(By Benjamin Wittes and Larkin Reynolds)
The D.C. Circuit has a remarkable collection of talent. I am constantly amazed at how well-versed its judges are in the record in the cases I watch and the wealth of material they draw on in formulating questions. Their generally extraordinary level of capability makes it all the more mind-boggling that the court is pathologically incapable of giving a reasonable time estimate regarding the length of oral arguments. The court might interpret the phrase "fifteen minutes per side" in the textually rigorous sense of allotting to each side of the case, you know, 15 minutes to present its arguments and answer questions. Or, on any given day, by contrast, it might decide that the phrase "fifteen minutes," like "due process," has a substantive side—a right on the part of the judges to keep going as long as they like. It might mean, "stick around for an additional half hour and shoot the breeze; we've got some extra questions." Or it might mean one thing for one side and quite another for the other side. Today, in the case immediately preceding Masaab Al-Madhwani v. Barack Obama, Judges David Tatel, Karen LeCraft Henderson, and Douglas Ginsburg interpreted "15 minutes" to mean, "Boy, we're really interested in this case and would like to talk to government counsel about it all morning!" And the result was that, having a train to catch to teach an excellent group of seminar students at NYU Law School, I could not stay for much of Al Madhwani. Leave aside whether this interpretation of "15 minutes" constitutes an abuse of discretion on the part of the D.C. Circuit. It means that I can only give a partial account of the argument. Fortunately, the redoubtable Larkin Reynolds was there too, so this post is a tag-team effort. The first chunk of it contains my impressions and account, the second hers.
As I have described the case in some detail here, we will assume reader familiarity with the facts in the account that follows.
Darrold Killmer rises for Al Madhwani and introduces himself. Judge Ginsburg immediately asks him whether he is from Denver. He confirms that he is, and Judge Ginsburg welcomes him. Killmer thanks him and notes that he had recently been down at Guantanamo and brought the judges greetings from Al Madhwani. That, Ginsburg responds, is "a first." Well, Killmer tells him, Al Madhwani is a special kind of guy. And the disposition of this case should reflect that, he says. He was captured when he was 20 years old. He has been held at Guantanamo for nine years. And in denying his habeas petition, District Judge Thomas Hogan made the same error for which the D.C. Circuit in other cases has faulted other judges in granting the writ: He looked at the evidence in too atomized a fashion. So while he correctly rejected certain government claims, Killmer argues, he found in the government's favor on certain other facts without viewing those claims in light of what he was rejecting.
Judge Ginsburg notes that he makes many arguments in his brief and asks to which this point pertains. Killmer responds that it pertains to his first argument, that the evidence was insufficient for Judge Hogan to determine that his client was "part of" Al Qaeda. That, he says, is going to be the focus of his argument. The D.C. Circuit, he argues—presumably in reference to Al Adahi—has instructed the district courts to view the evidence as a whole. And Judge Hogan methodically reduced the category of government evidence to only a limited number of documents that he would credit. He threw out 23 statements because of torture and because they lacked indicia of reliability. Judge Ginsburg suggests that he didn't really find torture, but just assumed it in light of the government's unwillingness to address the circumstances of the interrogation, but Killmer disagrees, saying Judge Hogan specifically found it. All in all, he says, it was a stunning rebuke to the government's case.
Judge Tatel jumps in here. What is the significance, he wants to know, of rejecting a given piece of evidence for those items of evidence that a judge isn't rejecting? In other words, if a judge rejects items 1, 3, and 5, why should that suggest more than that these items can't then be used to prove the matter in dispute? Is Killmer suggesting that because the judge rejects these, he should also reject items 2 and 4? Killmer says that he is suggesting that. And Judge Tatel is not impressed with this argument. I don't understand that logically, he says. This can't be your strongest argument. Killmer is undeterred, insisting it is a strong argument. Consider Judge Hogan's conclusion regarding Al Madhwani's travel to Afghanistan. Judge Hogan specifically found that Al Madhwani had not gone to Afghanistan with the intent to fight. He didn't like fighting. He didn't want to participate in wars. Yet those same characteristics were not taken into account when Judge Hogan found that he had voluntarily taken training. Judge Tatel does not seem to think this is an analytical problem for Judge Hogan. What Judge Hogan said, Judge Tatel suggests, was that although Al Madwhani did not leave Yemen intending to fight, once in Afghanistan, he later voluntarily took training. Killmer disagrees. And similarly, he argues, the same considerations should have affected Judge Hogan's analysis of his client's later associations with Al Qaeda people. It should have made it more likely than not that he did not become part of Al Qaeda, he says. But the district court unduly atomized the evidence in analyzing it.
