Crimes, War Crimes and the War on Terror

[jmm99]

Hey Boon,

The Hutchins case on its facts presents some interesting questions based on this summary from the Marine Times:

Hutchins was accused of devising a plot to kill Saleh Gowad, who Marines suspected of planting roadside bombs in and around Hamdaniya, and then leading his squad to Gowad’s house in the early hours of April 26, 2006. When they arrived and Gowad wasn’t there, prosecutors alleged, four members of the squad snatched another man instead, bound him with duct tape and dragged him to a nearby road where they executed him beside a freshly-dug hole.

The Marines later told their superiors that the 52-year-old man they killed, eventually identified as a retired Iraqi policeman, died during a firefight that erupted after they caught him prepping the hole for a roadside bomb.

Hutchins is one of eight initially charged in the case. Military juries convicted two fire team leaders but gave no jail time. Four other members of other Hutchins’ squad pleaded guilty to various charges, with sentences ranging from no confinement to an eight-year sentence, later reduced to time serve.

A military jury at Camp Pendleton, Calif., convicted Hutchins of unpremeditated murder, conspiracy, larceny and making a false official statement. His 15-year prison sentence later was reduced to 11 years.

Something about the results (e.g., no or reduced prison time for the alleged "perps") suggest there is more to this case. For example, if the first sentence is just re-written a bit:

Hutchins was accused of devising an operational plan to neutralize Saleh Gowad, whom Marines had positively identified, based on reasonable evidence, of participation in planting roadside bombs in and around Hamdaniya, and then leading his squad to Gowad’s house in the early hours of April 26, 2006.

Probably outside of SGT Hutchins' authority to order that kind of action, but not a criminal conspiracy either. The problem would still exist (even in that version) if we had a successful snatch and grab, but that followed by execution of the prisoner (mistaken ID makes it look worse, but doesn't add to the crime) - if those facts are accurate. If those facts were accurate, the low sentences are not explicable to me.

The screw-up re: "withdrawal" of defense counsel may have given the reviewing court a good reason to dump the case - without addressing the merits (or whether that "withdrawal" actually prejudiced the defendant).

Withdrawal of defense counsel in my world (civilian criminal justice system), if before trial, requires a motion to withdraw with notice and hearing afforded the accused. If during trial, the same procedure would apply; but the judge would almost certainly deny the motion to withdraw barring some very unusual circumstances.

The CM rule appears to be the same in substance (from the concurring opinion by Judge Maksym):

Rule 1.16 of the Rules of Professional Conduct governing attorneys practicing under the cognizance of the Judge Advocate General of the Navy (Judge Advoctae General Instruction 5803.1C (9 Nov 2004)) sets forth the conditions under which a judge advocate can terminate the privileged state he/she enjoys with a client. The rule states in part:

b. Except as stated in paragraph c, a covered attorney may seek to withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

(1) the client persists in a course of action involving the covered attorney’s services that the covered attorney reasonably believes is criminal or fraudulent;

(2) the client has used the covered attorney’s services to perpetrate a crime or fraud;

(3) the client insists upon pursuing an objective that the covered attorney considers repugnant or imprudent;

(4) in the case of covered non-USG attorneys, the representation will result in an unreasonable financial burden on the attorney or has been rendered
unreasonably difficult by the client; or

(5) other good cause for withdrawal exists.

Concurring Judge Price was impressed with the case against the defendant; but the other judges did not address the merits of the case.

Regards

Mike

[davidbfpo]

Six former Guantanamo Bay detainees have overturned a ruling that allowed government use of secret evidence to defend itself against a damages claim. The men had been told that parts of MI5 and MI6's defence could be kept secret. The men are suing the UK government, saying their detention by the US could have been stopped. The Court of Appeal ruled it would "take a stand" against secrecy that would undermine the "most fundamental principles of common law".

Ends with a critic's view:

..the Court of Appeal has sent the strongest signal to the security establishment that it cannot play fast and loose with the rule of law.

Link:http://news.bbc.co.uk/2/hi/uk_news/8659567.stm

[davidbfpo]

Andy Worthington has written this article and this is the opening paragraph:

Last November, US District Court Judge Gladys Kessler granted the habeas corpus petition of Farhi Saeed bin Mohammed, a 48-year old Algerian, held in Guantánamo, who was seized in Pakistan in December 2001 after fleeing the chaos in Afghanistan following the US-led invasion, and has been in US custody ever since.

Link:http://www.eurasiareview.com/2010/05...rture-was.html

[jmm99]

was first reported by me here, DC Habeas Cases - Update (12-19-2009); and re-linked here, Happy to ... (02-10-2010), with my quotation of one graphic episode.

