PETITIONERS' BRIEF IN REPONSE TO THE COURTS AUGUST 15 2005 ORDER

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06844719
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 26
• Document Creation Date: March 9, 2023
• Document Release Date: September 28, 2020
• Case Number: F-2016-02028
• Publication Date: October 14, 2005

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Ali Saleh Kahlah Al-Marri, and
Mark A. Berman as next friend,
Petitioners,
C/A No. 02:04-2257-26AJ
V.
Commander C.T. Hanft,
U.S.N. Commander,
Consolidated Naval Brig,
Respondent.
PETITIONERS' BRIEF
IN RESPONSE TO THE COURT'S AUGUST 15.2005 ORDER
Lawrence S. Lustberg
Mark A. Berman
GIBBONS, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE,
A Professional Corporation
One Riverfront Plaza
Newark, NJ 07102-5496
[phone]
Jonathan L. Hafetz
GIBBONS, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE
A Professional Corporation
One Pennsylvania Plaza, 37" Fl.
New York, NY 10119
[phone]
Andrew J. Savage, III
SAVAGE & SAVAGE, PA.
15 Priolcau Street
Post Office Box 1002
Charleston, SC 29402
[phone]
Attorneys for Petitioner Ali Saleh Kahlah al-Marri
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES iii
PRELIMINARY STATEMENT 1
PROCEDURAL BACKGROUND 2
ARGUMENT 6
I. THERE IS NO PRESUMPTION IN FAVOR OF THE GOVERNMENT'S
ALLEGATIONS 6
A. The Government Has Not Produced Credible Evidence That Petitioner Is
An Enemy Combatant 7
B. The Presumption Described in Hamdi Was Limited To The Very Different
Circumstances Of That Case, And Greater Procedural Safeguards Are
Required Here 12
1. The Private Interest Is Greater Than In Hamdi. 14
2, The Risk Of An Erroneous Deprivation Of Liberty And The
Probable Value Of Additional Safeguards Are Greater Here Than
In Hamdi 19
3. The Potential Burdens On The Government Described in Hamdi
Are Not Present Here And Cannot Justify A Presumption In Its
Favor. 21
C. The Government Must Bear the Burden of Proving Its Claim That
Petitioner Is An "Enemy Combatant" By At Least Clear And Convincing
Evidence.
11. PETITIONER IS ENTITLED TO NOTICE OF THE FACTUAL BASIS FOR
HIS CLASSIFICATION AND A FAIR OPPORTUNITY TO REBUT THE
ALLEGATIONS AGAINST HIM 29
A. The Government Must Provide Sufficient Notice Of The Factual Basis For
Petitioner's Classification As An "Enemy Combatant." 29
B. Petitioner Must Have The Opportunity To Obtain Discovery From The
Government 31
C. This Court Should Issue An Order Compelling The Government To
Preserve The Information Petitioner Seeks to Discover. 35
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TABLE OF CONTENTS TABLE OF AUTHORITIES
(continued)
Page
CASES
Page(s)
D. Petitioner Has The Right To Confront And Cross-Examine Witnesses In
An Evidentiary Hearing Before This Court. 36 Addington v. Texas,
441 U.S. 418 (1979) passim
E. Petitioner Has The Right To Present And Compel The Production Of
Witnesses In His Favor 39
CONCLUSION 41
Al-Marri v. Bush,
274 F. Supp. 2d 1003 (C.D. III. 2003) 3
A l-Marri v. Hattli,
378 F. Supp. 2d 673 (D.S.C. 2005) 1, 2, 4, 33
Al-Marti v. Rumsfeld,
_ U.S. , 125 S. Ct. 34(2004) 3
Al-Marri v. Rumsfeld,