Judge Tatel asks what analysis he would have wanted to see in the opinion that Judge Hogan didn't include. What's missing, Killmer says, is the fact that Al Madhwani didn't willing join and didn't want to join. Judge Tatel asks again why he shouldn't read Judge Hogan's opinion to mean that although he didn't initially want to join when he left Yemen, he soon became an active member. Killmer responds that this might be a plausible outcome in some cases on remand, but for many reasons, he thinks it would not happen here. The key point is that the analysis of how the exculpatory findings impact the other evidence has to happen, and it didn't.
Judge Ginsburg points out that he is going to have a chance to argue some of these points in the context of a Rule 60 motion he has pending at the district court, concerning exculpatory evidence he claims was withheld. And Judge Tatel follows up by asking whether the D.C. Circuit should wait to decide the appeal until the Rule 60 motion is decided. No, Killmer responds, the court should reverse Judge Hogan's ruling based on the record as it exists, and he will then take up the voluminous newly discovered evidence in the lower court.
Judge Ginsburg now returns to the subject of whether Judge Hogan really found that Al Madhwani had been tortured. He thought, he says, that Judge Hogan merely took it as uncontested, since the government chose not to litigate the circumstances of Al Madhwani's early detention and interrogation. Killmer says he is wrong. Judge Hogan, he says, affirmatively found that Al Madhwani had been abused—and abused by American officials. Al Madhwani testified, and Judge Hogan specifically credited that testimony, he says.
What if, Judge Tatel asks, we ignore all of his prior statements? Set aside the CSRT and ARB statements (which Judge Hogan credited), and set aside all of the statements Judge Hogan rejected. What if we only focus on what Al Madhwani admits in the context of the current litigation? Under the D.C. Circuit's case law, isn't that good enough to affirm his detention? After all, he stayed at guesthouses. He took weapons training at an Al Qaeda camp. After September 11, he left the camp with trainers and traveled with them for a year. He complied with their request to carry a weapon. And at the time of his capture, he was at a safehouse with people who fought to the death to avoid capture. Why is this not good enough?
This is a very tough question for Killmer, because Judge Tatel is right that the case law, addresses fairly directly how some of the facts Judge Hogan found bear on claims that a detainee is "part of" Al Qaeda. Instead of answering it directly, Killmer attacks Judge Hogan's factual findings. The notion that Al Madhwani traveled for a year with Al Qaeda people, he says, is indefensible on the record. Yes, Judge Hogan found it, but there is not a shred of evidence in the record to support it, he says. You can search and search and search, he says, and you will not find any basis for that factual finding. Judge Tatel asks him about trainers with whom Al Madhwani left the training camp. He left with them, Killmer acknowledges, but then they separated a few weeks later. And that's the last time in the record when any Al Qaeda member makes an appearance until the house raid in Karachi, when Al Madhwani is captured.
Okay, Judge Tatel says, but the D.C. Circuit has cases saying that guesthouse attendance and training are alone good enough, doesn't it? Only voluntary attendance, Killmer insists, and it was common practice for Al Qaeda to route people automatically from guesthouses to training camps--to the guest house finding and the training camp finding were really the same thing. And neither were voluntary.
At this point, I had to run out to catch my train, so Larkin now picks up the narrative thread.
