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Thoughts on Uthman

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Tuesday, March 29, 2011 at 2:00 PM

The D.C. Circuit continued this morning its broad-based, cross-ideological conspiracy to mess up my schedule. I was returning this morning from a perfectly delightful trip to Saratoga Springs, NY to teach some classes and give a lecture at Skidmore College, and was not planning to do any more blogging today than a short shout-out to the Skidmore faculty and students with whom I had the pleasure of spending my day yesterday. I was looking forward to a down-day, when the court this morning handed down its Uthman opinion. So here I am, jotting down some thoughts after a quick read. Grrrrr. Mercifully, Judge Brett Kavanaugh has kept the opinion to a brisk 14 pages.

It’s an excellent opinion–and it will be a consequential one. Uthman is a big deal for a few reasons. Most important, as I put it in my oral argument summary, “if I were a member of the habeas bar, this case would make me very nervous. It could end up making it far easier for the government to justify a detention based on relatively spare associational and travel activities. Such a holding would significantly reduce the number of detainees who can plausibly expect to win their habeas cases.” That is exactly what has happened here. And it has happened at the hands of an ideologically diverse panel, acting unanimously. (Judge Kavanaugh’s opinion is joined in full by Judges Merrick Garland and Thomas Griffith.)

Years ago, when my then-research assistant Zaahira Wyne and I began categorizing statements by Guantanamo detainee, we noticed a pattern that caused a significant analytical puzzle. Detainees would deny being members of Al Qaeda or the Taliban, but they would admit facts consistent with, but not necessarily dispositive of, membership. The puzzle was how many facts short of membership a detainee had to admit, and what sort of facts, before one might reasonably conclude that they had effectively admitted membership. Zaahira and I developed what we called the Duck Test. Detainees might deny being a duck, but if they admitted enough duck-like characteristics: waddling like a duck (taking terrorist training), quacking like a duck (staying in guesthouses), having beaks like a duck (traveling to Afghanistan for jihad), for example, we would ultimately treat them as ducks. In Uthman, the D.C. Circuit has applied something very like the Duck Test. Uthman did not take training and the government can’t show that he fought, but the panel nonetheless wrote that,

In analyzing whether Uthman more likely than not was part of al Qaeda, we consider the following facts, which were found by the District Court or are otherwise uncontested:

–Uthman was captured in December 2001 in the vicinity of Tora Bora, an isolated, mountainous area where al Qaeda forces had gathered to fight the United States and its allies.

–When captured, Uthman was traveling with a small group of men, two of whom were al Qaeda members and bodyguards for Osama bin Laden and one of
whom was a Taliban fighter.

–Leading up to his capture, Uthman’s journey began at a religious school in Yemen where al Qaeda had successfully recruited fighters. The two al Qaeda members and Osama bin Laden bodyguards who were later captured with Uthman, as well as the Taliban fighter captured with Uthman, also attended the Furqan Institute.

–Uthman traveled to Afghanistan along a route used by al Qaeda recruits.

–Uthman lied to hide the fact that someone else paid for his travel to Afghanistan.

–While in Afghanistan, Uthman was seen at an al Qaeda guesthouse.

–Uthman’s explanation of why he went to Afghanistan and why he was traveling in a small group that included al Qaeda members and a Taliban fighter near Tora Bora during the battle there involves a host of unlikely coincidences.

Uthman argues that those facts do not add up to his being part of al Qaeda. As we will explain, we conclude that those facts, taken together, are more than sufficient to show Uthman more likely than not was part of al Qaeda.

This is correct, in my opinion, and it is also quite consequential. It means that to prevail in a habeas case, the government does not need to produce direct evidence of anything. In the many cases–and there are many of them–in which there is little more than a suspicious pattern of travel and associations, it has merely to argue convincingly that those patterns are more likely to be the result of membership than they are of coincidence. Many fewer detainees will prevail under this understanding of the government’s evidentiary burden than would prevail under one less tolerant of a mosaic of incriminating facts.

To be sure, in some conceptual sense, this case does not break new ground. The D.C. Circuit, after all, said in Al Adahi that facts should be viewed in light of one another and the evidence should be assessed as a whole. It said in a sequence of cases that the test of whether someone was “part of” Al Qaeda was a fact-dependent functional test, not a formal one. And it has insisted as well that false exculpatory statements on the detainee’s part can be evidence in the government’s favor. But Uthman puts all these questions together and asks whether a relatively spare string of incriminating facts can get the government over the hump. The answer now is clear: It can. The string here is “more than sufficient,” The panel says. So the question now is how much sparser the facts can be and still satisfy the standard.

The decision is notable for another reason: The D.C. Circuit has yet again resolved one of these cases unanimously–continuing its now-quite-impressive pattern of redirecting the lower court judges on the law of detention with a unified voice. To be sure, a few high-profile decisions have fractured the court and judges have sometimes written broadly, when narrow decisions would do. But these are actually exceptions. The broader pattern is that the court has managed to speak powerfully with one voice most of the time. And this case is a good example. There are no Al Bihani-like tangents here on, say, the applicability of international law, and no efforts to answer important questions the case at hand does not necessarily require the court to address. There are no efforts to stake out maximalist ground on the delicate issue the case does raise either. Judge Kavanaugh here has resisted all temptation to say that any one of the facts he lists by itself would have been enough. The opinion is more powerful for its restraint. It will force lower court judges to think about the cumulative impact of the facts they find in relation to one another. Several detainees who have won their habeas cases at the lower court would not have won had the judges who heard their cases applied this methodology. Many more will lose when judges follow the Duck Test in the future.

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