Rising before the D.C. Circuit this morning on behalf of Yasein Khasem Mohammad Esmail, Danielle Barbour faces some non-trivial problems. She has bad facts, a hostile panel, a relatively solid-seeming lower-court opinion to attack, a client who--the lower court found--is more likely than not to be part of Al Qaeda, and a clear error standard of review to overcome regarding facts that are, well, just not that clearly wrong.
Oh, and one other thing: She's never done an appellate argument before.
My hat is off to her--or, rather, it would be off if I wore a hat. Like her Covington colleague Anthony Phillips in the Uthman case last week, Barbour does a nice job with a bad hand. She's going to lose this case, but that's not her fault. The case is unwinnable given the state of the law and the found facts about her client. As I described the case in some detail yesterday, I will assume reader familiarity with it here.
Barbour begins by declaring that the district court committed clear error in finding that Esmail's numerous damaging admissions were voluntary and reliable. Once these statements are discounted, she argues, the decision that he is "part of" the enemy cannot stand. Judge Laurence Silberman cuts her off. Why is it necessary to find that he is "part of" Al Qaeda? Isn't it sufficient if the court finds that he fought alongside Al Qaeda and supported it? Barbour responds that the government argued this case under the theory that he was part of Al Qaeda, so that is the question before the court. But what about an individual, Judge Silberman persists, who insists that he would never join the organization--kind of like Groucho Marx--but who just fought alongside it? Barbour points out that this is not the situation alleged here.
Judge David Tatel intervenes here and burrows down to what may prove the key issue in the case--one I flagged yesterday: Even if the court ignores all of the facts that rely on statements Esmail alleges to be the fruits of coercion, there are still other facts that support Judge Kennedy's ruling. Suppose, he says, that we agree with you regarding the coercion Esmail alleges. Isn't there enough in the record without those statement to affirm his detention? You concede three key facts, Judge Tatel says: that Esmail trained at Al Qaeda's Al Farouq training camp, that he studied at an Al-Qaeda-sponsored institute, and that he was taken into custody near Tora Bora in the company of fighters. Barbour concedes the first two points but says that the third is disputed. Esmail, she says, claims he was rounded up in Kabul and then mixed in with other Arabs, including some fighters. Yes, Judge Tatel says, but the point is that Judge Kennedy's findings on Esmail's capture are not based on interrogation statements you claim were coerced. Barbour does not concede this point, noting that in some of his early statements, Esmail says he went to Tora Bora. Judge Silberman pushes her. You're missing Judge Tatel's point, he says. The district court's finding does not depend on any admissions on Esmail's part that was allegedly coerced. Barbour says she does not think this is true. The finding relies on an intake form from Esmail's stay at Bagram that reflects his contemporaneous admissions that he was at Tora Bora--admissions he later renounced as products of his abuse. It is, she says, derivative of these early admissions.
Judge Tatel reminds her at this point that the court now has two cases which say that training alone is sufficient to support a detention. Barbour notes that the cases do not hold this; it is merely dicta. And Judge Tatel concedes as much, but he notes that here the court does not only have Esmail's training. Esmail attended the institute too, after all. Judge Silberman adds that the significance of the institute is that it was run by Al Qaeda. Barbour responds that this point is unclear and disputed--and in any event, Esmail did not know of any such affiliation.
Judge Tatel asks her for the best argument she can make for the proposition that these three findings are by themselves not good enough. Barbour responds concerning the weapons training that while the court has stated that training can be strong evidence of membership, in those cases the training took place much closer in time to the hostilities than it did in Esmail's case. Here, she says, the training was in early 2000, quite a while before U.S. forces began confronting the Taliban. The district court, she says, made no finding that Esmail ever put that training to use. And Esmail has stated consistently that when he was at Al Farouq, he did not know it was an Al Qaeda camp but only learned that five months later.
Judge Janice Rogers Brown speaks up for the first time, asking why the court should care about what Esmail knew. Has the court ever looked at a detainee's subjective intent? Other courts have, Barbour responds. It is unclear precisely what standard the D.C. Circuit has adopted on this, she argues, but the district court in Hatim--which the D.C. Circuit has now vacated on other grounds--considered the detainee's intent. As to studying at the institute, Barbour says, returning to Judge Tatel's question, the district court gave that little probative weight.
