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Another Thought About Al Madhwani

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Sunday, May 29, 2011 at 12:49 PM

One further thought about the D.C. Circuit’s Al Madhwani opinion–along the same lines as I mentioned earlier. There are at least two other places in this brief (12 page) opinion in which the panel opinion, written by Judge Karen LeCraft Henderson, casually reiterates quite controversial premises of earlier D.C. Circuit opinions–thus, I think, having the effect of entrenching them more deeply in the law of detention. One is this passage:

As we have noted before, “if a person stays in an al-Qaida guesthouse or attends an al-Qaida training camp, this constitutes ‘overwhelming’ evidence that the United States had authority to detain that person.” Al-Adahi, 613 F.3d at 1109 (quoting Al- Bihani, 590 F.3d at 873 n.2).

The D.C. Circuit has never quite held that staying in a guesthouse or taking training are by themselves sufficient to warrant detention, but the judges keep reiterating this language which suggests that they that they consider them very close to per se evidence of belligerency. This point seems to me far stronger with respect to training than to at least some guesthouse stays–which can often reflect a significantly earlier, and more tentative, stage of recruitment into an enemy group. But whether one thinks the Circuit is right or wrong on this point, the consistency of its message strikes me as noteworthy–and potentially significant. Notice again that the developing law here, to the extent it takes further root, is in some ways harsher than what even Republican members of Congress have proposed legislatively.

The other passage is the following:

There, as Madhwani and others were staying in abandoned houses, one day a stranger driving a car approached them and asked, according to Madhwani’s testimony, “did anybody lose their passports, clothes, personal stuff, you know, like tape recorders, or anything.” Tr. 10/27 at 145–46. Fortuitously, according to Madhwani, he found his passport among the lost- and-found items in the car. Although the district court credited other aspects of Madhwani’s testimony, it found that “mere happenstance” could not explain how Madhwani recovered his passport from al-Qaida custody. Anam, 696 F. Supp. 2d at 15. We agree with the district court and find Madhwani’s explanation implausible. See Al-Adahi, 613 F.3d at 1107 (“[F]alse exculpatory statements are evidence—often strong evidence—of guilt.”).

The idea that judges should consider as evidence in the government’s favor when they don’t believe a detainee’s exculpatory story is not new to this opinion. After a flurry of district court opinions that refused to hold incredible detainee stories against the detainees in question, the D.C. Circuit made this point strongly in Al Adahi, and it has begun to catch on now in the lower court. That said, repetition is the stuff of routinization. And the D.C. Circuit here includes it in a way that treats the matter as a very settled. That is a big change from only a year ago.