Guantanamo: Litigation

Al Madhwani Argument Preview

By Benjamin Wittes
Monday, March 7, 2011, 9:16 AM

On Thursday morning, a panel of the D.C. Circuit Court of Appeals will hear arguments in the latest in a long string of habeas appeals to make their way up the appellate chain: Masaab Al-Madhwani v. Barack Obama. Al-Madhwani is a Yemeni national—a part of a large class of detainees, the fact pattern of whose cases is starting to seem routine and familiar. You know the type. In American high schools, we have cliques: jocks, nerds, popular kids, and the like. At Guantanamo, there are cliques too. Al-Madhwani is part of the Yes-I-went-from-Yemen-to-Afghanistan-and-took-some-training-and-stayed-in-some-guesthouses-and-had-some-bad-friends-but-I-never-joined crowd. Judge Thomas Hogan ruled against him at the district court level. And I suspect he's going to have tough sledding before the D.C. Circuit too.

Judge Hogan found, as he later summarized his bench ruling in a written opinion, that,

the Government's allegations are primarily derived from twenty-six documents containing statements Al Madhwani provided at Guantanamo. The Court observed that twenty-three of those documents are tainted by the coercive interrogation techniques to which Al Madhwani was subject and lack sufficient indicia of reliability. Nevertheless, the Court held that the remaining three documents, which detail Al Madhwani's statements to the Combatant Status Review Tribunal and the Administrative Review Board, are reliable. Based on his statements during those two proceedings and the remaining reliable evidence in the record, the Court found that Petitioner trained, traveled, and associated with members of al-Qaida, including high-level operatives. The Court concluded that these facts are sufficient to find that Petitioner is lawfully being detained under the AUMF.

In particular, while he raised questions about whether Al Madhwani poses any sort of a threat and whether the government should continue to hold him, Judge Hogan found that,

The Government met its burden of proof with respect to the allegations that Petitioner voluntarily attended an al-Qaida training camp for approximately twenty-five days and then traveled, associated, and lived with members of al-Qaida over the course of one year. Those facts are sufficient to conclude that Petitioner more likely than not was "part of" al-Qaida. . . . He attended the basic training camp of al-Qaida for approximately twenty-five days. When camp ended, he followed camp instructors around Afghanistan. The instructors gave him orders, and he obeyed. . . .The very fact that Petitioner was able to successfully navigate through Afghanistan and Pakistan, having never visited either country, not speaking the language, and possessing no money, evidences that he followed the direction of al-Qaida members. His reunion with his passport weeks after he left al-Farouq, for example, cannot be explained by mere happenstance.

It also is telling that al-Qaida considered Petitioner to be a member. AI-Qaida admitted him to their training camp and trained him to use firearms. AI-Qaida allowed him to be in the presence of bin Laden, twice. AI-Qaida assigned him to the charge of two al-Qaida instructors when the training camp closed. AI-Qaida fed, sheltered, and protected him. AI-Qaida sent him to live in an apartment in Karachi frequented by al-Qaida members. The only logical explanation as to why al-Qaida did all of this for Petitioner is that they considered him a member. Petitioner must have taken some affirmative action to earn that trust and assistance from such a clandestine organization. Accordingly, the Government has proved by a preponderance of the evidence that Petitioner was "part of" al-Qaida.

On appeal, Al Madhwani takes a kitchen sink approach. He makes a lot of arguments—seven of them, to be precise—and his lawyers make only limited efforts to prioritize them. What's more, much of Al-Madhwani's brief is devoted to detailing the abuse and torture he claims to have suffered—claims which Judge Hogan credited—though the abuse turns out to play only a limited role in his legal arguments. All of this makes summary of the case rather difficult. And it is very hard to know what the oral argument is likely to focus on.

Two of Al Madhwani's arguments—that the preponderance of the evidence standard is too low and that Judge Hogan erred by relying on hearsay—are clearly foreclosed by circuit precedent, and they thus receive almost no attention either in Al Madhwani's brief or in the government's response. They appear to be efforts to preserve questions for the Supreme Court, not serious efforts to persuade the D.C. Circuit of anything. As a consequence, I will ignore them here as well. Al Madhwani's counsel and the government alike focus principally on his first argument: that the evidence was insufficient for Judge Hogan to affirm his detention.

