Tomorrow morning, a panel of the D.C. Circuit Court of Appeals will hear arguments in another Guantanamo habeas case, that of Hussain Salem Mohammad Almerfedi (Case No. 10-5291). The case is a government appeal of Judge Paul Friedman's sole Guantanamo habeas merits decision to date, a case in which he granted the writ.
In Almerfedi's case at the district court, the government had argued that Almerfedi had stayed at Al Qaeda guesthouses in Iran, and, that, while there, he acted as an Al Qaeda facilitator, helping foreign fighters infiltrate into Afghanistan. It also alleged that Almerfedi had “actively associated with” Jama'at al-Tablighi (“JT”), an Islamic missionary organization, while this organization was providing logistical support and operational coverage to terrorist organizations and foreign fighters fleeing Afghanistan. There was an additional allegation that is completely redacted from the court’s opinion. Almerfedi denied having associated with Al Qaeda or any other terrorist groups and maintained that his association with Jama'at al-Tablighi was innocent. In his district court opinion, Judge Friedman found the government’s allegations unpersuasive.
In particular, Judge Friedman found that the evidence on which the government relied—interrogation summaries of statements by other detainees—was “inherently unreliable” and thus unable to support the allegations about the petitioner’s stay at the Iranian guesthouses. He also found that the government’s evidence regarding the significance of a guesthouse stay in Iran was limited, because the government’s evidence did not show that “a guesthouse in Iran is run in the same manner or serves the same function as the Afghani or Pakistani guesthouses.” As to the petitioner’s associations with JT, the court found that
while it certainly appears more likely than not that some elements of JT, including some at the JT Center in Lahore, provide financial and other support to Islamic terrorist groups, this premise does not lead to the conclusion that petitioner did so.
The government makes two main arguments. First the government contends that Judge Friedman erroneously rejected individual elements of evidence without considering the government’s evidence as a whole, and that this approach to the evidence was contrary to the D.C. Circuit’s subsequent Al Adahi decision. It begins by noting that D.C. Circuit cases had rejected the “command structure” approach to finding that a detainee is “part of” Al Qaeda (in Bensayah and Awad). Determining whether a detainee is "part of" Al Qaeda is, at its core, a functional inquiry, and a court must ask whether "a particular individual is sufficiently involved with the organization to be deemed part of it" (quoting Bensayah).
In particular, the government writes, the district court did not have the benefit of the D.C. Circuit’s Al Adahi decision when it made its determination that the government's evidence was insufficient to support continued detention. In fact, Judge Friedman had relied on the decision that Al Adahi reversed—Judge Kessler’s opinion in the district court. The government says that Judge Friedman treated the its evidence in this case much as Judge Kessler did in Al Adahi, and that he embraced a methodology that the D.C. Circuit has since rejected. For example, Judge Friedman found that unreliable evidence could not buttress other unreliable evidence--an error according to particular language in Bensayah--and Judge Friedman should have recognized the corroborative value of other evidence in the record when assessing the information in reports of interrogations of another Guantanamo detainee, Al-Jadani. Al-Jadani, the government writes, provided extensive information gained during conversations he had with detainees at Guantanamo, including Almerfedi himself. The consistency of those statements, “made in a setting in which there is no incentive to lie, is a significant indicator of their reliability," and Judge Friedman should have credited them. Given the range of evidence in this particular case, the government asks that the case be remanded to the district court so that the district court can apply the "correct evidentiary approach."
In his response, counsel for the petitioner emphasize the clear error standard of review on the district court’s factual findings, and says that “[t]his case is entirely unlike the previous cases” before the D.C. Circuit. This case is different, they say, because “the only evidence purporting to link Almerfedi to al Qaeda are a few sentences in a handful of reports of interrogations of a single other detainee”--evidence far less compelling than evidence adduced in prior cases that have come before the D.C. Circuit.
