As Steve already noted, the D.C. Circuit has affirmed the district court’s denial of a writ of habeas corpus to Guantanamo detainee Abdul Razak Ali. We covered the oral argument this fall, in preview and recap posts.
The D.C. Circuit concludes, in an opinion authored by Circuit Judge Brett Kavanaugh and joined by Senior Circuit Judge Stephen F. Williams, that a combination of undisputed and disputed facts support the decision below. First the undisputed: Ali’s capture in March 2002, alongside Abu Zubaydah and other terrorist trainers in a guesthouse where he’d been staying for two and a half weeks, and Ali’s affirmation at the time of his identity as Abdul Razzaq of Libya. Two facts alleged by the government but denied by Ali also mattered to the majority—that the petitioner traveled to Afghanistan after the 9/11 attacks, and that he participated in a terrorist training program. Senior Circuit Judge Harry T. Edwards wrote a separate opinion concurring in the judgment.
After walking through the historical backdrop of the AUMF and related case law, Judge Kavanaugh addresses the petitioner’s arguments regarding the weight of the case’s “central fact”: that Ali was captured at Abu Zubaydah’s guesthouse. The majority finds flaws in Ali’s claims that he mistook the place as a public guesthouse, and that the government’s “guilty by guesthouse” theory is unfair to him. As to the latter—the use of the word “guilty” in particular— Judge Kavanaugh corrects Ali about the nature of the matter before the court. This is not a criminal proceeding, after all, and so there is no question of guilt or innocence presented. Instead, Ali challenges his military detention. Thus a different standard, as to whether the detainee is lawfully held, applies:
. . . The purpose of military detention is to detain enemy combatants for the duration of hostilities so as to keep them off the battlefield and help win the war. Military detention of enemy combatants is a traditional, lawful, and essential aspect of successfully waging war. . . . The standard of proof for military detention is not the same as the standard of proof for criminal prosecution, in part because of the different purposes of the proceedings and in part because military detention ends with the end of the war.
This takes Judge Kavanaugh to the “guesthouse” portion of the argument. According to him, when one is asked to determine if a detainee is more likely than not a member of Al Qaeda, the Taliban, or an associated force, then one must look to “other indicia” than would otherwise matter in a typical conflict—in which an enemy force might wear a uniform, for example.
As for what such “indicia” mean, the context is important. Judge Kavanaugh then reviews six other facts besides Ali’s mere presence at the guesthouse that support the conclusion that he is more likely than not an AUMF-covered bad guy: among Ali’s “housemates” were Abu Zubaydah and senior leaders of Zubadyah’s force; Ali had stayed at the guesthouse for “about 18 days”; the guesthouse contained documents and equipment “associated with terrorist activity”; Ali’s English lessons were a part of Abu Zubaydah’s terrorist training program; Ali traveled to Afghanistan after 9/11 intending to fight against the U.S. and its allies; and Ali lied about his identity upon capture and maintained a “false cover story” for over two years.
The majority opinion also dismisses three procedural arguments the petitioner had advanced: that Ali was entitled to a second habeas hearing because the government failed to disclose evidence that undermined the credibility of two witnesses against the Guantanamo detainee (this evidence was ultimately withdrawn, and neither the district court nor the D.C. Circuit relied on it in making their findings); that the government’s presentation of the case deprived counsel of time to prepare (none of the government’s actions rise to the level justifying reversing the district court’s finding on appeal, and the court “prudentially accommodated” counsel requests for more time); and that the district court judge was biased (it just lacks merit, and the petitioner doesn’t identify actions that suggest improper bias on the judge’s part, the court says).
Judge Kavanaugh reiterates the flaws of the “guilty by guesthouse” theory as he concludes, and addresses protests that the petitioner’s detention is indefinite:
The war against al Qaeda, the Taliban, and associated forces obviously continues. Congress and the President may choose to make long-term military detention subject to different, higher standards. Indeed, for many years now, under the direction of two Presidents, the Executive Branch has unilaterally conducted periodic reviews and released or transferred to foreign countries a large number – in fact, the vast majority – of Guantanamo detainees. Many releases or transfers have likewise occurred with detainees who have been held on U.S. bases in foreign countries (and outside of the courts’ habeas jurisdiction, see Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010)).
Finally, the majority articulates the role of the judiciary in these habeas cases, and directs to the political branches complaints about the test the Circuit applies in these matters:
But absent a statute that imposes a time limit or creates a sliding-scale standard that becomes more stringent over time, it is not the Judiciary’s proper role to devise a novel detention standard that varies with the length of detention. The only question before us is whether the President has authority under the AUMF to detain Ali. In conducting that analysis, we must apply the same standard in 2013 that we would have applied in the aftermath of Ali’s capture in 2002.
Senior Circuit Judge Edwards concurs in the judgement, conceding that he is bound to follow Circuit Court jurisprudence. In his separate opinion, though, he raises several concerns about the court’s jurisprudence in Guantanamo habeas cases. In particular, Edwards contests the majority’s conclusion that Ali comes within the AUMF’s scope, suggesting the “guilty by guesthouse” theory may have more merit (and the AUMF coverage theory, less merit) than the majority acknowledges:
Ali may be a person of some concern to Government officials, but he is not someone who transgressed the provisions of the AUMF or the NDAA. Ali’s principal sin is that he lived in a “guest house” for “about 18 days.”
Judge Edwards goes on to analyze the majority’s interpretation of facts justifying Ali’s detention beyond merely his presence at the guesthouse: all are “personal associations” that Ali had with Abu Zubaydah, in the view of the concurring judge. To Judge Edwards’ eye, such a “personal associations” test goes “well beyond” the AUMF and NDAA’s prescriptions.
As to the majority’s assessment that the duration of Ali’s detention is not indefinite, Judge Edwards is skeptical that detention-authorizing hostilities are likely to end during Ali’s life:
Our Nation’s “war on terror” started twelve years ago, and it is likely to continue throughout Ali’s natural life. Thus, Ali may well remain in prison for the rest of his life. It seems bizarre, to say the least, that someone like Ali, who has never been charged with or found guilty of a criminal act and who has never “planned, authorized, committed, or aided [any] terrorist attacks,” is now marked for a life sentence.
By way of a conclusion, Judge Edwards turns to the majority’s assertion that it is not the judiciary’s “proper role to devise a novel detention standard that varies with the length of detention.” And he raises once more the question of whether the Circuit’s jurisprudence has gone beyond the AUMF’s and the NDAA’s provisions—thus rendering Guantanamo habeas proceedings “functionally useless.”