Disconnecting the Dots
The D.C. Circuit court eviscerates a district judge’s habeas ruling.
9:15 PM, Jul 13, 2010 • By THOMAS JOSCELYN
On Tuesday, the D.C. Circuit Court of Appeals issued a stinging rebuke to a district court that granted a Guantanamo detainee’s habeas petition last year. The detainee in question is Mohammed al-Adahi, a Yemeni whom District Judge Gladys Kessler ordered freed in August 2009.
Judge Gladys Kessler
The circuit court said that Judge Kessler’s opinion is “incomprehensible,” “perplexing,” clearly “wrong,” “manifestly incorrect,” “startling,” “simply not a ‘permissible view…of the evidence,’” and was reached “through a series of legal errors.”
After correcting a litany of Judge Kessler’s errors, the circuit court wrote: “We could go on, but what we have written thus far is enough to show that the district court clearly erred in its treatment of the evidence and in its view of the law.”
Sound harsh? Indeed it is, but for good reasons.
For years, human rights organizations and detainee lawyers fought to have federal judges hear the Gitmo detainees’ habeas petitions. They won in 2008 when the Supreme Court decided Boumediene v. Bush in favor of the detainees. But the Supreme Court did not offer any criteria for district judges to use in deciding habeas matters. In effect, Boumediene transferred detention decisions from knowledgeable military and intelligence personnel to federal judges with no expertise in such matters.
The result is that district judges are making it up as they go along – often times granting habeas petitions that are simply not consistent with America’s national security interests. A striking example of this occurred earlier this year when a district judge ordered 9/11 recruiter Mohamedou Slahi freed from Gitmo. (The Obama administration is appealing that decision.)
Judge Kessler’s flawed methodology in Mohammed al-Adahi v. Obama is therefore typical. And the circuit court’s criticisms apply equally to other habeas rulings.
The circuit court’s chief criticism of Judge Kessler’s ruling involved her “failure to appreciate conditional probability analysis.” The circuit court explains “that although some events are independent (coin flips, for example), other events are dependent.” That is, if one event occurs, then this makes other events “more or less likely.”
In intelligence parlance this is called “connecting the dots.” Judge Kessler did the opposite; she disconnected them.
In Tuesday’s ruling, the circuit court explains why conditional probability is important in general:
The court then continued by explaining why conditional probability is important with respect to the specifics of al-Adahi’s case and Judge Kessler’s flawed reasoning (citations omitted):
The circuit court offered this conclusion: