartstrings? The Supreme Court has shown little interest in these cases since Boumediene, and that's a good thing. The last thing we need is for the justices to step in now and upset the entire apple cart--or for Congress to taunt them into doing so. Beyond this one big change, there are a few smaller changes--most too small to warrant specific note. Two, however, are worth pointing out. First, both the current version and the original bill would create a presumption that once someone joined the enemy, he remained part of it until the time of his capture. This is an effort to address a persistent problem in habeas cases where the government shows that someone joined up at one point but can't necessarily show a continuous pattern of membership-type activity from that point until the time of his capture. The detainee claims he left at some point. The government claims the activity in between should be inferred. And what is a judge to do? The bills try to answer this question by creating a rebuttable presumption that someone who joined stayed--thereby shifting the burden to the detainee, once the government has proven initial membership, to prove the vitiation of that relationship. The trouble in the original bill was that the burden placed on the detainee in this regard was too high. As I explained in one of my earlier posts,
instead of requiring the detainee to prove withdrawal by the preponderance of the evidence standard, the bill would require the detainee to offer proof rising to the markedly higher standard of “clear and convincing” evidence. This seems both analytically troubled and rather unfair. It gives rise to the untoward possibility that a detainee might prove to a court the preponderant likelihood that he left enemy forces before capture, but be ordered detained anyway because he could not prove that by clear and convincing evidence. In my view, if the government’s burden is to prove the fact of membership by a preponderance of the evidence, and a detainee proves by a preponderance of the evidence that he has quitted enemy forces, then the government has not carried its burden and the detainee should prevail.
Leaving aside the change in the standard of proof itself, the new version of the bill fixes this particular problem, requiring only that the detainee show that he "took affirmative action to withdraw from the organization in question prior to the individual's capture." Second, the new version seems to expand somewhat the government's discovery obligations. Having never studied carefully the discovery issues at play in these cases, I don't know off-hand how significant this change is, but it appears to be an effort to bring the statute more in line with the case management order that governs most of these cases.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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