Judge Henderson now chimes in with a question about the petitioner's passport, which Al Madhwani turned over at the guesthouse and later reobtained. Judge Hogan had found that the fact of his being reunited with it suggested that Al Qaeda trusted him. Killmer replies that while Judge Hogan felt there was something nefarious about this, there is no evidence in the record that Al Qaeda brought it to him.
Judge Tatel then returns to the substantive legal issues: Should the court take account of dangerousness in its assessment of the district court's authority, and if so, how should the judges fit this into the case law? Judge Hogan had specifically questioned whether Al Madhwani poses a real threat, but he had suggested that this was not his department. Killmer replies that it should be part of the court's inquiry; he notes Judge Hogan's affirmative finding that Al Madhwani was not a threat and argues that he is thus outside the scope of the explicit language of the AUMF. He contends that no case has expressly considered this argument: that a person found to be "part of" Al Qaeda at one point but who no longer poses a threat is outside of the AUMF's detention authority. If the court finds that he poses no risk of future attacks, then there is no authority to detain. It is unclear precisely what Killmer is arguing here and how it differs from arguments the D.C. Circuit has already rejected in Awad.
Killmer then concludes his presentation, noting that his time had expired. Judge Ginsburg jovially thanks him, noting it was a credit to him that he had been allowed to run beyond his allotted time.
August Flentje then comes to the podium for the government. He opens by noting that the district court's factual findings were made largely on the basis of the petitioner's own trial testimony. Moreover, he argues, a fair reading of the district court's opinion reveals the district court thought that, while Al Madhwani might have started out naive, he didn't remain so. Judge Hogan took care to look at a number of different factors, he says, and recited a litany of observations establishing Al Madhwani's connections to Al Qaeda--including how Al Madhwani had spent the year following his departure from Al Farouq. And, he points out, while the petitioner continually claimed he had wanted to leave, even after Al Farouq closed, he stayed with Al Qaeda.
Judge Ginsburg asks about the record after November 2001. Isn't there a separation at that point? Flentje replies that this is not exactly right. The petitioner traveled to Kandahar and then to Kabul, a distance of hundreds of miles, he says. He also stayed days in a guesthouse. He turned in his weapon, and then went to the front lines. He went to Khost, then back to Kabul--which was, he notes,toward the fighting--until Kabul fell to Coalition forces. At that point, he then returned to Khost where he then got his passport. Judge Hogan, Flentje explains, noted that Al Madhwani's reunion with his passport could not have been a coincidence, and thus shows his Al Qaeda connections. But that's not all, Flentje continues; if his passport had been the real reason why the petitioner stayed, he should have scatted as soon as he had it back in his possession. But he did not. Flentje goes on here for quite a while, and seems to be holding the panel at rapt attention. The petitioner's claim of naïveté is undermined, he argues, by the fact that the petitioner never once turned toward home or toward a Yemeni embassy. In fact, Flentje contends, his actions fit comfortably within patterns of activity that in D.C. Circuit precedent are considered evidence of intent. He directs the court to its Al Odahopinion on this point.
But, wait a minute, Judge Ginsburg interrupts. Even if Al Madhwani did stay after he got his passport back, he still had no money and didn't speak the language. Aren't those decent reasons why someone not affiliated with Al Qaeda might have failed to make a run for the border? Flentje directs the court to the petitioner's statements: Al Madhwani himself said that his passport was why he did not leave, and he notes in addition that the district court found Al Madhwani's account incredible. The concept of "voluntary" membership, he says, comes from Al Adahi, and though he isn't sure how much volition is necessary, the petitioner made "choice after choice" to stay, and he followed at least three separate Al Qaeda orders.
Judge Ginsburg wants to know if the government's position is that mere affiliation with Al Qaeda is sufficient for detention. No, Flentje answers; the standard the government relies on in this case is based on the petitioner's having the requisite intent and then demonstrating effectuation of that intent to be "part of" the enemy; this, he states, derives from the D.C. Circuit's Awad opinion. What about command-structure involvement then? Flentje replies says that both Awad and Salahi make clear that command-structure involvement is not necessary, and that the government has proven enough here, despite the differences between Awad's case and the petitioner's, to clear the "part of" hurdle.