360 F.3d 707 (7'h Cir. 2004) 3
Al-Mani v. Rumsfeld,
Civ. .No.2:05-2259 (D.S.C.) (HHF) (RSC), filed August 8, 2005 27
Board of Regents v. Roth,
408 U.S. 564(1972) 26
Brady v. Maryland, 373 U.S. 83 (1963) 32
Bridges v. Wixon,
326 U.S. 135 (1945) 14
Brown v. Mississippi,
297 U.S. 278(1936) 39
Burlington Northern R. Co. v. Woods,
480 U.S. 1 (1987) 10
California v. Green,
399 U.S. 149(1970) 36
Capricorn Power Co., Inc. v. Siemens Westinghouse Power Corp.,
220 F.R.D. 429 (W.D. Pa. 2004) 35
Chavez v. Martinez,
538 U.S. 760(2003) 39
Coffin v. United Stales,
156 U.S. 432 (1895) 25
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Crawford v. Washington, In re Temito,
541 U.S. 36(2004) 37 156 F.2d 142 (9th Cir 1946) 16
CrUZ011 V. Director, Missouri Dep't of Health, In re Winship,
497 U.S. 261 (1990) 26 397 U.S. 358 (1970) passim
Ex parse Milligan, INS V. St. C:vr,
71 U.S. (4 Wall.) 2 (1866) 14 533 U.S. 289(2001) 24,33
Foucha v. Louisiana, Jenkins v. McKeithen,
504 U.S. 71(1992) 14, 15,25 395 U.S. 411 (1969) 36
Fuentes v. Shevin, Joint Anti-Fascist Refugee Comm. v. McGrath,
407 U.S. 67 (1972) 29 341 U.S. 123(1951) 30
Goldberg v. Kelly, Jones v. United States,
397 U.S. 254, 269 (1970) 12,36, 38 463 U.S. 354(1983) 14
Gomez v. United States, Kansas v. Hendricks,
490 U.S. 858 (1989) 12 521 U.S. 346 (1997) 15
Gonzales v. Landon, Keeney v. Tamayo-Reyes,
350 U.S. 920 (1955) 24 504 U.S. 1 (1992) 31 '
Greene v. McElroy, Kiareldeen v. Reno,
360 U.S. 474(1959) 30, 37 71 F. Supp. 2d 402 (D.N.J. 1999) 30
Hadjimehdigholi v. INS, Kwong Hai Chew v. Cokling,
49 F.36 642 (10th Cir. 1995) 38 344 U.S. 590 (1953) 38,40
Hamdi v. Rumsfeld, Leland v. Oregon,
243 F. Supp. 2d 527 (E.D. Va. 2002) 29 343 U.S. 790 (1952) 24
Hamdi v. Rumsfeld, Loliscio v. Goord,
542 U.S. 507,124 S. CI. 2633 (2004) passim 263 F.3d 178 (2d Cir. 2001) 7
Harris v. Nelson, Malinski v. New York,
394 U.S. 286 (1969) 31,32 324 U.S. 401 (1945) 40
Haynes v. Washington, Mathews v. Eldridge,
373 U.S. 503 (1963) 11 424 U.S. 319 (1976) 12, 13, 14, 30
In re Gault, Miller v. Fenton,
387 U.S. 1 (1967) 26 474 U.S. 104 (1985) 39
In re Guantanamo Detainee Cases, Montana v. Egelhoff,
355 F. Supp. 2d 443 (D.D.C. 2005) 39 518 U.S. 37(1996) 8
In re Oliver, Padilla v. Hanft,
333 U.S. 257(1948) 37 F.3d _,2005 WL 2175946(4" Cir. Sept. 9,2005) 16
- iv-
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Pal/ca v. Connecticut,
302 U.S. 319(1937)
Plaster v. United States,
720 F.2d 340 (4th Cir. 1983) 7
Pointer v. Texas,
380 U.S. 400(1965)
Powell v. Alabama,
287 U.S. 45(1932)
Pueblo of Laguna v. United States,
60 Fed. CL 133 (2004) 35
Rafeedie V. INS,
880 F.2d 506 (D.0 Cir. 1989) 30
Schneiderman v. United States,
320 U.S. 118(1943) 24
Selma, R. & D. R. Co. v. United States,
139 U.S. 560(1891) 24
Smith v. Brewer,
444 F. Sapp. 482 (S.D. Iowa),
red 577 F.2d 466 (8th Cir. 1978) 7
Tippet: v. Maryland,
436 F.2d 1153 (41h Cir. 1971) 25
Townsend v. Sain,
372 U.S. 293 (1963) 31
United States v. Anderson,
51 Mi. 145 (C.A.A.F. 1999) 38
United States v. Bagley, 473 U.S. 667 (1985) 33
United States v. Bumpass,
60 F.3d 1099 (4th Cir. 1995) 7
United States v. Davis,
