Detention: Law of: D.C. Circuit Development

Argument Recap in Suleiman v. Obama

By Wells Bennett
Monday, September 19, 2011, 2:20 PM

Friday afternoon’s oral argument in Suleiman saw pretty even questioning of counsel for both sides from an interested panel.  Judges Merrick Garland, Thomas Griffith and David Tatel pressed Abdulrahman Abdou Abou Alghaith Suleiman’s lawyer on the petitioner’s apparent waiver of his key legal arguments, and the lawyer’s suggestion that Taliban membership cannot ever warrant detention unless one is shown to have engaged in combat against the United States.  On the other hand, Judge Garland questioned the government’s attorney about whether Taliban membership, standing alone, will always support a habeas denial--even if, say, the United States had concluded a peace treaty with the Taliban.  Add to this some confusion about whether, during his Combatant Status Review Tribunal (“CSRT”) hearing, some of Suleiman’s statements were translated unfavorably to Suleiman and whether the audio of the hearing was improperly withheld from Suleiman’s lawyers until after his habeas petition was denied.

The panel also pressed the attorneys on factual issues.   Some of the determinations underlying Judge Walton’s conclusion were based upon admissions by Suleiman himself.  And Walton’s findings will be reviewed deferentially, under the “clear error” standard.  That hints at a likely affirmance, grounded on the sufficiency of the evidence underlying Walton’s factual findings.

(As I summarized the case’s facts and legal issues here, I’ll assume reader familiarity with them in what follows.)

Preliminary Matters

Suleiman brought the appeal, so his lawyer, Jenner & Block’s Thomas Sullivan, is up first.

Before his 15-minute argument commences, however, there are some preliminary matters.  Judge Tatel mentions the procedural approach to argument suggested by the parties, and previously ordered by the court: as much of the day’s argument as possible is to be held in open session, and resort to classified session will take place only as necessary.  Judge Tatel is concerned that this arrangement might not be ideal.  Of Judge Walton’s three key findings, he says, two--that a Taliban operative recruited Suleiman, and that Suleiman traveled to an area near the frontlines of battle in Afghanistan--can be freely discussed in open session.  But Judge Tatel worries that a third finding, that Suleiman stayed in Taliban-associated guesthouses, cannot be safely argued without closing the courtroom.  He asks Sullivan and the government’s lawyer, John Drennan, if they would consider an alternative procedure.

Our entire case, Sullivan responds, can be argued without discussing classified materials.  He sticks to that position even when Judge Tatel alludes to the declarations of intelligence personnel regarding guesthouse stays, which, he implies, may pose problems for open session.  Only the attribution of the investigators’ words to Suleiman, Sullivan says, are an issue, so there is no need to worry. Judge Tatel replies that it is the other parts of the declarations--apparently ones not involving Suleiman’s alleged statements--that give him pause.  Drennan stands and says that the government's case may also be argued in open session, with classified session available on ready reserve.  The back-and-forth at least partially reassures Judge Tatel, who says that the court will proceed as planned, while taking care not to delve into the declarations, or other evidence that Judge Walton did not assess in deciding Suleiman’s case.  It is an intriguing colloquy to witness: a federal judge seems to have harbored, at least initially, greater anxieties about inadvertent disclosure than the government’s own lawyer.

Sullivan then raises a final housekeeping matter. He cites an additional case in support of his motion, still pending before the Court of Appeals, to supplement the record with updated evidence of Suleiman’s actual remarks at his CSRT hearing.

The Petitioner’s Argument

With that, the argument starts in earnest. Suleiman has been imprisoned for ten years, Sullivan begins, but was not found by the District Court to be a member of al-Qaeda.  He was instead found to be “part of” the Taliban, and detainable on that basis--even though he never took up arms against the United States.  This makes the case one of first impression, in Sullivan’s view.  He explains that while there was one other case before Court of Appeals in which the petitioner’s detention was founded solely on a finding of Taliban membership, that case was remanded--and, thus, issues raised by Suleiman’s case, such as the validity of Al-Bihani’s “part of” test, were not in play.  As a consequence, this is the first time the Court will hear argument over what might be described as a pure Taliban membership case.

