Respondent and Reply Briefs Available in al Kandari v. Obama

[W]hether the district court’s jurisdiction comes from 28 U.S.C. $ 2241, in which case the Federal Rules of Evidence determine the admissibility of hearsay.

AI Kandari's argument should be summarily rejected. This Court has repeatedly held that hearsay evidence is to be admitted in Guantanamo habeas proceedings, and that district courts are to assess the reliability of the particular evidence in question. Apart from being foreclosed by binding precedent, AI Kandari' s challenge to the admission of hearsay evidence also fails on the merits. Decisions of the Supreme Court and this Court make clear that habeas review of military detention at Guantanamo presents a unique circumstance in which special procedural and substantive rules must be developed. Congress has also made clear its intent that Guantanamo habeas petitions should be treated differently from habeas claims seeking collateral review of a criminal conviction.

Apart from his global challenge to the admission of hearsay evidence, Al Kandari does not challenge the district court's reliance on any particular piece of hearsay evidence. In any event, the district court did not abuse its discretion in crediting the evidence the court relied on to uphold Al Kandari' s detention. As the district court properly concluded, the "overwhelming weight of the evidence" established that Al Kandari was part of al Qaeda, Tali ban forces, or associated forces at the time of his capture and thus subject to detention. Opinion, at 56, 59, JA 2869, 2872.

The government devotes the bulk of its brief to the district court's findings of fact, most of which were based on hearsay that was inadmissible under the Federal Rules of Evidence, and all of which are irrelevant to the fundamental legal issue presented by this appeal. The government's focus is not surprising, for it has no persuasive answer to the fact that the district court's jurisdiction is necessarily based on 28 U.S.C. § 2241, in which case the Federal Rules of Evidence and their commands for the treatment of hearsay evidence necessarily apply. This Reply disposes of the government's attempt to challenge that indisputable conclusion.

To reach its conclusion that hearsay is admissible without regard to the Federal Rules of Evidence, the government must ignore either the source of the district court's jurisdiction under 28 U.S.C. § 2241 or the plain language of Fed. R.  Evid. 1101(e). The only arguments it has to support its position are policy arguments better directed to Congress than to a court bound to uphold the rule of law without regard to its policy preferences. This Court should reverse the district court's denial of Mr. Al-Kandari's habeas corpus petition, and should remand the case for a hearing on proper, admissible evidence.