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.
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.
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.
A “preponderance of evidence” means the government has to show that the greater weight of the evidence is in its favor, rather than a detainee’s. But the circuit court approvingly cites past decisions when only “some evidence” was necessary to justify detentions. Showing that “some evidence” justifies a detainee’s detention is far easier than meeting the “preponderance of evidence” standard.
The detainees’ lawyers are more than happy to have the government rely on a “preponderance of evidence.” And, incredibly, the Obama administration has apparently decided against advancing arguments in favor of only “some evidence.” The circuit court wrote: “We are thus left with no adversary presentation on an important question affecting many pending cases in this court and in the district court.”
That is, the Obama administration has decided against making the government’s job easier.
As evidenced by Judge Kessler’s decision, the district courts are having a hard time evaluating the evidence amassed against detainees. Relying on the “some evidence” standard would make it easier for the government to convince district judges that Gitmo detainees are justifiably held.
Why doesn’t the Obama administration want to make it easier to fight off the detainees’ legal challenges?
Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.