(by Larkin Reynolds and Benjamin Wittes)
Tomorrow, D.C. Circuit Judges Karen LeCraft Henderson, A. Raymond Randolph, and Stephen Williams will hear oral argument in Hatim v. Obama, a habeas merits appeal of some potential importance.
The case is a government appeal from Judge Ricardo Urbina's district court decision granting the writ to Saleh Hatim, a Yemeni national. It presents the D.C. Circuit with an opportunity to address a number of interesting questions it has not directly considered in prior opinions. One concerns what type of evidence will suffice to remove the “taint” of a prior coercive interrogation from statements in later interrogations and in CSRT proceedings. Another involves the question of how a detainee's state of mind affects a court's analysis of whether his conduct justifies detention. The likelihood that the court will dispose of the case on other issues, however, makes it far from certain that the court will reach any of the more interesting questions it begs.
In Hatim's case in the district court, Judge Urbina first held that the President did "not have the authority to detain persons solely based on a determination that they substantially supported the enemy armed forces or directly supported hostilities in aid of those forces.” Rather, detentions must flow from a finding that the petitioner had 1) planned, authorized, committed or aided the 9/11 attacks, 2) harbored those who did, 3) been part of Taliban or Al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, or 4) committed a belligerent act in aid of those forces. The government thus could not prevail based on a demonstration that the petitioner had substantially or directly supported the armed forces of the enemy; it thus restricted its argument to Hatim's being "part of" the enemy armed forces and to his alleged commission of belligerent acts. Because Judge Urbina found that Hatim’s activities did not satisfy either standard, he granted Hatim's petition.
Judge Urbina’s finding that Hatim was not “part of” Al Qaeda rested on his conclusion that for a detainee to be "part of" a relevant force requires a showing that he had "participated in al-Qaida's command structure by receiving and executing orders or directions.” The government, he found, had not proven this with respect to Hatim. Judge Urbina also found that the government had not disproven Hatim's claim that he did not know that that the Al Farouq training camp he had admitted to attending was Al Qaeda-affiliated. Judge Urbina further found that Hatim had "separated himself from the enemy armed forces' command structure prior to his capture" by leaving the camp when he learned that Osama bin Laden might be visiting. As a result, Judge Urbina held, the government could not lawfully detain Hatim on the basis of his stay at the Al Farouq training camp. As to the government’s claim that Hatim had spent time under the command of Al Qaeda fighters, delivering supplies to the front line, the court found that the government’s evidence—the petitioner’s own statements—did not support the contentions that he had “served on behalf of al-Qaida” during that time. Judge Urbina also rejected government claims that Hatim had spent time in Al Qaeda guesthouses, writing that even if the petitioner’s statements to this effect were true, there was no evidence that he had “occupied a position within the command structure” of the Taliban or Al Qaeda while at the guesthouses—and that there was little evidence he even knew the guesthouses were Taliban- or Al Qaeda-affiliated, in any event.
Judge Urbina also found that the government's evidence was unreliable and thus insufficient to prove detainability under any standard. The unreliability flowed from the petitioner's claims that he had been subject to torture during a six-month period prior to his transfer to Guantanamo. The government had not presented evidence to rebut this claim, but it did contend that its evidence in support of Hatim’s continued detention primarily derived not from statements obtained during that period but from statements obtained later, during non-coercive questioning both in interrogations and in the petitioner’s CSRT process. Nevertheless, Judge Urbina held that the “petitioner’s unrefuted allegations of torture undermined the reliability” of subsequent statements—including, importantly, his statements before his CSRT hearing.
This approach differs sharply from that of the other district judge who has confronted the question of whether prior coercion taints later CSRT statements. In his opinion in Anam, a case involving similar facts, Judge Thomas Hogan determined that “a sufficient ‘break’ from past coercive conditions” had taken place as to render a detainee's CSRT statements admissible. He looked primarily to the time elapsed between the coercive interrogation and the CSRT, as well as to the significant differences in format between the past interrogation sessions and the relatively formal CSRT proceeding.
