Deleted:Bostan v. Bush

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Bostan v. Bush (Civil Action No. 05-cv-883) is a writ of habeas corpus filed on behalf of Guantanamo detainee Karim Bostan. As of January 21, 2009, the title of the case was changed to Bostan v. Obama.[1]

Bostan v. Karim is notable for how frequently US District Court Judge Reggie B. Walton's rulings on the admissibility of hearsay evidence, and on the discretion given to the Government's claims of national security privilege have been cited, quoted andcommented upon by legal scholars and human rights workers.[2][3][4][5] [6]

Publication of captives' CSR Tribunal documents

In September 2007 the Department of Justice published dossiers of unclassified documents arising from the Combatant Status Review Tribunals of 179 captives.[7] Documents from Bostan Karim's CSR Tribunal were not among the 179 the Department of Defense published.

The Center for Constitutional Rights listed the lead petitioners of the Guantanamo captives' habeas petitions on January 8, 2007.[8] The Center listed Paul M. Rashkind, a Federal public defender in Florida, as counsel for the petitioner.

The Detainee Treatment Act and Military Commissions Act

The United States Congress passed the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. Both these Acts included provisions to close of Guantanamo captives' ability to file habeas corpus petitions.[9][10]

The Detainee Treatment Act included a provision to proscribe Guantanamo captives who had not already initiated a habeas corpus petition from initiating new habeas corpus petitions.[9] The Act included provision for an alternate, more limited form of appeal for captives. Captives were allowed to submit limited appeals to panels of three judges in a Washington DC appeals court. The appeals were limited—they could not be based on general principles of human rights. They could only be based on arguments that their Combatant Status Review Tribunal had not followed the rules laid out for the operation of Combatant Status Review Tribunals.

Nine months later Congress passed the Military Commissions Act.[9] This Act contained provision to close off all the remaining outstanding habeas corpus petitions. After the closure of the habeas corpus petitions some Guantanamo captives had appeals in the Washington DC court submitted on their behalf, as described in the Detainee Treatment Act.

The DTA appeals progressed very slowly.[9] Initially the Department of Justice argued that the captive's lawyers, and the judges on the panel, needed consider no more evidence than the "Summary of Evidence memos" prepared for the captives' CSR Tribunals. By September 2007 the Washington DC court ruled that the evidence that formed the basis of the summaries had to be made available.

The Administration then argued that it was not possible to present the evidence the Tribunals considered in 2004—because the evidence had not been preserved.[9]

Only one captive, a Uyghur captive named Hufaiza Parhat, had his DTA appeal run to completion. On June 20, 2008 his three judge panel concluded that his Tribunal had erred and that he never should have been confirmed as an enemy combatant.

Bostan Karim had a DTA appeal initiated on his behalf.

Boumediene v. Bush

On June 12, 2008 the United States Supreme Court ruled, in Boumediene v. Bush, that the Military Commissions Act could not remove the right for Guantanamo captives to access the US Federal Court system. And all previous Guantanamo captives' habeas petitions were eligible to be re-instated.

On July 18, 2008 Michael Caruso, a Federal public defender, re-initiated Karim Bostan's habeas petition.[11] Paul M. Rashkind, another Federal public defender, and Wesley R. Powell of the law firm of Hunton & Williams LLP are also recorded as having helped provide legal assistance to Bostan Karim.[8]

Comments in the academic press

Benjamin Wittes, Robert Chesney and Rabea Benhalim, of the Brookings Institute, in “The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking”, made several quotes from US District Court Judge Reggie B. Walton's ruling in Bostan v. Obama.[2] They noted several comments Walton made about the extent to which judges like him should make changes to rules of evidence due to national security concerns, and the weight and admissibility of hearsay evidence.

At first blush the distinction between admissibility and weight may appear academic. Indeed, Judge Walton suggests as much in Bostan:
Whether the assessment of a piece of hearsay’s evidentiary worth is made at a preliminary hearing on the admissibility of proferred evidence or at the close of merits proceedings after being provisionally admitted into the record, the bottom line is that hearsay of no evidentiary worth will not be considered when the Court makes its factual findings.

Matthew Waxman, also quoted Walton, over the standards of evidence the Department of Justice wanted to use in Bostan v. Obama: “The very notion that the Court should lower its standards of admissibility to whatever level the government is prepared (or even able) to satisfy is contradictory to the fundamental principles of fairness that inform the Great Writ’s existence.”[3][4]


Laura Olson, who spent ten years working for the International Committee of the Red Cross, the body that administers the Geneva Conventions, also cited Walton's ruling on the admissibility of hearsay evidence, in Bostan v. Obama, in "Guantanamo habeas review: are the D.C. District Court's decisions consistent with IHL internment standards?"[6]