Judge Hogan erred, Al Madhwani's counsel argue, in holding that Al Madhwani voluntarily attended training, because if one focuses only on the few statements Judge Hogan considered credible and not coerced, the record is undisputed that he was forced to attend the Al Farouq camp. There is, further, no evidence in this more-limited record to support the notion that he knew that Al Farouq was an Al Qaeda camp, they argue. And the record shows that he was not allowed to leave the camp, though he repeatedly tried, and that he left as soon as he was permitted. Training under such circumstances is an insufficient basis to detain him, they argue. What's more, Judge Hogan also erred in holding that once Al Madhwani left, he traveled with and lived with Al Qaeda personnel: "there is no evidence establishing that the various people with whom Al-Madhwani traveled were al-Qaida members, much less that Al-Madhwani knew this or relied on al-Qaida in any way."

The government responds that Judge Hogan "correctly concluded that Madhwani's training at al-Farouq, his movements through Afghanistan and Pakistan with al-Qaida members, and his capture in an apartment where al-Qaida operatives fought to the death, are more than sufficient to make him 'part of' al-Qaida under this Court's recent precedents." Judge Hogan found that he stayed in an Al Qaeda guesthouse, the government argues, that he voluntarily received training at Al Farouq, that he carried an AK-47 at the direction of two Al-Farouq trainers whom he accompanied through Afghanistan and Pakistan, and that he "was captured in a safehouse in Karachi where al-Qaida members were in hiding"—a safehouse where other residents fought to the death to avoid capture. These activities, the government argues, "show the sort of ties between Madhwani and al-Qaida that make him part of the organization because he sought to associate with al-Qaida; he traveled with and trained with al-Qaida; he followed orders from al-Qaida; and he was trusted by al-Qaida." These facts, the government stresses, can only be disturbed on appeal if they are clearly erroneous—and they are not.

Al Madhwani's brief then goes on, second, to complain that Judge Hogan relied on evidence not in the record, specifically a newspaper article, and that he had wrongly inferred that there was a Yemeni embassy that Al Madhwani could have visited in Karachi. "The court improperly drew a critical inference against Al-Madhwani—that al-Qaida 'accepted him'—based upon extra-record, irrelevant media." And "there was no evidence in the record of any embassy to which Al-Madhwani could have gone, or that Al-Madhwani had any idea where the embassy was located." The government responds that the newspaper article contained only undisputed information and that, in any event, "while the district court noted the existence of the newspaper article during its oral ruling, it expressly did not rely on it" and did not cite it in the written opinion. The assumption that an embassy exists in Karachi, the government argues, "was based on Madhwani's own testimony: he told the court that upon returning to Karachi from Lahore, 'God willing . . . we would . . . give ourselves up to the Yemeni Embassy.'"

Third, Al Madhwani's lawyers argue that Judge Hogan "improperly shifted the burden of proof to Al-Madhwani to show that the [CSRT and ARB] statements were unreliable," rather than requiring the government to prove them reliable. The government had the burden of showing that the taint of prior torture had been abated, they contend, yet they fell "far short." The government responds that it is "simply false" that Judge Hogan shifted the burden. Rather, the government contends, Judge Hogan "carefully assessed all of the factors surrounding those statements before concluding that they were reliable" and unaffected by prior coercion.

Fourth, Al Madhwani's lawyers argue that Judge Hogan "erroneously denied discovery regarding witnesses upon whom the government materially relied, then improperly relied on Al-Madhwani's inability to impeach those same witnesses." The government responds that Judge Hogan "did not abuse its discretion by declining additional discovery beyond the discovery already provided in the Case Management Order into an issue . . . that was not seriously disputed at trial."

And finally, Al Madhwani's counsel complains that Judge Hogan "opined that the Executive has the authority under the AUMF to detain Al-Madhwani indefinitely because he 'crossed paths with' a couple of al-Qaida members and therefore must have been 'part of' al-Qaida." This sort of "'crossing paths' standard of detention" is guilt by association, ignores "Congress's directive that detention should be limited to the purpose of preventing future terrorism," and violates law of war principles. The government does not treat this argument separately, but in passing in the course of addressing Al Madhwani's first argument. It is, the government claims, "patently mistaken." The court "carefully assessed whether Madhwani's al-Qaida contacts were sufficiently close to make him part of al-Qaida," the government argues, and "it is obvious that actions such as training at al-Farouq and carrying a weapon in Afghanistan at the direction of al-Farouq trainers are much more than merely 'rubbing shoulders' with al-Qaida."

The argument will take place before Judges Douglas Ginsburg, Karen LeCraft Henderson, and David Tatel. Darold W. Killmer will argue the case for Al Madhwani. August E. Flentje will argue for the government. The court has not yet announced what the argument format will be, but the parties have jointly requested argument in open court, followed by a brief classified session.