Columbia Public Law & Legal Theory Working Papers

Document Type



Forthcoming Case Western Reserve Journal of International Law.


The Supreme Court held in Boumediene v. Bush that Guantánamo detainees have a constitutional right to habeas corpus review of their detention, but it left to district courts in the first instance responsibility for working through the appropriate standard of proof and related evidentiary principles im-posed on the government to justify continued detention. This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about compet-ing risks and their distribution. How one approaches these questions de-pends on the lens through which one views the problem: through that of a courtroom concerned with evidence or through that of a battlefield clouded by imperfect intelligence. All three branches of government should play significant roles in answering these questions, which are critical to estab-lishing sound detention policy.

Date of Authorship for this Version

Fall 11-19-2009