The June 2008 Supreme Court ruling in the case of Boumediene v. Bush gave prisoners detained at Guantanamo the constitutional rights to habeas corpus, which prohibits the withholding of a prisoner’s rights to challenge the basis of their detention except in “cases of rebellion or invasion” (Worthington). The decision ruled 5 to 4 that the prisoners have a constitutional right to go to federal court to challenge their continued detention (Greenhouse). Previous court proceedings set up Combatant Status Review Tribunals (CRST) as alternative standards to Habeas Corpus. Prisoners were not allowed legal representation and the U.S. could present “secret” evidence that they were unable to see. In June 2007, LTC Stephen Abraham, an intelligence officer who worked on the CSRTs, questioned their legitimacy and labeled them administrative show trials full of generic evidence that rubber stamped prisoner’s designations as “enemy combatants”(Worthington). His testimony spurred on the review of prisoners rights to habeas corpus and helped pave the way for the ensuing case of Boumediene v. Bush. Although the intent to give the prisoners at Guantanamo the constitutional rights to habeas corpus is judicially admirable, the lack of clear definition leaves lower courts with the responsibility of procedure and sets a dangerous precedent that allows the enemy to benefit from our court systems.
The Supreme Court left to district courts the responsibility for working through the procedure that would govern resulting habeas corpus proceedings. The primary question revolving around the habeas corpus decision is to what level of proof does the U.S. have to show for detaining a prisoner?(Waxman) Determining if it is some evidence, clear and convincing evidence, or beyond a reasonable doubt, is mind-boggling. Currently the standard appears to be “more probable than not,” more formally known as “preponderance of evidence.” Much of the problem is that the international law of detention in warfare presents minimal guidance on the standard of proof. Because conventional war was for a more limited duration many of the issues arising now at Guantanamo were never issues before. Article 5 of the Geneva Convention applies in that:
“should any doubt arise as to whether persons having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the combatant categories established by the Geneva Conventions, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal (Waxman),”
but nothing is mentioned concerning the “level of certainty” a competent tribunal should use...