Judge Tatel brings the conversation back to the CSRT and ARB statements. He wants to know if the government has enough evidence even without those. Flentje directs the court to the petitioner's own testimony, and back to Judge Tatel's explanation of the facts conceded in the testimony alone. He concedes it's a closer case without the CSRT or ARB statements, but it is still enough, he says.
Judge Tatel then takes a step back to a higher level of generality and asks about the scope of the government's detention authority: Is there room in the case law to say that, if an individual does not pose a future threat, he is not detainable? Flentje says no. The court said just the opposite in Awad, he argues, and the court--and the litigants--are both bound by that. He remarks that the decision to ignore dangerousness was developed from longstanding principles of the law of armed conflict. Asks Judge Tatel, aren't those principles outdated? Again, Flentje balks. But, Judge Tatel pursues, the Geneva Conventions were developed in a time period in which wars lasted three or four years. Isn't it different if they go on for generations? Judge Ginsburg quips here that one shouldn't forget the Hundred Years' War. And Flentje goes on to argue that regardless of timeframe, the law of armed conflict was developed with just this type of situation in mind; in other words, it developed to address the concern that combatants could return to the battlefield before the fighting had stopped if not held until the end of hostilities and without regard to their individual dangerousness. And, he notes, there remain boots on the ground in Afghanistan, so this concern remains very live.
Judge Tatel then wants to know if the panel should stay its hand until the outcome on the Rule 60 motion in the district court. Flentje responds that, while the government believes the district court's decision is sound, it has no preference concerning whether the D.C. Circuit should wait to rule or not. With that, he concludes.
Killmer rises on rebuttal and states that Awad does not say that courts cannot consider the future threat a detainee poses. Rather, he argues, the case is distinguishable because Awad had admitted his intent, and that's quite different from Al Madhwani, who does not. He seems to be saying that the D.C. Circuit had not yet evaluated the argument he is trying to make today--that the AUMF’s "text is the scope," and that the text should be construed strictly, particularly when the petitioner has been detained for nearly nine years. Moreover, he goes on, the district court in Awad did not find that the petitioner in that case was not a threat, which Judge Hogan here did. And because the AUMF's purpose is to prevent future attacks, the court must give effect to the language of Congress. Here, Killmer insists, the petitioner never shot a bullet and was never was on a battlefield.
Judge Henderson then asks about Al Bihani, and whether the language in that case doesn't pretty clearly preclude Killmer's argument about the scope of detention authority being limited by future dangerousness. Again, Killmer says, Al Bihani, like Awad, is distinguishable. Here, unlike in Awad and Al Bihani, there was an affirmative finding of fact that the petitioner did not pose a threat.
Killmer then is asked about a letter to the ARB in February of 2007, which may have conceded information about Al Madhwani's weapons training. Killmer makes an effort to explain this away, and then says that, given the uniqueness of these proceedings, he does not believe a statement in that letter could bind the petitioner.
In response to a question from Judge Ginsburg, Killmer argues that, under Salahi, the government maintains the burden to show detainability at the time he was captured. Judge Tatel stops him: Isn't Salahi, in which years of inactivity had gone by between the detainee's joining up and his capture, a much different case? Killmer tries to hold his ground: Even if the training camp involvement is sufficient for detention, he argues, Al Madhwani was captured 13 months later. Judge Tatel again pushes back: Didn't Judge Hogan count as significant Al Madhwani's presence at the guesthouse? Killmer and Judge Tatel squabble over this point as a matter of the record, with Judge Tatel stating in summation that, assuming that the guesthouse stay at the time of capture was additional reinforcement for the the membership finding that was based on earlier activities, the core issue is still the standard of review. How, he asks, can the court set aside Judge Hogan's findings given such a high standard? The evidence is simply insufficient, Killmer responds. And although he must concede that the standard-of-review hill is indeed steep, it is not too steep to surmount on this record.
The parties and the court all agreed that no classified session is necessary and the session adjourns.