This nod towards Al-Bihani and its interpretation of the Authorization for the Use of Military Force (“AUMF”) immediately catches the attention of Judge Griffith, who has procedure on his mind.  Griffith notes that the Al-Bihani argument is one of several that Suleiman did not raise below--and that, according to the government, he therefore waived.  Why should the court consider these matters now, the judge asks Sullivan? Because, Sullivan responds, they are pure legal arguments that require no additional evidence, and they therefore can be evaluated, as the D.C. Circuit has held in other cases.  But, says Griffith, isn’t such consideration a matter of discretion?  Wouldn't the exercise of that discretion also require some miscarriage of justice?  No, the rule is not that severe, Sullivan insists, and refers the court to the cases cited in his brief.

His response raises the eyebrow of Judge Garland.  So in every kind of case, Judge Garland inquires-- criminal, detainee, and so forth--a party can make only factual arguments to the trial court, and then raise all of its legal arguments for the first time on appeal? "Yes," Sullivan answers.  The judge is incredulous, and then refers to Sullivan’s expertise in criminal law. How, he wants to know, does criminal procedure deal with raised-for-the-first-time-on-appeal arguments? It doesn’t matter, according to Sullivan, as long as the Court of Appeals is in the same position as the District Court would have been, had the arguments been presented there. So, Judge Garland pushes, Rule 52 [of criminal procedure, which requires that trial court mistakes or variances be disregarded unless they affect a party’s substantial rights] is meaningless? This isn’t a criminal case, says Sullivan, and the government has said so. But that seems to make little difference to Judge Garland, who cites a civil case, Salazar, for much the same principle. There, the D.C. Circuit said that an argument raised for the first time on appeal will only be considered in exceptional circumstances. Sullivan, Judge Garland says, proposes an extraordinary change to Salazar’s approach. And that brings Judge Garland to his next question: what makes Suleiman’s case exceptional, such that his new arguments should be considered? Judge Garland is interested, he says, in the reasons why Sullivan did not raise Suleiman’s legal claims during habeas proceedings before Judge Walton.

The lawyer’s answer has candor going for it: I didn’t think about it, Sullivan says. He nevertheless emphasizes that he should take all of the blame for litigation decisions—and that the Court should not punish his client for what, gauging by their inquiries, Judges Griffith and Garland may regard as a waiver.

At this point, Judge Tatel asks if Sullivan wants to spend time on the legal arguments. Sullivan does, and he emphasizes some of facts that, if his view of Al-Bihani and the AUMF were adopted, would warrant a reversal of Judge Walton’s decision. Suleiman came to Afghanistan from Yemen, via Pakistan. He had to repeat a year of high school. Judge Walton, Sullivan says, also never found that the petitioner raised a finger against the United States or its allies. Suleiman never signed up to be a member of the Taliban.

Judge Griffith, seeking clarity, interrupts and asks for a reminder. When exactly did Suleiman realize that his recruiter was a Taliban operative? Was that after his detention? Sullivan’s response suggests, but does not quite say, that it was. At the time of his recruitment, Suleiman knew only that the Taliban was the ruling clique in Afghanistan. His recruiter mentioned that, by virtue of that status, the Taliban could give Suleiman a house and a wife. But Suleiman didn’t know his interlocutor was in cahoots with the Taliban at the time.

The back and forth leads Sullivan to touch again on the one of the key themes in Suleiman’s briefing: Sullivan challenges Al-Bihani’s rule that one may be detained upon a showing that one is “part of” the Taliban, even if one has not taken part in hostilities against the United States. You just cannot rely on Taliban membership alone, Sullivan urges the panel. Provocatively, he claims that the government already has conceded this, in the Khairkhwa case.  Sullivan quotes from the case’s opinion, which was written by District Judge Ricardo Urbina. There, the government did not dispute that a purely civilian Taliban official would not be subject to AUMF detention.