This is scarcely new news. I've cited Andy in a number of posts - as a juxtaposition to my own views and as an example of what I classify as an extreme pro-detainee viewpoint. Andy is not a lawyer (and doesn't claim to be - he does often rely on Clive Stafford Smith, UK counsel for Binyam Mohamed).

Andy has done a lot of research on all of the Gitmo detainees. His webpage is here, Andy Worthington, Author & journalist. All here can visit it and draw their own conclusions re: Andy's positions.

I do not plan donations to Andy's cause. We have more areas of disagreement, than agreement - most based on his view that the LOAC (laws of armed conflict) have no application to these detentions. Ironically, both he and I have an interest in Stonehenge - he into it much more deeply, with two books to his credit.

His lead article today is UK Appeals Court Rules Out Government’s Use of Secret Evidence in Guantánamo Damages Claim:

5.5.10

In the Court of Appeal yesterday morning, six former Guantánamo prisoners — Bisher al-Rawi, Jamil El-Banna, Richard Belmar, Omar Deghayes, Binyam Mohamed and Martin Mubanga — won a resounding victory against the government, when three senior judges, including Lord Neuberger, the Master of the Rolls, overturned a ruling that, for the first time in British .....

Regards

Mike

[jmm99]

Two weeks ago, I reported the Uthman case, Alleged UBL bodyguard granted habeas, where habeas was granted largely because Uthman's allegations of torture were not contested.

The same judge, Henry H. Kennedy has decided a very similar case, Civil Action No. 2004-1254 (ABDAH et al v. BUSH et al); but where some allegations of torture were contested and habeas was denied.

Although the judge found that some mistreatment probably occured, the detainee's statements were voluntary, given the totality of circumstances (the first 20 pages of the opinion deal with the torture allegations; at p.20):

01 Ct Op.jpg

The judge then spent another 20 pages discussing the facts that led him to conclude that the detainee was a part of AQ and lawfully detained (p.42):

02 Ct Op.jpg

The lesson learned from this and other cases is that uncontested torture allegations have been poison to the government. Where less "enhanced" methods were solely used, or were used later after the initial "taint" was diminished, the government has generally been successful in defeating habeas claims.

[Jedburgh]

UNODC, 18 May 10: Digest of Terrorist Cases

The United Nations Office on Drugs and Crime (UNODC) brought together senior criminal justice experts—including Attorney-Generals and Chief Prosecutors—to share experiences and good practices on how to deal with terrorism cases. The outcome is this Digest of Terrorist Cases, giving policymakers and criminal justice officials practical ideas and expert insights on how to deal with a relatively new field of jurisprudence. It complements other UNODC tools that provide guidance on how to address acts of terrorism within a legal framework, like legislative guides.

The judicial cases featured in this Digest cover relevant aspects of the international legal regime against terrorism. It provides a comparative analysis of national statutory frameworks for terrorism prosecutions, and it identifies legal issues and pitfalls encountered in investigating and adjudicating relevant offences. In addition, it identifies practices related to specialized investigative and prosecutorial techniques. It also addresses the links between terrorism and other forms of crime (like organized crime, the trafficking of drugs, people and arms), as well as how to disrupt terrorist financing.

[jmm99]

Thanks again for another interesting legal link; although it has only a brief section on interrogations and admissions. I'll add it to my reading list .

Regards

Mike

[jmm99]

A three judge panel of the DC Circuit, in a 26-page opinion, reversed the grant of habeas ordered in the District Court by Judge John Gates, which was reported in April 2009 in this thread, Habeas extended to Bagram, but only in part.

Here is the link to the commentary by Lyle Denniston at SCOTUSBlog, No habeas rights at Bagram:

Limit on detainees' challenges
Lyle Denniston | Friday, May 21st, 2010 10:38 am

In a major victory for the Obama Administration’s detention policy, the D.C. Circuit Court ruled on Friday that foreign nationals held at a U.S. military prison at Bagram airbase outside of Kabul, Afghanistan, do not have a right to challenge in U.S. courts their continued imprisonment. The ruling overturned a federal judge’s decision that the Supreme Court’s ruling two years ago allowing habeas challenges by prisoners at Guantanamo Bay extends to Bagram, at least for non-Afghan foreign nationals captured outside of Afghanistan and taken there for detention. The three-judge panel was unanimous in Maqaleh, et al., v. Gates (Circuit docket 09-5265). The issue is likely to be taken to the Supreme Court by detainees’ lawyers, but review there is no certainty.

