GTMO: Judge Limits Intelligence As Evidence

A federal judge dealt a setback yesterday to the administration's ability to use information collected by intelligence agencies in Guantanamo prosecutions. In doing so, Judge John Bates weighed in on one of the core controversies of the cases -- the tension between the protection of intelligence sources versus the ability to make cases in federal courts.

Bates told the government that it could not introduce evidence derived from a source whose identity cannot be disclosed unless there's some corrobarating evidence. And even if there is corroborating evidence, it'll be treated with a bit of suspicion.

Practically, this means that the Department of Justice will have to work with the CIA and other intelligence agencies to figure out whether it's worth identifying certain sources in order to secure convictions of ostensibly dangerous folks.

Still, in this particular case, Bates rejected the habeas petition of detainee Shawali Khan, who the Bush administration alleged to have been a communications officer for Hezb-i-Islami Gulbuddin, a Taliban militia. To understand the ruling, understand this about the process: the government faces the burden of providing sufficient evidence that its initial detention was within the proper sphere of the government's detention authority as defined by Congress and the Supreme Court. If the government meets the burden, then the detainee has to convince the judge that the government is wrong.  Khan argued that the administration didn't meet the initial burden. Given that Khan accepted the government's theoretical ability to detain him under rules it laid out, Judge Bates had to figure out whether the facts as presented by the government were reliable. (That the court gets to assess the reliability of the information was spelled out in Parhat v. Gates, decided in 20098.)  That's a fairly narrow burden, as Bates admits. The government introduced at least three pieces of classified evidence where the identity of the source was not disclosed. If the court can't assess the reliability of an intelligence report because the source is shadowy, the government can't use the information to justify a detention. 

Bates threw out four pieces of evidence out of eight. But the remaining evidence was sufficient to meet the detention burden. 

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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