Again Judge Griffith stops Sullivan, and notes that Judge Walton didn’t hand down as broad of a ruling as Urbina did in Khairkhwa, right? Sullivan parries, by reminding Griffith of Walton’s unqualified conclusion that Suleiman was simply “part of” the Taliban. This apparently amuses Judge Griffith, who supplies the first of what will be the day’s only two comic moments.  Suleiman, he quips, wasn’t just a guy from the Department of Motor Vehicles, was he?

Sullivan’s response is consistent with the approach in his written briefs. Judge Walton reached unfair conclusions about Suleiman’s status, Sullivan claims, by drawing unreasonable inferences and by looking past uncontradicted evidence. For example, the District Court took it for granted that, in the guesthouses where Suleiman stayed, the other residents were Taliban fighters. It is all circumstantial evidence, Sullivan argues, and not enough for Walton to hold that his client was a Taliban member.

Now Judge Tatel is catching on to the petitioner’s basic point--which is, he says, that not all Taliban members are the same as Al-Qaeda fighters. As Judge Tatel understands Sullivan, the D.C. Circuit’s detention cases are Al-Qaeda based, but the Taliban is different than Al-Qaeda.  The Taliban once ran Afghanistan’s government--so it may be possible to be part of the Taliban without having a military role. But if that’s right, Judge Tatel continues, then should it matter that, by the time of Suleiman’s capture, the Taliban was no longer Afghanistan’s ruling party, and was instead engaged in combat against the United States? For Sullivan, that question seems to be addressed by the government’s concession that Taliban membership alone is not enough to warrant AUMF detention.

This affords Sullivan the opportunity to cite a few of Taliban’s more government-like attributes--ones that distinguish the Taliban from the entirely terror-dedicated Al-Qaeda. Sullivan notes that the Military Commissions Act (“MCA”) was amended in 2009, so as to exclude Taliban members from commission prosecution. And, Sullivan says, the U.S. State Department has removed Taliban from the United Nations’ “blacklist,” but obviously left Al-Qaeda on it. That makes for two branches of government--Congress and the executive--that have decided to treat the Taliban less sternly than Al-Qaeda, as a policy matter.  It is time, Sullivan argues, for the judiciary to follow suit.

The suggestion is a bit too much for a skeptical Judge Garland. If the United States captured a Taliban member, he asks, it couldn’t detain him? Such a person could be detained, Sullivan responds, if he engaged in hostilities. But, Judge Garland presses, what if the person is present in a Taliban staging area but has not yet taken up arms? Could he be detained then? Perhaps, Sullivan says, if that person had signed up for Taliban membership already. But that hypothetical does not resemble Suleiman’s case, which is, in Sullivan’s words, at the “low end” of Taliban affiliation.  Judge Garland still wants to know about the “high end,” though. If a man has joined the Taliban, can the United States detain him? It’s a non-issue, says Sullivan; there’s no evidence of actual membership in this case. The response is still not enough for Garland, who asks whether, if membership could be proven, that fact would justify AUMF detention. That depends on the definition of membership, Sullivan says, now hinting at Suleiman’s claim that the D.C. Circuit’s “part of” test is so vague as to deprive him of due process of law.

Sullivan then once more insists that Judge Walton based his findings on pure disbelief, and ignored uncontroverted evidence of Suleiman’s innocence. Judge Tatel challenges Sullivan on that. The judge notes that, apart from disbelief, Walton also grounded his decision in Suleiman’s guesthouse stays and presence near the battlefield. Sullivan appears to concede the point, but goes on to emphasize that the petitioner’s briefing exhaustively listed the evidence on which Judge Walton relied, in making his key factual findings.

He turns next to Suleiman’s claim under the federal ex post facto clause--namely, that the AUMF was improperly applied to him, based upon conduct that mostly occurred before the AUMF’s entry into force. Judge Tatel quickly asks why this is even an issue, since Suleiman was captured after the statute’s effective date. But Sullivan protests that his client’s detention was based on earlier conduct, and that in criminal law, a jury cannot convict based on actions that come before a statute’s enactment. Okay, Tatel says; but isn’t there evidence of Taliban membership, which arose after the AUMF took effect? Sullivan gives him a straightforward "no.”  By the time of the AUMF, he says, Suleiman was fleeing for his life, after Massoud’s followers had begun to retaliate against perceived enemies, and the United States had begun its military campaign. All of the evidence underlying Judge Walton’s main findings arose before then. In any event, Sullivan argues, the evidence is insufficient to establish Suleiman’s Taliban membership, regardless of whether the Court of Appeals considers the post-enactment evidence only, or evidence that both pre- and post-dates the AUMF.