The case, involving two Yemenis and a Tunisian, poses a broadly significant test of how far beyond U.S. shores a constitutional right to challenge U.S. military detention extends — an issue that potentially affects U.S. bases virtually around the globe. Chief Circuit Judge David B. Sentelle wrote the 26-page decision Friday, joined in full by Circuit Judge David S. Tatel and Senior Circuit Judge Harry T. Edwards. Sentelle is a conservative jurist; the other two are liberals. Their ruling overturned a decision by a judicial moderate, District Judge John D. Bates. ....

The result of this decision did not surprise me; although it being unanimous (including 2 liberal judges) did surprise me.

The lesson learned is to follow the Army and Marine detention guidelines and keep the detainees in theatre.

Regards

Mike

[davidbfpo]

From the Washington Post two short articles: France http://www.washingtonpost.com/wp-dyn...051204361.html and Indonesia:http://www.washingtonpost.com/wp-dyn...051205187.html

The French emphasis on informants note is often followed up with robust executive action, such as extradition to Algeria - a country that the UK often recoils from.

[jmm99]

Michael Yon posted this, linked on the SWJ Blog feed as, Court Decisions on Bagram Detainees, with comments by the lawyers who filed an amicus brief and whose arguments were largely accepted by the DC Circuit:

It appears that our amicus brief was right on target. While both the government and counsel for the detainees made "bright line" arguments -- that is, they argued that habeas rights should always or should never apply on U.S. military bases overseas -- the court refused to accept either extreme position. Instead, it focused on the "practical factors" which were emphasized in our brief. In this regard, the most important language appears on page 22 of the decision: " . . . we hold that the third factor, that is 'the practical obstacles inherent in resolving the prisoner’s entitlement to the writ . . . weighs overwhelmingly in favor of the position of the United States." The court then concluded that the fact that Bagram is located within an active theater of war weighed strongly against extending habeas rights to detainees held there. Given the court's emphasis on the "practical difficulties" side of the analysis, we feel confident that the involvement of amici who could speak with ultimate credibility as to those difficulties cannot but have made an immense impact.

Perhaps, a bit more on this later.

Regards

Mike

[jmm99]

at least for the time being. The DC Circuit affirmed detention of Adham Mohammed Ali Awad (DC District decision reported in this thread on 26 Sep 2009, Update on habeas cases) in a 20-page opinion (classified facts redacted in the public opinion), with analysis at SCOTUSblog:

Detainee defeats continue

Lyle Denniston
Tuesday, June 8th, 2010 10:14 am

The string of D.C. Circuit Court rulings interpreting the Supreme Court’s decision allowing Guantanamo Bay detainees to challenge their confinement lengthened on Tuesday, as a three-judge Circuit panel upheld the government’s authority to continue the imprisonment of a Yemeni national. Once more, as in several other recent rulings, the Circuit Court provided a new victory for the Obama Administration, and a new defeat for a detainee.

The ruling came in the case of Adham Mohammed Ali Awad. A federal judge, while saying that the evidence of Awad’s role in armed conflict was “gossamer thin,” had rejected his plea for freedom, and the Circuit Court upheld that result.
.....
The Al-Bihani ruling [JMM Note: relied on by the Awad panel was reported in this thread at Judge Leon affirmed - Al-Bihani, the Cook and Al-Bihani - part 2] represents the Circuit Court’s most significant ruling so far to interpret how District judges are to handle Guantanamo detainees’ cases. The Circuit Court now is weighing a request to reconsider that ruling by the full, en banc Circuit Court. The briefing has been completed on that issue so a ruling on it could come at any time.

If the 3-judge panel's opinion in Al-Bihani is reversed by the DC Circuit en banc, the Awad opinion (as well as other DC Circuit opinions) will also fall. The "betting" seems to be that Al-Bihani will be affirmed; and that the detainees will then appeal to SCOTUS.

The Awad opinion made three major points of blackletter law. We address them in order. The first was the correct standard of proof required (pp.17-18):

First, Awad challenges the district court's holding that the government must prove its authority to continue to detain him by a preponderance of the evidence. He argues that the government has to meet its burden by clear and convincing evidence. He is incorrect. We have already explicitly held that a preponderance of the evidence standard is constitutional in evaluating a habeas petition from a detainee held at Guantanamo Bay, Cuba. See Al-Bihani, 590 F.3d at 878 ("Our narrow charge is to determine whether a preponderance standard is unconstitutional. Absent more specific and relevant guidance, we find no indication that it is.").