19 U.S.C.M.A. 217 (M.C.A. 1970) 38
United Slates v. Gasca-Kraft,
522 F.2d 149 (9th Cir. 1975) 38
United States v. Giglio, 405 U.S. 150 (1972) 33
vi-
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United States v. Hayman,
36 342 U.S. 205 (1952) 30
United States v. Jauregui,
314 F.3d 961 (8th Cir. 2003) 38,40
United States v. Moussaoui,
36, 38 382 F.3d 453 (4th Cir. 2004) 40
United States v. Phillip Morris USA, Inc.,
40 327 F. Supp. 2d 21 (D.D.C. 2004) 35
United States v. Rahman,
189 F.3d 88 (2d Cir. 1999) 27
United States v. Salerno,
481 U.S. 739 (1987) 15, 25, 37, 40
United States v. Sippel,
4 U.S.C.M.A. 50 (M.C.A. 1954) 38
United States v. White,
366 F.3d 291 (41b Cir. 2004) 8, 12
United States v. Yousef,
327 F.3d 56 (2d. Cir. 2003)
Valdez v. Cockrell,
274 F.3d 941 (5th Cir. 2001) 32
Washington v. Texas,
388 U.S. 14(1967) 40
Williamson v. United States,
512 U.S. 594 (1994) 7,8
Wood/It, v. INS,
385 U.S. 276 (1966) 24,26
Zadvydas v. Davis,
533 U.S. 678 (2001) 15
STATUTES
18 U.S.C. � 2340A(a) 34
28 U.S.C. � 1651 31
28 U.S.C. � 2072 10
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28 U.S.C. � 2073 10 Douglas Jai & David Johnston,
"White House Fought New Curbs on Interrogations,
28 U.S.C. � 2074 10 Officials Say," N.Y. Times, at Al (Jan. 13, 2005) 9
28 U.S.C. � 2241(c)(5) ao Transcript of Oral Argument, Hamdi v. Rumsfeld, No. 03-6696 (Sup. CL), 2004 WL
1066082 (Apr. 28, 2004) 18
28 U.S.C. � 2243 32
William Winthrop,
28 U.S.C. � 2246 11,32 MMus?", Law and Precedents (rev. 2d cd. 1920) 16
28 U.S.C. � 2255 30
Authorization for Use of Military Force,
Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001) 4
RULES & GUIDELINES
Enemy Prisoners of War, Retained Personnel, Civilian Internees, and Other Detainees,
Army Regulation 190-8 (1997) 20
Fed. R. Evid. 1101(e) 7
Fed. R. Evid. 802 7
Fed. R. Evid. 803(1) 11
Fed. R. Evid. 807.. 9,11
OTHER AUTHORITI ES
Dep't of Justice, Office of Legal Counsel, "Memorandum for James B. Comey, Deputy
Attorney General," Dee. 30,2004,01
38
9 John Henry Wigmorc,
Evidence in Trials at Common Law (1981 cd.) 25
Amnesty Intl, United States of America: Human dignity denied; Torture and
accountability in the 'war on terror' (Oct. 27, 2004), at
9
Brief for the Respondents, Hamdi v. Rumsfeld,
124 S. Ct. 2633 (2004) (No. 03-6696) 22
Department of Defense, Report on the Conduct of the Persian Gulf
War, Final Report to Congress
(Apr. 1992) 20,34
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PRELIMINARY STATEMENT
Since thc President designated him an "enemy combatant" over two years ago, Petitioner
Ali Salch Kahlah al-Marri has been held in solitary confinement in a Navy brig without charge
and without a hearing. Indeed, in has not even been afforded the process provided to those
individuals captured by the military outside the United States and charged before military
commissions or detained at Guantanamo Bay, Cuba. In determining what process Mr. al-Marri
is now due, and how the Supreme Court's decision in Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.
Cl. 2633 (2004), bears on that question, a few basic points are worth repeating.