Sullivan closes his argument by turning to alleged discrepancies between the audio recording of Suleiman’s CSRT hearing, and a transcript on which the government had relied. What are the differences, asks Judge Garland. Sullivan says that there are subtle differences, and that his interpreter believes that certain words may have been incorrectly attributed to Suleiman. A key example is that Suleiman, on tape, appears to have used the [Yemeni] phrase for “waiting area” – yet the transcript records him as having said “second line,” a military term.  Sullivan finds it hard to believe that a man of Suleiman’s youth and inexperience would use military jargon, and thus suggests a difference between what Suleiman actually said and what was recorded on the transcript.  Sullivan acknowledges that this discrepancy may not be great.  But, he says, if he were the judge deciding this appeal, he would want a complete and accurate record. For emphasis, he asks the panel to direct some pointed questions to the government. Ask them, Sullivan urges, why they did not provide the audio of the CSRT in the first place.

Continuing on this rhetorical note, Sullivan likewise asks why the government did not provide more evidence relating to the alleged video of Suleiman attending a speech by Bin Laden.  Garland adds that he was about to ask the same question; wasn’t this included in Sullivan’s discovery requests?  It wasn’t, Sullivan answers, but he insists that he sought the materials by way of an informal request to the government’s attorneys.  Ask the government why, he goes on, it did not add the allegations about Suleiman’s attendance at the Al-Farouq training camp until the eve of trial; or why the government accuses Suleiman of torture, even though the alleged victim told inconsistent stories and has fled to Iraq.  All this shows what a weak case the government has, Sullivan argues.  Were the case otherwise, the government wouldn’t have violated court orders and the rules governing exculpatory evidence. Finishing up, Sullivan asks the panel--however it decides the case--to ensure that it obtains a correct transcript of Suleiman’s responses during his CSRT hearing.

He yields the floor to the government.

The Government’s Argument

 John Drennan takes the podium. He introduces himself to the panel, along with co-counsel from the Department of Justice and the Department of Defense.

The waiver issue comes first, to no one’s surprise. The government’s position, Drennan says, is that the petitioner indeed has waived his legal arguments by failing to raise them before Judge Walton. The attorney adds that the applicable waiver rule in fact is stricter than the criminal Rule 52, which Garland earlier discussed with Sullivan. Drennan moves briskly from waiver to the statutory issue, and makes a key point about his client’s approach to the case that Sullivan had glossed over: the government maintained below that Suleiman had ties to both Al-Qaeda and the Taliban.  The implication is that Sullivan’s “it’s a pure Taliban membership case” characterization is open to question.  But in any event, Drennan argues, even if Sullivan’s view of the case was correct, and if Suleiman had not waived the issue, the Court still should not forge new detention law--and reject Al-Bihani’s reading of the AUMF--without the benefit of full briefing. The constitutional avoidance doctrine, whereby the courts strive to decide cases on non-constitutional grounds, likewise supplies another reason not to reach Suleiman’s due process claim.

There’s also precedent on the government’s side, according to Drennan. In another case, the petitioner was alleged to have been, like Suleiman, a member of the Taliban--and detained on that basis alone, without regard to the petitioner’s non-participation in hostilities. He goes on to point out that, at the time of Suleiman’s capture, the Taliban was no longer a government, but had become a belligerent force. The suggestion is that there is little, from Suleiman’s standpoint, to support his argument that the AUMF should not be construed to sweep in mere Taliban functionaries along with Taliban fighters; practically, that distinction had evaporated at the time Pakistani authorities arrested Suleiman.