The Al-Bihani holding follows the Supreme Court's guidance to lower courts in the Hamdi plurality. See Hamdi, 542 U.S. at 534 ("Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant."). Our precedent in Al-Bihani is clear, and "[we, of course, are without authority to overturn a decision by a prior panel of this Court." Louisiana Public Service Comm 'n v. FERC, 522 F.3d 378,390 (D.C. Cir. 2008). Awad seems to argue that there is some uncertainty in the evidentiary standard. Lest there be any hrther misunderstandings, let us be absolutely clear. A preponderance of the evidence standard satisfies constitutional requirements in considering a habeas petition from a detainee held pursuant to the AUMF.

The "preponderance of evidence" standard (50 yards plus a nose) reflects the US position that the AQ-Taliban detainees are being treated as EPWs so far as status determinations are concerned. They are not being treated as criminal subjects so far as the habeas corpus proceedings are concerned. The second point ties into the first.

The second point is the irrelevance of whether the detainee is now (today) a threat to US security (pp.18-19):

Awad next argues that the district court erred in denying his petition without a specific factual finding that Awad would pose a threat to the Untied States and its allies if he were released. Again, Al-Bihani forecloses this argument. Al-Bihani makes plain that the United States's authority to detain an enemy combatant is not dependent on whether an individual would pose a threat to the United States or its allies if released but rather upon the continuation of hostilities. 590 F.3d at 874. Awad again attempts to insert uncertainty into this court's prior holding where there is none. Whether a detainee would pose a threat to U.S. interests if released is not at issue in habeas corpus proceedings in federal courts concerning aliens detained under the authority conferred by the AUMF.

Like EPWs, AUMF detainees may be held for the duration of the hostilities - and no lpnger; as opposed to a criminal who may be held for the duration of the sentence imposed.

The third point is the non-necessity to prove that the detainee was included in AQ's "command structure" in order to prove the AUMF requirement that the detainee was "part of" AQ (pp.19-20):

Awad's last challenge is that it is not enough that he was found to be "part of' al Qaeda. He argues that there must be a specific factual finding that he was part of the "command structure" of al Qaeda. There is no such requirement under the AUMF. See AUMF ("That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons."). Nowhere in the AUMF is there a mention of command structure.

The distinction here is between defining what is necessary and what is sufficient. If the government can establish by a preponderance of the evidence that a detainee was part of the "command structure" of al Qaeda, this satisfies the requirement to show that he was "part of' al Qaeda. But there are ways other than making a "command structure" showing to prove that a detainee is "part of' al Qaeda. For example, if a group of individuals were captured who were shooting at U.S. forces in Afghanistan, and they identified themselves as being members of al Qaeda, it would be immaterial to the government's authority to detain these people whether they were part of the "command structure" of al Qaeda. Once Awad was "part of' al Qaeda by joining the al Qaeda fighters behind the barricade at the hospital, the requirements of the AUMF were satisfied. See Al-Bihani, 590 F.3d at 872 (holding that under the AUMF, a person may be lawfblly detained if, inter alia, he was "part of' al Qaeda forces). Awad points us to no authority from this court or the Supreme Court that would counsel a different decision.

A more difficult issue is whether a person who knowingly provides material support (financial aid or propaganda, for example) to AQ should be found to be "part of" AQ. That question is presently before SCOTUS, with a large number of convictions depending on the result that is reached.

Regards

Mike

[jmm99]

The first case is Civil Action No. 2005-1189 (KHALIFH et al v. BUSH et al), Doc No. 168 (unclassified memorandum order), by Judge James Robertson, who denied Khalifh's petition for habeas.

The Khalifh case hinged on whether Khalifh was "part of" AQ (e.g., as measured under the DC Circuit's Al-Bihani ruling - see prior post above). The judge's bottom line was (pp.16-17):

While I am not convinced by the government's evidence related to Tora Bora or Taloqan, the "part of al-Qaida" determination is a construct of all of the evidence. Looking at the case from this perspective, the government has shown more than probable cause to believe that Khalifh was a part of al-Qaida and associated forces through a steady string of activity right up until the time of his capture. [14]

[14] The government also proved that Khalifh was a part of the LIFG, but I need not determine whether LIFG membership alone supports detention; I take Khalifh's LIFG participation to be important mainly because his LIFG activities increasingly blurred with al-Qaida activities. Similarly, Khalifh's participation with the Taliban is best viewed as a tributary of his al-Qaida membership. rather than as an independent ground for detention.

