Tomorrow morning, the D.C. Circuit Court of Appeals will hear oral arguments in Obaydullah v. Obama, one of the few Guantanamo habeas cases that's still moving in the lower courts. There was a time, not so long ago, when these cases were proceeding in a flood; that flood has been reduced to a trickle, as members of the detainee bar realize there is little reason to push cases they have little prospect of winning. Obaydullah is an exception. Back in 2010, U.S. District Judge Richard Leon issued an opinion denying him a writ of habeas corpus. As Judge Leon summarized the case,
U.S. forces, acting on tips from various intelligence sources, conducted a nighttime raid at the petitioner's home. During that raid, U.S. forces secured from his person a notebook containing certain diagrams that appeared to be wiring designs for building lethal improvised explosive devices ('IEDs'). In addition, U.S. forces found a stash of 23 anti-tank mines buried in an outdoor pit close to petitioner's home.
They also found a car with dried blood on the seats. And while Obaydullah denied any involvement in insurgent activity, Judge Leon concluded that,
the combination of the explosives, the notebook instructions and the automobile with dried blood all fit together to corroborate the intelligence sources placing . . . the petitioner . . . at the scene aiding fellow bomb cell members who had been accidentally injured while constructing an IED. Thus, combining all of this evidence and corroborated intelligence, the mosaic that emerges unmistakably supports the conclusion that it is more likely than not that petitioner Obaydullah was in fact a member of an al Qaeda bomb cell committed to the destruction of U.S. and Allied forces.
The case is now before a three-judge panel consisting of Judges David Sentelle, Karen LeCraft Henderson, and Merrick Garland. It has, however, taken some twists and turns on its way to the D.C. Circuit. As Ritika explained in this post,
Obaydullah’s lawyers filed a motion under Rule 60(b)(2) in the the district court on February 8, 2012, trying to reopen the record because of “additonal exculpatory information uncovered in a recent investigation.” The motion argues that “the newly-discovered evidence. . . completely refutes a key finding supporting the Court’s denial of Obaidullah’s habeas petition, as well as the Court’s denial of Obaidullah’s motion for reconsideration. The other newly-discovered evidence similarly undermines the Government’s evidence against Obaidullah.”
What is this “newly discovered evidence”? This declaration from Lieutenant Commander Richard Pandis of the U.S. Naval Reserve, an investigator detailed to Obaydullah’s case, summarizes the defense’s new material.
The government has since responded, though its response is not yet public. But back at the D.C. Circuit, we have to pretend that all of that hasn't happened--since it's not part of the record on appeal. Obaydullah submitted his appellant brief back in November, and summarized his argument as follows:
First, the district court deprived Obaidullah of a meaningful opportunity to challenge his detention by denying his request for discovery on two critical issues: (1) the reliability of the undisclosed pre-raid intelligence and its source and (2) coercion during the raid resulting in statements by Obaidullah on which the district court and Government relied. Second, the district court improperly presumed the accuracy of the military and intelligence reports on which the Government relied, further depriving Obaidullah of a meaningful opportunity to challenge his detention. Third, the district court overlooked fundamental flaws in the Government's evidence, including its coerced origin and the court's inability to evaluate its reliability. As a result, the court erred in ruling the Government carried its burden of proving Obaidullah was part of al Qaeda. Therefore, this Court should reverse the judgment with directions to grant Obaidullah's habeas petition. At a minimum, the Court should reverse for further proceedings that exclude both the uncorroborated pre-raid intelligence and Obaidullah's coerced statements during the July 2002 raid.
The government responded in its brief by rejecting all of these arguments, contending that "the District Court's finding that Obaydullah was part of Al Qaida was well supported by the evidence" and defending Judge Leon's handling of the petitioner's discovery requests:
Obaydullah was plainly a member of an al-Qaida bomb cell, and the district court did not commit clear error in concluding otherwise. U.S. intelligence learned that an al-Qaida bomb cell was operating [REDACTION]. Based on this intelligence, U.S. forces then raided Obaydullah's compound in Mulani, where they captured Obaydullah and found substantial evidence verifying that intelligence. Indeed, there were numerous anti-tank mines buried on Obaydullah' s property, other bomb-making supplies in the compound, and Obaydullah was apprehended with a notebook on his person that contained instructions for converting anti-tank mines into remote-detonated IEDs. [REDACTED] Other parts of the pre-raid intelligence were verified as well. Thus, the district court surely did not commit clear error in crediting the pre-raid intelligence about the al-Qaida bomb cell. And while Obaydullah's brief discusses minor alleged "discrepancies" between the intelligence and what was found during the raid, these differences largely result from his misreading or misunderstanding of the pre-raid intelligence, and are insubstantial.
Furthermore, Obaydullah repeatedly lied about the origins of the mines and the notebook found. During the raid he claimed that "Karim" gave him the mines and the notebook, while at Guantanamo he told completely different stories. And while his appellate brief tries to claim that his in-raid statements were the product of coercion, Obaydullah himself never made such a claim of coercion in his declaration or any testimony. In any event, even after he claims he started telling "the truth" at Guantanamo, his explanation for the mines was constantly shifting and changing. And his explanation for the notebook was soundly refuted by the evidence. The district court was thus quite correct to find Obaydullah not credible.
Obaydullah's complaints about discovery "also lack merit and fail to establish that the district court abused its discretion," the government argues. "And in any event, even if there somehow was an abuse of discretion, that error was harmless in light of the compelling evidence verifying the intelligence and the other overwhelming evidence against Obaydullah."
In Obaydullah's reply brief, the detainee's lawyers begin their counterattack as follows:
The District Court fundamentally misconstrued the preraid intelligence on which Obaidullah's detention is primarily based, wrongly believing the intelligence placed Obaidullah at the scene of an accidental lED explosion, ferrying injured bomb cell members to the hospital. [REDACTED] The government makes no attempt to defend or even address the district court's foundational mistake. The court's clear error poisoned its view of the entire case, requiring reversal.
Moreover, the district court clearly erred in concluding the Government's evidence corroborated the pre-raid intelligence, whose source the Government refused to disclose to Obaidullah or his counsel. Only the intelligence provided by the undisclosed source arguably allows the drawing of a link between Obaidullah and al Qaeda. In order to carry its burden of proving Obaidullah was "part of" al Qaeda, the Government was required to provide evidence corroborating this undisclosed intelligence. Yet the Government's evidence cannot bear this weight, or support the district court's conclusion that Obaidullah was not credible. As one example, in intelligence reports on which the Government relies, Sgt. [REDACTED] directly contradicted himself in recounting the timing of Obaidullah's statements during the July 2002 raid, statements on which the district court, in tum, relied in its decision. As a result, even taken together, the Government's evidence does not corroborate the pre-raid intelligence.
Obaydullah also renews his discovery complaints, arguing that,
Last, the district court's denial of Obaidullah's discovery requests deprived him of a meaningful opportunity to challenge (1) the credibility of the undisclosed intelligence source and (2) the Government's use of Obaidullah's coerced statements during the July 2002 raid. In arguing it would have prevailed even without the undisclosed intelligence or Obaidullah's statements, the Government demonstrates its own fundamental misunderstanding of (l) the showing required to justify indefinite detention and (2) the basis for the district court's decision to permit Obaidullah's continued detention.
Arguments tomorrow will be given by Benjamin M. Shultz on behalf of the government and by Lisa R. Jaskol on behalf of Obaydullah. Arguments will begin in open session and will move to closed session for classified arguments afterwards.