They say you can't tell how a case is going to come out from an oral argument. Sometimes you can, and today is one of those days. Hussain Salem Mohammad Almerfedi is going to have his head handed to him on platter by Judges Brett Kavanaugh and Laurence Silberman. The decision granting him habeas corpus is toast. The only question for the detainee bar is how ugly it's going to be, and whether Judge Judith Rogers will also be party to the massacre. Judge Silberman in particular was flirting with some big themes here. Unless the desire for unanimity holds him back, this case could make some big new law. If I had a Guantanamo client, I would be very nervous about it.
As Larkin gave an account of the case last night, I will assume some reader familiarity with the facts.
The case gets under way a mere 13 minutes late, which is miraculously prompt for the D.C. Circuit. Robert Loeb rises for the government and declares that Judge Paul Friedman's opinion should be reversed and remanded because of two interrelated errors. The first is Judge Friedman's failure to account for the detainee's false cover story. The D.C. Circuit has since insisted--most recently in Uthman--that false exculpatory statements can be strong evidence in the government's favor. Judge Friedman had found Almerfedi's story incredible, Loeb argues, but he did not consider this as evidence in support of the government's case.
Judge Silberman cuts him off. This point, he says, is somewhat parallel to the Title 7 employment discrimination context, when a company responds to an employment discrimination claim with a pretext for the adverse action at issue in the case. That response can itself be evidence of discrimination, right? Loeb agrees and notes as well that there are parallels in the criminal context, where a false exculpatory statement can be taken by the jury as evidence of guilt. He quickly tacks back to his main argument.
Judge Friedman's second error, he says, was a failure to look at the evidence as a whole. He applied, Loeb contends, an unduly atomized approach to pieces of evidence that are, in fact, mutually supporting.
Judge Silberman asks him whether he is challenging Judge Friedman's factual findings. You're certainly coming close, he says. Loeb acknowledges that he's coming very close. We're challenging, he says, the general approach to the facts and some specific factual judgments. He begins to provide an example from the record, but Judge Silberman stops him. Run through the facts, he says, that the government thinks establishes Almerfedi's detainability. Well, says Loeb, there is the establishment of two Al Qaeda guesthouses in Iran run by a senior Al Qaeda official. There is the evidence that Almerfedi was moving people between this guesthouse and Mashad, Iran--which is near the Afghan border. There is the money, Judge Silberman chimes in. Yes, Loeb says, there is a large amount of money and no credible explanation for it. Almerfedi says he had between $1,500 and $2,000--his statements vary--but his statements also catalogue "expense after expense after expense." Yet he was caught with more money than he says he had when he left Yemen. What's more, the fact that he was carrying around a lot of money fits perfectly into the narrative the other evidence suggests--that he was functioning as an Al Qaeda facilitator.
Judge Silberman adds that there's also the conversations with another detainee: Al Jadani. Yes, Loeb responds. Al Jadani spoke to Almerfedi at Guantanamo, and the latter admitted that he was at these guesthouses.
Judge Kavanaugh asks whether it was error on Judge Friedman's part to exclude these statements, which Judge Friedman considered unreliable and to which he thus gave no weight. Yes, Loeb, we've been very clear about this in our brief.
Not so clear, says Judge Silberman. It's not clear whether the government is saying Judge Friedman's factual judgments are clearly erroneous or not.
Judge Kavanaugh says that it seems as though the government wants the court to remand the case to Judge Friedman with instructions that Al Jadani's statement is probative and part of the record. Loeb acknowledges that this is part of what he wants. His broader point is that the district court needs to take account of facts Judge Friedman totally ignored. Judge Friedman, he says, said it was puzzling that Almerfedi traveled to Mashad, when he was supposedly trying to go to Europe, for example. It's only puzzling if you don't factor in the many things the district court left out of its analysis.
Judge Silberman steps in again with what becomes for him the key theme of the argument: You've identified, he says, six or seven pieces of evidence on which you are relying for your claim as to Almerfedi's detainability. They are all pieces of probative evidence, right? Loeb agrees--and notes that they are mutually reinforcing. Judge Silberman says he is not interested in whether they are mutually reinforcing right now; they are all individually probative. Absolutely, Loeb agrees. Against that, Judge Silberman asks, what has the detainee got in the way of evidence? Loeb responds that he has his own story and has attempted to poke holes in the government's evidence. Judge Silberman says he isn't interested in the holes for now, just in what evidence he has of his own. If you produce seven pieces of evidence, and he has nothing other than his statement, which was found by the district court to be unreliable, then this should be an easy case under the preponderance of the evidence standard, he says. Loeb agrees, saying the government thinks it has a strong case for detention.