In the Sudan, he worked for bin Laden's trucking company, received training in guerrilla tactics, and followed direct LIFG orders at least once to leave Sudan. In Afghanistan, he trained jihadists at al-Qaida training camps, attempted to clear mines with the Taliban, and recuperated from the loss of his leg at al-Qaida safe houses where top al-Qaida personnel were present. After 9/11, with an attack by the U.S. imminent, al-Qaida and LIFG members in Afghanistan regarded Khalifh as enough of a fellow traveler to continue to meet with him. While I find that the government has not shown that Khalifh was at Tora Bora or Taloqan or that he personally took up arms against U.S. or coalition forces, it is slicing the law too thin to require such proof. Given the clear proof of his long-standing membership in al-Qaida and the LIFG, and the absence of any evidence of active dissociation or of a compellingly lengthy lapse in activity (as in Salahi), find that Khalifh was a part of al-Qaida at the time his capture. Accordingly, the petition for writ of habeas corpus is denied. It is SO ORDERBD.

This decision is unexceptional given the evidence presented of Khalifh's mosaic as whole.

The second case is also unexceptionable, at least as the judge laid out the evidence - Civil Action No. 2004-1254 (ABDAH et al v. BUSH et al), Doc No. 873 (u), by Judge Henry H. Kennedy, Jr.

The judge's bottom line was (pp.36):

Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to Al Qaeda. Consequently, his detention is not authorized by the AUMF. The Court therefore emphatically concludes that Odaini's motion must be granted.

This opinion is heavily redacted (pp. 20-30 are mostly black boxes). Since that was a key part of the case, one cannot determine whether the judge's conclusions were correct or not.

The third case was not a merits hearing, but an order for a government witness to appear before the court - Civil Action No. 2005-1347 (MOHAMMED et al v. BUSH et al), Doc No. 295 (order), by Judge Gladys Kessler.

The history of this case (habeas having already heen granted hy Judge Kessler) is that of the song "I'd rather stay in Gitmo than meet my Maker in Algiers":

On November 19, 2009, after a merits hearing, this Court granted Petitioner’s request for a Writ of Habeas Corpus and ordered the Government to take all necessary and appropriate diplomatic steps to facilitate his release forthwith. On June 1, 2010, Petitioner filed an Emergency Motion to Compel Compliance With This Court’s Order of November 19, 2009 and For TRO and Injunction Against Transfer of Petitioner to Algeria.
.....
Petitioner has voiced great fear about being transferred to Algeria. He has not lived in Algeria for more than 20 years, and has no ties to that country. Because he has been designated an “enemy combatant,” he greatly fears retribution by the Algerian authorities and that he will be formally charged under the Algerian Penal Code, tortured, convicted, and very possibly executed by the Algerian Government. He has claimed that he will be caught between the Algerian government, which will brand him as an international terrorist, and armed domestic terrorists, who oppose the existing government, often pressure individuals to join their ranks, and retaliate violently when such individuals refuse. Petitioner has made clear that he would rather suffer continued confinement in Guantanamo Bay than be placed in the control of the Algerian government.

It will be interesting to see what develops in this case. Judge Kessler has pretty much marched to the tune of her own drummer in these cases. She has denied habeas only where the person was captured with AK in hand, or the equivalent.

[davidbfpo]

IIRC the issue of Control Orders in the UK has appeared here before. They are a controversial policy option, mainly as they have amounted to house arrest and a number of subjects have absconded. Plus for JMM:

Almost all of the evidence against him is thought to be intelligence material which neither he nor his lawyers have seen.

The BBC have a lengthy article on one case, of a Jordanian: http://news.bbc.co.uk/1/hi/programme...ht/8743947.stm

A short film (not made by the BBC) and a phone interview is on:http://news.bbc.co.uk/1/hi/programme...ht/8746467.stm. A longer explanation by a BBC reporter is:http://news.bbc.co.uk/1/hi/programme...ht/8744783.stm and a studio debate, with an ex-judge, an ex-Minister and a Muslim ex-fighter: http://news.bbc.co.uk/1/hi/programme...ht/8746404.stm

Hopefully the film can be viewed outside the UK on IPlayer.

[jmm99]

I don't know UK law on classified evidence; so, any comment from me on what the Brits do would be uninformed.

Based on the BBC, the control order does appear to be a form of "house arrest" - so, arguably a form of detention even though the man is not lodged in a public facility.

If someone is detained here (US territory, including Gitmo but not Bagram), a competent merits hearing has to be held to determine whether detention is justified. Currently, the DC habeas proceedings fill that need.

