The D.C. Circuit, in an opinion by Judge Ginsburg, held that the Authorization for Use of Military Force (AUMF) authorized the U.S. government to detain individuals solely on the grounds that they are functionally “part of” al Qaeda. However, the court found that the district court’s evidence was insufficient to show that Bensayah was actually a part of that organization. As a result, the court reversed the district court’s judgment and remanded the case for further consideration.
Belkacem Bensayah, an individual detained by the U.S. government at Guantanamo, petitioned the district court for a writ of habeas corpus. His petition was dismissed. Khalid v. Bush, 355 F. Supp. 2d 311, 314 (D.D.C. 2005). However, in the wake of Boumediene’s holding that Guantanamo detainees are constitutionally “entitled to the privilege of habeas corpus to challenge the legality of their detention,” his petition was reinstated. Nevertheless, the district court refused to grant the writ, finding that the government had demonstrated by a preponderance of the evidence that Bensayah was lawfully detained and held pursuant to the AUMF because he had provided “support” to al Qaeda. On appeal, the government abandoned its arguments “concerning the source and scope of its authority to detain Bensayah.” Although the government “previously claimed authority to detain Bensayah based upon both the AUMF and the President’s constitutional authority as Commander in Chief, it now relie[d] solely upon the AUMF,” asserting that Bensayah’s “detention is lawful because he was ‘part of’ [al Qaeda].” However, that was “a contention the district court [had] not reach[ed].”
Citing its prior decisions in Al Bihani, Awad, and Barhoumi, the D.C. Circuit “agree[d] with the Government that its authority under the AUMF extends to the detention of individuals who are functionally part of al Qaeda.” The court explained that, because the “details of [al Qaeda’s] structure are generally unknown,” it could not “provide an exhaustive list of criteria for determining whether an individual is ‘part of’ al Qaeda.” Rather, the court explained, “[t]hat determination must be made on a case-by-case basis by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to the organization.” Specifically, “[t]hat an individual operates within al Qaeda’s formal command structure is surely sufficient but is not necessary to show he is ‘part of’ the organization.”
Nevertheless, the D.C. Circuit found that “[t]he evidence upon which the district court relied in concluding Bensayah supported al Qaeda [was] insufficient … to show he was part of that organization.” Consequently, the circuit court remanded the case to the district court so that it could “determine whether, considering all reliable evidence, Bensayah was functionally part of al Qaeda.” In particular, the D.C. Circuit noted that “[t]he Government [had thus far] presented no direct evidence of actual communication between Bensayah and any al Qaeda member, much less evidence suggesting Bensayah communicated with … anyone … in order to facilitate travel by an al Qaeda member.” Likewise, the court agreed with Bensayah that “mere possession and use of false travel documents [was] neither proof of involvement with terrorism nor evidence of facilitation of travel by others.”
In addition to its AUMF-related findings, the D.C. Circuit also held that it was permissible, under the federal constitution and in light of the Supreme Court’s holding in Boumediene that Guantanamo detainees are entitled to “the fundamental procedural protections of habeas corpus,” to require the government to prove the lawfulness of a detainee’s detention by a preponderance of the evidence, rather than beyond a reasonable doubt.
Moreover, because “[i]nformation that undermines the reliability of other materials, e.g., inculpatory evidence, also tends ‘materially to undermine the Government’s theory as to the lawfulness of the petitioner’s detention’ and hence must be disclosed by the Government,” the court “agree[d] with the Government that the standard for disclosure ordered by the district court, coupled with the opportunity to make specific discovery requests, [was] consistent with the Supreme Court’s directive in Boumediene that a detainee be provided with the opportunity to challenge ‘the sufficiency of the Government’s evidence’ and to ‘supplement the record on review’ with additional ‘exculpatory evidence.’”
Lastly, the circuit court held that the district court did not abuse its discretion by imposing on the detainee the burden of explaining why each of his discovery requests would be neither unfairly disruptive nor unduly burdensome to the government. The court noted that, in Boumediene, “[t]he Supreme Court specifically recognized the district court’s discretion to accommodate the Government’s legitimate interest in protecting sources and intelligence-gathering methods.”
Major Commentary and Academic Literature:
USERS CAN ADD.
Al Bihani v. Obama, 590 F. 3d 866 (D.C. Cir. 2010).
Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010).
Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010).
Khalid v. Bush, 355 F. Supp. 2d 311, 314 (D.D.C. 2005).