On June 23, 2003, when President Bush signed the order declaring him an "enemy
combatant," Mr. al-Marri was awaiting trial on criminal charges in a federal district court. As a
criminal defendant, Mr. al-Marri was entitled to the same fundamental protections against
unlawful imprisonment that this Country has always afforded individuals accused of
wrongdoing, no matter how serious the offense or how dangerous the offender, during times of
war and during times of peace. These protections have been afforded to suspected terrorists,
both before and after September 11, 2001, including, for example, to Zacarias Moussaoui, the
alleged "twentieth hijacker." Yet, on June 23, 2003, the President sought to strip Mr. al-Marri of
these protections by executive fiat, that is, by declaring him an "enemy combatant."
This Court, assuming the truth of the government's factual allegations, has previously
upheld the President's legal authority to detain Mr. al-Marri. Al-Marri v. Hanfi, 378 F. Supp. 2d
673 (D.S.C. 2005). It now must determine what process Mr. al-Marri is due to challenge the
veracity of those allegations. The government, for its part, continues to assert a degree of
executive power and immunity from meaningful judicial review that defies all precedent. It
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argues that the burden is on Mr. al-Marri to refute a triple hearsay declaration by a Department of
Defense functionary, which includes allegations that Mr. al-Marri has not been permitted to see,
and which is based on statements that may have been obtained through torture, cruel and
inhuman treatment, or other circumstances that call the veracity of the information into question.
Even if the President has the legal authority to hold individuals arrested in the United States as
"enemy combatants," however, it would mock due process to allow the government to thus deny
Mr. al-Marri a meaningful opportunity to challenge the factual basis for his indefinite detention.
PROCEDURAL BACKGROUND
On December 12,2001, Mr. al-Marri was arrested by FBI agents at his home in Peoria,
Illinois, at the direction of the United States Attorney's Office for the Southern District of New
York as a material witness in the investigation of the September II, 2001, terrorist attacks, and
detained in a civilian jail in New York City. Al-Marri v. limit, 378 F. Supp. 2d at 674. In
February 2002, Mr. al�Marri was charged by the federal government in a one-count indictment,
returned in the Southern District of New York, alleging possession of unauthorized or counterfeit
credit-card numbers. Id. Almost one year later, he was charged in a second, six-count
indictment with two counts of making a false statement to the FBI; three counts of making a
false statement in a bank application; and one count of using a means of identification of another
person for the purpose of influencing the action of a federally insured financial institution. Id.
The United States District Court for the Southern District of New York granted Mr. al-Marri's
motion to dismiss the indictment on venue grounds in May 2003; Mr. al-Marri was then
promptly re- indicted in the Central District of Illinois on the same seven counts. Id.
On June 23, 2003, shortly before trial and, in particular, while Mr. al-Marri's motion to
suppress illegally seized evidence was pending, the President declared Mr. al-Marri an "enemy
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combatant" and transferred him to the Navy brig in South Carolina. There, he was held
incommunicado for approximately 17 months and repeatedly interrogated under coercive
conditions; there he remains confined today, still subject to severe restrictions. On July 8, 2003,
Counsel filed a Petition for Writ of Habeas Corpus on Mr. al-Marri's behalf in the United States
District Court for the Central District of Illinois to challenge his detention. The district court
dismissed the petition on venue grounds, Al-Morn i v. Bush, 274 F. Supp. 2d 1003 (C.D.
2003), and the court of appeals affirmed, A I-Marri v. Rum*Id, 360 F.3d 707 (7th Cir. 2004). On
October 4, 2004, the Supreme Court denied certiorari. Al-Marri v. Rurnsfeld, _U.S. 125 S.
Ct. 34 (2004).
On July 8, 2004, Counsel filed a Petition for Writ of Habeas Corpus on Mr. al-Marri's
behalf in this Court, again challenging his detention as an "enemy combatant." On or around
September 9, 2004, the government filed an Answer to the Ibtition, which relied upon the
unclassified and classified declarations of Jeffrey N. Rapp, Director for the Joint Intelligence
Task Force for Combating Terrorism.' The Rapp Itclarations remain the sole factual basis
provided by the government to support the President's classification of Mr. al-Marri as an
"enemy combatant" On October 14, 2004, Counsel was granted access to Mr. al-Marri for the
first time since he was declared an "enemy combatant" seventeen months before. On February
11, 2005, Mr. al-Marri submitted a Reply (or Traverse) again denying that he is an "enemy
combatant" and re-asserting that he is an innocent civilian. Mr. al-Marri argued that the
President had no authority to detain him as an "enemy combatant" as a matter of law and,
alternatively, that he was entitled to a hearing consistent with the requirements of due process.