As to classified evidence, a detainee cannot have access unless that detainee has the requisite security clearance. But, classified evidence is made available to the detainee's lawyer if that lawyer has the requisite security clearance - subject to meeting all the requirements set up in the judge's case management order. Not a problem that I've seen.

Regards

Mike

[davidbfpo]

BBC update on the five US citizens arrested in Pakistan, in December 2009, having left their families in Alexandria, Virginia en route to join the jihad or do charity:http://news.bbc.co.uk/1/hi/world/sou...a/10400972.stm

Note initial sentencing in anti-terrorist courts can be overturned upon appeal.

[davidbfpo]

A variety of articles on the anniversary and this one is by an ex-London (met Police) CT officer and takes a wider, controversial viewpoint: http://www.guardian.co.uk/politics/2...s-police-chief

[davidbfpo]

Two different US press articles on the role of informants, citing Tom Ridge's comments: http://www.washingtontimes.com/news/...rorists/print/; a wider piece on FBI/local links and overseas information gathering, using Somali as an example: http://liveshots.blogs.foxnews.com/2...elligence-ops/

[jmm99]

We have seen the DC District and DC Circuit deal with questions concerning movement of Gitmo prisoners: transfer to facilities (INCONUS & OCONUS); release INCONUS or OCONUS, with associated issues of ill-treatment or torture if the detainee is packed off to a foreign country.

Let us take a particular issue - the detainee (who has been slated for release from Gitmo) says you can't send me home because they will torture, kill, etc. me; so, you have to release me into CONUS (or Canada, or Switzerland, etc.).

Should that issue be decided, on a case to case basis, by the Executive Branch or by the Federal Courts ?

For the US, this is a domestic constitutional issue (dealing with our separation of powers rules); and another country (e.g., UK, France or Germany) might well have a different constitutional requirement.

SCOTUS, in two cases without more than 1 sentence orders, has deferred to the Executive Branch (not an unexpected result IMO), as reported by Lyle:

Curb on judges’ power stands — for now
Algerian's plea fails
Lyle Denniston | Friday, July 16th, 2010 7:44 pm

UPDATE Saturday 5:50 a.m. Late Friday night, the Court, without noted dissent, refused to delay the transfer of a second Algerian, Abdul Aziz Naji.
....
In the first indication that the Supreme Court will not allow federal judges to interfere with government controls on who leaves or stays at Guantanamo Bay, the Court Friday evening cleared the way for the transfer of an Algerian detainee to his home country over his protest. The action divided the Court 5-3; the dissenters noted that the case involved “important questions” the Court has yet to answer. The Court’s action was not a final ruling on those questions; rather, it was a refusal to block a lower court order letting the government, not a judge, decide the transfer issue.
.....
[see Lyle's analysis in original]
.....
(NOTE TO READERS: There is another notable aspect of the Court’s Friday order: the Justices acted without the public ever having access to most of the significant filings in that case — in the Supreme Court, in the Circuit Court, and in the District Court. Except for the Circuit Court’s most recent ruling, which was made public on Thursday [2-page majority; 2-page partial dissent], every other document of importance remains under seal. As a consequence, the full range of the legal issues that the courts have been exploring remains unknown. Moreover, no one outside the group of judges, lawyers and law clerks involved has any idea when any of those materials will be made public, even in redacted form.

(Moreover, most of the information that is in the documents is not formally classified as secret: it fits into an unusual category of what the courts call “protected information.” As a brief Justice Department motion, filed with the Supreme Court in the Mohammed case, put it, this is information that must be withheld “because public disclosure of that information may cause diplomatic and potential security harm.” A special court rule was written in 2008 to govern the protection of such information in Guantanamo habeas cases. In the second Algerian detainee’s case that was filed at the Supreme Court Friday (docket 10A70), a brief motion asserted that his application “includes little if any information properly designated as ‘protected’ under the protective order.” It nevertheless had to be filed under seal.)

Reading between the lines, a few kinks still need to be resolved - a business which will be left to the DC Circuit in the next few months.

Regards

Mike

[jmm99]

from my British "evil twin", Andy Worthington, and the Center for Constitutional Rights - each of whom has different opinions about these cases than I.

From Andy, we have Guantánamo Habeas Results: The Definitive List, which he tallies as: "LATEST TALLY: PRISONERS 38, GOVERNMENT 16".

Andy's tally is factually accurate, but misleading. It includes 22 cases (17 Uighurs and 5 Algerians) which were not contested in any real sense by the DoJ (and all but 5 of those have been released). So, the tally in the more contested cases is more like 16-16.