Judge Silberman says he has been thinking a lot about the preponderance of the evidence standard--a fact that is no secret to those who have read his concurring opinion on the subject from Friday. Some district judges, he says, are treating it almost like a requirement of proof beyond a reasonable doubt. In this case, we have a score of 7-to-0. But actually, Almerfedi's evidence really counts as evidence on the government's side. So it's really 8-to-0.
There is laughter in the court, but Judge Silberman is onto something. He's also overstating the matter.
What he's on to is the fact that preponderance of the evidence is a mere likelihood, and judges have invested it with much greater significance than that. But his scorekeeping is mischievous. Many of the pieces of evidence he counts are from the same small number of statements, so a judgment that the statements themselves are unreliable takes out a bunch of the individual items of evidence at once. Loeb, however, says that he can't disagree, and Judge Silberman emphasizes that there's a tendency to think about the preponderance standard in an artificial sort of way. Each of the government's pieces of evidence has to be probative, he says, but beyond that, probability is really a matter of which side puts forth more and better probative pieces. When one side puts on nothing, the matter isn't tough.
Judge Kavanaugh intervenes here and notes that Judge Friedman at least said he was considering the evidence as a whole. True, Loeb responds, but he also cited the district court opinion in Al Adahi for its approach to evidence, and this was the same opinion the D.C. Circuit reversed precisely because it did not consider the evidence as a whole. The important thing, Loeb emphasizes, is not what the district court says it did, but what it did in fact. But what, Judge Kavanaugh asks, is the district court supposed to look at on remand? Loeb quips that he certainly wouldn't object to an outright reversal. But Judge Kavanaugh pushes him. If we reverse and remand with instructions to consider the evidence as a whole and its pieces in light of one another, he points out, Judge Friedman might reasonably say that that's just what he did.
Loeb says that the instruction needs to be more specific than that. The district court has to consider the false cover story. It has to consider the money. The remand should make clear that it's not enough to say that one looks at the totality of the evidence. One has to factor the evidence into the court's analysis.
Judge Rogers here notes that Judge Friedman says he looked at all the evidence. She notes as well that he also looked at Al Jadani's statements, and while Judge Silberman regards them as separate pieces of evidence, they are all from the same source. It all, she says, comes back to Judge Silberman's original question: Aren't you challenging the fact-finding here?
Loeb is once again less-than-direct in answering this question. The district court has to factor in the various matters Judge Friedman ignored, he says. Judge Friedman gave no reason supported by the record for rejecting Al Jadani's statements. Nor did he acknowledge evidence from another source about the guesthouses in Iran. But that source, Judge Rogers notes, doesn't put Almerfedi in those guesthouses. Only Al Jadani does that. Besides, says Judge Kavanaugh, he also found that the Al Jadani statements do not all necessarily refer to Almerfedi but could refer to someone else. Loeb says that this finding is a complete red herring. But that only induces Judge Silberman to jump on him again about whether he is challenging the facts. Loeb says that he is. Judge Silberman explodes: Then why not say so? Loeb professes that the government does say so, but Judge Silberman is having none of it. The government doesn't say that any of the facts that Judge Friedman found are clearly erroneous.
The case should come down, Judge Silberman says, to the score of 7-to-1 or 8-to-nothing. I don't understand, he says, what's left in this case after that as a matter of law. Loeb protests that he is certainly not resisting the idea that he should win on that basis. Judge Silberman says he doesn't understand why Loeb is not making that argument then. Well, Loeb responds, the district court may have some other ground on remand for viewing the evidence against us. That's not the way the D.C. Circuit normally does things, Judge Silberman shoots back. We don't say that we think the district court's reasoning is wrong but the district court may have some other basis for its judgment. Perhaps, Loeb concedes, the government has been too conservative in how it argued the case. Judge Silberman says that he thinks that what's happening here is that some district judges--and the government--are treating the preponderance of the evidence standard as tantamount to beyond a reasonable doubt. He says he is reminded of the language in Hamdi in which the court said its concern was to prevent the erroneous detention of the journalist or the aid worker. We have come a long way from that, he says. Loeb concludes his presentation by noting that the government does bear the burden of proof in the context of a meaningful hearing.
William Livingston rises for Almerfedi with his work cut out for him. Judge Silberman has just radically outflanked the government. Livingston's game face--or, from the rear, his game back-of-the-head--is good, however. He must know he's got no prayer. But he dives in.
Loeb, he notes, likened this case to Uthman. There is no resemblance. Uthman was caught near Tora Bora. He went to an extremist school. He was caught with bodyguards for Bin Laden. This is not that case. Almerfedi was captured by Iranian police in the streets of Tehran. They took him to jail and beat him and accused him of being an American spy. Then they shipped him with a bunch of others to Afghanistan. And he was shipped from there to Cuba. That's how this case started. There are no claims here that any facts found by Judge Friedman are clearly erroneous. And Judge Friedman looked at the evidence closely and as a whole. The only direct evidence was found to be inherently unreliable and not credible, and the judge also found the government's very theory of the case implausible.