Judge Tatel switches gears here and asks about Barbour's argument that Judge Kennedy erred by not requiring that detainee statements be corroborated. In another case, he notes, counsel clarified that he was not urging a per se rule that all uncorroborated statements were inadmissible. Are you urging a per se rule or are you merely asserting that in this case, it was improper to admit these statements absent corroboration? Barbour says that in the circumstances of this case, the distrct court erred by not having sufficient corroboration. A per se rule might be appropriate as well, she says. So your basic argument, Judge Tatel clarifies, is that Judge Kennedy failed to adequately consider the lack of corroboration before crediting Esmail's statements. Barbour concurs. But if the court were to disagree with you concerning the three key issues discussed earlier, Judge Tatel goes on, those would be unaffected by the corroboration issue, right? Barbour acknowledges this point as to the fact of Esmail's attendance at Al Farouq, but she does not concede it on the circumstances of his capture.
Barbour now turns the argument to the alleged coercion which is really the heart of her case. Judge Kennedy, she complains, failed completely to conduct an attenuation analysis with respect to the taint of the coercion her client suffered. Did Esmail indicate, Judge Silberman asks, in his first interview with U.S. forces, that he had been abused by the Afghans? Not in the first, Barbour says. But as early as 2002, he said he had been abused in Afghan custody. And what else, Judge Silberman asks, did he say then? If his abuse by Afghan officials was so serious and we are to credit those allegations, why shouldn't we credit everything else he said then--and hold it against him? Barbour objects that Esmail is alleging an unbroken stream of abuse from both Afghan officials and from the Americans to whom the Afghans turned him over.
Didn't Esmail claim, Judge Brown asks her, that his shoulder and nose had been broken by his captors? Does he still maintain that? He does, Barbour says. But the medical records don't seem to confirm those claims, Judge Brown points out. Those records, responds Barbour, are from 2002--five months after the alleged injuries. If you have a broken shoulder, Judge Silberman cuts in, that will show up for the rest of your life. The medical records show a shoulder injury, Barbour says--though not a break. And while they don't show a nose injury, that is not surprising given the elapsed time.
Judge Tatel asks her whether her basic argument is that not enough time had elapsed between the abuse and the interrogation statements. After all, the location had changed, and the personnel had changed. Time seems like the only factor left. Is it clear how much time elapsed? Barbour responds that Esmail went directly from Afghan custody to interrogation in U.S. custody--so effectively no time had elapsed. In another case, she points out, the district court found that six months was not enough time. Here, her client went directly from one to the other.
But attenuation, Judge Brown says, is relevant only if the judge finds that the abuse happened in the first place. Here, there isn't a clear finding that the severe abuse Esmail alleges even happened. Isn't there enough evidence in the record to support the finding that his allegations were not credible? Barbour wraps up her argument by stating that the district court found credible his accounts of abuse at the hands of the Afghans.
Anne Murphy rises for the government and pushes hard on the door Judge Tatel has opened for her. The judges, she says, are absolutely right that the evidence supports Esmail's detention even without relying on those statements alleged to have resulted from coercion. Judge Kennedy found that had taken training--and he found more. He found that Esmail had attended a religious institute run by Al Qaeda. He also found evidence concerning Tora Bora. To discuss this evidence in any detail, Murphy says, would require going into classified session. But she cites detainee statements that indicate that these detainees had fled Tora Bora with Esmail. None of these statements, she says, has anything to do with Esmail's own statements on the subject. Are the three key facts that he raised earlier, Judge Tatel asks, all free from taint? Murphy says she doesn't believe there is any taint here, but she says she understands his question and, yes, those facts are all independent of any allegedly coerced statements.
Judge Tatel asks her if the D.C. Circuit has any case which upholds a detention based on facts similar to these three. Not these three specifically, she says. Is there anything close? Judge Kennedy found that Esmail had actually fought for the enemy. He inferred this from Esmail's coming down from Tora Bora. The actual fighting finding flows from the Tora Bora finding, and it's pretty powerful.
