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Disconnecting the Dots

The D.C. Circuit court eviscerates a district judge’s habeas ruling.

9:15 PM, Jul 13, 2010 • By THOMAS JOSCELYN
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A “preponderance of evidence” means the government has to show that the greater weight of the evidence is in its favor, rather than a detainee’s.  But the circuit court approvingly cites past decisions when only “some evidence” was necessary to justify detentions. Showing that “some evidence” justifies a detainee’s detention is far easier than meeting the “preponderance of evidence” standard.

The detainees’ lawyers are more than happy to have the government rely on a “preponderance of evidence.” And, incredibly, the Obama administration has apparently decided against advancing arguments in favor of only “some evidence.” The circuit court wrote: “We are thus left with no adversary presentation on an important question affecting many pending cases in this court and in the district court.”  

That is, the Obama administration has decided against making the government’s job easier.

As evidenced by Judge Kessler’s decision, the district courts are having a hard time evaluating the evidence amassed against detainees. Relying on the “some evidence” standard would make it easier for the government to convince district judges that Gitmo detainees are justifiably held.

Why doesn’t the Obama administration want to make it easier to fight off the detainees’ legal challenges?     

Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies. 

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