Judge Silberman steps in: Is your view that Judge Friedman found all of the evidence invalid? Livingston says the judge excluded no evidence. That's not what I asked, Judge Silberman shoots back. Did he find it probative or not probative? Livingston clearly knows what Judge Silberman is setting up here and he doesn't want to arm him. The evidence, he says, was inherently unreliable. So it was not probative? Judge Friedman didn't use that term, Livingston says, and I don't want to put words in his mouth. Judge Silberman suggests a hypothetical. Suppose there are five pieces of probative evidence on one side of a case and no pieces on the other. Is that the end of the case?
That's not this case, Livingston responds. Yes, Judge Silberman pushes, but hypothetically? Livingston resists but shifts the conversation as quickly as he can to the deficiencies of the government's evidence. The only direct evidence of Almerfedi's presence at the guesthouses was from Al Jadani, he says. And he learned about it only in 2004 and 2005 from jailhouse gossip. And what did he learn? That Hussein Al Adeni was there. We don't know if that's the same person as Almerfedi. His name is Hussein, sure, and he's from Aden. But there are a lot of Husseins from Aden.
Judge Silberman asks him whether this material would be excluded were this a jury trial. Of course it would, Livingston responds. This is jailhouse gossip of the worst sort. An unnamed group of people said he was in Tehran in early 2001. This is impossible. He was still in Yemen then. Five years after his capture, Al Jadani says that he spoke to him and that Almerfedi says he was in a guesthouse in Iran in 2002 and 2003 and that Iranian intelligence came to the house and proposed an escape plan. This is preposterous and impossible. Preposterous because Iranian intelligence didn't help him. They arrested and beat him. It's impossible because he was already in prison at that time. There is no reason to believe this account.
Judge Silberman pushes: Suppose that the district court had said that all of the evidence is dubious except for the fact that the story the detainee has advanced is not credible. Isn't that enough all by itself?
Livingston says that as a matter of law it is not. But in the context of Title VII employment law, it is, Judge Silberman says. Livingston here makes a mistake that could not have been better calculated to play into Judge Silberman's hands: He notes that it's not enough in a criminal case. Livingston has just demonstrated Judge Silberman's point about the tendency of these cases to take on the standards of criminal law, and Judge Silberman reminds him that this is a civil case, not a criminal one. Livingston quickly recovers. If that were all a judge had found, there would be no case for detention, he says. Judge Silberman asks him why. Because, he says, there would be no evidence linking the detainee to Al Qaeda. Why not? If he lied and his story doesn't hold up, isn't that an indicator that it's more likely than not that he's covering up links to the enemy? There needs, Livingston says, to be reliable evidence linking him to Al Qaeda.
Judge Rogers breaks in at this point: He says he's going to Europe and instead of going east, he goes west to Mashad. There's no explanation for that.
There is an explanation, says Livingston. The government calls it a cover story. It's his story. He was a young man in a depressed Third World country. He was oppressed there because he is a North Yemeni. He has a dream. He wants to go to Europe--like many people want to come to America. And he put himself in the hands of a smuggler to get him there. Judge Rogers seems unmoved; there is no evidence that smugglers would have taken him Mashad when he wanted to go to Europe, she says. He said, Livingston responds, that the smuggler had a house there and parked him there for a month. He was totally in the hands of the smuggler. There was no way to buck that. He doesn't speak Farsi. Why the smuggler took him to Mashad and parked him there we don't know. But there is no evidence that he did anything in Mashad that was untoward or associated with any Al Qaeda people. He had this dream. And he saved some money. The government says $2,000 is a lot. It's not a lot.
Judge Kavanaugh points out that according to his own statements, Almerfedi had this money; but also spent a lot of money. And yet he was still captured with $2,000. Yes, Livingston says, there were various interviews at which various sums in various currencies were discussed. Surely that's a trivial basis on which to rest a detention--a mere house of straw. Livingston returns to his story.
Almerfedi can't just go to Europe, but he has a plan to go to Pakistan and link up there with a well-established missionary group and to go to Europe as a missionary. But September 11 had just happened, and there were no missions going to Europe. So he got stuck in Pakistan.
Judge Kavanaugh notes that the missionary group in question is also listed as a terrorist support group. Livingston insists it is a well-established, respected missionary organization. Judge Kavanaugh says that may be, but there are people in the group, however well established it is, who are using as a front for terror support. Livingston acknowledges there is some thin support for that.
