Forensics Journal - Stevenson University 2014 | Page 56
FORENSICS JOURNAL
harbored those responsible for those attacks. (2) A person who
was a part of or substantially supported al-Qaeda, the Taliban,
or associated forces that are engaged in hostilities against the
United States or its coalition partners, including any person
who has committed a belligerent act or has directly supported
such hostilities in aid of such enemy forces.
the preponderance standard…because preponderance of evidence
is typically the standard presumptively applied in habeas contexts”
(Waxman, 248). This would essentially become the post-Boumediene
requirement for habeas reviews.
As noted earlier, the courts’ opinions regarding indefinite detention
have not been uniform. Although the U.S. Supreme Court justices
agreed upon a standard of proof in the case of Al-Bihani, they left
the weight of the evidentiary material presented to be decided by
the lower courts (Vladeck, 1453). This freedom of interpretation
has resulted in rulings on both sides of the “preponderance line”
(Waxman 249). For example, in the similar cases of Al Mutairi
v. United States and Boumediene, the presiding judges came to
conflicting conclusions. In Al Mutairi, Judge Colleen Kollar-Kotelly
declared that the government failed to provide sufficient evidence
justifying the defendant’s continued detention (Al Mutairi v. United
States). Judge Kollar-Kotelly offered that simply linking the defendant
to al-Qaeda through his actions was not, in itself, enough to meet
the preponderance standard. In Boumediene, a consolidated case,
Judge Richard Leon ordered five of the six defendants to be released;
however, the detention of the sixth defendant was upheld citing
evidence (behaviors) linking him to al-Qaeda (Boumediene v. Bush).
The ambiguity of this language was the reasoning behind Hedges v.
Obama, an ongoing case. This case, filed by a team of former reporters, is seeking to receive clarification on several aspects of the NDAA
2012. For example, are reporters interviewing and chronicling the
doings of Taliban and al-Qaeda fighters effectively aiding and supporting their efforts? As of this writing an injunction is pending.
Subtitle D, drawing on the AUMF, also authorized the indefinite
detention of covered persons “under the law of war without trial until
the end of the hostilities authorized by the Author ^