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Disconnecting the Dots, Part 2

The Obama administration should appeal a district judge’s habeas ruling.

7:40 PM, Jul 20, 2010 • By THOMAS JOSCELYN
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Late last Friday, the U.S. Supreme Court refused to block the transfer of a Guantanamo detainee named Farhi Saeed Bin Mohammed to his home country of Algeria. Mohammed claims that he will be tortured or killed if he is returned to Algeria. The Obama administration argued that his fears are unfounded as none of the other Gitmo detainees transferred to Algeria have been subjected to such treatment. The Supreme Court sided with the government and Mohammed will likely be transferred in the near future.

Disconnecting the Dots, Part 2

Judge Gladys Kessler

But, should he be?

The chief reason offered in the press for Mohammed’s impending transfer is that he was granted his petition for a writ of habeas corpus by District Judge Gladys Kessler. Coincidentally, the D.C. Circuit Court of Appeals eviscerated Judge Kessler’s opinion in another habeas matter, Mohammed Al-Adahi v. Obama, last week.

Using the guidelines set forth by the D.C. Circuit Court in Al-Adahi, it is easy to see how the Obama administration could win an appeal in Farhi Saeed Bin Mohammed’s case.

It is indisputable that Mohammed was recruited by al Qaeda at two London mosques with known extremist ties, traveled to Afghanistan with assistance from al Qaeda, and stayed at an al Qaeda guesthouse. Judge Kessler conceded as much in her memorandum opinion. Yet, the judge still ordered Mohammed freed.

Why? Judge Kessler ruled that while there is a “preponderance of evidence indicating that [Mohammed] was prepared to join al-Qaida and/or the Taliban, and that he set out for Afghanistan with the intention of doing so,” he “did not actually join or substantially support enemy forces simply by virtue of his attendance at the two mosques, recruitment, travel, and guesthouse stay.”

It is evident from reading the D.C. Circuit Court’s opinion in Al-Adahi that the circuit court probably would not agree. Using al-Adahi as a guide, the following arguments would all support an appeal.     

First, Judge Kessler relied on the “preponderance of evidence” standard in deciding Mohammed v. Obama, but the D.C. Circuit Court has argued that a lesser standard may be acceptable in habeas proceedings.

In Farhi Saeed Bin Mohammed v. Obama, Kessler argued that the government “bears the burden of establishing that detention is justified” and “[i]t must do so by a preponderance of the evidence.”

But in its dissection of Kessler’s opinion in Al-Adahi, the D.C. Circuit Court disagreed. The D.C. Circuit Court ruled “that the preponderance-of-the-evidence standard is constitutionally permissible” but has “yet to decide whether that standard is required.” The three-judge circuit panel noted that district judges frequently employ the preponderance standard, but said their “rationale is unstated.”

Furthermore, the D.C. Circuit Court found that only “some evidence” is typically required to suspend the writ of habeas corpus and concluded: “we doubt…that the Suspension Clause requires the use of the preponderance standard.”

Meeting the preponderance standard is more difficult than offering only “some evidence.” In general, the preponderance standard requires showing that a detainee more likely than not became part of, or substantially supported, al Qaeda. “Some evidence” is a far easier threshold to meet.

The D.C. Circuit Court has paved the way for the Obama administration’s lawyers to argue that only “some evidence” is required to justify detentions. But the Obama administration did not advance that argument in Al-Adahi, and if it does not appeal Kessler’s decision in Mohammed, then it will forgo another opportunity to do so.

Second, even relying on the preponderance standard, there is clear evidence in the court record establishing that Mohammed “more likely than not” became part of al Qaeda. In Mohammed, Judge Kessler wrote:

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