Comments on Salahi

By Benjamin Wittes
Friday, November 5, 2010, 1:51 PM

(By Robert Chesney and Benjamin Wittes)

This morning the D.C. Circuit vacated and remanded a decision by former U.S. District Judge James Robertson, granting habeas relief to Mohammedou Salahi. The opinion, written by Judge Tatel and joined by Chief Judge Sentelle and Judge Brown, will not surprise anyone who read Ben's account of the oral argument. Three separate D.C. Circuit opinions had come down since Judge Robertson's original decision, each of them making aspects of his decision problematic. The decision, however, is interesting in several respects:

First, the panel reaffirms the rule—established by the Circuit previously in Bensayah and Awad—that the government need not prove a person was part of the “command structure” of an AUMF-covered group in order to establish he was “part of” such a group.  The absence of evidence showing a person’s place in the group’s command structure is relevant to the inquiry, the panel explained, but it cannot be dispositive. This is important because several of the district judges, including Judge Robertson, had used command structure membership as the key to any "part of" inquiry. The D.C. Circuit, including now in an opinion by one of its most liberal members, is sharply redirecting the lower court on this point.

Second, the panel reaffirmed its “admonition in al Adahi” to the effect that judges in habeas proceedings must consider the totality of the evidence rather than examining the evidence in atomized fashion.  Judge Tatel noted that Judge Robertson may have erred on this point in two respects:

[T]he court found that Salahi’s “limited relationships” with certain al-Qaida operatives were “too brief and shallow to serve as an independent basis for detention.” Salahi, 710 F. Supp. 2d at 15 (emphasis added). Even if Salahi’s connections to these individuals fail independently to prove that he was “part of” al-Qaida, those connections make it more likely that Salahi was a member of the organization when captured and thus remain relevant to the question of whether he is detainable. Cf. Al-Adahi, 613 F.3d at 1107 (noting that petitioner’s “close association [with Usama bin Laden] made it far more likely that [he] was or became part of” al-Qaida).

The district court may also have evaluated Salahi’s oath of bayat in isolation. In its conclusion, the district court stated, “[T]he government wants to hold Salahi indefinitely, because of its concern that he might renew his oath to al-Qaida and become a terrorist upon his release.” Salahi, 710 F. Supp. 2d at 16 (emphasis added). This suggests that the district court may have failed to consider the possibility that the “sporadic support” Salahi “undoubtedly . . . provide[d]” al-Qaida demonstrates that he remained a member of the organization, thus having no need to renew his oath because he continued to abide by his original vow of allegiance. Id. at 15–16.

(slip op. at 15).

Third, the panel gave only limited guidance on the issue of which party bears the burden on proof regarding a claimed vitiation of an acknowledged earlier membership in Al Qaeda--a matter on which clarity is sadly lacking. The government was seeking a clear ruling from the court that once a detainee joins up, the burden falls to him to prove that he quit before the time of his capture. Judge Tatel does not rule out such an arrangement for detainees who joined the enemy relatively recently, but he does rule out a burden shifting arrangement for someone, like Salahi, who swore his oath of loyalty a decade before September 11:

[T]he government contends that Salahi should bear the burden of proving that he disassociated from al-Qaida after swearing bayat to the organization in 1991. In support, the government cites the plurality’s statement in Hamdi v. Rumsfeld that “once the Government puts forth credible evidence that [a] habeas petitioner meets the [AUMF’s detention] criteria, the onus [may] shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria.” 542 U.S. 507, 534 (2004).

Here, as noted, the relevant inquiry is whether Salahi was “part of” al-Qaida when captured. Therefore, in order to shift the burden of proof to Salahi, we would have to presume that having once sworn bayat to al-Qaida, Salahi remained a member of the organization until seized in November 2001.  Although such a presumption may be warranted in some cases, such as where an individual swore allegiance to al- Qaida on September 12, 2001, and was captured soon thereafter, the unique circumstances of  Salahi’s case make the government’s proposed presumption inappropriate here.

When Salahi took his oath of allegiance in March 1991, al-Qaida and the United States shared a common objective: they both sought to topple Afghanistan’s Communist government. ... Not until later did al-Qaida begin publicly calling for attacks against the United States.  Bin Laden, however, did not issue his first fatwa against U.S. forces until 1992—the very year in which, according to Salahi’s sworn declaration, Salahi severed all ties with al-Qaida. See 9/11 Commission Reportsupra, at 59; Salahi Am. Decl. ¶ 12. In light of all this, Salahi’s March 1991 oath of bayat is insufficiently probative of his relationship with al-Qaida at the time of his capture in November 2001 to justify shifting the burden to him to prove that he disassociated from the organization. In so concluding, we have no doubt about the relevance of Salahi’s oath to the ultimate question of whether he was “part of” al-Qaida at the time of his capture. We conclude only that given the facts of this particular case, Salahi’s oath does not warrant shifting the burden of proof.

(slip op. at 10-11)

Perhaps the most important aspect of today’s ruling involves a matter that went unaddressed in the opinion: the fact that Salahi’s case does not involve capture in or in anything like close relation to a zone of active combat operations.  Salahi is a Mauritanian who first traveled to Afghanistan in 1990 in order to participate in the ongoing conflict there.  He received military training from Al Qaeda, and swore an oath of allegiance to it.  He left to live in Germany in 1992, however, and alleges that he severed his ties to Al Qaeda at that point.  According to the government, Salahi nonetheless continued to serve Al Qaeda by acting as a recruiter in Germany, and in that capacity in 1999 helped persuade three of the eventual 9/11 plotters to travel to Afghanistan to receive training. The government also claims that Salahi assisted an Al Qaeda agent in Germany with the purchase of telecommunications equipment in the 1990s, sent money to an Al Qaeda agent in Mauritania in this period, interacted in Montreal with an Al Qaeda cell later linked to the attempted millennium bomb plot, and upon returning to live in Mauritania explored the possibility of computer-based attacks.  He was eventually taken into custody, in Mauritania, in November 2001.

Salahi’s case, in short, necessarily presents the question whether the AUMF extends detention authority to those who are part of Al Qaeda but who are not captured in or otherwise closely linked to combat activities involving the United States in Afghanistan. And though the panel in today’s ruling certainly left open the question of whether the government actually had enough proof to show that Salahi was indeed “part of” al Qaeda--a matter that now returns to the district court--it said nothing at all to call into question the proposition that this fact pattern, if accepted as true, sufficed to warrant detention. This is the second case, Bensayah being the first, in which these unspoken words speak very loudly. What is emerging from them is a degree of judicial acceptance of detention in non-battlefield cases.

Finally, it is worth noting the D.C. Circuit's unanimity in this case. The panel here is, to put it mildly, a diverse one politically. And much has been made, including on Lawfare of D.C. Circuit splits in other Guantanamo cases. In some respects, too much. No D.C. Circuit panel as ever split on whether a given detainee should go free. Its divisions, rather, have involved discovery issues, the role of international law, and how aggressive the court should be in giving guidance proactively to the lower court judges. The court, as this case reflects, seems remarkably unified on certain core, bottom-line questions of whether detainees should win or lose. That Judges Tatel, Sentelle and Brown can agree on every word of a case as complicated as this one is a good sign for the future development of the law in this area.