Suppose, Judge Tatel goes on, that we were to disagree with the government and conclude that we should be concerned that the relationship between Esmail's abuse at the hands of the Afghans and his interrogation in U.S. custody was too close. What happens then? Murphy's answer seems to surprise Judge Tatel: She denies flatly that Judge Kennedy found that Esmail had been abused by the Afghans. Rather, she argues, Judge Kennedy found only that the government had not proven that abuse did not occur, in contrast to the allegations of abuse in U.S. custody. Judge Kennedy made specific findings negating those latter allegations, she argues. Having no evidence before him that rebuts Esmail's allegations about abuse in Afghan hands, he could make no comparable finding concerning those claims. But he in no way accepted them. And indeed, a lot of the evidence that disproves the allegations about abuse in U.S. custody goes to his allegations about Afghan abuse as well. For example, the medical records show no evidence of any beatings.
Judge Silberman says he thought, like Judge Tatel, that Judge Kennedy had found the accounts of Afghan abuse credible, but Murphy stands her ground. Did he accept it arguendo? No, she says, he said merely that he was not convinced that Esmail was not subject to abuse. Judge Silberman says that he thinks she is defending what the district judge could have found, not what he actually did find.
Judge Silberman then raises with Murphy the same question he earlier raised with Barbour: If someone fights alongside Al Qaeda but doesn't join it, is that person detainable? Murphy says that such a person, in all probability, would be considered "part of" Al Qaeda under the court's case law. If that's the case, Judge Silberman says, we're really stretching the definition of "part of"--and we don't need to. Murphy tries again. If someone is engaging in hostilities, that's certainly good enough for detention. Judge Silberman agrees.
Judge Tatel picks up the thread here and asks Murphy to make some embedded arguendo assumptions. She should assume arguendo that Judge Kennedy was assuming arguendo that Esmail was, in fact, abused in the hands of the Afghans. We don't know how much time passed between the assumed abuse and the later interrogation. How should the court assess taint? Murphy says that the courts have handled this issue in the past by looking at the statements themselves. In this case, the statements themselves reflect their own voluntariness and that Esmail's will was not overcome. Murphy quotes Esmail from early in his interrogations defiantly telling his captors that he will not talk and he doesn't care what they do to him or how long they hold him. The district court, she says, did not err in concluding that this was not the statement of someone whose will was broken. What's more, some of Esmail's statements were corroborated by other evidence. He later said he made it all up to stop the abuse, she notes, so the court found it probative that some of his statements were consistent with other sources.
On rebuttal, Barbour argues that Judge Kennedy did more than find that the government could not disprove allegations of abuse by the Afghans. He specifically found that the allegations were believable, she says. But, Judge Tatel asks, the district court also found that Esmail's statements in U.S. custody were uncoerced, so what does it matter? He found that, Barbour says, only by ignoring the taint. Judge Silberman asks whether she is making a fruit of the poisonous tree argument, and she responds there is a long line of precedents on taint.
What's more, she argues, it not true that Esmail's allegations of abuse arose only late--in his 2010 declaration--or that he has been contradictory on the subject. To the contrary, he alleged abuse and recanted his earlier statements in his CSRT hearing in 2004. The district court, she says, erred in ignoring the consistency of his statements about abuse in the years since. He even attempted to recant his statements earlier and faced worse abuse as a result.
Judge Tatel announces that the court sees no need for a classified session but is happy to hold one if either of the parties feels it necessary. Neither does, and the argument concludes.
I see no way for Esmail to prevail in this appeal. From the argument, rather, I see two different ways the D.C. Circuit might affirm--and I'm not honestly sure which should be better and which should be worse from the point of view of the detainee bar. The court could, first, hold that Judge Kennedy's dismissal of the coercion claims were not clearly erroneous and thus generate a rich record of admissions under which Esmail is certainly detainable. This route would not stretch the boundaries of the government's detention authority, as the facts would suddenly be plentiful. But it would necessarily require some treatment--so far avoided by the D.C. Circuit--of the dicey issue of coercion. And it would do so on terms highly unfavorable to detainees making coercion claims. Alternatively, the court could avoid the coercion issues by affirming only on the basis of the facts that Judge Tatel identified--along with a few he did not mention but which are also conceded. But as Judge Tatel noted in his colloquy with Murphy, this is thin gruel--though not impossibly thin--on which to authorize a detention. So going this route would once again push the boundaries of how spare a fact pattern will justify a long-term detention. My best guess is that the court will take this latter course--for the simple reason that the D.C. Circuit tends to prefer to do less than more when possible.