On appeal, the government attacks all of these holdings.
To challenge Judge Urbina’s holding that detention cannot proceed from a “substantial support” finding alone, the government cites the D.C. Circuit's Al Bihani decision from January of this year. Al Bihani held that the government can detain persons whom it can prove were either “part of” the Taliban or Al Qaeda or associated forces or “substantially supported” those forces; both prongs are valid criteria that are independently sufficient to satisfy the AUMF standard. The government argues that, “at a minimum,” the case should be remanded for findings under the substantial-support standard. In response, the petitioner argues that this finding was "at most a harmless error"; even if the existing findings were assessed under the substantial-support standard, the government's evidence would fall short.
The government also attacks the district court opinion for impermissibly requiring it to show that Hatim had “received and executed specific orders.” The government argues that Al Bihani supports the notion that detention can flow from training-camp participation or guesthouse stays, and further argues that it had made a proper factual showing at the district court on those points. Significantly, the government does not cite the D.C. Circuit’s opinion in Awad to argue that the imposition of a “command-structure” requirement—with or without “specific orders”—was error. Awad came down after the government filed its merits brief in this appeal, and thus the government did not have the benefit of its rejection of the “command-structure” approach. Awad held that a command-structure finding is sufficient, but not necessary, to a finding that an individual was "part of” Al Qaeda. (Given the D.C. Circuit's handling of precisely this issue in its recent Salahi opinion, one can easily imagine the court's vacating Judge Urbina's decision on this basis and remanding it.) The petitioner, in response, argues that the district court did not, in fact, require the government to offer evidence that Hatim had received and executed “specific orders,” but still cites to cases regarding participation in the command structure that all came down prior to Awad--even though the Court released its Awad opinion a week before the petitioner's merits brief was due.
On the reliability of Hatim’s statements, the government argues on appeal that some of the statements even prior to the CSRT were not tainted by any prior coercion. Further, it contends that Hatim's alleged mistreatment at Kandahar should not be taken to have undermined the CSRT statements, because the district court should have “recognized that the coercive effect of an unlawfully obtained confession can, ‘with time, be dissipated.’” In this case, the government argues, time had in fact dissipated the coercive effect of Hatim’s prior treatment, as shown by his “relaxed and friendly” demeanor in later interrogations as well as in his CSRT proceeding, during which he admitted to training at Al Farouq. The petitioner does not seem to directly address the government's suggestion that the taint may have dissipated sufficiently to render creditable the later admissions, but instead argues that this finding was not itself the only deficiency the district court found in the government's evidence. The district court exercised its discretion and credited both certain exculpatory statements regarding the detainee's mens rea and his claims of having vitiated his relationship with the enemy. It did not credit the inculpatory statements, Hatim argues. This, he claims, was not clear error.
Finally, the government argues that the district court erred in viewing each piece of evidence in isolation, contrary to the D.C. Circuit’s subsequent instructions in Al Adahi and Al Odah, which insisted that courts view the evidence a whole, rather than individual pieces in isolation. In this case, the government argues, the evidence as a whole permits the conclusion that the detainee is "part of" enemy forces and detainable. The petitioner responds that the district court’s express language negates the government’s argument, citing language in Urbina’s opinion that the “government’s justification for detention fares no better when the court views all of the evidence as a whole” (emphasis in petitioner’s brief).
We will have summary of the argument available as quickly as we reasonably can.
CORRECTION: It turns out that the reason Hatim's brief does not discuss Awad is that it too was filed--as was the government's reply brief--before Awad came down. The date stamped at the top of each page, both on Hatim's brief and on the government's reply brief, reflects not the dates the documents were filed, but the dates the redacted versions were declassified and released into the record. Both documents were, in fact, filed before Awad was released on June 2. We regret the error.