The claim draws a question from Judge Garland. So, he asks, if we did a peace deal with the Taliban today, would the AUMF still authorize the government to detain, on the facts as Judge Walton found them?  “Yes,” Drennan says, provided that the individual was found to be a part of the Taliban, and that no other new supervening law prohibited detention. Perhaps sensing that this aspect of Sullivan’s case may interest Judge Garland, Drennan tacks back.  He once more reminds the panel of the government’s claim that, on the facts, Suleiman could be detained as a captured Taliban fighter or an Al-Qaeda operative.  A Taliban member gave Suleiman a passport and plane ticket, Drennan argues.  And, he adds, the route Suleiman took has been found by the Court of Appeals to be a jihadist pipeline.  When Suleiman arrived in Kabul, he also stayed at a guesthouse, the proprietor of which had Taliban and Al-Qaeda associations. (Drennan notes that this man, Hamza Al-Qaiety, is largely depicted in the briefing as having fought for the Taliban; however, he refers the court, without further discussion, to exhibits that allegedly describe a conversation between Al-Qaiety and Osama Bin Laden.) The lawyer also insists that Al-Qaeda and Taliban troops were quite intermingled during the period relevant to Suleiman’s petition.

Discussion then shifts to another topic: Sullivan’s wish to correct the transcript of Suleiman’s CSRT hearing. The government’s view, Drennan says, is that counsel for Suleiman had asked the opposing side, informally, for CSRT audio. However, Suleiman never filed any motion to compel disclosure, and the issue seemed to have evaporated.  No big deal, Drennan seems to say.  Judge Garland isn’t having it. He asks if, in the government’s view, it really does not have to disclose the record of statements made by the petitioner during a CSRT hearing?  Drennan tries to dodge: the government did not intend to use the CSRT record in its case. Judge Garland, however, is more interested in whether Suleiman wished to use the evidence for himself. Isn’t there some form of mandatory disclosure? The question prompts Drennan to confer with his co-counsel, and brings on a brief pause.

Having consulted, Drennan returns and tells the panel that habeas petitioners are not entitled, as a matter of course, to CSRT audio.  The implication is that the government would have provided the tapes to Suleiman’s counsel, had he sought them in formal discovery.  Regardless, Drennan adds, after the hearing before Judge Walton, Sullivan was able to obtain the tapes through a request under the Freedom of Information Act (“FOIA”). Garland, apparently unsatisfied, stays on Drennan.  Wouldn’t such late-in-the-day disclosure of the audio prejudice Suleiman, if, in fact, his CSRT statements had supported his habeas petition, and undercut the government’s allegations? The transcript issue would be more serious, under these circumstances.  Drennan, shrinking a bit, reiterates that Suleiman just wasn’t entitled to the audio unless he asked for it formally.  Garland again: what if the discrepancies between the original, erroneous transcript and the audio were significant?  Drennan pushes back, and argues that Suleiman’s discovery dispute has an element of sandbagging to it; Suleiman appeared to have dropped the issue earlier on in the case, but renewed it at the last minute.  In any event, Drennan emphasizes, the distinctions between the audio and the original transcript are minor.  Garland asks if the most significant one is the difference between “waiting area” and “second line.” Drennan responds affirmatively, and says this particular discrepancy made no difference to the District Court’s decision.

Judge Tatel desires to explore the evidence supporting Judge Walton’s findings. The lower court found that the petitioner took up with the Taliban in exchange for room and board.  What, Tatel asks Drennan, supports that determination? Drennan cites Walton’s disbelief that a man in Suleiman’s position could simply freeload with the Taliban, without providing some payment in services. But does any evidence support that, Judge Tatel wants to know, apart from the story’s implausibility? Yes, Drennan says.  Suleiman handled weapons in the Taliban’s staging area. He also was near the battlefield during Operation Enduring Freedom, and the battle of Tora Bora. This and other evidence suggests that Suleiman took part in the fight.

