Oral Argument Preview: Abdul Razak Ali v. Obama

By Raffaela Wakeman
Thursday, September 26, 2013, 8:01 PM

Friday morning, a three-judge panel of the D.C. Circuit will hear oral arguments in a habeas appeal brought by Abdul Razak Ali, who also goes by the name of Saeed Bakhouch.  The Guantanamo detainee, an Algerian, contests District Court Judge Richard Leon's 2011 conclusion that the government "more than adequately" demonstrated his association with Abu Zubaydah, a top Al Qaeda lieutenant---and thus his detainability under the 2001 Authorization for the Use of Military Force.

As I reviewed in July, the petitioner contends that the court below made too much of the fact that Razak Ali was captured at the same guesthouse as Zubaydah---a "guilty-by-guesthouse" theory, in the petitioner's words. The detainee also challenges the district court's reliance upon three different pieces of evidence: first, a key document, the so-called "al-Suri diary," a document which allegedly showed Razak Ali's link to Abu Zubaydah; second, detainee-witness statements that initially inculpated Razak Ali, but that were later recanted; and an interview, also inculpatory and with---according to the government---Razak Ali himself.  The detainee cries foul here, arguing that the interviewee was not him, in fact, but with another fellow: a Libyan also named Razak Ali.  Finally, Judge Leon's ruling also incorrectly stated that Razak Ali had traveled to Afghanistan; in fact, according to Ali, his travels took him to Pakistan only.

The government argues that Razak Ali was properly detained under law.  The evidence? Among other things, the al-Suri diary describes the detainee as a member of Abu Zubaydah's crew; he also attended a training camp while staying at the Abu Zubaydah guesthouse; and he lastly traveled to Afghanistan to fight.

There have been two new developments since July.

One has to do with redactions contained in the appellate record.  Earlier this month, the D.C. Circuit ordered the government to provide it with unredacted versions of certain materials included in the Joint Appendix.  The government agreed to do so ex parte and in camera.  But Razak Ali's counsel objected to that procedure, as neither she nor the District Court below had access to the unredacted items during proceedings below.  By way of rejoinder, the United States insisted that the parties had not relied upon the documents, before the lower court or in their appeals briefing. At any rate, the D.C. Circuit Court now has confirmed that the materials won't form a part of the appellate record---and therefore won't be relied upon by the court in deciding the case.

The other matter concerns a key piece of evidence, the al-Suri diary.  In a June 2013 opinion in another Guantanamo case, Shafiq v. Obama, District Court Judge Rosemary Collyer refused to reconsider the denial of a habeas petition (brought by a detainee named Barhoumi) based on the al-Suri diary's lack of reliability.  Earlier, the D.C. Circuit had found the diary to be "perhaps the most probative record evidence" in determining Barhoumi's connection with Abu Zubaydah.  In her June ruling, Judge Collyer rejected Barhoumi's argument that the true name and age of the diary's author---Barhoumi claimed the latter was a teenager different than the adult who allegedly had penned the document----undercut the reliability of diary entries connecting Barhoumi and Abu Zubaydah.  (Razak Ali had advanced a similar claim in his case, and challenged the identity and age of the diary's author.)  Wrote Judge Collyer:

At the outset, it bears noting that the authorship of the al-Suri diary is irrelevant to a large extent. . . . Whether written by a man named al Suri or a man named [redacted], the diary itself carries the same hallmarks of credibility and reliability.

The government points to Judge Collyer's opinion in Shafiq as new authority in support of its position. In response, Razak Ali's counsel brings to the Court's attention the lateness of the government's filing: Judge Collyer's order was released in June, but the government only flagged Shafiq for the appeals court more recently, in mid-September, just days before oral arguments.  That timing is hardly "prompt," according to Razak Ali's lawyer.  At any rate, counsel also challenges government's apparent view that Shafiq ought to apply to the evaluation of key evidence in Razak Ali's case.  From her submission:

[T]here are significant factual distinctions between the Barhoumi case and the present one, notably that while both Barhoumi and appellant here, were captured in the same raid, that is the only fact in common. Barhoumi admitted that he trained in several military training camps in Afghanistan including the Khalden camp, and that the name attributed to him in the so-called "al-Suri diary" was a name that he used, neither of which applies here. In the present case, appellant's challenge to the reliability of the "al-Suri diary" goes to the heart of his contention that, even if this Court were inclined to find the “diary” reliable, there is no competent evidence that anything in that document refers to Petitioner, and hence, the District Court’ holding that the government submits to this Court has no bearing on Petitioner’s case.

Arguments will be held before Circuit Judge Brett Kavanaugh,  as well as Senior Circuit Judges Stephen Williams and Harry Edwards.  Razak Ali's will be the last of three oral arguments in front of that panel on Friday morning.