Detention: Law of: D.C. Circuit Development

Judge Edwards's Odd Concurrence in Ali

By Benjamin Wittes
Wednesday, December 4, 2013, 9:44 AM

Both Raffaela and Steve have already noted the D.C. Circuit's opinion yesterday in Abdul Razak Ali v. Obama, the latest Guantanamo habeas case. Both also took note of Senior Judge Harry Edwards's brief opinion concurring in the judgment affirming the district court's denial of habeas.

Judge Edwards's opinion will win notice because of its arresting conclusion that "The troubling question in these detainee cases is whether the law of the circuit has stretched the meaning of the AUMF and the NDAA so far beyond the terms of these statutory authorizations that habeas corpus proceedings like the one afforded Ali are functionally useless." To me, however, the more interesting statement is one Judge Edwards makes earlier in the opinion---the predicate for his belief that Ali lies outside of these statutory authorizations:

Nothing in the record indicates that Ali "planned, authorized, committed, or aided the terrorist attacks" of September 11, 2001, or that he "harbored [terrorist] organizations or persons," or that he was "part of or substantially supported al-Qaeda, the Taliban, or associated  forces," or that he "committed a belligerent act" against the United States. Ali may be a person of some concern to the Government officials, but he is not someone who transgressed the provisions of the AUMF or the NDAA (emphasis added).

I find this claim remarkable because at least as I read Judge Brett Kavanaugh's opinion for the majority, the court is contending precisely that the record indicates that it is more likely than not that Ali was part of a force associated with Al Qaeda. Judge Kavanaugh writes specifically that Abu Zubaydah's force is an associated force for legal purposes: "In a prior case involving a Guantanamo detainee captured in the same Faisalabad guesthouse as Ali, we recognized that the force commanded by Abu Zubaydah constitutes an 'associated force' for purposes of the AUMF. See Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir. 2010). Ali does not dispute that conclusion here." And he finds specifically as well that the record supports the probability that Ali was "part of" that force: "Based on the evidence that we have outlined, Ali more likely than not was part of Abu Zubaydah’s force. To be sure, as in any criminal or civil case, there remains a possibility that the contrary conclusion is true---in other words, that Ali was not part of Abu Zubaydah’s force. But the preponderance standard entails decisions based on the more likely  conclusion. In our judgment, the evidence here demonstrates that Ali more likely than not was part of Zubaydah’s force." The body of the opinion, in fact, is an effort to demonstrate this point.

In other words, Judge Edwards's contention that "nothing in the record indicates that Ali . . . was 'part of . . . al-Qaeda . . . or associated forces'" necessarily relies of a reading of the record very different from that of the majority, yet he never explains why Judge Kavanaugh's view of the record is wrong. He never lays out---other than to say that a stay in a guesthouse is insufficient---a view of the record that suggests it is more likely than not that Ali was not part of a force associated with Al Qaeda.

This leads me to think, as Steve suggests, that the real issue separating Judge Edwards's view from that of D.C. Circuit majority may have more to do with certain procedural features of the court's jurisprudence---particularly the use of the preponderance standard---than it does with the substantive scope of detention authority.