Note from the Al Alwi Argument

By Benjamin Wittes
Thursday, November 4, 2010, 1:05 PM

I just returned from the D.C. Circuit's Al Alwi oral argument--or, at least, the portion of it that the court conducted in open session. Here is a quick and dirty summary.

Al Alwi is not one of the important Guantanamo cases in the sense of raising issues that have broad implications for the disposition of other Guantanamo litigations. It is simply the case of one guy at the base--a guy with some complaints about the way U.S. District Judge Richard Leon handled his case. I have some sympathy for Judge Leon here; he took very seriously the task of deciding habeas cases expeditiously and proceeded much more quickly than did his colleagues. But the result, at least in this case, is an appeal with a non-trivial claim that judge's speed deprived the detainee of the ability to defend himself. The panel here--Judges David Tatel, Merrick Garland, and Stephen Williams--was hard to read. I do not have a strong instinct about where they are going with this case. But Judge Leon's decision is not as bulletproof as it probably could have been had he given Al Alwi's then-lawyers a little more latitude.

As Larkin summarized the case the other day,

In Judge Leon’s unclassified opinion, he wrote that the government’s evidence proved that the petitioner was “lawfully detained as an enemy combatant because it is more probable than not that he was ‘part of or supporting Taliban or al Qaeda forces’ both prior to and after the initiation of U.S. hostilities in October 2001.” In the more detailed opinion (formerly classified, now released with redactions), however, Judge Leon described his conclusions more fully. First, he found that the petitioner had stayed at guesthouses that had “strong connections” to Al Qaeda and that the petitioner, “at a minimum, was ‘supporting’ the Taliban” on two combat fronts. He also wrote that Al Alwi’s involvement with the Omar Sayef Group, a fighting force the petitioner admitted was associated with the Taliban, amounted to “participating” in the unit and that he was “subject to the orders of the unit’s leaders.” Finally, Judge Leon found that Al Alwi had received military training at a camp associated with the Taliban, and that he was “with and was supporting Taliban forces” after September 11th.

Arguing for Al Alwi, Ramzi Kassem begins by explaining that the appeal arises from the unique circumstances of Al Alwi's case. The uniqueness, he says, is both procedural and evidentiary. Judge Leon rushed to trial in a fashion unlike that of any other Guantanamo case. Prior to Boumediene, no protective order was in place for Al Alwi, and he had no access to the government's factual return. He thus had only four weeks from the time he gained access to the return to meet with counsel and prepare a traverse and for trial. Judge Leon denied his reasonable request for more time, Kassem claims. And the evidence in his case was composed entirely of uncorroborated statements by him--also unlike any other case. The government, meanwhile, did not fulfill its obligation to disclose potentially exculpatory material. The result is that Al Alwi lacked the meaningful opportunity that Boumediene promises to respond to the government's allegations.

Judge Williams stops Kassem at this point and asks him to explain the basis for his claim that the government did not meet its obligation to produce exculpatory information. Kassem responds that the government took the position that it was only obliged to turn over material specifically known to the attorneys litigating the case. This, he says, is different from the view the D.C. Circuit took in Bensayah. Williams seems skeptical, noting that sometimes the government lawyer refers in the relevant transcript to "I" and sometimes to "we"--implying that he knows the discovery obligation extends beyond him. Kassem acknowledges that the colloquy is ambiguous but suggests that the "we" might refer only to the Justice Department, not the government as a whole.

Judge Tatel shifts gears and asks about Al Alwi's contention that the court should not have relied upon uncorroborated statements by the detainee. The government, he points out, argues that this point was waived in district court. Kassem denies this, and they have a back-and-forth on the point. Judge Garland then asks whether he's really urging a per se rule against uncorroborated detainee statements or whether a lack of corroboration is merely a consideration the court should take into account. Kassem acknowledges that there should be no flat rule.

Judge Garland then explores how impaired Al Alwi's access to counsel and ability to prepare his case really were. This, I think, will ultimately prove to be the heart of the case. Under questioning, Kassem acknowledges that counsel met with Al Alwi six times, the first of them a month before Boumediene. He says that at first, Al Alwi could not have been expected to know his lawyers from interrogators posing as lawyers, and that building trust in that setting was extremely difficult. When the Supreme Court, he says, requires a meaningful opportunity to respond, it surely means more than four weeks to prepare for trial. Judge Tatel asks if there were any indications of problems prior to the hearing, and Kassem says that former counsel raised them in the denied motion for more time. The first meeting after Al Alwi had the factual return, he says under questioning from Judge Williams, took place on Nov. 14--and the detainee lost consciousness during it. The traverse was due December 1. While he had meetings on the 5th and 6th of December and was allowed to file a supplemental traverse on December 12, this concession did not cure the time compression problem, Kassem claims.