Judge Silberman pounces: Would you deny that that's probative evidence? Livingston says he absolutely would deny it. There's no evidence, he says, that Almerfedi did anything related to terrorism in the two-and-a-half months he spent in Lahore, Pakistan. Judge Kavanaugh asks what he was doing there. Waiting, says Livingston. Judge Kavanaugh notes that Judge Friedman found that the lengthy stay was strange and unexplained.
Livingston goes on with his story. The smuggler comes to him and says that the Pakistanis are arresting Arabs, so you have two choices. You can go back to Yemen or you can go overland to Iran. This is an immigrant story, he says. Many immigrants have stories that are at least as bizarre. But it's not a story of someone who is working in Tehran facilitating the travel of fighters. The fact that he was in Lahore and in Mashad is totally inconsistent with the government's story. They've never had a timeline of this case that makes any sense. Even as late as the reply brief, he says, they are trying to square the circle of their own inconsistencies. Maybe he was in Pakistan, they say. They have a burden of proof, not a burden of maybes. Their story is, in fact, totally implausible. From the time Almerfedi was in Yemen, there is no evidence that he was ever associated with Al Qaeda. He lived with his family and he worked like a dog to make money. He was not educated. He did not have the skills to be a facilitator.
Judge Kavanaugh says this is all very forceful, but the Al Jadani statement puts its all in a different light. And the district court wouldn't even consider that statement because Judge Friedman couldn't be "certain" that it was the same person. If Al Jadani's statement comes in, everything looks different, he says. Livingston insists that it all came in, and Judge Kavanaugh clarifies that he doesn't mean admitted into evidence but factored into the analysis. Livingston says this was appropriate as the statement was unreliable on many bases.
Judge Silberman seeks to clarify: Are you saying it was not probative? It was a factor to be considered, but it was preposterous and impossible, Livingston says. If it were true that he were really a facilitator, hundreds of people would have known. Yet there is not one person who has identified him as a having facilitated his travel. Judge Kavanaugh is unpersuaded by this. To assume, he says, that because there are lots of witnesses, there will be lots of testimony seems wrong. Al Qaeda people tend not to rat each other out. Livingston stands his ground. I've been involved in a lot of these cases, he says, and detainees do say who helped them go here there and paid for their travel. There would have been at least one had Almerfedi really been a facilitator in Iran.
There is one, Judge Kavanaugh responds: Al Jadani. He says he heard it from Almerfedi's own mouth. Yes, Livingston shoots back, in 2006. Al Jadani wasn't there at the time. And he was released shortly after he made that statement and sent back to Saudi Arabia. Maybe he was making things up to tell his interrogators. There's also evidence that the interrogator in question was not competent. There are a lot of reasons to doubt that statement. Almerfedi, he says--repeating his earlier mistake--has been accused of a crime that he couldn't possibly have done.
Judge Kavanaugh acknowledges that to believe Al Jadani, one would have to believe that he got the date wrong. The key fact in his statement, however, is that Almerfedi told someone he was in a guesthouse in Iran.
Besides, Judge Silberman comes back, you're wrong. Almerfedi is not accused of a crime. Livingston responds that he has been in jail for a long time. Judge Silberman emphasizes again: This is not a criminal proceeding.
Livingston is now wrapping up. He implores the court, he says, to respect Judge Friedman's ruling. Judge Friedman is an experienced trial judge, who applied the appropriate standard. There was nothing wrong with his fact-finding process. His judgment must be affirmed.
Judge Kavanaugh returns to a subject his has brought up in oral arguments before. Whether the standard for detention should go up as detentions drag on, he says, is a question we all think about. And there's a good argument for the idea. But it's not for us in the habeas process to create such an escalator. It's for the political branches to craft more exacting procedures. We have to apply the same standard for detention as applied on day one, and it's necessarily a low standard. Livingston says that he is not going to concede that point. Justice Sandra Day O'Connor in Hamdi wrote that detention authority would atrophy at some point, he notes. Judge Kavanaugh replies that she also talked about detention's lasting until the termination of hostilities.
And with that, Livingston sits down.
Loeb rises for rebuttal and makes a two quick points. On Al Jadani, he says that Judge Friedman did simply discount his statement altogether and gave no reason supported by the record for doing so. The Al Jadani statement, he argues, doesn't just tie him to the guesthouses. It ties together all of the other evidence--for example, that these are Bin Laden guesthouses, which matches up to other evidence about them, and that Almerfedi was captured in Tehran around the time that Al Jadani says. It's not just the most damning piece of evidence. It is the evidence that ties together all of the other evidence. That evidence tells a compelling story. The trouble is that Judge Friedman didn't credit the statement.
Second, he says, Livingston's entire account of Almerfedi's travels and his story is irrelevant. This case cannot be affirmed on the basis that the district court credited the petitioner's story. Judge Friedman did not do so.
Loeb concludes by saying that he sees no need for a closed session. Livingston, however, does want one, so the courtroom is at this point cleared.