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Disconnecting the Dots

The D.C. Circuit court eviscerates a district judge’s habeas ruling.

9:15 PM, Jul 13, 2010 • By THOMAS JOSCELYN
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 Again, the flawed methodology employed by Judge Kessler is not atypical. For instance, a district judge disconnected the dots on another Gitmo detainee, Khaled al Mutairi, last year. Although the government presented at least nine pieces of evidence that, taken together, showed that al Mutairi was “more likely than not a part of al-Qaida,” a district judge dissembled the evidence piece by piece, choosing benign explanations for what would otherwise be damning facts. That decision, like Judge Kessler’s in the al-Adahi matter, did not rely on conditional probability analysis.

Unfortunately, the Obama administration did not appeal the judge’s decision to free Khaled al Mutairi, and so today he is free in Kuwait.  

One of the most important unclassified facts about Mohammed al-Adahi is that he personally met with Osama bin Laden – twice – in the summer of 2001. At the time, as the 9/11 Commission found, al Qaeda’s security was especially tight because of the impending September 11 attacks. Judge Kessler inexplicably dismissed these meetings.

The circuit court blasted Judge Kessler’s reasoning (citations omitted):   

The court characterized the rest of the evidence about Al-Adahi's meetings with bin Laden as “sensational and compelling” but not “actual, reliable evidence that would justify” detention. The court's statements are incomprehensible. On what possible ground can the court say that the evidence on this subject was, on the one hand, “compelling,” and yet say, on the other hand, that it was not “actual” and “reliable”?

What’s worse, while Judge Kessler applied unreasonable amounts of scrutiny in a haphazard manner to the government’s evidence and arguments, she apparently accepted al-Adahi’s testimony at face value in some instances without explaining why. The circuit court reminded Judge Kessler that al Qaeda operatives are trained to lie about their activities and then noted:

Put bluntly, [al Qaeda’s] instructions to detainees are to make up a story and lie. Despite this the district court displayed little skepticism about Al-Adahi's explanations for his actions. To the extent the court expressed any doubts, it addressed them to the government's case and did so on the mistaken view that each item of the government's evidence needed to prove the ultimate issue in the case.

The circuit court’s approach to evaluating al-Adahi’s statements is consistent with the approach used by intelligence professionals, whereas Judge Kessler’s approach is not. For example, al-Adahi offered several excuses for how he came to be injured in Afghanistan. The most likely explanation, as intimated by the circuit court, is that al-Adahi was covering up the fact he was injured while fighting on behalf of the Taliban and al Qaeda. Indeed, as the circuit court noted, al-Adahi was captured “on a bus loaded with wounded Taliban fighters.” But because Judge Kessler had explained away all of the evidence against al-Adahi, she did not come to the most likely conclusion.

The circuit court found that al-Adahi’s meetings with bin Laden, stays at al Qaeda guesthouses, training at al Qaeda’s notorious al Farouq camp, knowledge of al Qaeda members, and other facts were more than enough to justify al-Adahi’s detention. Indeed, the court found that some of these facts in isolation (such as al-Adahi’s terrorist training) were enough to justify his detention.

“Preponderance of Evidence” vs. “Some Evidence”  

There is one final point worth mentioning. It is clear that the circuit court doubts that a “preponderance of evidence” is necessary to justify the suspension of habeas corpus. The three-judge circuit panel said as much: “Although we doubt…that the Suspension Clause requires the use of the preponderance standard, we will not decide the question in this case.”

The circuit court didn’t decide this question because the Obama administration did not challenge the “preponderance of evidence” standard.

This is tremendously important. The circuit court suggests that the government needs to meet only a minimal standard in habeas proceedings, meaning that the government’s evidentiary burden should be less than it is currently arguing.

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