The CCR tally is one case behind Andy's list, but also includes the Uighur and Algerian cases:

Total Habeas Cases Decided: 53
Habeas Cases Granted: 37
Habeas Cases Denied: 16
Habeas Granted and Released: 23
Habeas Granted and Still Detained: 14
Current Guantanamo Population: 178

Both Andy's list and the CCR list include links to the various SCOTUS, DC Circuit and DC District habeas cases, which I want to check out for completeness and broken links. Andy's list also includes his editorials about these cases, which you might want to read for a viewpoint that is quite different from those of the USG, JMM and what seems to be becoming a dominant view in the DC Circuit.

The DC Circuit (31 Aug 2010) denied en banc rehearing of Al-Bihani v. Obama, a 2-1 panel decision in favor of the USG and against the detainee. Andy discusses that decision in an article for the Future of Freedom Foundation, Restricting Presidential Wartime Powers.

While Andy sees hope for his side of the argument, the court decisions have not been favorable to the detainees' legal arguments. But, roughly 50% of the truly contested cases havbe found in favor of the detainees based on their factual arguments.

The unfavorable decisions for the detainees (especially on legal points) are most apparently in the recent DC Circuit decisions:

2010-01-05 Al Bihani - denial of habeas affirmed
2010-06-02 Awad - denial of habeas affirmed
2010-06-11 Barhoumi - denial of habeas affirmed
2010-07-01 Bensayah - remand for new merits hearing
2010-07-07 Al Odah - denial of habeas affirmed
2010-07-13 Al-Adahi - grant of habeas reversed, with instructions to Judge Kessler to enter a denial of habeas.

The last case is very telling, since Judge Kessler has imposed a high evidentiary standard (and something of an ICRC "direct participation" standard) on the USG in her cases (most holding against the USG).

Almost time for a law review type article on the DC Circuit appeals decided so far.

Mike

[jmm99]

The several DC Circuit opinions that simply affirmed DC District opinions denying habeas are not that noteworthy - most decisions are affirmed on appeal. However, the reversal of Judge Kessler in Al-Adahi got my attention, especially when the DCCA panel not only found error, but ordered Judge Kessler to enter an order denying habeas.

The legal logic of the DCCA panel was based on Judge Kessler's non-application of "conditional probability analysis" to the largely uncontested evidence before her (pp. 6-8):

The district court divided the government's evidence into five categories in rough chronological order: Al-Adahi's trip to Afghanistan; his meetings with bin Laden; his stay in an al-Qaida guesthouse; his military training at Al Farouq; and his other, later activities in Afghanistan. Mem. Op. at 13. We will generally follow the court's organization, but before we get to the specifics we need to mention an error that affects much of the district court's evaluation of the evidence. The error stems from the court's failure to appreciate conditional probability analysis. United States v. Prandy-Binett, 5 F.3d 558, 558-60 (D.C. Cir. 1993) (denying rehearing).

"Many mundane mistakes in reasoning can be traced to a shaky grasp of the notion of conditional probability." JOHN ALLEN PAULOS, INNUMERACY: MATHEMATICAL ILLITERACY AND ITS CONSEQUENCES 63 (1988). The key consideration is that although some events are independent (coin flips, for example), other events are dependent: "the occurrence of one of them makes the occurrence ofthe other more or less likely . . . ." JOHN ALLEN PAULOS, BEYOND NUMERACY: RUMINATIONS OF A NUMBERS MAN 189 (1991). Dr. Paulos gives this example: "the probability that a person chosen at random from the phone book is over 250 pounds is quite small. However, if it's known that the person chosen is over six feet four inches tall, then the conditional probability that he or she also weighs more than 250 pounds is considerably higher." INNUMERACY 63.

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. Prandy-Binett, 5 F.3d at 559-60. 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." Mem. Op. at 18. The fact that Al-Adahi stayed in an al-Qaida guesthouse "is not in itself sufficient to justify detention." Id. at 20. 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. Id. at 25. 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." Br. of Appellants at 42.

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." Mem. Op. at 41. 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. Awad, slip op. at 17-1 8; see Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust, 508 U.S. 602, 622 (1993) (citing In re Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring)).

The DCCA panel then proceeded to review the most material evidence taken as a whole - rather than deciding (as Judge Kessler did) that each item of evidence must of itself prove that Al-Adahi was "part of AQ". Here is sample of the panel's analysis (pp.8-11):

Al-Adahi served in the Yemeni army for two years and was later employed as a security guard at the Yemeni state oil company. In July 2001 he took a six-month leave of absence from his job and left his wife and his two children to travel with his sister Amani to Afghanistan (by way of Pakistan). Amani had entered into an arranged marriage with Riyadh Abd A1-Aziz Almujahid, a Yemeni citizen then residing in Kandahar.

