Brief Amicus Curiae of the National Association of Criminal Defense Lawyers In Support of Petitioner-Appellant.
Argument: NACDL’s amicus brief argues that consistent with Boumediene v. Bush, 553 U.S. 723 (2008), the D.C. Circuit has repeatedly recognized the possibility that the Due Process Clause applies, at least in some respects, to Guantanamo detainees. To the extent the en banc court concludes that the Suspension Clause does not bar the use of ex parte evidence in habeas proceedings, it should hold that the Due Process Clause does bar such evidence. Ex parte evidence is one of the core evils against which the Due Process Clause guards. Since before the Founding, it has been recognized that fundamental fairness requires allowing a litigant to see, and rebut, the evidence the government is relying upon to justify the exercise of its coercive powers. The D.C. Circuit has long recognized and enforced the firmly held rule that courts may not decide the merits of a case—particularly one where individual liberty interests are at stake—on the basis of ex parte, in camera submissions. If the information required to hold a detainee is classified: “The government must choose; either leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully.” Jencks v. United States, 353 U.S. 657, 671 (1957). Two key due process considerations strongly favor barring ex parte evidence here: the risk of erroneous deprivation and the strength of the government’s asserted interest. Al-Hela has been in detention for nearly 20 years without ever being charged with a crime. The information at issue is aged and the government’s interest in maintaining secrecy of such dated information has diminished with the passage of time. At the same time, the risk of a prolonged detention based on erroneous information increases with each passing day. As a result, the degree of scrutiny of the evidence used to justify detention must increase as well, requiring, at a minimum, that Al-Hela’s security-cleared counsel be given an opportunity to review all of the evidence used to justify Al-Hela’s continued detention. There is good reason to be wary of the ex parte use of information in this context, given that prior ex partesubmissions have proven unreliable when subsequently exposed to daylight.