Mr. Rapp's unclassified declaration will be referred to as the 'unclassified Rapp Declaration"; his classified
declaration will be referred to as the "classified Rapp Declaration"; and the two declarations will be referred to
jointly as the "Rapp Declarations."
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On March 2, 2005, frillowing this Court's decision in the Padilla case, Mr. al-Marri
moved for summary judgment on the ground that the President lacked legal authority to detain
him as an "enemy combatant" On July 8, 2005, this Court denied that motion, holding that the
President could detain Mr. al-Marri pursuant to the Authorization for Use of Military Force, Pub.
L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001) ("AUMF"), assuming that all the facts asserted by
the government were true. Al-Mann! v. Han!!, 378 F. Supp. 2d at 680. Specifically, the Court
determined that the AUMF authorized Mr. al-Marri's detention based upon the allegation that he
is an al Qacda operative who entered the United States to commit hostile and war-like acts. Id. at
680. The Court also held, however, that its decision "does not close the door of this Court. to
Petitioner," and that Mr. al-Mani has a constitutional right to challenge the government's factual
assertions. Id. at 681-82.
On August 15, 2005, the Honorable Robert S. Carr, United States Magistrate Judge, held
a status conference to discuss further proceedings in this case in which Mr. al-Marri could
challenge the government's factual allegations. At the conclusion of the conference, Judge Carr
requested that the panics brief the following issues: (1) Is the presumption in favor of the
government's evidence discussed by the Supreme Court in Hamdi v. Runry'eld applicable here?;
and (2) If this presumption is applicable, what opportunity must Mr. al-Marri be given to rebut
it?
Mr. al-Marri respectfully requests that the Court accept this brief in response to the
questions it posed at the status conference and as Mr. al-Marri's formal request for leave to seek
discovery. For the reasons set forth below, any presumption in favor of the government's
evidence that might apply under circumstances like the Hamdi case does not apply to Mr. al-
Marri, and, even if such an initial presumption docs apply, notwithstanding the very significant
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differences between this case and Hamdi, Mr. al-Mani must still be given a fair opportunity to
rebut the government's claims in an evidentiary hearing before this Court. This fair opportunity
must include, at a minimum, meaningful notice of the government's factual allegations,
including the allegations in the classified Rapp Declaration; the opportunity to obtain discovery
of the sources of information on which those allegations arc based and of any exculpatory
information; the exclusion of hearsay statements that do not satisfy the requirements of the
Federal Rules of Evidence or due process; the opportunity to confront the government's evidence
and any adverse witnesses at a hearing; and the opportunity to compel the production of
favorable witnesses.
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ARGUMENT
I. THERE IS NO PRESUMPTION IN FAVOR OF THE GOVERNMENT'S
ALLEGATIONS.
In Hamdi, a plurality of the Supreme Court held that the petitioner was entitled to "notice
of the factual basis for his classification [as an "enemy combatant"], and a fair opportunity to
rebut the Government's factual assertions before a neutral decisionmaker." 124 S. Ct. at 2648.
The plurality further suggested in diera that, in a case like Hamdi's, the "Constitution would not
be offended by a presumption in favor of the government's evidence, so long as that presumption
remained a rebuttable one and fair opportunity for rebuttal were provided." Id. at 2649. In such
a case, "once the Government puts forth credible evidence that the habeas petitioner meets the
enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more
persuasive evidence that he falls outside the criteria." Id. The Hamdi plurality thus did not hold
that there is necessarily a presumption in favor of the government's evidence that a petitioner is
an "enemy combatant" but, rather, only that there could be such a presumption in appropriate
circumstances and where the government has come forward with credible evidence. No such
presumption is appropriate in this ease, for three reasons.