References

  1. Josh Gerstein (January 21, 2009). "Legal issues complicate Gitmo closing". http://mobile.politico.com/story.cfm?id=17764&cat=topnews. Retrieved January 22, 2009. 
  2. 2.0 2.1 Benjamin Wittes, Robert Chesney, Rabea Benhalim (2010-01-22). "The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking". Brookings Institute. pp. 39, 40, 41, 42. Archived from the original on 2010-11-13. http://www.webcitation.org/query?url=http%3A%2F%2Fwww.brookings.edu%2F%7E%2Fmedia%2FFiles%2Frc%2Fpapers%2F2010%2F0122_guantanamo_wittes_chesney%2F0122_guantanamo_wittes_chesney.pdf&date=2010-11-13. "This member of the Court will . . . observe the Federal Rules of Evidence except where national security or undue burden to the government require otherwise, and the onus will be placed on the government to justify deviance from these rules rather than simply assume away any rules or requirements that the government deems inconvenient. This is not making up a new standard for detainee cases—it is simply requiring the government to justify any variance from well-established rules of evidence." 
  3. 3.0 3.1 Matthew C. Waxman (2009-11-19). "Guantánamo, Habeas Corpus, and Standards of Proof: Viewing the Law Through Multiple Lenses". Columbia Law School. p. 16. Archived from the original on 2010-11-13. http://www.webcitation.org/query?url=http%3A%2F%2Flsr.nellco.org%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1065%26context%3Dcolumbia_pllt&date=2010-11-13. "The very notion that the Court should lower its standards of admissibility to whatever level the government is prepared (or even able) to satisfy is contradictory to the fundamental principles of fairness that inform the Great Writ’s existence." 
  4. 4.0 4.1 Matthew C. Waxman (2009). "Guantanamo, habeas corpus, and standards of proof: viewing the law through multiple lenses". Case Western Reserve University School of Law. Archived from the original on 2010-11-14. http://www.webcitation.org/query?url=http%3A%2F%2Fwww.thefreelibrary.com%2FGuantanamo%2C%2Bhabeas%2Bcorpus%2C%2Band%2Bstandards%2Bof%2Bproof%253A%2Bviewing%2Bthe%2Blaw...-a0231313726&date=2010-11-14. "see also Bostan v. Obama, No. 05-883, slip op. at 10 n.5 (D.D.C. Aug. 19, 2009), available at https://ecf.dcd.uscourts.gov/ cgi-bin/showAoublic_doc?2005cv2386-1408 (applying Federal Rules of Evidence to Guantanamo habeas cases, "except where national security concerns or undue burden to the government requires otherwise."" 
  5. Gordon Silverstein (2009). "The law: Bush, Cheney, and the separation of powers: a lasting legal legacy?". Center for the Study of the Presidency. Archived from the original on 2010-11-14. http://www.webcitation.org/query?url=http%3A%2F%2Fwww.thefreelibrary.com%2FThe%2Blaw%253A%2BBush%2C%2BCheney%2C%2Band%2Bthe%2Bseparation%2Bof%2Bpowers%253A%2Ba%2Blasting%2Blegal...-a0211714741&date=2010-11-14. "In areas ranging from the assertion of the state secrets privilege in efforts to shut down lawsuits over warrantless wiretapping (Al-Haramain v. Obama; Jewel v. NSA and extraordinary rendition (Mohamed v. Jeppesen Dataplan) to those concerning lawsuits over detention and treatment at Guantanamo (Bostan v. Obama) and the reach of habeas corpus to Bagram Air Force Base in Afghanistan (Al Maqaleh v. Gates), as well as the continuing use of signing statements, the new Obama administration's policies in a number of areas that were of intense interest during the campaign certainly do appear less dramatically different than one might have expected. Does this suggest that Obama actually will salvage and enhance the Bush-Cheney legal legacy?" 
  6. 6.0 6.1 Laura M. Olson (2009). "Guantanamo habeas review: are the D.C. District Court's decisions consistent with IHL internment standards?". Case Western Reserve University School of Law. Archived from the original on 2010-11-14. http://www.webcitation.org/query?url=http%3A%2F%2Fwww.thefreelibrary.com%2FGuantanamo%2Bhabeas%2Breview%253A%2Bare%2Bthe%2BD.C.%2BDistrict%2BCourt%2527s%2Bdecisions...-a0231313725&date=2010-11-14. 
  7. OARDEC (August 8, 2007). "Index for CSRT Records Publicly Files in Guantanamo Detainee Cases" (PDF). United States Department of Defense. http://www.dod.mil/pubs/foi/detainees/csrt_arb/index_publicly_filed_CSRT_records.pdf. Retrieved 2007-09-29. 
  8. 8.0 8.1 "Lead Petitioners' Counsel in Guantanamo Habeas Cases" (PDF). Center for Constitutional Rights. January 8, 2007. http://listproc.ucdavis.edu/archives/law-lib/law-lib.log0701/att-0174/01-GITMO_AttyList.pdf. Retrieved 2008-06-11.  mirror
  9. 9.0 9.1 9.2 9.3 9.4 Dahlia Lithwick (2007-10-17). "The Dog Ate My Evidence: What happens when the government can't re-create the case against you?". Slate magazine. http://www.slate.com/id/2176017/. Retrieved 2008-08-18. "Is the government taking the position that this evidence is both critically, vitally, and hugely important to national security, but also, um, lost? Not quite. But it is saying that the 'record' relied upon to lock up men for years is somehow so scattered among various Department of Defense 'components, and all relevant federal agencies' that it cannot be pulled together for a review."  mirror
  10. Peter D. Keisler, Douglas N. Letter (2006-10-16). "NOTICE OF MILITARY COMMISSIONS ACT OF 2006" (PDF). United States Department of Justice. http://natseclaw.typepad.com/natseclaw/files/Hamdan.28j.letter.pdf. Retrieved 2008-09-30.  mirror
  11. Michael Caruso (2008-07-18). "Guantanamo Bay Detainee Litigation: Doc 132 -- Civil NO. 05-883, Karim Bostan's Status Report" (PDF). United States Department of Justice. http://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008mc00442/131990/132/0.pdf. Retrieved 2008-08-18. 

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