The petitioner’s counsel go on to respond to the government’s argument about the manner in which the district court viewed the evidence. Judge Friedman, they write, made it crystal clear he was not treating the pieces of evidence in isolation, and they quote from Judge Friedman's opinion: “The government urges the Court to view the legality of petitioner’s detention by looking at the totality of the evidence, which the Court has done" (emphasis added). Furthermore, they argue, elsewhere in the opinion Judge Friedman was careful to write--in reference to evidence about JT and Almerfedi’s stay at the JT Center--that the evidence was insufficient to justify Almerfedi’s detention, “either standing alone or in conjunction with other evidence presented by the government.” These explicit references demonstrate that the district court did exactly the opposite of what the government says it did, according to the petitioner's lawyers. At one point, they write that it is “ludicrous” for the government to have suggested in its brief that the district court did not have the benefit of the D.C. Circuit’s Al Adahi opinion; to the contrary, the D.C. Circuit’s earlier opinions had made clear that courts must consider all the evidence as a whole, and Judge Friedman decided this case “by the book." The petitioner’s counsel argue that the government is asking the D.C. Circuit to review the factual conclusions anew, and they argue that there is far less corroborating evidence than the government would have the court believe.
In response to this argument, the government's reply brief emphasizes that it is not asking the court to conduct a de novo review of the factual findings, but, rather, to find that the district court's legal approach was incorrect and to remand to the district court for reevaluation under the proper standard. It reemphasizes its main argument about Al Adahi's directives, noting that other D.C. Circuit cases since Al Adahi have also made clear that evidence should not be "unduly atomized" (Salahi) and points out that the "petitioner's brief adopts the same flawed approach as the district court, attacking individual pieces of evidence and then discarding them as irrelevant."
The government's second main argument is that the district court failed to consider the weaknesses in Almerfedi’s account of his activities as part of the evidence against him. This was a firm directive from the D.C. Circuit’s Al Adahi opinion, the government argues, and, particularly because the Al Adahi decision came after the district court's decision, the district court’s failure to weight this finding appropriately requires remand. In the government's view, Judge Friedman inexplicably acknowledged that parts of Almerfedi’s version of events—which was that he was heading to Europe to resettle—were “strange and unexplained” in some areas and not “convincing” in others, and yet he “expressly declined to apply any weight to the incredibility of Almerfedi’s story.” The government does acknowledge that Almerfedi's implausible story does not itself lead to the conclusion that he worked as an Al-Qaeda facilitator; however, the lack of an explanation “demonstrates that [Almerfedi] was not the simple traveler he claimed to be.”
To this point, the petitioner's counsel respond that the government failed to acknowledge that Almerfedi offered to take a lie-detector test—which was “strong evidence” that he had no connection to Al Qaeda (although, curiously, in a footnote, the brief says that “[t]here is no indication that Almerfedi knew anything about polygraphs”). Further, the petitioner's counsel argue, Judge Friedman explicitly addressed the government’s concern about Almerfedi’s cover story; he acknowledged that the government had “raised some questions” about the petitioner’s account, but concluded that the issues were insufficient to change his conclusion that the government had failed to meet its burden of proof. In contrast to the government's claims that the petitioner's account was a mere cover story, they argue, all of the “key aspects” of Almerfedi’s account are “both consistent and plausible.” This applies even to the allegations about the unexplained large amounts of money he was carrying and the likelihood that the money was given to him for nefarious purposes. Almerfedi had been saving the money for years, his lawyers claim, and there was nothing implausible about his explanation. Further, they say, it is not the petitioner’s account that is far-fetched, but the government’s, and they point out certain elements of the government's allegations about Almerfedi's being an Al Qaeda facilitator, including one allegation that Judge Friedman found improbable: that Al Qaeda was not likely to place one of its members in Tehran, as the government alleged it had, if he did not speak Farsi, as was true of the petitioner. The government, in its reply brief, counters that Judge Friedman's explicit reference to Almerfedi's version of events serves "to illustrate the court's error": despite Judge Friedman's finding that Almerfedi's story was "perplexing," he did not consider the implausibility of the cover story to be an indication that the government's theory was correct; this was particularly unwarranted because there was--contrary to the petitioner's assertions--evidence on the record that "large amounts of unexplained cash are consistent with being an al-Qaida facilitator."
Tomorrow's panel will include Judges Judith Rogers, Brett Kavanaugh, and Laurence Silberman. S. William Livingston of Covington & Burling will argue for Almerfedi, and Robert Loeb is arguing for the government.
(Almerfedi's case also involved a dispute about whether the government was entitled to a stay pending the outcome of this appeal, a question the D.C. Circuit resolved in favor of the government.)