Suppose, Judge Tatel asks, that the court decides that the case's procedural quirks--however troubling--do not amount to an abuse of discretion and that Judge Leon's fact-finding is not clearly erroneous; is that the end of the case? Kassem essentially concedes that it is, noting that he does not dispute that the facts, taken as true, would give rise to detainability. But the facts, he says, are not true. In fact, Al Alwi disputes the very existence of the associated force to which Judge Leon attached him. His role in that force was not, in any event, established reliably. And he has not had the opportunity to respond to the allegations in a meaningful way.

Judge Williams then returns to the question of exculpatory evidence, provoking an exchange over whether the government's disclosure obligations here were the same as or different from those in Bensayah. The case management order, all agree, is virtually the same. The question is whether the government understood it as requiring the same sort of disclosures that the D.C. Circuit later said in Bensayah were covered.

Judge Garland finishes up Kassem's argument time by asking him whether the factual return is materially different in its allegations from the unclassified CSRT record to which Al Alwi had access fully a year before he got the return. Kassem responds, with good humor, that this is not comparing apples and oranges but comparing apples and crocodiles. The CSRT record was less than 40 pages, the factual return was more than 400 pages. Yes, Garland asks, but did they contain different allegations and different facts? They contained different evidence, Kassem replies; there were significant differences between them.

Arguing for the government, Sarang Damle essentially takes the view that Judge Leon made no errors and they were harmless if he did. He begins by noting that Al Alwi conceded most of the relevant facts at trial--most importantly that he traveled to Afghanistan with the express intent of fighting for the Taliban. Judge Tatel clarifies that this was a concession by counsel, not by the detainee, and notes that part of Al Alwi's complaint is that his relationship with counsel had been impaired by the compressed time frame. Damle points out that there was no suggestion of an impaired attorney-client relationship at trial.

Judge Tatel then lays some cards on the table, saying that he thinks Judge Leon's refusal to grant a 30-day extension was pretty obviously an abuse of discretion. There was a good reason for the request, he notes; Al Alwi hadn't asked for others; and the government didn't object. Damle responds that the court should look at the reasons for the request and the relief the court did give Al Alwi. The request, he notes, was based only on the claim that Al Alwi had not been able to meet with counsel, and Judge Leon--while not extending the time to file the traverse--allowed Al Alwi to file an amendment to it later. Instead of filing the traverse later and meeting with counsel first, he says, Al Alwi filed the traverse on Dec. 1 as scheduled, had two subsequent meetings with counsel, and then filed a supplement to it. He never sought another extension, Damle points out, and he did not argue that the subsequent meetings were insufficient. It's hard to see an abuse of discretion in that, he says.

Judge Williams then engages Damle over the question of exculpatory evidence, and Damle contends that there really was no difference between the government's view of its obligations under the CMO and the position the D.C. Circuit adopted in Bensayah. Judge Tatel then asks why, in a case involving only detainee statements, Judge Leon denied discovery requests concerning the detainee's statemements. Damle notes that Judge Leon deemed them overbroad, because Al Alwi had asked for all documents related to his interrogations. Al Alwi on appeal does not, he contends, dispute that the requests were overbroad. More generally, he says, the claim that Al Alwi did not get an opportunity to defend himself is belied by the fact that he did not testify at trial. At the district court hearing, rather, he sat there--connected remotely to the proceedings--while counsel made those concessions and he did not object. Judge Garland clarifies that the concessions took place in open session to which Al Alwi had access, and Damle confirms that some of them did. Given these concessions, he concludes, it is difficult to say that he suffered any prejudice.

Judge Tatel begins Kassem's brief rebuttal time by asking him to respond to this last point, and Kassem insists that it is inaccurate. Al Alwi's former counsel, he says, made no concessions, either in open or closed session but accepted certain points arguendo. In any event, he argues, the suggestion that he could have corrected counsel's concessions is wrong, because his electronic link to the proceedings was a passive one that did not allow him to speak--merely to listen. Judge Garland seems skeptical that the concessions were made arguendo. So Kassem falls back on his main point: that counsel had to proceed from a "cold record" with no time to prepare. Garland pushes him: He did, after all, get to meet with his client and hear his story and he said certain things on his behalf. That's true, Kassem acknowledges, but after meeting him, he filed a declaration from the client denying training or fighting with the enemy. Against that backdrop, an apparent oral concession by counsel should not be equated with a confession. Judge Williams suggests that it might, however, bear on how one reads Al Alwi's prior statements. Kassem unsurprisingly resists this point. Judge Tatel asks for clarification on whether the link was, in fact, a passive one. Kassem says that is his understanding, and Damle says he doesn't know but will find out. This point seems to me important; the argument that Al Alwi has admitted so much that any of Judge Leon's errors are harmless is much stronger if he had the opportunity to object and passed it up than if he had no such opportunity.

Kassem concludes the argument by noting that this is Al Alwi's one chance. While the Supreme Court gave limited guidance, he says, on what a "meaningful opportunity" really is, it is indisputable that it means more than what Judge Leon gave his client. The court is then cleared for the closed session.