Now Judge Tatel tests the government’s view of what Suleiman knew about his recruiter, at the time he approached Suleiman in a mosque in Yemen. It would be impossible, Drennan says, for Suleiman to hear the offer of a wife and house--one provided by the Taliban--and not imagine that the proposition entailed some sort of return favor. Tatel interrupts: he’s interested in the evident fact that Suleiman did not realize his recruiter’s Taliban ties until after his departure from Yemen. Drennan balks somewhat. He agrees that the totality of evidence must be examined. But in any event, Drennan says, Suleiman’s motive is not dispositive. The nature of his story is also revealing--it is, roughly, the “innocent traveler” narrative that courts have doubted. Judge Garland again pulls Drennan back. Is your argument that all travelers in the region are guilty, and therefore detainable? No, Drennan responds, just this traveler, in light of the evidence in this case.

The last issue of interest to Judge Tatel is supporting authority. What, he asks, is the D.C. Circuit decision that most favors the government?  Uthman and Al-Odah, replies Drennan. Judge Tatel notes that in Uthman, the petitioner was captured with affiliates of Osama Bin Laden; he doubts that the decision is helpful to the appellee. Drennan nevertheless insists that, in Uthman, the Court recognized that the petitioner’s travel route was, in fact, often taken by jihadists--as Suleiman’s was. This confuses Tatel, who reminds Drennan that even Drennan concedes that merely traveling in the AfPak area is not per se evidence of detainability.

Judge Griffith then changes the subject.  How long, he asks, can one stay in a guesthouse, before he or she may detained?  In Suleiman’s case, he stayed at one guesthouse for no more than an hour. That’s enough time to trigger detention, Drennan argues, if there’s other evidence of Taliban membership, such as recruitment by a Taliban operative, and travel along a recognized jihadist route. This surprises Griffith, who adds his second does of wit for the day. So, the judge says, someone takes a trip to Afghanistan, stays an hour at a guesthouse, and then out come the drones? No, Drennan responds. Simply traveling isn’t enough, but traveling along a known jihadist pathway can be.

Wrapping up, Drennan moves to the video, which allegedly shows Suleiman attending a speech by Osama bin Laden. Drennan wishes to clarify that one of the government’s identification experts, whose declaration is in the record, did not mean to say that there is no doubt that the individual depicted in the video is Suleiman. The testimony instead should be that it is likely that Suleiman was present. The source of the confusion, Drennan explains, was that initially, the expert had used the wrong standard in evaluating the video.

The Petitioner’s Rebuttal

Drennan returns to counsel table.  Sullivan once more addresses the panel. His first rebuttal point concerns the CSRT hearing. We received the erroneous transcript well before trial, Sullivan says, but also requested the audio before trial too. Sullivan also renewed the request during trial, as the trial transcript will reflect. After the hearing, according to Sullivan, the government rejected his request for the CSRT audio. You’ll just have to get that through FOIA, the government told him. Sullivan says his team did just that, and filed Suleiman’s opening appellate brief while their FOIA request was pending. In that brief, Sullivan predicted that the audio would reveal mistakes in the original transcript. And, he tells the panel, that’s exactly what they found when they received the audio and compared it to the original, erroneous record of the CSRT hearing.

The evidentiary record is next on Sullivan’s list. A lot of uncontradicted evidence points to Suleiman’s innocence, Sullivan says. For example, Suleiman insisted that he did not receive training, and that he did not fight with the Taliban, ever. Indeed, when Suleiman arrived in Kabul, his recruiter finally revealed that Suleiman would be expected to join the Taliban and that he would stay in a Taliban guesthouse. Suleiman stoutly refused to do so, Sullivan emphasizes, and his recruiter therefore directed him to a different guesthouse – apparently that of Hamza Al-Qaiety. There isn’t a word about this critical event in Judge Walton’s opinion, says Sullivan. Nor, he argues, does Judge Walton properly deal with Suleiman’s testimony that the conflict between the Taliban and the Northern Alliance was inter-tribal, and therefore not of concern to Suleiman.

Finishing up, Sullivan again cites Judge Urbina’s Khairkhwa opinion, in which he says the Government conceded that mere Taliban membership isn’t enough to trigger AUMF detention. With that, he thanks the panel for their attention, and concludes.

Judge Tatel again asks if a classified session will be required.  Both lawyers think not, so Judge Tatel brings the argument to an end.