Methods by which the U.S. government collects evidence against detainees at Guantanamo Bay have a “presumption of regularity,” according to the D.C. Circuit Court decision released last week, meaning that the court assumes the government followed legitimate procedures unless the detainee can prove the contrary.
In a victory for executive branch authority, the court ruled by a 2-1 majority that “the horizontal separation of powers justifies a presumption in favor of official Executive branch records in Guantanamo habeas proceedings . . . courts have no special expertise in evaluating the nature and reliability of the Executive branch’s wartime records. For that, it is appropriate to defer to Executive branch expertise.”
That said, the court made clear that detainees have the right to challenge the accuracy of intelligence against them.
In practice, this ruling assumes that an intelligence report accurately records the evidence gathered, and that the government’s “evidence-gathering process” is legitimate. Writing for the majority, Judge Karen Brown explained that “we have no reason to suspect such [intelligence reports] are fundamentally unreliable.”
This ruling does not require a court to assume that the government presents accurate evidence, according to the majority opinion. “Again, the presumption of regularity, if not rebutted, only permits a court to conclude that the statements in a government record were actually made,” wrote Brown, who added that the presumption of regularity “says nothing about whether those statements are true.”
With regards to the habeas corpus case that prompted this decision, Brown wrote that the detainee had not rebutted the government’s evidence for his detention, saying that the “evidence he uses to attack it’s reliability” was not more reliable than the government’s evidence.
You can read the opinion, heavily-redacted for security purposes, below.