First, the government has failed to produce "credible evidence" that Mr. al-Marri is an
"enemy combatant," as Hamdi requires, 124 S. Ct. at 2649. Instead, it relies upon an
inadmissible triple hearsay declaration from a Department of Defense functionary with no
personal knowledge of any of the asserted facts. Second, the presumption discussed in Hamdi
was rooted in the narrow circumstances of that case -- an armed enemy soldier "captured in a
foreign combat zone," 124 S. Cl. at 2543 (emphasis in original); see also id. at 2639 (defining
"ercmy combatant"); id. at 2637 (describing Hamdi's capture). Hamdi does not support such a
presumption under the very different circumstances presented here -- the domestic arrest by
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civilian law enforcement agents and subsequent criminal prosecution of an individual who is not
alleged to have engaged in armed combat against the United States on a foreign battlefield or
elsewhere. Third, the Constitution requires that the government bear the burden of proof
throughout this proceeding and that it establish its claim that Mr. al-Marri is an "enemy
combatant" by at least clear and convincing evidence.
A. The Government Has Not Produced Credible Evidence That
Petitioner Is An Enemy Combatant.
There can be no presumption in favor of the government because it has failed to produce
"credible evidence that [Mr. al-Marri] meets the enemy-combatant criteria." Hamdi, 124 S. Ct.
at 2649 (emphasis added). The Rapp Declarations cannot give rise to such a presumption.
Specifically, the triple hearsay declarations of a Department of Defense functionary, who has no
personal knowledge of any asserted facts, do not constitute evidence, let alone credible evidence,
because they do not satisfy the requirements of the Federal Rules of Evidence or due process.
By operation of law, the Federal Rules of Evidence apply to habeas corpus proceedings.
Fed. R. Evid. 1101(e); see, e.g., Loliscio v. Goord, 263 F.3d 178, 186 (2d Cir. 2001); Plaster v.
United States, 720 F.2d 340, 349 (414 Cir. 1983) (citing government's argument); Smith v.
Brewer, 444 F. Supp. 482, 486 (S.D. Iowa), aff'd 577 F.2d 466 (8th Cir. 1978). Under the
Federal Rules or Evidence, hearsay is inadmissible unless it falls within an established exception.
Fed. R. Evid. 802 ("Hearsay is not admissible except as provided by these rules or by other rules
prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress."); see
also United States v. Bumpass, 60 F.3d 1099, 1101 (4th Cir. 1995) ("Federal Rule of Evidence
802 provides that hearsay is not admissible into evidence except as provided by law...."). The
rule against hearsay "is premised on the theory that out-of-court statements arc subject to
particular hazards." Williamson v. United States, 512 U.S. 594, 598 (1994); see also Montana v.
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Egelhoff 518 U.S. 37, 42 (1996) ("Hearsay rules ... prohibit the introduction of testimony which,
though unquestionably relevant, is deemed insufficiently reliable."). The rule against hearsay
thus serves a critical function in ensuring the reliability of evidence:
The declarant might be lying; he might have misperceived the events which he
relates; he might have faulty memory; his words might be misunderstood or taken
out of context by the listener. And the ways in which these dangers are minimized
for in-court statements -- the oath, the witness' awareness of the gravity of the
proceedings, the jury's ability to observe the witness' demeanor, and, most
importantly, the right of the opponent to cross-examine -- arc generally absent for
things said out of court.
Williamson, 512 U.S. at 598. This case underscores the importance of these safeguards.
Mr. Rapp has no personal knowledge of any asserted facts and his declaration consists of
not one, but two levels of hearsay. The unclassified Rapp Declaration appears to rely on the
hearsay statements of unidentified government officials, while the classified Rapp Declaration
appears to rely additionally on the hearsay statements of two high- level al Qacda suspects,
provided to government interrogators under unknown circumstances while they were in U.S.
custody at an undisclosed location. The in-court testimony of those individuals would clearly
constitute appropriate, admissible, and, indeed, 'the most reliable available evidence" within the
meaning of Hamdi, 124 S. Ct. at 2649; yet, the government has failed even to explain, much less
to demonstrate persuasively, why it cannot (and why it should not be required to) produce those
individuals in a hearing before this Court as required by the Federal Rules of Evidence. Further,
the statements of the two al Qaeda suspects may, according to press and other published reports,
be the product of multiple interrogations under coercive condkions and possibly even torture,
including a technique known as water-boarding, in which a subject is made to believe he might
be drowned. See, e.g., Douglas Jehl & David Johnston, "White House Fought New Curbs on
Interrogations, Officials Say," N.Y. Times, at Al (Jan. 13,2005); Amnesty Intl, United States of
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America: Human dignity denied; Torture and accountability in the 'war on terror 114 (Oct. 27,
2004), at