Esmail Oral Argument Preview

By Benjamin Wittes
Tuesday, February 15, 2011, 10:18 AM

Another day, another D.C. Circuit argument preview coming a Yemeni detainee at Guantanamo Bay.

This time, it's Yasein Khasem Mohammad Esmail, whose detention Judge Henry Kennedy approved last April. Esmail has a got a tough road ahead of him at the D.C. Circuit, I suspect--and would have one even if he weren't facing a bad panel for any detainee. The court will be tempted to simply affirm Judge Kennedy's ruling on the basis that the facts he found are not clearly erroneous and clearly do, if taken at face value, justify Esmail's detention. Still, his case potentially raises some interesting issues. Among other things, he is the first detainee to reach the D.C. Circuit and argue, in essence, that the lower court should have ignored a lot of his statements because of their allegedly having been the fruits of torture. The court could, therefore, use the case as a way of discussing voluntariness issues with which the district court has struggled repeatedly but which the appeals court has consistently ducked.

Judge Kennedy affirmed the propriety of Esmail's detention based on the following facts:

In sum, the Court finds based on reliable evidence that Esmail (1) traveled to Afghanistan at the urging of an Al Qaeda facilitator, (2) attended Al Qaeda military training camps, (3) stayed at guesthouses which, if not exclusively patronized by Al Qaeda members, were at least affiliated with that organization, (4) took a religious study course at an Institute sponsored by Al Qaeda, (5) remained in Afghanistan after the attacks of September 11, 2001, and (6) went to Tora Bora, the site of a major battle against the United States, where he acted as a fighter for Al Qaeda. Accordingly, the Court concludes that respondents have shown by a preponderance of the evidence that Esmail is "part of" Al Qaeda and is therefore lawfully detained.

Esmail attacks Judge Kennedy's ruling on two basic interrelated grounds: First, he contends, Judge Kennedy erred in relying on inculpatory statements the detainee made notwithstanding "undisputed evidence" that "Esmail suffered abuse and mistreatment while in U.S. custody in Afghanistan and at Guantanamo Bay." Second, he argues, if one excludes that material and considers only his other admissions, they do not adequately support Judge Kennedy's conclusion that he is detainable.

On the first point, Esmail's lawyers argue that their client was terribly abused in U.S. custody:

At Bagram, Esmail was subject to abuse, including being held in cold conditions and being kicked and beaten by U.S. soldiers. . . . He was subsequently turned over to the United States military in Kandahar. . . . Esmail suffered more severe abuse here--for example, guards stripped him naked and refused to let him wash before prayer. In the spring of 2002, Esmail was transferred to Guantanamo Bay, where he suffered injuries as a result of his treatment on arrival. . . . During the initial months and years of his detainment, Esmail was interrogated over 100 times. He made various statements to stop the abuse or in fear of further abuse--including that he had stayed at a guesthouse in Jalalabad, that he took weapons training for military action in Chechnya, and that he had seen Osama Bin Laden. . . . He repeated these statements throughout his early interrogations.

Since his CSRT hearing in 2004, however, where he "received assurances that he would not be tortured in the future, Esmail has repeatedly renounced these statements and stated that he made them to avoid abuse." Despite this evidence, Esmail's lawyers argue, Judge Kennedy determined that his statements were reliable:

The court reached this conclusion by considering each piece of evidence in isolation, rather than considering whether all of the evidence, taken together, makes it more likely than not that Esmail was abused. And despite stating that it found "nothing probative about any strategic decision an attorney makes," the district court discounted Esmail's most serious allegations of abuse as late-made embellishments because his counsel first presented them in a second, more detailed declaration in 2010.

As a consequence, they argue, Judge Kennedy's determination that Esmail's statements were voluntary and reliable was "clearly erroneous and should be reversed."

Once these statements are removed from the record, they argue, the case against Esmail falls apart. Esmail's lawyers have some inconvenient facts to work around in this argument, since they concede that their client traveled to Afghanistan, stayed in guesthouses, took training at Al Qaeda camps, and studied at the Al-Qaeda-sponsored institute. But they argue that he left Yemen personal reasons, with no intention of fighting the United States; he did not knowingly stay in an Al Qaeda-run guesthouse, as opposed to other guesthouses, or know that the training he was taking was being given by Al Qaeda. He also didn't know that the institute at which he admittedly studied was run by Al Qaeda. And there is no specific evidence that he ever fought. Even under the "conditional probability" analysis the D.C. Circuit mandated in Al Adahi, his lawyers therefore contend, what's left just isn't enough.

Unsurprisingly, the government takes a rather different view. Judge Kennedy, in its account, reasonably relied on numerous statements by Esmail, "which were detailed and internally consistent." In refusing to credit allegations of severe abuse that arose only in 2009 and 2010, the district court "correctly discharged its function as fact-finder when it weighed Esmail's dramatic allegations against the government's substantial rebuttal evidence and found that it could not credit Esmail's allegations." The government relied on two declarants "who had been present at the facilities where Esmail was held during the perdiods he was held there and had interrogated Esmail." It also relied on medical records "showing that Esmail was healthy and had none of the residual impairments that would have resulted from the types of serious mistreatment he had alleged." Judge Kennedy, the government argues, did not err in finding the government's allegations more reliable than Esmail's late allegations.

As a consequence, the government also argues that Judge Kennedy did not err in concluding that "Esmail knowingly received training from al-Qaida and knowingly stayed at al -Qaida guesthouses":

The district court properly considered all the evidence in context when it found that Esmail's recruitment by an al-Qaida operative, his extensive weapons training at al-Qaida military camps, his numerous stays at al-Qaida guesthouses and his surrender in the Tora Bora region all supported the finding that Esmail had been aware that al-Qaida was responsibble for the paramilitary training camps and guesthouses where Esmail stayed.

The argument will take place before a panel of Judges David Tatel, Brett Kavanaugh, and Janice Rogers Brown. It will begin in open session, and will proceed, if necessary, by a classified session. Danielle Barbour will argue Esmail's case. Anne Murphy will argue for the government.