SCOTUS: Petitioner reply in Al Odah v. United States

Briefing on certiorari is now complete in Al Odah v. United States. In his cert. petition, Fawzi Khalid Abdullah Fahad Al Odah urged the Supreme Court to review the D.C. Circuit's ruling that the preponderance of the evidence standard and admission of hearsay both comport with due process in habeas cases for foreign nationals held at Guantanamo. The government then submitted its opposition brief earlier this month (we covered the filing here).  And, late last week, the petitioner filed his reply. The government had written in its opposition brief:

In short, the lower courts have properly performed the task that this Court assigned them in Boumediene v. Bush, 553 U.S. 723 (2008)—they have developed “procedural and substantive standards,” id. at 796, for habeas proceedings for military detainees. Nothing in the Constitution or any other source of law requires the application of different standards or procedures. Further review is not warranted.

In the reply, the petitioner writes (citation omitted):

[T]he government states that review of the decision below is not warranted because, in the Guantanamo habeas cases, the Court of Appeals and District court have consistently upheld the admission of hearsay without regard to the Federal Rules of Evidence and have consistently applied the preponderance of the evidence standard of proof.  It is precisely for these reasons that this Court's review of the Court of Appeals' decision of important federal questions is warranted.  The central question in Boumediene was not whether the United States could detain individuals in Guantanamo, but rather what process is due to such individuals.  The Court's answer--the writ of habeas corpus--requires evidentiary procedures and a standard of proof that truly effectuate the liberty interest embodied in the writ.