Riyadh was affiliated with al-Qaida. He arranged for Amani's and Al-Adahi's trip to Afghanistan. He helped them obtain passports from the passport agency in their hometown of Ta'iz. He then sent Al-Adahi to the Yemeni capital city of Sana'a. Al-Adahi was instructed to wear a red jacket and wait outside a specified building for a man he did not know. This man, Ali Yayha, recognized Al-Adahi and gave him two plane tickets and travel money. Yayha also arranged for Al-Adahi and Amani to obtain visas. The government presented evidence that al-Qaida paid for Al-Adahi's and Amani's trip. Al-Adahi admitted that the sort of arrangements that Riyadh made for him and his sister were the same as those al-Qaida used for bringing jihadist recruits to Afghanistan.' And he described how Riyadh had obtained Al-Adahi's travel funds from "the Saudi who handled the money" for al-Qaida in Kandahar. That Al-Adahi was an al-Qaida recruit is also supported by a witness's statement - not addressed bv the district court - that Al-Adahi was a [description classified and redacted from this public opinion].

Riyadh was "from mujahidin" - that is, those who fought against the Russians and in the Afghan civil war. Many mujahidin frequented the guesthouse Riyadh operated in Kandahar. Al-Adahi stayed at Riyadh's house, located in the same compound. Al-Adahi told interrogators that Riyadh "had achieved a very- hig-h status" in al-0aida.' Like Al-Adahi. Riyadh was described to interrogators as a [description classified and redacted from this public opinion]. And Al-Adahi admitted that Riyadh's compound was very close to the compound of Mullah Omar, the leader of the Taliban.

Bin Laden hosted the male-only celebration of Riyadh's marriage to Al-Adahi's sister. Bin Laden held the celebration at his compound, which Al-Adahi described as "surrounded by a concrete fence further secured by a large metal gate." Inside the compound, a group of armed guards "draped in munitions belts, grenades, and Kalashnikov rifles" welcomed the wedding
guests. At the party, bin Laden gave a speech congratulating Riyadh. Al-Adahi and bin Laden were introduced and sat next to each other during the meal.

Several days later, bin Laden summoned Al-Adahi for another meeting. According to Al-Adahi, at his meeting bin Laden asked him about people he was connected with in Yemen - some of whom were involved in jihad. (The events following the meeting, including Al-Adahi's showing up at the al-Qaida training camp, suggest that more transpired in the meeting than what Al-Adahi related.) In the habeas proceedings, Al-Adahi tried to explain his personal audience with bin Laden on the basis that "meeting with Bin Laden was common for visitors to Kandahar." Mem. Op. at 17. This is, as the government points out, utterly implausible. Al-Adahi's story was "contradicted by the undisputed evidence that in 2001 Usama bin Laden, who knew he was a military target of the United States, had gone into hiding under tight security . . . ." Br. of Appellants at 64.

As to the latter point the district court said nothing, despite the well-settled principle that false exculpatory statements are evidence - often strong evidence - of guilt. See, e.g., United States v. Penn, 974 F.2d 1026, 1029 (8th Cir. 1992); United States v. Meyer, 733 F.2d 362, 363 (5th Cir. 1984). 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. Mem. Op. at 41.

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"? All that comes to mind is the idea that two personal meetings with bin Laden are not enough to prove that an individual is part of al-Qaida. If that is what the court intended, then it was once again engaging in the mistaken reasoning we mentioned in connection with conditional probability analysis. The court rounded off its discussion by characterizing the government's presentation as merely indicating that Al-Adahi had "familial ties to Usama bin Laden," a statement incorrect as a factual matter (Al-Adahi's family ties were to a top aide of bin Laden's) and one that misses the strong thrust of the evidence. The evidence derived its power not only from Al-Adahi's family relationships, but also from his meetings with bin Laden. That close association made it far more likely that Al-Adahi was or became part of the organization.

Rather than grasping this essential point, the district court called the evidence regarding the meetings a distraction - something that should not divert "the Court from its essential focus - the nature of Al-Adahi's own conduct, upon which this case must turn." Mem. Op. at 18. Here again the court's remarks are perplexing. If Al-Adahi's meetings with bin Laden were not his "own conduct," whose conduct were they?

The panel then continued to lambast Judge Kessler's findings of fact for another eight pages.

Regards

Mike