A three-judge panel (Judges Henderson, Griffith and Edwards) of the D.C. Circuit has affirmed the District Court's decision to deny Guantanamo detainee Abdul al Qader Ahmed Hussain's petition for a writ of habeas corpus. The appellate court concluded that the habeas court's findings of fact were not "clearly erroneous," and that the findings support the conclusion that Hussain was more likely than not a member of enemy forces. The majority opinion was authored by Judge Griffith.
Senior Circuit Judge Harry Edwards wrote a concurring opinion. It ended with this provocative language:
Is it really surprising that a teenager, or someone recounting his teenage years, sounds unbelievable? What is a judge to make of this, especially here, where there is not one iota of evidence that Hussain “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such . . . persons”? I do not mean to suggest that a teenager cannot be a terrorist or an enemy combatant or that, if so, he should get a pass because of his age. Rather, the salient point is quite simple: the burden of proof was on the Government to make the case against Hussain by a preponderance of the evidence. In my view, it failed to carry this burden.
This said, I am constrained by the law of the circuit to concur in the judgment of the court. The majority opinion is unassailable in holding that our precedent (which conflates the preponderance of the evidence and substantial evidence standards) supports the result reached. I have no authority to stray from precedent. However, when I review a record like the one presented in this case, I am disquieted by our jurisprudence. I think we have strained to make sense of the applicable law, apply the applicable standards of review, and adhere to the commands of the Supreme Court. The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases.
Here are both the opinions.