Al Adahi v Obama suggest lower evidence standard for ongoing detention of terror detainees

The D.C. Circuit Court, in a broad hint to the Justice Department to adopt a new strategy in detainee cases,  suggested strongly on Tuesday in the case of Al-Adahi v. Obama (docket 09-5333) that federal judges are now demanding too much evidence from the government to justify holding prisoners at Guantanamo Bay, and elsewhere.  Although the three-judge panel said it was not deciding the issue finally, it said that detention might be legal if the government has only “some evidence” to support captivity.  Even a “preponderance of the evidence” standard may be too strict, it indicated.

According to Scotus:

Tuesday’s ruling appeared to have gone the furthest of any Circuit panel ruling to narrow the chances that other detainees can prevail in cases still to be decided in the District Courts.  In virtually all of the habeas cases, the government has been able to produce “some evidence” that a detainee has links to terrorist organizations or figures.  If that were now the level of proof required, the government would appear much more likely to prevail.

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