Disconnecting the Dots

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:

Those who do not take into account conditional probability are prone to making mistakes in judging evidence. They may think that if a particular fact does not itself prove the ultimate proposition (e.g., whether the detainee was part of al-Qaida), the fact may be tossed aside and the next fact may be evaluated as if the first did not exist.

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):

This is precisely how the district court proceeded in this case: Al-Adahi's ties to bin Laden “cannot prove” he was part of Al-Qaida and this evidence therefore “must not distract the Court.” The fact that Al-Adahi stayed in an al-Qaida guesthouse “is not in itself sufficient to justify detention.” Al-Adahi's attendance at an al-Qaida training camp “is not sufficient to carry the Government's burden of showing that he was a part” of al-Qaida. And so on. The government is right: the district court wrongly “required each piece of the government's evidence to bear weight without regard to all (or indeed any) other evidence in the case. This was a fundamental mistake that infected the court's entire analysis.”

The circuit court offered this conclusion:

 Having tossed aside the government's evidence, one piece at a time, the court came to the manifestly incorrect – indeed startling – conclusion that “there is no reliable evidence in the record that Petitioner was a member of al-Qaida and/or the Taliban.” When the evidence is properly considered, it becomes clear that Al-Adahi was - at the very least - more likely than not a part of al-Qaida. And that is all the government had to show in order to satisfy the preponderance standard.